MANUAL 

FOR 

COURTS-MARTIAL 

UNITED STATES 

Effective 31 May 1951 
TABLE OF CONTENTS 

Key to references, citations, and abbreviations- ---_ --- _ - - - - _- -- -- ----- Executive order- --------- --------_- ---------- - -------_--- --------- . . . . .. Chapter I. Mllitary jurisd~ct~on ---- - - -- ------ - - - - -- - - - - - - - - -- -- --- - - 

Appointment of reporters and interpreters--- - - _ - _ _ - - _ - -- - _ _ - _ - - 

Chapter IV. Jurisdiction of courts-martial-- - ----------- -- ------------ 

Sources, nature, and requisites- _ --- _ - ----__----_ -. -__--__----- 

Jurisdiction as to persons-- ---- -- -- - - ---- --- -- - -- - - -- -- - - - - --- 

Jurisdiction as to contempts- - ----_-------------- ---------- --- 

Termination of jurisdiction- - -- ---- -------- --- - _- _----- _ _ - - --- 

Exclusive and nonexclusive jurisdiction ----- --- - - --- - -- _- _- _ - - - - 

Reciprocal jurisdiction- - -- ---- -- ------------ - - - - -- -- -- -- -- - - - 

Jurisdiction of general courts-martial ------ -- -- - - - - --- - - - - - - - --- 

Jurisdiction of special courts-martial ---- - - - - - - - --- - - - -- - -- - - - -- 

Jurisdiction of summary courts-martial ......................... 

Chapter V. Apprehension and restraint- - --------- - - --_-------_-___-- 

Scope----------------.------------------------------------- 

General-..-----------..--------__--------_------------_---_-- 

Apprehension----------------.-----------------------_------ 

Restraint--------------------_---------.-_------------------ 

Arrest and confinement ---- -- - - - - - - - - - - - - - - - - -- - - -- - - - - - - - - - - - Duration and termination- - - - --------- _ _ _--- --- - --__ __ _- ---- - 

Apprehension of deserters by civilians- - - - - - - - - - - - - - - - - - - - - - - - - - 

Chapter VI. Preparation of charges ---------- ------------- ----------- 

Definitions--------------,--.------------------_------------- 

When preferred---------------------____-------- 

General rules and suggestions - - - - - - -. -- - - - - - - - - - - - - - - - - - - - - - - - 

Drafting of charges - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

Drafting of specifications - - .. - - - - - - - - -. - - - - - - - - - - - - - - - - - - - -- -- - 

Chapter VII. Submission of and action upon charges - - - - _ - - - - - - - - - - - - - 

Initiating and preferring charges ----- - ......................... 

Basic considerations- - - - -- - - - ------ - .--- --- - - - - -- -- ---- ---- - Action by person having knowledge of a suspected offense- - - - - - - - 

Action by commander exercising immediate jurisdiction under 

Article 15-----------1------------------------------------- 

Action by officer ex~rcising summary court-martial jurisdiction- - - - Investigation of charges- - - - - - - - -- - - - - - - - -- - - - - - - -- - -- -- - - --- - 

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Action by officer exercising general court-martial jurisdiction-- - - - - 
Chapter VIII. Appointment of courts-martial ---------- --------------- 

Appointing orders ------- - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - Changes in personnel ----------- -- -- -- --- - ---- - - - -- --- - - - 

Instructing personnel of court--- - -- -- ---- -- ---- -- -- --- - - -- _ . . - Chapter IX. Personnel of courts-martial -----------------__--_---_-_ - - 

Law officer -------------__--------------- President---------------..-..---..----------------_------_----- 

Members----------------------------------------------__--- . . Counsel; general provisions ------- -- - - ---- ---- - - - - - - - -- - - -- - - -- 

Suspension of counsel -------- _ _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

Trial counsel-----------------------------------------_--_--- 

Assistant trial counsel--- -- -- --_- ---- ---------- ---- -- ------ --- 

Defense counsel _-___----_-_ --------- ------ --- - ---- --------- -- 

Assistant defense counsel ....................... --------------- 

Counsel for the accused -_--------------- _---- ------- - -- 

Reporter---------------------------------------------------- 

Interpreter----__-_------------------------------------------ 

Guards, clerks, and orderlies --------- - - - -- - - -- - - -- -- -- -- --- - - - - Chapter X. General procedural rules - - - -- -- ----- - -- -- -- - - _- -- - _ - Reference to convening authority ---- - - - -- -- -- - - _ --- -- -- ---- - - - Miscellaneous matters---------------------------------------- 

B Introduction of evidence ------------ - - - ---- -- - - - - -- -- -- -- - - - - - Action when evidence indicates offense not charged ---__---_--- --- 

Withdrawal of specifications ------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - Interlocutory questions othel' than challenges ------- __ -- - ----- --- Continuances------------------------------------------------ 

Chapter XI. Organization of the court and arraignment of the accused--- 

Assembling the court ---------------- -- -- -- ------------------- 

Attendance and security of accused--- _ - _ _ _ _ __ _ - - - - - -- - - - - -- --- 

Preliminary organization of the court ----------- - -_---- --------- 

Witness for the prosecution- - -- - --------------_ --------------- 

Investigating officer -------- - - - - - __-- -- -- ---- -- - - ---- -- -- -- -- -- - 

Arraignment------------------------------------------------ 

Chapter XII. Pleas and motions .................................... 

General----------------------.------------------------------ 

Motions raising defenses and objections ------------ _- --___--- _-- 

Motions to dismiss ........................................... 

Motions to grant approprirtte relief_---______-_-IIIIIIIIIIIIIIII 

Pleas------------------------------------------------------- 

Motions predicated upon the evidence ----- ---- ---- - - - - - - --- - --- 

Chapter XIII. Matters related to findings and sentence _--_---___---- 

Arguments-----------------------------------------_-------- 

Instructions-_ _ .. _ _ .. - - - - - - - .. - . - - - . - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

Findings----------------..---.--------------:11111111

Presentencing procedure-- - .. - - - _ - -- - - - - -- - - - - - - - - - - -- - - - - - - - -- Sentence---------------------------------------------------- 

Conclusion of the trial ---------_ ----- -------- ---- -- ----------- 

Chapter XIV. Procedure of inferior courts-martial ---------- ----------- Special courts-martial- - - - - - --- - - -- - -------- - - - - - - - -- - - ---- - -- Summary courts-martial ----- -- - - -- - - -- - ---- 7---- - - -- -- ------- 

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Chapter XV. Procedural aapects of revision proceedings, rehearings, and 

Revision---------------------------------------------------- 

Rehearings and new trials ................................ --- .. 

Chapter XVI. Records of trial ...................................... 

General courts-martial- - - - -- ------ ------ -- --- - -- -- -- -- -- ---- - Inferior courts-martial- - - - _- ---- - -- - ---- ---- -- - -- - - - - - - - - - - - - 

Chapter XVII. Initial review of and action on records of trial-----..-- -. - 

Who may take initial action- .. .............................. -- 

Reference to staff judge advocate or legal officer --------------_-_ Miscellaneous powers and duties of the convening authority - - - - - - Examination of findings of guilty- ............................. Powers of the convening authority with respect to the sentence---- 

Forms of action and related matters- - ------ ------------------- 

Orders and related matters- - - .. - - -------- _- ---- - -------- Disposition of the record and related matters- - - -- - ------ -- -- - .. . 

Chapter XVIII. Action- ---------_------------_-_---------- 

Ordering rehearing-:-- - - - - -- - - _ _. - _ _ - _ _ _ _ _ - - - - - - - - - - - - - _ _ -. _ - - 

Place of confinement------_---------------_-_-_-------------- 

Chapter XIX. Action after promulgation ............................. 

Review of sentences and filing of record~ of special and summary 

courts-martial-- - - - - - - - - - - - -. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

Correction of records of trial subject to appellate review-- - - - - _ - - - Reports in certain cases ........................... - - ---- -- -. - 

Miscellaneous matters ---- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

Chapter XX. Appellate review-Execution of sentences-- - _- - -. - --- - -- - 

Preliminary action --_---------------- - ------------ ----------- 

Review by the board of review ................................ 

Review by the court of military appeals ........................ 

Appellate counsel-------------------------------------------- ' Review in the office of the Judge Advocate General -_------------ 

Branch offices----------------------------------------------- 

Commutation, remission, and suspension- - - - _ - -_ -_ -- -- - - --- - - -- 

Court-martial orders ---- -- _ _ -------. . . __ _ _ - - - - _ ,- ----- --- - -- 

Finality of court-martial judgments--- _ - - - _ _ _ - __ _ --- -- -- -- -- --- 

Chapter XXI. New trial and related matters- ------ --_-- ------------- 

Offenses committed after 30 May 1951 ------_-_..--------------- 

World War I1 offenses - - - - - - - .. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

Right of dismissed officer to trial by court-martial --------------- 

Chapter XXII. Oaths ----------.-------------------------

Oaths in trials by courts-martial ----------_---- - -- --..---------- 

Authority to administer oaths -----. -- ---------- ------------- -- 

Forms of oaths---------.-.------.--------------------------- 

Chapter XXIII. Incidental matters ------- - - ---- -- -- - - - - -- ---- - - - - -- - 

Attendance of witnesses-.. - .----- - -- ---- - - -- - - - - - - -- ---- ---- - 

Employment of experts ---.------- - - - -- -- -- -- - - - - ----- - -- -- - - - . . Deposit~ons- .. _ - - - _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -, - -- - - - - - - 

Expenses of courts-martial -------- - -- ----- - -- -- ---------- ----- 
Chapter XXIV. Insanity ........................ - .--- - --------------- General consideration---------------------------------------- 

Inquiry before trial--- ---------- ............................. 

Inquiry by court-------------------------------------------- 

Effect of mental impairment or deficiency upon sentence- - - - - - - - - Action by convening or higher authority ........................ 

Chapter XXV. Punishments -------_-- -............................. 

General lilpitations- - - - - _ - - - - - _ - - - - - - - --- - - - - - -- - - -- - - -- - - - - - 

Miscellaneous limitations- -- - - - - - - - . - -- ---- - - -- - - - - --- - - - -- - -- Maximum limitations of punishments- - - -- -- - - - - --- - - - - - - - -- - -- Chapter XXVI. Non-judicial punishment- - - - -- - -- - - - - - - -- - - -- - - - - - - - 

Authority 

Policies generally applicable ------ - - - - ------ -- - -------------- -- 

Effect of errors _---------..-------......------------------------ 

Punishments_----------------------------------------------- 

Right to demand trial ----_ .--------------------- ------------- 

Procedure-------------------------------------------------- 

Appeak---------------------------------------------------- 

Miscellaneous----_------------------------------------------ 

Chapter XXVII. Rules of evidence --------__ - - .----------------

Chapter XXVIII. Punitive articles- - __ ----- - .. . - -- -------- -- - --- ---- - 

Chapter XXIX. Habeas corpus-----_.---------_-------------------- 

1. Constitution of the United Stat& of America-- _ _-------- -_- -- ----- 

2. The act of 5 May 1950----------.------------------------------ 

3. Punishment under Article 15- -- -- -- 1- ---- ---- -- - --------- - - --- -- 

4. Forms for orders appointing courts-martial ----- ------------------- 

5. Charge sheet-------_------------------------------------------ 

6. Forms for charges and specifications ------------- ----------------- 

7. Investigating officer's -report- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

8. Procedure for trials before general and special courts-martial- - - -- - - - 9. Guide for record of trial by general court-martial- ----------..------ 

10. Guide for record of trial by special court-madial-- .. - --------- ------ 

11. Form for record of trial by summary court-martial ----------------- 

12. Commonly included offenses ---- - --- -- - - - - _- - - - - - - - - - - - - - -- - - - - - - - 

13. Forms ofsentences---------..----------------------------------- 

14. Forms for action by convening authority ...................... .-- 

15. Forms for court-martial orders ................................... 

16. Report of proceedings to vacate suspension ----------- ------------- 

17. Subpoena----------------------------------------------------- . . 18. Depos~t~on---------__------------------------------------------- 

19. Warrant of attachment ......................................... 

Index------------------------------------------------------------ 
KEY TO REFERENCES, CITATIONS, AND 

ABBREVIATIONS 

The Manual for Courts-Martial, United States, 1951, may be cited 

as "MCM, 1951." 

In the manual the Uniform Code of Military Justice is referred to as 

"the code." 

The terms defined in Article 1 of the code are used throughout the 

manual in the sense of the respective definitions unless the context indicates to the contrary. 

In the manual references and citations appear in the following 

forms : 

Referenu or caation 

An article of the code 

A paragraph of the manual 

Plural paragraphs of the manual 

A paragraph of the manual and 

an article of the code 

Plural articles of the code 

A chapter of the manual 

A paragraph and an appendix of 

the manual 

An appendix of the manual 

Plural appendices of the manual 

In open tezt 

Article 15 

5a (2) 

5a (2), (5) and (6), and 

5b (3) 

9 and Article 2 

Articles 65, 66, and 69 

chapter I1 

321 (1) and appendix 3 

appendix 2 

appendices 5 and 6 

In parentheses 

(Art. 15) 

(5a (2)) 

(5a (2), (5) and (61, 

5b (3)) 

(9; Art. 2) 

(Arts. 65, 66, 69) 

(ch. 11) 

(321 (1) ; aPP. 3) 
EXECUTIVE ORDER 10214 

PRESCRIBING THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 

1951 

By virtue of the authority vested in me by the act of Congress 

entitled "An act to unify, consolidate, revise, and codify the Articles 

'of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard, and to enact and establish a Uniform Code of Military Justice," approved May 5,1950 (64 Stat. 107), 

and as President of the United States, I hereby prescribe the followmg Manual for Courts-Martial to be designated as "Manual for 

Courts-Martial, United States, 1951." 

This manual shall be in force and effect in the armed forces of 

the United States on and after May 31, 1951, with respect to all 

court-martial processes taken on and after May 31, 1951: Provided, 

That nothing contained in this manual shall be construed to invalidate any investigation, trial in which arraignment has been had, or 

other action begun prior to May 31, 1951 ; and any investigation, trial, 

or action so begun may be completed in accordallce with the provisions 

of the applicable laws, Executive orders, and regulations pertaining 

to the various armed forces in the same manner and with the same 

effect as if this manual had not been prescribed: Provided ficrther, 

That nothing contained in this manual shall be construed to make 

punishable any act done or omitted prior to the effective date of this 

manual which was not punishable when done or omitted: Provided 

further, That the maximum punishment for an offense committed 

prior to May 31, 1951, shall not exceed the applicable limit in effect 

at the time of the commission of such offense: And provided further, 

That any act done or omitted prior to the effective date of this manual 

which constitutes an offense in violation of the Articles of War, the 

-Articles for the Government of the Navy, or the disciplinary laws 

of the Coast Guard shall be charged as such and not as a violation 

of the Uniform Code of Military Justice; but, except as otherwise 

provided in the first proviso, the trial and review procedure shall 

be that prescribed in this manual. 
chapter I 

MILITARY JURISDICTION 

SOURCES-EXERCISE 

1. SOURCES.-The sources of military jurisdiction include the 

' Constitution and international law. International law includes the 

law of war. The specific provisions of the Constitution relating to 

military jurisdiction are found in the powers granted to Congress, in 

the authority vested in the President, and in a provision of the fifth 

amendment. 

2. EXERCISE.-Military jurisdiction is exercised by a belligerent 

occupying enemy territory (military government) ; by a government 

temporarily governing the civil population of a locality through its 

military forces, without the authority of written law, as necessity 

may require (martial law) ; by a government in the execution of that 

branch of the municipal law which regulates its military establishment (military law) ; and by a government with respect to offenses 

against the law of war. 

The agencies through which military jurisdiction is exercised 

include : 

Milizary Commissions and Provost Courts for the trial of offenses within their respective jurisdictions. Subject to any 

applicable rule of international law or toeany regulations prescribed 

by the President or by any other competent authority, these tribunals mill be guided by the applicable principles of lam and rules 

of procedure and evidence prescribed for courts-martial. 

Courk-Martial-General, Special, and Summary-for the trial 

of offenders against military lam and, in the case of general courtsmartial, of persons who by the law of war are subject to trial by 

military tribunals. 

Commanding Officers and Officers in Charge exercising nonjudicial powers under Article 15. 

Courts of Inquiry for the investigation of any matter referred 

to such court by competent authority. See Article 135. Under 

the provkions of Article 140, the authority to promulgate regulations for the governance of courts of inquiry is hereby delegated 

to the Secretaries of the Departments. 
Chapter I1 

COURTS-MARTIAL 

CLASSIFICATION-COMPOSITION 

3. CLASSIFICATION.-Courts-martial are classified as general, 

special, and summary courts-martial (Art. 16). 

4. COMPOSITION.-a. Who mag serve as members.-Any officer on active duty with the armed forces shall be eligible to serve on 

courts-martial (Art. 25a). Any warrant officer on active duty with 

the armed forces shall be eligible to serve on general and special 

courts-martial for the trial of any person other than an officer (Art. 

256). Any enlisted person on active duty with the armed forces shall 

be eligible to serve on general and special courts-martial for the trial 

of any enlisted accused who has personally requested in writing, prior 

to the convening of the court (6li), that enlisted persons serve on it 

(Art. 250). 

No distinction exists among the various classes of officers or of warrant officers and enlisted persons on active dnty with the armed forces, 

but the term "active duty" as herein used refers to the status of being 

in the active Federal service of any of the armed forces under a competent appointment or enlistment or pursuant to a competent 

muster, order, call, or induction. Retired personnel of any Regular component and personnel of any Reserve component of the 

armed forces are eligible to serve on courts-martial only when they ' 

are in an active duty status. Personnel of the Coast and Geodetic 

Survey and Public Health Service are eligible to serve on courtsmartial only when they are on active duty and assigned to duty with 

an armed force. 

No person shall be eligible to sit as a member of a general or special 

court-martial when he is the accuser or a witness for the prosecution or 

has acted as investigating officer or as counsel in the same case (62f; 

Arts. 1 (Il), 25d (2) ) or, in case of a rehearing or a new trial, if he 

was a member of the court which first heard the case (62f; Art. 636). 

No enlisted person may sit as a member of a court-martial for the trial 

of another enlisted person who is a member of the same unit (Art. 25c 

(1) ). The word "unit" as herein used shall mean any regularly organized body as defined by the Secretary of a Department, but in no . 

case shall it be a body larger than a company of the Army, a squadron 

of the Air Force, or a ship's crew, or a body corresponding to one of 

them (Art. 25c (2) ). 
Departmental definitions made pursuant to Article 250 (2) are as 

follows : 

Army.dA "unit" of the Army in the sense of Article 25c is a 

company, battery, troop, detachment, or other organization of the 

Army for which a separate morning report is prepared. 

Navy and Coast @uizrd.-A "unit" of the Navy or the Coast Guard 

. in the sense of Article 250 is a ship, company, detached command, 

or other organization for which a separate unit personnel diary is 

prepared. 

Air Force.-A "unit" of the Air Force in the sense of Article 25c 

is a squadron or other organization of the Air Force for which a 

separate morning report is prepared. 

Arrest, confinement, or suspension from rank renders a person 

ineligible to sit as a member of a court-martial. For other cases in 

which a person should not sit as a member of a general or special 

court-martial and for grounds for challenge, see 62f. 

The availability of certain persons for detail may be restricted by 

departmental regulations. 

b. Number of members.-General courts-martial shall consist of 

a law officer and any number of members not less than five. The law - officer is not a member of the court. Special courts-martial shall consist of any number of members not less than three. Summary courtsmartial shall consist of one officer (Art. 16). 

c. Rank of members.-An officer may be tried only by a courtmartial composed of o5cers. A warrant officer may be tried by a 

court-martial composed of officers or of officers and warrant officers 

(Art. 25a, b) . When it can be avoided, no person in the armed forces 

shall be tried by a court-martial any member of which is junior to 

him in grade or relative rank (Art. 2-50! (1) ) nor, in the case of an 

officer, by those below him on the same promotion list. Whenever 

practicable, the senior member of a general or special court-martial 

should be an officer whose rank is not below that of lieutenant of the 

Navy or Coast Guard or captain of the &mi, Air Force, or Marine 

= Corps. An enlisted person who has requested in writing that enlisted 

persons serve on the general or special court-martial which will tyy 

his case shall not be tried by a court the membership of which does 

not include enlisted persons in a number comprising at least onethird of the total membership of the court unless eligible enlisted 

persons cannot be obtained because of physical conditions or military 

exigencies. Where such persons cannot be obtained the court may be 

convened and the trial held without them, but the convening authority 

shall make a detailed written statement, ta be appended to the record, 
q 4e CHAPTER II 

stating why they could not be obtained (Art. 25c (1)). For example, 

where the only enlisted persons on duty at an isolated station or on 

board a ship at sea are members of the same unit (Art. 250 (2)) as 

the accused and no other enlisted persons can be obtained without 

manifest injury to the service, the convening authority may, in his 

sound discretion, direct that the trial be held without enlisted members. Mere inconvenience is not a ground far proceeding with a trial 

without enlisted persons. The detailed written statement appended 

to the record stating that enlisted persons could not be obtained as 

members is subject to review when the record of trial is examined 

under Articles 65, 66, and 69. 

Whenever practicable, a summary court should be an officer whose 

rank is not below that of lieutenant of the Navy or Coast Guard or 

captain of the Army, Air Force, or Marine Corps. 

d. Qualification of members.-When convening a court-martial, * 

the convening authority shall appoint as members thereof such persons as, in his opinion, are best qualified for the duty by reason of 

age, education, training, experience, length of service, and judicial 

temperament (Art. 25d (2) ) . If it is anticipated that complicated issues of law will be presented 

before a special court-martial, the convening authority should give 

consideration to appointing as a member of the court, if practicable, 

a lawyer qualified in the sense of Article 27c. As a general rule the 

convening authority should not, however, delay the disposition of 

cases in order to await the availability of such a lawyer. The determination of the convening authority as to practicability shall be final. , e. Law officer for general court-martial.-The authority convening a general court-martial shall appoint as law officer thereof an 

officer on active duty who is a member of the bar of a Federal court 

or of the highest court of a State of the United States and who is 

certified to be qualified for such duty by the Judge Advocate General 

of the armed force of which he is a member (Art. 26a). 

The order appointing a general court-martial will expressly state 

that the law officer is certified as qualified for such duty by the Judge 

Advocate ~eneral of the armed force of which he is a member. See 

appendix 4 for the form of statement of qualification. 

Failure to appoint a law officer of a general court-martial who is / qualified as prescribed in Article 26a renders any proceeding of such 

court void. 

No person shall be eligible to act as law officer in a case if he is the 

accuser (Art. 1 (11)) or a witness for the prosecution (63) or has 

acted as an investigating officer or counsel in the same case (Art.. 

26a). An officer who has served as a member should not be appointed 
COURTS-MARTIAL-CLASSIFICATION, COMPOSITION 7 49 

as law officer for a rehearing (92) or a new trial (109, 110) of the 

same case. Prior participation in the same case as law officer, 

staff judge advocate, or legal officer to the convening authority may 

be a ground for challenge for cause. See 62f. 

f. Appointment of members and law officers from other commands of the same armed force.-The convening authority may, 

with the concurrence of their proper commander, appoint as members 

of a court-martial or as law officer of a general court-martial eligible 

persons of the same armed force who are not otherwise under his 

command. Concurrence of the proper commander may be oral and 

need not be evidenced by the record of trial. 

g. Appointment of members and law officers from other armed 

forces.-(1) GeneraZ poZicy.-Members of courts-martial should be 

members of the same armed force as the accused. There is no policy 

restriction on the appointment of law officers from among qualified 

officers under the command of the convening authority irrespective 

of the armed force of which such law officers are members. Whenever 

it is necessary to convene a court composed of members of more than 

one armed force, at least a majority of the membership of a general 

or special court-martial sitting for the trial of a case should be members of the same armed force as the accused unless exigent circumstances render it impracticable to obtain such members without manifest injury to the service. . (2) Appointment of members and law officers from within a joint 

command or joint task force.-The commanding officer of a joint 

command or joint task force who has been specifically empowered by 

the President or the Secretary of Defense to exercise jurisdiction 

over personnel of another armed force (13) may, in accordance with 

the policy stated in 4g (1) above, appoint as members of courtsmartial or as the law officer of a general court-martial, eligible persons under his command who are members of the same armed force 

as the accused. When, to avoid manifest injury to the service, it is 

necessary to appoint members of any other armed forces to serve 

on such a court-martial, such appointments may be made as an exception to the policy announced in 4g (1). The commanding officer of 

a subordinate joint command or joint task force who has been authorized by the superior commander to exercise reciprocal special and 

summary court-martial jurisdiction (13) may, subject to similar restrictions, appoint as members of such courts-martial any eligible 

, persons of his command. The superior commander may also make 

available to such subordinate convening authority other persons who 

are members of the accused's armed force in order that the court ' 

may be constituted in accordance with the policy announced in 4g (1). i 
49 CHAPTER II 

(3) Appointment from cmmands of other armed forces.-In exceptional circumstances, with the concurrence of the Secretaries of 

the other Departments concerned, the Secretary of a Department may 

authorize a convening authority responsible to him to appoint personnel of other armed forces to serve on courts-martial in cases not 

contemplated by the provisions of 4g (2). Such a convening authority may appoint as members of courts-martial, and as law officer 

of a general court-martial, eligible members of other armed forces 

from among persolme1 made available for the purpose by their proper 

commander. For example, if a separate wing of the Air Force is 

temporarily based near an overseas naval station, and if the only 

available officers in the vicinity eligible to act as law officers are law 

specialists assigned to the naval station, the wing commander may 

appoint as law officer of a general court-martial for the trial of an 

airman a law specialist from those made available to him for the purpose by the commanding officer of the naval station, provided the 

wing commander has been autl~orized by the Secretary of the Air 

Force, with the concurrence of the Secretary of the Navy, to appoint naval personnel to serve on courts-~nart~ial. 
Chapter 111 

COURTS-MARTIAL 

CONVENING AUTHORITIES-APPOINTMENT OF TRIAL COUNSEL, DEFENSE COUNSEL, ASSISTANTS-APPOINTMENT OF REPORTERS AND 

INTERPRETERS 

5. CONVENING AUTHORITIES.--a. General courts-martial.-(1) The President of the United States, the Secretary of a Department, and the commanding officers of commands designated in 

Article 22a may convene general courts-martial. 

(2) When a commanding officer is designated by the Secretary of 

a Department pursuant to Article 22a (6) or empowered by the President pursuant to Article 22a (7) to convene general courts-martial, the 

appointing order will cite snch authorization. See appendix 4 for 

form. 

(3) It is unlawful for an accuser to convene a general court-martial for the trial of the person so accused. When any commander who 

would normally convene the general court-martial is the accuser in a 

case, he shall refer the charges to a superior competent authority who 

will convene the court or designate another competent convening 

authority to exercise jurisdiction. A superior competent authority 

may convene the court to try any other case in a subordinate command 

if he so desires (Art. 226). Thus, if the exigencies of the service interfere with the prompt disposition of cases, a superior competent to convene general courts-martial properly may convene courts for the trial 

of cases arising in a subordsnate command. 

(4) An accuser is a person who signs and swears to charges, a 

person who directs that charges nominally be signed and sworn by 

another, or any other person who has an interest other than an official 

interest in the prosecution of the accused (Art. 1 (11)). No person 

will be ordered to sign and swear to charges if he does not believe the 

allegations therein to be true in fact to the best of his knowledge and 

belief. The person who signs and swears to charges is always an accuser. Whether a commander who convened the court is the accuser 

in other cases is a question of fact. Action by a commander which is 

merely official and in the strict line of duty cannot be regarded as sufficient to disqualify him. For example, a commander may, without 

becoming the accuser in the case, direct a subordinate to investigate 

an alleged offense with a view to formulating and preferring'approhpriate charges if the facts disclosed by snch investigation should warrant preferring charges. The commander may thereafter refer such 

charges for trial as in other cases. 
7 5b CHAPTER Ill 

(5) As Article 22 expressly designates those who have authority 

to convene general courts-martial, it follows that no one else has this 

authority and that anyone having this authority cannot delegate or 

transfer it to another. The authority of a commanding officer to convene general courts-martial is independent of his rank and is retained 

by him as long as he continues to be such a commander. The rules as 

to the devolution of command in case of the death, disability, or temporary absence of a commander are stated in departmental regulations. 

(6) An o5cer who has power to convene a general court-martial 

may determine the cases to be referred to it for trial and may dissolve 

it7 but he cannot control the exercise by the court of the powers vested 

in it by law. In this connection, see Article 37. He may withdraw any 

specification or charge at any time unless the court has finally terrninated the proceedings thereon by a finding or by a ruling which 

amounts to a finding of not guilty. See, however, Article 44c. 

6. Special courts-martial.-(1) Any person who may convene a 

general court-martial and the commanding officers of commands designated in Article 23a may convene special courts-mprtial. When empowered by the Secretary of the Department concerned, an officer in 

charge of a command of the Navy or Coast Guard may convene special 

courts-martial (Art. 23a (7) ) . (2) The principles stated in 5a (2) to 5a (6), inclusive, apply to 

special courts-martial. See Article 236 as to accusers. 

4-' (3) A squadron, battalion, or corresponding unit or command 

,:is "separate" or "detached" when isolated or removed from the immediate disciplinary control of a superior in such a manner as to make 

:its commander primarily the one to be looked to by superior authority 

',as the officer responsible for the discipline of the enlisted persons comJposing the command. Whenever there is doubt whether a command is 

detached in the sense of Article 23 the matter, if arising in the Army 

or the Air Force, will be referred to the officer exercising general courtmartial jurisdiction over the command, and if arising in the Navy or 

the Coast Guard, to the flag or general officer in command or the senior 

officer present who designated the detachment. Such determination 

shall be hal. The terms "separate" or "detached" are used in a disciplinary sense and are not necessarily limited to what constitutes 

separation or detachment in a physical or tactical sense. For instance, 

the commanding officer of a field artillery battalion which is part of 

an- army division, if responsible directly to the division commander 

R 

for the discipline of the battalion, may appoint special courts-martial 

even though there is a division artillery commander who controls the 

battalion in other matters. .Also, an air force squadron might be responsible directly to an air force for disciplinary matters although 

8 
COURTS-MARTIAL-CONVENING AUTHORITIES 7 6a 

responsible to a group for its operations. In such a case, the squadron 

would be separate in the sense of Article 23a (4). The power of the 

squadron or battalion commander to appoint such courts is subject to 

the power of superior competent authority to reserve to himself the 

right to appoint special courts-martial for any or all subordinate units 

and detachments in his command. 

(4) A subordinate commander may exercise his power to appoint 

special courts-martial unless a competent superior reserves that power 

to himself and so notifies the subordinate. 

c. Summary courts-martial.-Any person who may convene a general or special court-martial and the commanding officers of the commands designated in Article 24a may convene summary courts-martial. 

When empowered by the Secretary of the Department concerned, an 

o5cer in charge of a command of the Navy or Coast Guard may convene summary courts-martial (Art. 24a (4) ). Summary courtsmartial may, however, be convened in any case by superior competent 

authority when deemed desirable by him. When but one officer is 

present with a command or detachment he shall be the sumnlary courtmartial of that command or detachment and shall hear and determine 

all summary court-martial cases brought before him (Art. 24b), and 

no order appointing the court need be issued. When more than one 

officer is present, a subordinate officer will be appointed summary 

court-martial. 

If the convening authority of a summary court-martial or the summary court officer is the accuser of the person or persons to be tried, 

it is discretionary with the convening authority whether he will 

forward the charges to superior authority with a recommendation that 

the summary court be appointed by the latter ; but the fact that the 

convening authority or the summary court officer is the accuser in a 

particular case does not invalidate the trial. 

The principles stated in 5a (2), (5) and (6), and 56 (3) and (4) 

apply to summary courts-martial. 

6. APPOINTMENT OF TRIAL COUNSEL, DEFENSE COUNSEL, ASSISTANTS.--a. General.-For each general and special 

court-martial the authority convening the court shall appoint a trial 

counsel and a defense counsel, together with such assistants as he 

deems necessary or appropriate. No person who has acted as investigating officer, law officer, or court member in any case shall act 

subsequently as trial counsel, assistant trial counsel, or, unless expressly requested by the accused (6lf (4) ; app. 8a), as defense counsel or assistant defense counsel in the same case. No person who has 

acted for the prosecution shall act subsequently in the same case for 

hhe defense, nor shall any person who has acted for the defense act 
subsequently in the same case for the prosecution (Art. 27a). Unless 

the contrary affirmatively appears of record, a person who, between 

the time the case has been referred for trial and the trial, has been 

an appointed counsel or assistant counsel of the court to which the 

case has been referred, shall be deemed to have acted as a member 

of the prosecution or the defense as the case may be. A person who 

has acted for the accused at a pretrial investigation or other proceedings involving the same general matter is ineligible to act thereafter for the prosecution. An accuser, unless expressly requested 

by the accused (61f (4) ; app. Ba), shall not act as defense counsel 

or assistant defense counsel in the same case. 

The power of appointment under Article 27 cannot be delegated. 

The general principles of 4f and 4g (3) are applicable to the appointment of counsel and assistants. The commanding officer of a 

joint command or a joint task force may appoint any qualified officer 

of his command as a counsel or as an assistant counsel of a general 

or special court-martial irrespective of the armed force of which 

such officer is a member. 

6. Qualification of counsel of general courts-m&rtial.-A person 

who is appointed as trial counsel or defense counsel of a general courtmartial shall be a judge advocate of the Army or the Air Force, or a 

law specialist of the Navy or Coast Guard, who is a graduate of an 

accredited law school or is a member of the bar of a Federal court 

or of the highest court of a State; or shall be a person who is a member of the bar of a. Federal court or of the highest court of a State 

(Art. 27b (I)). I11 addition to this qualifkation, a person who is 

appointed as a trial counsel or defense counsel of a general courtmartial shall be certified as competent to perform such duties by the 

Judge Advocate General of the armed force of which he is a member 

(Art. 276 (2)). 

The term "judge advocate of the Army or the Air Force" as 

herein used shall be construed to refer to all officers of the Regular 

Army appointed in the Judge Advocate General's Corps, all nonRegular 05cers of any coniponent of the Army of the United States 

on active Federal duty assigned to the Judge Advocate General's 

Corps by competent orders, and all Regular Air Force officers belonging to that group of judge advocate officers of the United States Air 

Force constituting a Judge Advocate General's Department or designated judge advocates by appropriate orders, or non-Regular officers 

of any component of the Air Force of the United States on active 

Federal duty designated as judge advocates by appropriate orders or 

assigned to a Judge Advocate General's Department within the Air 

Force of the United States. The term "law specialist" as herein used 

10 

i 
COURTS-MARTIAL-CONVENING AUTHORITIES 7 6d 

shall be construed to refer to an o5cer of the Navy or Coast Guard 

designated for special duty (law). 

The'order appointing a general court-martial will expressly state 

the qualification of the trial counsel and the defense counsel as prescribed by Article 276. See appendix 4 for the form of statement of 

qualification. A statemept that counsel is certified as competent to 

perform such duties by the Judge Advocate General of the armed 

force of mhich he is a member is sufficient to show that the person so 

certified is fully qualified by reason of legal training or bar membership as prescribed by Article 276 (1). 

c. Qualification of counsel of special courts-martial.-Any officer not disqualified by reason of prior participation in the same case 

(6a) may be appointed trial counsel or defense counsel of a special 

court-martial. But if the trial counsel is qualified to act as counsel 

before a general court-martial, the defense counsel must be similarly 

qualified (Art. 276 (1) ) ; and if the trial counsel is a judge advocate, 

or a law specialist, or a member of the bar of a Federal court or of the 

highest court of a State, the defense counsel appointed by the convening authority shall be one of the foregoing (Art. 27c (2) ). 

The appointing order will expressly state whether trial counsel and 

defense counsel are or are not legally qualified lawyers in the sense of 

Article 27c. See appendix 4 for forms. Proof of the qualification of 

judge advocates, law specialists (see 6b), and officers certified as 

qualified by an appropriate Judge Advocate General pursuant to 

Article 27b (2) is on file in the office of the Judge Advocate General 

of the armed force of which the officer concerned is a member. The 

qualifications of other officers as members of the bar of a Federal court 

or of the highest court of a State (Art. 27c (2) ) will be determined 

by the convening authority before appointment on the basis of the 

officer's personnel records or by interrogation of the officer, or both. 

After such determination the officer concerned will report. any change 

in his qualification to the convening authority. The record of trial 

will show verification of the qualifications recited on the orders. See 

61e and' f and appendix 8a. 

d. Qualification of assistant trial counsel and assistant defense 

wunse1.-In general it is desirable that as many assistant defense 

counsel as assistant trial counsel be appointed, and that officers be 

appointed as assistant defense counsel and assistant trial counsel who 

have comparable military experience and legal qualifications. If the 

conduct of the prosecution or the defense in any case before a general 

court-martial devolves upon an assistant counsel, such assistant counsel must be qualified in the sense of Article 27b (Art. 38d, el. The 

conduct of the prosecution or defense does not devolve upon an as11 
- I 

CHAPTER Ill 

sistant if the trial counsel or defense counsel, as the case may be, is 

present in court. When the trial counsel or assistant trial counsel 

conducting the prosecution before a special court-martial is qualified 

as a lawyer in the sense of Article 27c, the defense counsel or, in his 

absence, the assistant defense counsel upon whom the conduct of the 

clefense has devolved, must be similarly qualified (Art. 38e). 

See 61f (2) for procedure as to inquiry into the qualifications of 

individual counsel for the defense in cases where the accused does not 

desire the services of the regularly appointed personnel of the defense. 

The appointing order for every general or special court-martial will 

expressly state whether assistant counsel are or are not legally qualified as lawyers in the sense of Article 27. See appendix 4 for form. 

Whenever appropriate, the qualifications of assistant counsel appointed for special courts-martial shall be determined and shown as 

prescribed in 60. 

7. APPOINTMENT OF REPORTERS AND INTERPRETERS.-Under such regulations as the Secretary of a Department may 

prescribe, the convening authority of a court-martial or military commission or a court of inquiry shall appoint qualified court reporters 

who shall record the proceedings of and testimony. taken before such 

court or commission. Under like regulations the convening authority 

of a court-martial, military commission, or court of inquiry may appoint one or more interpreters who shall interpret for the court or 

commission (Art. 28). 

The appointment and employment of reporters and interpreters 

may be effected by the convening authority personally or through a 

staff officer (including the trial counsel). The appointment of reporters may be oral and need not be shown in the record of trial or 

allied papers. 

Unless otherwise directed by the convening authority, a reportsr 

will not be appointed for summary courts-martial. The convening 

authority, when he deems it appropriate, may direct that a reporter 

not be used in special courts-martial. By regulations, the Secretary 

of a Department may require or restrict the appointment of reporters 

for summary and special courts-martial. See Article 19. 

See 114 for oaths and 49 and 50 for duties. See appropriate departmental regulation~ for compensation and other matters pertinent 

to the employment of reporters and interpreters. 
Chapter IV 

JURISDICTION OF COURTS-MARTIAL 

SOURCES, NATURE, AND REQUISITES-JURISDICTION AS TO PERSONS-JURISDICTION AS TO CONTEMPTS-TERMINATION OF JURISDICTION-EXCLUSIVE AND NONEXCLUSIVE JURISDICTIONRECIPROCAL JURISDICTIONAURISDICTION OF GENERAL COURTSMARTIAGJURISDICTION OF SPECIAL COURTS-MARTIAGJURISDICTION OF SUMMARY COURTS-MARTIAL 

8. SOURCES, NATURE, AND REQUISITES.-While courtsmartial have no part of the jurisdiction set apart under the article 

of the Constitution which relates to the judicial power of the United 

States, they have an equally certain constitutional source. They are 

established under the constitutional power of Congress to make rules 

for the government and regulation of the armed forces of the United 

States, and they are recognized in the provisions of the fifth amendment expressly exempting "cases arising in the land and naval forces" 

from the requirement as to presentment and indictment by grand 

jury. 

The jurisdiction of courts-martial is entirely penal or disciplinary. 

They have no power to adjudge the payment of damages or to collect 

private debts (126h). 

,/ "Courts-martial are lawful tribunals, with authority to determine 

finally any case over which they ,have jurisdiction, and their proceedings, when confirmed as provided, are not open to review by the civil 

tribunals, except for the purpose of ascertaining whether the military 

court had jurisdiction of the person and subject matter, and whether, 

though having such jurisdiction, it had exceeded its powers in the - 

sentence pronounced" (Grafton v. United States, 206 U. S. 333, 347- 

348; see also Hiatt u. Brown, 339 U. S. 103,110). 

The appellate review of records of trial provided by the code, the 

proceedings, findings, and sentences of courts-martial as approved, 

reviewed, or affirmed, as required by law, and all dismissals and discharges carried into execution pursuant to sentences by courts-martial 

following approval, review, or affirmation, as required by law, shall 

be final and conclusive, and orders publishing the proceedings of 

courts-martial and all action taken pursuant to such proceedings shall 

be binding upon all departments, courts, agencies, and officers of the 

United States, subject only to action upon a petition for a new trial . 

as provided in Article 73, and to action by the Secretary of a Department as provided in Article 74, and the authority of the President 

(A. 76). Only a Federal court has jurisdiction on writ of habeas 
R llb CHAPTER IV 

, corpus to inquire whether a court-martial has jurisdiction of the 

person and the offense or whether it exceeded its powers in the sentence 

adjudged. See chapter XXIX. 

The jurisdiction of courts-martial does not, in general, depend on 

where the offense was committed (Art. 5). See, however, Article 134 

as to crimes and offenses not capital (2136). Similarly, the jurisdiction of a court-martial with respect to offenses against military law 

is not affected by the place where the court sits. 

The jurisdiction of a court-martial-its power to try aid determine a case-and hence the validity of each of its judgments, is conditioned upon these indispensable requisites: That the court was 

appointed by an o5cial empowered to appoint it ; that the membership of the court was in accordance with the law with respect to number and competency to sit ofi the court; and that the court mas invested 

by act of Congress with power to try the person and the offense charged. 

9. JURISDICTION AS TO PERSONS.-As to persons subject to 

the code under Article 2 and the act of 3 March 1909 (35 Stat. 748), 

as amended (24 U. S. C. 20), see Article 2 and notes thereunder in 

appendix 2. In addition to the persons described in Article 2, certain 

persons whose status as members of the armed forces or as persons 

otherwise subject to the code apparently has been terminated may, 

nevertheless, be amenable to trial by court-martial. See Articles 3,4, 

and 73 and the notes thereunder. 

It is not necessary that an accused be a person subject to the code 

under Article 2 in order to be amenable to trial by court-martial for a 

violation of Article 83, 104, or 106. For the jurisdiction of general 

courts-martial to try persons who by the law of war are triable by military tribunals, see 14. 

10. JURISDICTION AS TO C0NTEMPTS.-A court-martial, 

provost court, or military commission may punish for contempt any 

person who uses any menacing words, signs, or gestures in its presence, 

or who disturbs the proceedings by any riot or disorder (Art. 48). 

See 118 (Contempts) . 11. TERMINATION OF JURISDICTION.-a. General rule.- 

The general rule is that court-martial jurisdiction over officers, cadets, 

midshipmen, warrant officers, enlisted persons, and other persons subject to the code ceases on discharge from the service or other termination of such status and that jurisdiction as to an offense committed 

during'a period of service or status thus terminated is not revived by 

re-entry into the military service or return into such status. 

b. Exceptions.-To this general rule there are, however, some exceptions which include the following : 
COURTS-MARTIAL4URISDlCTlON 7 llb 

Jurisdiction as to an offense against the code for which a courtmartial may adjudge confinement for five years or more committed 

by a person while in a status in which he was subject to the code 

ana for which he cannot be tried in the courts of the United States 

or any State or Territory thereof or of the District of Columbia is 

not terminated by discharge or other termination of such status 

(Art. 3a). .Jurisdiction under Article 3a should not be exercised 

without the'consent of the Secretary of the Department concerned. 

All persons in the custody of the armed forces serving a sentence 

imposed by a court-martial remain subject to military jurisdiction 

(Art. 2 ('7) ). 

If a person in the military service obtains his discharge from an 

armed force by fraud, he may be apprehended and tried by courtmartial for a violation of Article 83 (2). See 162. Upon conviction of said charge, such a person shall be subject to trial by courtmartial for any offense under the code committed.prior to the 

fraudulent discharge (Art. 36). 

Any person who has deserted from the armed forces shall not be 

relieved from amenability to the jurisdiction of the code by virtue 

of a separation from any subsequent period of service regardless of 

the type of dischargc under which such separation was accomplished (Art. 36). 

In those gases when the person's discharge or other separation 

does not interrupt his status as a person belonging to the general 

category of persons subject to the code, court-martial jurisdiction 

does not terminate. Thus when an officer holding a commission 

in a Reserve component of an armed force is discharged from that 

commission, while on active duty, by reason of his acceptance of a 

commission in a Regular component of that armed force, there being no interval between the periods of service under the respective 

commissions, there is no termination of the officer's military statusmerely the accomplishment, of a change in his status from that of a 

temporary to that of a permanent officer-and court-martial jurisdiction to try him for an offense committed prior to such discharge 

is not terminated by the discharge. Similarly, when an enlisted 

person is discharged for the convenience of the Government in order 

to re-enlist before the expiration of his prior period of service, military jurisdiction continues provided there is no hiatus between 

the two enlistments. A member of the armed forces who receives a 

discharge therefrom while serving without the continental limits 

of the United States and without the Territories enumerated in 

Article 2 (ll), and who immediately becomes a person accompanying, serving, or employed by the armed forces in such an oversea 

15 
712 CHAPTER IV 

area, remains amenable to trial by court-martial for offenses committed prior to his discharge because such discharge does not inter- . 

rupt his status as a person subject to the code. So also a dishonorably discharged prisoner in the custody of an armed force may be 

tried for an offense committed while a member of the armed forces 

and prior to the execution of his dishonorable discharge. 

c. Effect of voluntary absence from trial.-The accused's voluntary and unauthorized absence after the trial has been commenced in 

his presence by arraignment does not terminate the jurisdiction of 

the court which may proceed with the trial to findings and sentence 

notwithstanding his absence. In such a case the accused, by his 

wrongful act, forfeits his right of confrontation. 

d. Effect of termination of term of service.-Jurisdiction having 

attached by commencement of action with a view to trial-as by apprehension, arrest, codnement, or filing of charges--continues for 

all purposes of trial, sentence, and punishment. If action is initiated 

with a view to trial because of an offense committed by an individual 

prior to his official discharge--even though the term of enlistment 

may have expired-he may be retained in ihe service for trial to be 

held after his period of service would otherwise have expired. See 

Article 2 (1). 

12. EXCLUSIVE AND NONEXCLUSIVE JURISDICTION.- 

Courts-martial have exclusive jurisdiction of purely military offenses. 

But a person subject to the code is, as a rule, subject to the law applicable to persons generally, and if by an act or omission he violates the 

code and the local criminal law, the act or omission may be made the 

basis of a prosecution before a court-martial or before a proper civil 

tribunal, and in some cases before both. See 68d (Former jeopardy). 

The jurisdiction which first attaches in any case is, generally, entitled 

to proceed. 

Under such regulations as the Secretary of a Department may 

prescribe, a member of the armed forces accused of an offense against 

civil authority may be delivered, upon request, to the civil authority 

for trial (Art. 14a). See 97c and Article 146 as to the effect of such 

delivery to the civil authorities upon the execution of a sentence of a 

court-martial. See pertinent departmental regulations made pursuant to Article 14. 

Under international law, jurisdiction over members .of the armed 

forces of the United States or other sovereign who commit offenses in 

the territory of a friendly foreign state in which the visiting armed 

force is by consent quartered or in passage remains in the visiting 

sovereign. This is an incident of sovereignty which may be waived 
by the visiting sovereign and is not a right of the individual concerned. 

The provisions of the code conferring jurisdiction upon courtsmartial shall not be construed as depriving military commissions, 

provost courts, or other military tribunals of concurrent jurisdiction 

in respect to offenders or offenses that by statute or by .the law of war 

may be tried by such military commissions, provost courts, or other 

military tribunals (Art. 21). See Articles 104 and 106 for some 

instances of concurrent jurisdiction. 

13. RECIPROCAL JURISDICTION.-Each armed force shall 

have court-martial jurisdiction over all persons subject to the code. 

The exercise of jurisdiction by one armed force over personnel of 

another armed force shall be in accordance with regulations prescribed by the President (Art. 17a). 

In general, jurisdiction by one armed force over personnel of another should be exercised only when the accused cannot be delivered to 

the armed force of which he is a member without manifest injury to 

the service. Subject to this policy, the commander of a joint command or joint task force who has authority to convene general courtsmartial may convene courts-martial for the trial of members of another armed force when specifically empowered by the President or 

the Secretary of Defense to refer such cases for trial by courts-martial. 

Such a commander may, in his sound discretion, specifically authorize 

commanding officers of subordinate joint commands or joint task 

forces who are authorized to convene special and summary courtsmartial to convene such courts for the trial of members of other armed 

forces under such regulations as the superior commander may 

prescribe. 

Cases involving two or more accused who are members of different 

armed forces should not be referred to a court-martial for a joint or 

a common trial. 

As to the composition of a general or special court-martial for the 

trial of an accused who is a member of another armed force, see 4g. 

In all cases, departmental review subsequent to that by the oficer 

with authority to convene a general court-martial for the command 

which held the trial, where such review is required under the provisions of the code, shall be carried out by the armed force of which 

the accused is a member (Art. 17%). 

a 14. JURISDICTION OF GENERAL COURTS-MARTIAL.-a. 

Persons and offenses.-Subject to the regulations prescribed in 13, 

general courts-martid have power to try any person subject to the 

code for any offense made punishable by the code. In addition they 

have power to try any person who by the law of war is subject to trial 

by military tribunal for any crime or offense against the law of war 
- 8150 CHAPTER IV 

and for any crime or offense against the law of territory occupied as 

an incident of war or belligerency whenever the local civil authority 

is superseded in whole or in part by the military authority of the oc- 

~upying power. The law of occupied territory includes the local 

criminal law as adopted'or modified by competent authority, and the 

proclamations, ordinances, regulations, or orders promulgated by competent authority of the occupying power (Art. 18). 

6. Punishments.-Upon a finding of guilty of an offense made 

punishable by the code, geperal courts-martial have the power, within 

certain limitations, to adjudge any punishment not forbidden by the 

code (Art. 18). 

Certain punishments are mandatory under the law, for example, 

those prescribed by Articles 106 and 118 (1) and (4) ; the discretion of 

courts-martial to adjudge punishments may be limited by the President under Article 56 (125-127) ; the death penalty can be adjudged 

only when specifically authorized (Arts. 18, 526 (1)) ; and certain 

kinds of punishment are prohibited (Art. 55). When a general courtmartial exercises jurisdiction under the law of war it may adjudge 

ally punishment permitted by the law of war (Art. 18). Certain limitations on the discretion of military tribunals to adjudge punishments 

under the law of war are prescribed in international conventions, some 

of wluch are listed in the notes under Article 18 (app. 2). 

15. JURISDICTION OF SPECIAL COURTS-MARTIAL.-a. 

Persons and offenses.-(1) Subject to the regulations prescribed in 

13, special courts-martial have power to try any person subject to the 

code for any noncapital offense made punishable by the code, and, 

under such regulations as are provided in this paragraph, for capital 

offenses (Art. 19). Although a capital offense for which there is 

prescribed a mandatory punishment beyond the punitive power of a 

special court-martial may never be referred to such a court, an officer 

exercising general court-martial jurisdiction over the command which 

includes the accused may cause any other capital offense to be referred 

to a special court-martial for trial. The Secretary of a Department 

may, by regulations, authorize officers exercising special court-martial 

jurisdiction to cause capital offenses, except those in violation of 

Articles 106 and 118 (1) and (4), to be tried by special court-martial 

without first obtaining the consent of the officer exercising general 

court-martial jurisdiction over the command. 

(2) An offense is capital within the meaning of Article 19 when 

the maximum punishment which a general court-martial may :adjudge 

therefor includes the death penalty. Subject to the exceptions noted 

in the following subparagraph, the offenses denounced in Articles 94, 

99, 100, 102, 104, 110a, 118 (1) and (4), and 120a are capital at all 
SOURTS-MARTIAL-JURISDICTION T[..16a 

times; those denounced by Articles 85,90,101,106, and 113 are capital 

if committed in time of war. 

(3) Although capital under one of the articles cited, an offense 

is not capital if the applicable maximum limit of punishment prescribed by the President under Article 56 is less than death (1276) ; 

or, in any case in which the death penalty is not mandatory but is 

authorized by law whenever the authority competent to convene a 

court-martial for a capital case has directed that the case be treated 

as not capital pursuant to Article 49 (145a). Upon a rehearing or 

a new trial a case is not capital if the authorized sentence adjudged 

at a prior hearing or trial was other than death (Art. 63). However, 

no offense for which a mandatory punishment is prescribed can be 

tried by a special court-martial if such punishment is beyond the 

power of a special court-martial to adjudge. Thus a case of premeditated murder cannot be referred to a special court-martial for 

trial because the penalty in event of conviction must either be death 

or imprisonment for life (Art. 118 (1) ) . 6. Punishments.-Special courts-martial may, under such limitations as the President may prescribe (125-127; Art. 56), adjudge 

any punishment not forbidden by the code except death, dishonorable 

discharge, dismissal, confinement in excess of six months, hard labor 

without confinement in excess of three months, forfeiture of pay 

exceeding two-thirds pay per month, or forfeiture of pay for a period 

exceeding six months. Subject to approval of the sentence by an 

o5cer exercising general court-martial jurisdiction (Art. 65b), and 

subject to appellate review as prescribed by Articles 66, 67, and, 

when applicable, Article 68, a special court-martial may adjudge a 

bad conduct discharge in the case of an enlisted person, but a bad 

. conduct discharge shall not be adjudged by a special court-martial 

unless a complete record of the proceedings and testimony before the 

court has been made (Art. 19). As to forfeiture of pay, even when a 

bad conduct discharge is adjudged, a special court-martial is limited 

by Article 19 to the adjudgment of forfeiture of two-thirds pay per 

month for six months. As to other limitations see 125 to 127 

(Punishments). 

16- JURISDICTION OF SUMMARY COURTS-MARTIAL.- 

a. Persons and offenses.-Subject to the regulations prescribed in 

13, summary courts-martial have the power to try persons subject to 

tho code except oacers, warrant officers, cadets, aviation cadets, and 

midshipmen for any noncapital offense made punishable by the code. 

No person with respect to whom summary courts-martial have jurisdiction shall be brought to trial before a summary court-martial if 
n lsb CHAPTER IV 

he objects thereto unless under the provisions of Article 15 he has 

been permitted and has elected to refuse punishment under such 

article (132). If objection to trial by summary court-martial is made 

by an accused who has not been permitted to refuse punishment under 

Article 15, trial shall be ordered by a special or general court-martial, 

as may be appropriate (Art. 20). 

The principles stated in 15a (2) and (3) apply to summary courtsmartial. 

6. Punishments.-Summary courts-martial may, under such limitations as the President may prescribe (125-127; Art. 56), adjudge any 

punishment not forbidden by the code except death, dismissal, dishonorable or bad conduct discharge, confinement in excess of one 

month, hard labor without confinement in excess of 45 days, restriction 

to certain specified limits in excess of two months, or forfeiture of pay 

in excess of two-thirds of one month's pay (Art. 20) ; but in the case 

of noncommissioned or petty officers above the fourth enlisted pay 

grade, summary courts-martial may not adjudge confinement, hard 

labor without confinement, or reduction except to the next inferior 

grade. See 126c (2). 

The maximum amount of confinement and forfeiture of pay (or 

confinement and detention of pay) may be adjudged together in one 

sentence. Since confinement and restriction to limits are both forms 

of deprivation of liberty, only one of those punishments may be adjudged in maximum amount in any one sentence. An apportionment 

must be made if it is desired to adjudge both forms of punishmentconfinement and restriction to limits-in one and the same sentence. 

For example, assuming the punishment to be in conformity with other 

limitations, a summary court-martial might adjudge confinement at 

hard labor for 15 days (one-half of the authorized confinement), , 

restriction to limits for 30 days (one-half of the authorized restriction), and forfeiture of two-thirds pay for one month. In such a 

case the more severe form of deprivation of liberty is served first, 

the lesssevere thereafter. 

In addition to or in lieu of other punishments, summary courtsmartial have the power to adjudge reprimand or admonition. 
Chapter V 

APPREHENSION AND RESTRAINT 

SCOPE-GENERAGAPPREHENSION-RESTRAINT-ARREST AND CONFINEMENT-DURATION AND TERMINATION-APPREHENSION OF 

DESERTERS BY CIVILIANS 

17. SCOPE.-The paragraphs on this subject deal primarily with 

the apprehension and restraint of persons subject to the code in connection with, trial by court-martial, and deal only incidentally or not 

at all with the apprehension and restraint of such persons for other 

purposes, with the apprehension and restraint of persons not subject 

to the code, and with various other matters touching apprehension 

and restraint such as those concerning confinement on bread and 

water or diminished rations (125), the effective date of certain sentences (126h (5) ), execution of a sentence of confinement (93), resisting apprehension (174a), breaking arrest or escaping from custody 

or confinement (1746, c, d), releasing a prisoner without authority 

(175a), unlawful detention of another (176), and confinement as 

punishment for contempt (118). 

18. GENERAL.-a. Definitions.-Apprehemion is the taking into 

custody-of a person (Art. 7a ; see 174d). 

Arrest is the restraint of a person by an order not imposed as punishment for an offense directing him to remain within certain specified 

limits (Art. 9a). 

Confinement is the physical restraint of a person (Art. 9a). 

6. Basic considerations.-(1) Any person subject to the code accused of an offense under the code shall be ordered into arrest or con- 

, finement as circumstances may require; but vrhen accused only of - 

an offense normally tried by a summary court-martial, such person 

ordinarily shall not be placed in confinement (Art. 10). The foregoing provision is.not mandatory and its exercise rests within the 

discretion of the person vested with the power to arrest or confine. No 

restraint need be imposed in cases iiivolving minor offenses. A failure 

to restrain does not affect the jurisdiction of the court. 

(2) No member of the armed forces of the United States shall 

be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces of 

the United States (Art. 12). If members of the armed forces of the 

United States are separated from the other categories mentioned, however, they may be confined in the same jails, prisons, or other 

co~&nement facilities. 
7 19a CHAPTER V 

(3) Other than restraint administered as prescribed in this subparagraph (186 (3)), forfeiture of pay or allowances due on and 

after the date of approval of certain sentences, and minor punishments for infractions of discipline while confined, no punishment 

may be imposed upon an accused as a result of trial by court-martial 

until the sentence has been approved and ordered executed. No person, while being held awaiting trial or the result of trial, shall be 

subjected to punishment or penalty other than arrest or confinement 

upon the charges pending against him, nor shall -the arrest or confinement imposed upon him be any more rigorous than the circumstances 

require to insure his presence, but, during such period, for infractions 

of discipline, he may be subjected to minor punishment (Art. 13). 

Minor punishment shall include all punishment authorized by appropriate departmental regulations for violations of the discipline 

prescribed for the place in which an accused is confined. Prisoners 

being held for trial or whose sentences have not been approved and 

ordered executed will be accorded the facilities, accommodations, 

treatment, and training prescribed in pertinent regulations. Although no forfeiture of pay or allowances may be effective prior to 

approval of the sentence by the convening authority, when a sentence 

of court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, 

the forfeiture will apply to pay or allowances becoming due on and 

after the date the sentence is approved by the convening authority 

(126h (5) ; Art. 57a). But see 88e (2) (c) with respect to the suspension or deferment of forfeitures in certain cases. 

19. APPREHENSION.-a. Who may apprehend.-All officers, 

warrant officers, petty officers, nolicommissioned officers, and, when 

in the execution of their guard or police duties, air police, military 

police, members of the shore patrol, and such persons as are designated by proper authority to perform guard or police duties, are 

authorized to apprehend, if necessary, persons subject to the code or 

subject to trial thereunder upon reasonable belief that an offense 

has been committed and that the person apprehended committed it. 

See Article '76. 

Petty officers, noncommissioned officers, and enlisted persons performing police duties should apprehend a commissioned or a warrant officer offender only pursuant to specific orders of a commissioned 

officer, except where such action is necessary to prevent disgrace to 

the service, the commission of a serious offense, or the escape of one 

who has committed a serious offense. In all cases involving the 

apprehension of officers and warrant officers by petty officers, noncommissioned officers, and enlisted persoSs performing police duties, 
APPREHENSION-RESTRAINT 7 20b 

the individual effecting the apprehension will, immediately after such 

notify the officer to whom he is responsible or an officer 

of the air police,-military police, or the shore patrol. 

6. In quarrels, frays, or disorders.-All officers, warrant officers, 

petty officers, and noncommissioned oficers shall have authority to 

yell all quarrels, frays, and disorders among persons subject to the 

code and to apprehend persons subject to the code who take part in 

the same (Art. 7~). 

6. Procedural steps to apprehend.-An apprehension is effected 

by clearly notifying the person to be apprehended that he is thereby 

taken into custody. The order of apprehension may be either oral 

or written. 

d. Securing custody of alleged offender.-There is a clear distinct,ion between the authority to apprehend and the authority to arrest 

or confine. Any person empowered to apprehend an offender is authorized to secure the custody of an alleged offender until proper 

authority may be notified, the limitations (21a; Art. 9) on the power to 

arrest or confine notwithstanding. . 20. RESTRAINT.-a. Status of person in arrest.-As used in this 

chapter, arrest is moral restraint imposed upon a person by oral or 

written orders of competent authority limiting the person's personal 

liberty pending disposition of charges. The restraint imposed is 

binding upon the person arrested, not by physical force, but by 

virtue of his moral and legal obligation to obey the order of arrest. 

He is subject to the restrictions incident to arrest prescribed in applicable regulations. A person in the status of arrest cannot be required to perform his full military duty, and if he is placed-by the 

authority who placed him in arrest or by superior authority--on duty 

inconsistent with such status his arrest is thereby terminated. This, 

however, does not prevent his being required to do ordinary cleaning 

or policing within the specified limits of his arrest, or to take part 

in routine training and duties not involving the exercise of command 

or the bearing of arms: 

6. Restriction in lieu of arrest-An officer authorized to arrest 

(21a) may, within his discretion and. without imposing arrest, restrict an accused person of his command, or subject to his authority, 

to specified areas of a military command with the further provision 

that he will participate in all military duties and activities of his 

organization while under such restriction. Thus an accused person 

may be required to remain within a specified area at specified times 

either because his continued presence pending investigation may be 

necessary or because it may be cohsidered a wise precaution to re- 
7 20d CHAPTER V 

strict him to such an area in order that he may not again be exposed 

to the temptation of misconduct similar to that for which he is already . under charges. Violations of such restrictions are punishable as 

violations of Article 134, as are breaches of punitive restrictions. 

c. Confinement prior to trial.-As used in this chapter, confinement is physical restraint, impbsed by either oral or written orders 

of competent authority, depriving a person of freedom pending the 

disposition of charges. Confinement will not be imposed pending 

trial unless deemed necessary to insure the presence of the accused at - 

the trial or because of the seriousness of the offense charged. 

d. Procedure for arresting or confining.-(1) Preliminary inquiry into offense.-No person shall be ordered into arrest or confinement except for probable cause (Art. 94. No authority shall order 

a person into arrest or confinement unless he has personal knowledge of 

the offense or has made inquiry into it. Pull inquiry is not required, 

but the known or reported facts should be sufficient to furnish reasonable grounds for believing that the offense has been committed by the 

person to be restrained. 

(2) Procedural steps to arrest.--An arrest is imposed by notifying the person to be arrested that he is under arrest and informing him 

of the limits of his arrest. The order of arrest may be either oral or 

written. 

(3) ProceduraZ steps to conf;ne.-A person to be confined is placed 

under guard and taken to the place of confinement. The authority 

ordering the confinement will cause to be delivered to the provost marshal, commander of the guard, prison ogcer, or master at arms, a 

written statement of the name, grade, and organization of the prisoner 

and of the offense of which he is accused. No provost marshal, coamander of the guard, prison o5cer, or master at arms shall refuse to 

receive or keep any prisoner committed to his charge by an officer of the 

armed forces when the committing o5cer furnishes a statement, signed 

by him, of the offense charged against the prisoner (Art. Ila). 

(4) Notification to acewed.--When any person subject to the code 

is placed in arrest or confinement prior to trial, immediate steps shall 

be taken to inform him of the specific wrong of which he is accused 

and to try him or to dismiss the charges and release him (Art. 10). 

Concerning the time element between service of charges and trial, see 

Article 35. See Article 98 concerning unnecessary delay in the disposition of any case. 

(5) Report required.--Every commander of a guard, prison officer, ~r master at arms to whose charge a prisoner has been committed shall, within 24 hours after such commitment, or, in the case 

of a commander of the guard or master at arms, a& soon as he is relieved 
APPREHENSION-RESTRAINT 721c 

from pard, report in writing to the commanding officer the name of 

such person, the offense charged against him, and the name of the 

person who ordered or authorized the commitment (Art. 116). 

e. Unlawful detention.-Any person subject to the code who, except as provided by law, apprehends, arrests, or confines any person 

is subject to trial by court-martial (Art. 97). 

21. ARREST AND CONFINEMENT.-a. Who mag arrest or 

confine.-Persons subject to the provisions of the code or to trial 

thereunder may be ordered into arrest or confinement as follows: 

(1) Officer, warrant officer, or chilian.-Only a commanding officer to whose authority the individual is subject may order an officer, 

marrant officer, or civilian into arrest or confinement. The arrest or 

codnement must be effected by an order, oral or written, delivered in 

person or by another officer (Art. 9c). The authority to order such 

persons into arrest or confinement may not be delegated (Art. 9c). 

For this particular purpose, the term "commanding officer" shall be 

construed to refer to an officer commanding a post, camp, station, base, 

auxiliary airfield, Marine barracks, naval or Coast Guard vessel, shipyard, or other place where members of the armed forces are on duty, 

and the officer commanding or in charge of any other command who, 

under Article 24, has power to appoint a summary court-martial. 

(2) Edisted person.-Any officer may order an enlisted person 

into arrest or codnement. The arrest or confinement must be effected 

by an order, oral or written, delivered in person or through other 

persons subject to the code (Art. 95). A commanding officer may 

authorize warrant officers, petty officers, or noncommissioned officers 

to order enlisted persons of his command or subject to his authority 

into arrest or continement (Art. 96). Thus the commanding officer 

of any command or detachment may delegate to the warrant officers, 

petty officers, or noncol$missioned officers thereof authority to place 

enlisted persons who are assigned or attached to his command or 

detachment, or who are temporarily within its jurisdiction, for example, in quarters, camp, base, station, or ship, in arrest or confinement as a means of restraint at the instant when restraint is necessary. 

6. Authority of trial counsel to restruin.-A trial counsel of a 

court-martial, as such, has no authority to place in arrest or conhemerit a person about ta be tried by the court. These are duties which 

devolve upon the convening authority or upon the post, station, or 

base commander, or other proper officer in whose custody or command 

the accused is at the time. 

6. Authority of courts-martial to restrain.-A court-martial has 

no control over the nature of the akest or other status of restraint 

of a prisoner except as regards his custody in its presence. 
7 23b CHAPTER V 

d. Respolt8ibiYitg for restraint after trial.-Upon notification 

from a trial counsel of the result of a trial (44e (2)), a commanding 

officer will take prompt and appropriate action with respect to the 

restraint of the person tried. Such action, depending on the circumstances, may involve the immediate release of the person from any 

restraint, or the imposition of any necessary restraint pending final 

action on the case. 

22 DURATION AND TERMINATION.-Although charges 

should be preferred promptly (25; Arts. 10, 306, 33), the accused is 

not automatically released from restraint because of any delay in 

preferring the charges. He must remain in arrest or conhement 

until released by proper authority. The proper authority to release 

the accused from arrest is normally the officer who imposed the arrest. 

The proper authority to release from confinement in a military confinement facility is the commanding officer to whose command such 

facility is subject. Once a prisoner is placed in confinement he passes 

beyond the control and power of release of the officer who initially 

ordered him codned, unless such o5cer is the commanding officer 

described above. The release of a prisoner without proper authority 

is a punishable offense (Art. 96). Undue delay in preferring or 

prosecuting charges should be investigated with a view to prompt 

disposition of the case or, when appropriate, the release of the accused 

from arrest or confinement by competent authority. Any person subject to the code who is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under the code 

is subject to trial by court-martial (Art. 98). 

23. APPREHENSION OF DESERTERS BY CIVILIANS.-a. 

Civil officers.-Any civil officer having authority to apprehend of-' 

fenders under the laws of the United States or of any State, District, 

Territory, or possession of the United States may apprehend summarily a deserter from the armed forces of the United States and 

deliver him into the custody of the armed forces of the United States 

(Art. 8). 

The right of the United States to apprehend and bring to trial 

a deserter is paramount to any right of control over him by a parent 

on the ground of his minority. 

6. Civilians general1g.-A private citizen has no authority, as such, 

without the order or direction of a military officer, to apprehend 

or restrain a deserter from the armed forces (Kurtz 9. Moffit, 115 

U. S. 487), but sending out a description of a deserter with a request 

for his apprehension and the offer of a reward for his apprehension 

or delivery, coupled with the provisions of law and regulations author- 
APPREHENSION-RESTRAINT 23c 

;zing the payment of such reward, is sufficient authority for the 

of a deserter by a private citizen. 

The fact that the person wlzo apprehended and delivered a deserter 

was not authorized to do so is not a legal ground for the discharge 

of the deserter from military custody. 

c. Deliverg to and return of offenders from civil authorities.- 

See Article 14 and appropriate departmental regulations. 
Chapter VI 

PREPARATION OF CHARGES 

DEFINITIONS-WHEN PREFERRE-GENERAL RULES AND SUGGESTIONS-DRAFTING OF CHARGES-DRAFTING OF SPECIFICATIONS 

24. DEFINITIONS.-a. Charges and specifications.-The formal written accusation in court-martial practice consists of two 

parts, the technical charge and the specification. For offenses in 

violation of the code, the charge merely indicates the article the accused is alleged to have violated, while the specification sets forth the 

specific facts and circumstances relied upon as constituting the violation. Each specification, together with the charge under which it 

is placed, constitutes a separate accusation. The term "charges," 

or "charges and specifications," is applied to the formal written accusation or accusations against the accused. See Article 30. 

6. Additional charges.-New and separate charges preferred after 

others have been preferred are known in military law as "additional 

charges." They may relate to transactions not known at the time or 

to offenses committed after the original charges were preferred. 

Charges of this character do not require a separate trial, and, subject 

to the completion of the preliminary procedure necessary for all 

charges, may be tried with the original ones. 

25. WHEN PREFE,RRED.--When any person subject to the code 

is placed in arrest or confinement prior to trial, immediate steps shall 

be taken to inform him of the specific wrong of which he is accused 

(32f (1) ) and to try him or dismiss the charges and release him (A&. 

10). Any person subject to the code who is responsible for unnecessary delay in the disposition of any case of a person accused of 

an offense under the code shall be punished as a court-martial may 

direct (Art. 98). When it is intended to prefer charges, they should 

be preferred without unnecessary delay. An accumulation or saving 

up of charges through improper motives is prohibited; but when a 

good reason exists (as when a person is permitted to continue a 

course of conduct so that a ringleader or other conspirators may also 

be discovered, or when a suspected counterfeiter goes uncharged until 

his guilty knowledge becomes apparent), a reasonable delay'is permissible if the person concerned is not in arrest or confinement. 

Ordinarily, charges for an offense should not be preferred against 

an individual if, after investigation, the only available evidence 

that the offense was committed is his statement that he committed it. 

In rare cases, however, it may be advisable to prefer charges prior 
CHARGES-PREPARATION 7 26d 

to the completion of an investigation made pursuant to such a statement, as, for example, when the statute of limitations may run before 

all contemplated witnesses can be interrogated. 

26. GENERAL RULES AND SUGGESTIONS.-a. Elements of 

the offense.-Before drafting charges and specifications the aocuser 

should analyze the facts and study the pertinent paragraphs of chapter XXVIII, in which appear the elements of proof of various 

offenses, and appendix 6, in which the forms of specifications are set 

forth. 

6. Offenses arising out of one transaction.-One transaction, or 

what is sttbstantially one transaction, should not be made the basis 

for an unreasonable multiplication of charges against one person. 

A person should not be charged with both disorderly conduct and 

assault if the disorderly conduct consisted in making the assault, or 

with both a failure to report for a routine scheduled duty, such as 

reveille, and with absence without leave if the failure to report occurred during the period for which he is charged with absence without leave. The larceny of several articles should not be alleged in 

' several specifications, one for each article, when the larceny of all 

of them can properly be alleged in one specification (200a (7) ). If 

a person willfully disobeys an order to do a certain thing, and persists 

in his disobedience when the same order is given by the same or 

other superior, a multiplication of charges of disobedience should be 

avoided (169b). There are times, however, when sufficient doubt as 

to the facts or the law exists to warrant making one transaction the 

basis for charging two or more offenses. See 746 (4) and 76a (8). 

I c. Joining minor and serious offenses.-Ordinarily, charges for 

I minor derelictions should not be joined with charges for serious 

offenses. For example, a charge of failure to report for a routine 

roll call should not be joined with a charge of burglary. If, however, the minor offense serves to explain the circumstances of the 

greater offense, it is permissible to charge both. 

d. Joint offenses.-A joint offense is one committed by two or more 

persons acting together in pursuance of a common intent. See 156 for 

a discussion of principals and 157 for a discussion of accessories after 

the fact. Principals may be charged jointly with the commission of 

the same offense, but an accessory after the fact cannot be charged 

jointly with the principal he is alleged to have received, comforted, or 

assisted. Offenders are properly joined only if there is a common unlawful design or purpose ; the mere fact that several persons happen 

to have committed the same types of offenses at the same time, although material as tending to show concert of purpose, does not necessarily establish it. The fact that several persons happen to have ab- 
7 28a CHAPTER VI 

sented themselves without leave at about the same time will not, in the 

absence of evidence indicating a conspiracy, justify joining them in 

one specification, for they may merely have been availing themselves 

of the same opportunity of leaving. 

In joint offenses the participants may be separately or jointly 

charged. However, if the participants are members of different armed 

forces, they should be charged separately. See 13. The preparation 

of joint charges is discussed in detail in appendix 6a (8). The advantage of a joint charge is that all the accused will be tried at one trial, 

thereby saving time, labor, and expense. This must be weighed against 

the possible unfairness to the accused which may result if their defenses are inconsistent or antagonistic. See 69d (Motion to sever). In 

drafting charges in such cases it must also be remembered that an 

accused cannot be called as a witness for the prosecution without his 

consent (14%). If, therefore, the testimony of an accomplice is necessary, he should not be tried jointly with those against whom he is 

expected to testify. 

27. DRAFTING OF CHARGES.-The technical charge should be 

appropriate to all specifications under it, and ordinarily will be written : "Violation of the Uniform Code of Military Justice, Article -," 

giving the number of the article. Subparagraphs of the article under 

which the specification is laid need not be stated. Thus, in alleging 

murder while engaged in the perpetration of a robbery, "Article 118" 

is alleged in the charge, not "Article 118(4)." When an offense is 

specifically dehed in a particular punitive article, it ordinarily should 

be charged under that article rather than under Article 134, the general article. Neither the designation of a wrong article nor the failure 

to designate any article is ordinarily material, provided the specifics: 

Lion alleges an offense of which courts-martial have jurisdiction. For 

example, if an offense is alleged for which a mandatory punishment 

is prescribed by a particular article, such as premeditated murder (Art. 

118), the mandatory punishment prescribed by the correct article must 

be adjudged-regardless of whether the offense has been laid under 

another article. See 740. For other instructions see appendix 6a. 

28. DRAFTING OF SPECIFICATIONS.-a. Contents of specification.-The specification should include the following : 

(1) The name of the accused and a showing, either by a description by rank and organization or otherwise, that he is within courtmartial jurisdiction as to persons. For rules as to the manner of describing the accused, see the instructions in appendix 6a. The service number of the accused should not appear in the specification. 
/ (2) A statement of where and when the offense was committed. 

, Examples of the correct form for alleging place and time appear in 

appendix 6a. I 

(3) A statement in simple and concise language of the facts con- 

! stituting the offense. The facts so stated will include all the elements of the offense sought to be charged. A specification must 

exclude every reasonable hypothesis of innocence. See 87a (2). 

Any intent, or state of mind such as guilty knowledge, expressly 

made an essential element of an offense should be alleged; thus the 

offense of delivering less than is called for by receipt in violation 

of Article 132 should be alleged as "knowingly" done. If the alleged act of the accused is not in itself an offense, but is made an 

offense by applicable statute (including Articles 133 and 134), regulations, or custom having the effect of law (213a), words importing 

criminality such as "wrongfully," "unlawfully," "without authority," or "dishonorably," depending upon the nature of the particular 

offense involved, should be used to describe the accused's acts. In 

this connection, see 28c. However, if the alleged act of the accused would not under any circumstances be an offense, the mere 

addition to the specification of words importing criminality will not 

in itself convert the act into an offense. To a reasonable extent 

matters of aggravation may be recited. If applicable, the wording of the appropriate punitive article or other statute should be 

used in preference to a supposedly equivalent expression. For example, in charging a person with being found drunk on duty, the 

specification should not allege that he was found intoxicated on 

duty. 

6. Each specification to allege but one offense.-One specification 

should not allege more than one offense either conjunctively or in the 

alternative. Thus a specification should not allege that the accused 

"lost and destroyed" or that he "lost or destroyed" certain property. 

However, if two acts or a series of acts constitute one offense, they 

may, of course, be alleged conjunctively. 

c. Alleging written instruments; orders; directives.-When a 

written instrument (e. g., counterfeit money, a forged document, a 

threatening letter, etc.), or a part thereof, forms the gist of an offense, 

the specification should set forth the writing, preferably verbatim, and 

the act or acts which constitute the offense. When the offense alleged 

constitutes a violation of an official directive of the Department of 

Defense or one of the Departments, or one of their agencies, bureaus, 

branches, forces, commands, or units, the specification should contain sufficient information to indicate what specific directive, or part 
7 28d CHAPTER VI 

thereof, the accused is alleged to have violated, and the act or acts 

which constitute the alleged violation. In this connection, see 147a 

and 171. However, omission, or an error in the citation, of the directive does not wnstitute fatal error if the omission or error does not 

mislead the accused to his prejudice. Oral statements should be set 

out as nearly as possible in exact words, but should always be qualified by the words "or words to that effect," or some similar expression. 

d. Specimen forms.-Specimen charges and forms for specifications 

covering the more usual offenses are in appendix 6. These prescribed 

forms should always be used when they are applicable or when they 

can be adapted to the offense which is to be alleged. 
Chapter VIZ 

I SUBMISSION OF AND ACTION UPON CHARGES 

INITIATING AND PREFERRING CHARGES-BASIC CONSIDERATIONSACTION BY PERSON HAVING KNOWLEDGE OF A SUSPECTED OFFENSE--ACTION BY COMMANDER EXERCISING IMMEDIATE JURISDICTION UNDER ARTICLE 15-ACTION BY OFFICER EXERCISING 

SUMMARY COURT-MARTIAL JURISDICTION-INVESTIGATION OF 

CHARGES--ACTION BY OFFICER EXERCISING GENERAL COURTmRTIAL JURISDICTION 

29. INITIATING AND PREFERRING CHARGES.-a. Who 

may initiate.-Charges are initiated by someone bringing to the attention of the military authorities information concerning an offense 

suspected to have been committed by a person subject to the code. 

Such information may, of course, be received from anyone, whether 

subject to the code or not. 

b. Who may prefer.-Any person subject to the code may prefer 

charges, even though he be under charges, in arrest, or in con6nement. 

/ In the great majority of cases, charges are actually preferred by the 

; commander who exercises immediate jurisdiction over the accused 

under Article 15. However, when such a commander is also em- 

, powered to 'convene courts-martial and has only an official interest 

I in the disposition of the case, it is customary for him to direct an 

officer of his command to make a preliminary inquiry into the 

I suspected offense and to prefer appropriate charges if the facts 

/ shown by such inquiry should warrant the preferring of charges. 1 See 5a (3) and (4), 33a, and Article 1 (11). 

c. Ordering preferment.-A person subject to the code cannot be 

1 ordered to prefer charges to which he is unable truthfully to make 

/ the required oath on his own responsibility. 

I d. Preparation of charge sheet.-See chapter VI for instructions 

as to the preparation of charges and specifications. Available data 

1 as to service, witnesses, and similar items required to complete the 

first page of the charge sheet will be included. Ordinarily, the charge 

sheet will be forwarded in triplicah, and all copies will be signed. 

If several accused are charged on one charge sheet with the commission 

of a joint offense (26d; app. 6a (8) ), the complete personal data as 

to each accused will.be set fodh on page 1 of the charge sheet or upon 

an attached copy of that page. One additional signed copy of the 

charge sheet will be prepared for each accused in excess of one. 

eb Signing and swearing to charges.-Charges and specifications 

shall k signed under oath before an oficer of the armed forces author- 
7 308 CHAPTER VII 

ized to administer oaths. For example, they may not be sworn to 

before a warrant officer who is not commissioned although, if such 

a warrant officer were an adjutant, he would have general authority 

to administer oaths for other purposes. See 113 and Articles 1 (5), 

30, and 136. The form of oath is prescribed in 114 and is set forth 

on the charge sheet (app. 5). 

In no case may an accused be tried on unsworn cha~ges over his 

objection. 

30. BASIC CONSIDERATIONS.-The following basic considerations apply to any action upon a charge or with respect to a suspected 

offense : 

a. No person subject to the code shall interrogate, or request 

any statement from, an accused or a person suspected of an offense 

without &t informing him of the nature of the accusation and 

advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any 

statement made by him-whether oral or written-may be used 

as evidence against him in a trial by court-martial. See Article 316. 

6. No charge shall be referred to a general court-martial for trial 

until the formal investigation required by Article 32 has been 

made (34). 

c. No charge shall be referred to a general court-martiaI%r trial 

until it has been referred for consideration and advice to the staff 

judge advocate or legal officer of the convening authority (35b; 

Art. 34a). 

d. No charge shall be referred for trial if the convening authority 

is satisfied the accused is insane or was insane at the time of the 

offense charged (121). 

e. When it appears to any accuser, or to any investigating officer 

or commander to whom sworn charges are forwarded in a particular 

case, that a witness then available may not be so available at asubsequent stage of the proceedings or that, because of distance or 

other reasons, the disposition of the case may be delayed pending 

the taking of depositions, he will promptly make the matter known 

to the officer competent to convene a court-martial for the trial of 

the offense charged so that depositions may be taken in accordance 

with the provisions of Article 49. See 5 and 117. 

The preferring of charges and the taking of depositions in accordance with the provisions of Article 49 is of particular importance in preserving the testimony of witnesses in a case involving 

an offense committed by an accused who is absent without authority. 

Unless otherwise directed, the charges and allied papers in such 
CHARGELINVESTIGATION AND DISPOSITION 7 310 

a case will be held with the service record of the accused pending 

his return to military control. 

f. Subject to jurisdictional limitations, charges against an 

if tried at all, should be tried at a single trial by the lowest 

. court that has power to adjudge an appropriate and adequate 

punishment. See 33h and 1. 

g. Immediately upon receipt of charges or of information as 

to 'a suspected offense, the proper authority shall determine the 

type of restraint, if any, that is to be imposed on the accused 

pending trial or other disposition of the case. See 18b, 20,22, and 

Article 10. 

h. Upon the receipt of charges or of information as to a suspected 

offense, the proper authority-ordinarily the immediate commanding officer of the accused-shall take prompt action to determine 

what disposition should be made thereof in the interests of justice 

and discipline. See Articles 30 and 98. When a person is held 

for trial by a general court-martial, the commanding officer shall, 

within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the 

investigation and allied papers, to the officer exercising general 

.court-martial jurisdiction; otherwise, he shall report in writing 

to such officer the reasons for delay (Art. 33). 

31. ACTION BY PERSON HAVING KNOWLEDGE OF A 

SUSPECTED OFFENSE.-When any person has knowledge of an 

offense committed by a person subject to the code, it is customary to 

report the facts to the commander exercising irnrnediah jurisdiction 

over the accused under Article 15 to permit that commander to take 

the action outlined in 32. If charges are preferred by someone other 

than the commander who exercises immediate jurisdiction under 

Article 15, they should be forwarded to that commander to permit 

him to take the action outlined in 32. In preferring such charges, 

the accuser will be guided by the provisions of 29 and 30. Unless 

competent superior authority has directed otherwise, the accuser will 

forward the charges (ordinarily through the chain of command) to 

the commander who exercises immediate jurisdiction over the accused 

under Article 15, as follows : 

a. Minor offenses.--When it appears to the accuser that the case 

will be disposed of either under Article 15 or by reference to a summary court-martial, he need not forward the charges by letter of 

transmittal. However, in such a case, sufficient information about 

the circumstances, including an informal summary of the expected 

evidence, should be attached to the charges to enable the commander 
. 732b CHAPTER VIi 

receiving them to make an intelligent disposition of then? without 

conducting an additional investigation. 

6. Serious offenses.-When charges are submitted which may require trial by special or general court-martial, they will be forwarded 

by a letter of transmittal containing an explanation of any unusual 

features of the case. The letter of transmittal will.also include or 

carry as an inclosure a summary of the evidence expected from each 

witness or other source. The signature of each witness to the summary of his testimony will be obtained dess the procurement of the 

signature will unduly delay the forwarding of the charges. All 

reasonably available documentary evidence (originals or admissible 

copies) will be forwarded with the charges unless, on account of the 

bulk of such evidence or for other good reason, it is inadvisable to 

do so. Any articles, weapons, or bulky items which may be useful 

as exhibits should be properly marked for later identification, preserved, and referred to in tlie charge sheet or letter of transmittal 

with a statement as to where they mag be found. 

c. Exceptional cases.-In exceptional cases in which (he accused 

is not, strictly speaking, under the command of any military authority 

inferior to a particular Department, the general principles of this 

paragraph (31) are applicable; but the charges may, according to 

the particular circumstances, be forwarded either to the appropriate 

Department or to the commander of the area command in which the 

accused may be. In this conection, see tlie first exception in 11. 

32. ACTION BY COMMANDER EXERCISING IMMEDIATE 

JURISDICTION UNDER ARTICLE 15.-Upon the receipt of 

charges or information indicating that a member of his command 

has committed an offense punishable by the code, the commander 

exercising immediate jurisdiction over the accused under Article 15 

ordinarily will--subject to the basic considerations stated in 30- 

dispose of the case in the following manner : 

a. Exception.-See 330 for the action to be taken when the ;ommander exercising immediate jurisdiction over the accused under 

Article 15 is also empowered to convene eourts-martial. 

6. Preliminary inquiry.-He will make, or cause to be made, a preliminary inquiry into the charges or the suspected offenses sufficient 

to enable him to make an intelligent disposition of them. This inquiry is usually informal. It may be conducted by the commander 

or by a member of his command. It may consist only of an examination of the charges and the summary of expected evidence which 

accompanies them; in other cases it may involve the interview of 

witnesses, the search of barracks, quarters, or other places, or the 
CHARGES-INVESTIGATION AND DISPOSITION 7 320 

collection of documentary evidAce. With respect to searches, see 152. 

See 32f for the information which must accompany charges if they 

are forwarded with a recommendation for trial. It is not the function 

of the person making the inquiry merely to prepare a case against the 

He should collect and examine all evidence that is essential 

to a determination of the guilt or innocence of the accused, as well as 

evidence in mitigation or extenuation. 

6: Preferring charges.-When charges have not already been preferred and the preliminary inquiry shows that offenses punishable 

by the code have been committed by a member of his command, he 

may prefer appropriate charges for thase offenses which he believes 

properly be disposed of under Article 15. See 29 for instructions as to the manner of preferring charges. If charges have already been preferred, but they are not formally correct or do not 

conform to the expected evidence, formal corrections, and such changes 

in the charges and specifications as are needed to make them conform 

to the evidence may be made (33d ; Art. 346). When the preliminary 

inquiry shows that additional or different offenses have been committed (24b), the immediate commander may prefer appropriate new 

charges for those offenses which he believes cannot properly be disposed of under Article 15. In such a case, he should consolidate all 

charges against the accused into one set of charges. 

d. Dismissal of charges.-He may decide, as a result of the pre- 

. liminary inquiry, that all or some of the charges do not warrant 

further action because they axe trivial, do not state offenses, are unsupported by available evidence, or because there are other sound 

reasons for not punishing the accnsed with respect to the acts alleged. 

Likewise, as to suspected offenses for which charges have not been 

preferred, he may determine that charges should not be preferred. 

If so, he need not prefer charges. Unless competent superior authority has directed otherwise, he may dismiss all or part of any charges 

that have been preferred. With respect to offenses for which charges 

have been preferred, specifications and charges thus disposed of will 

be lined out and initialed. If all offenses charged are dismissed, he 

may notify the accuser of the action taken and the reasons therefor. 

e. Non-judicial punishment.-Unless competent superior authority has directed otherwise, he may impose punishment under Article 

15 for any minor offense (whether charged or not). See 128 and 131. 

With respect to offenses for which charges have been preferred, specifications and charges thus disposed of under Article 15 will be lined 

out and initialed and any remaining charges and specifications renumbered. If he believes punishment under Article 15 is proper in the 

case of a commissioned officer or warrant oficer, he ordinarily should 
7 32f CHAPTER VII 

forward the charges and allied or the report of preliminary 

inquirg to the officer exercising immediate summary court-martial 

jurisdiction with an appropriate recommendation. When reduction 

to the next inferior grade is considered a proper punishment in a case 

of a noncommissioned or petty officer, and he is not authorized to im- 

, pose such punishment, he should forward the charges or rkport, with 

his recommendation, to a commander who has such authority under 

Article 15. In this connection, see 129 and 131b (2). 

f. Forwarding charges.-If trial by court-martial is believed to 

be appropriate for any remaining offenses, the charges will be forwarded (ordinarily through the chain of command) to the oficer 

exercising summary court-martial jurisdiction over the command of 

which the accused is a member. In forwarding such charges, the 

following rules will be observed : 

(1) Informing accused of charges.-Prior to forwarding the 

charges, the immediate commander will inform the accused of the* 

charges against him (Arts. 10,306) and complete and sign the certificate to that effect on page 3 of the charge sheet. See appendix 5. 

When, because of the unavailability of the accused, it is impracticable 

to comply with this requirement, a report of the circumstances will 

be included in the letter forwarding the charges. 

(2) Notice of refusal to accept punishment under Articb 25.- 

The immediate commander will note in the space provided on page 4 

of the charge sheet whether the accused has been permitted and has 

elected to refuse punishment under Article 15 as to any offense 

charged. See lea, 132, appendix 5, and Article 20. 

(3) Minor offenses.-When charges are submitted with a view to 

trial by summary court-martial or action under Article 15, they need 

not be forwarded by a formal letter of transmittal, but should be accompanied by evidence of admissible previous convictions and sufficient information about the circumstances, including an informal summary of the expected evidence, to enable the commander receiving them 

to make an intellige~it disposition of the case without an additional 

investigation. The forwarding of charges by the commander exercising immediate jurisdiction over the accused under Article 15, unaccompanied by a formal letter of transmittal, will be considered a recommendation for trial by summary court-martial. 

(4) Serious offenses.-When charges are submitted with a view 

to trial by special or general court-martial, they will be forwarded 

by a letter of transmittal signed personally by the forwarding officer. 

The letter will include, or carry as inclosures, the following : 
CHARGES-INVESTIGATION AN0 DISPOSITION 8 33a 

(a) A summary of the evidence expected from each witness or 

other source. The signature of each witness to the summary of his 

testimony will be obtained unless the procurement of the signature 

will unduly delay the forwarding of the charges. 

. (b) All reasonably available documentary evidence and exhibits. 

If, because of the bulk of such evidence or for other good reason, 

it is inadvisable to forward it with the letter of transmittal, it should 

be properly marked, preserved, and referred to in the charges or 

the letter of transmittal, with a statement as to where it may be 

found. 

(c) Evidence of admissible previous convictions by courts-martial (756 (2) ) which, in the case of enlisted persons, is usually in the 

form of an attested copy of the pertinent entries in the accused's 

service record. See 1436 (2) and 144b (Official records). 

(d) Explanation of any unusual features of the case, including 

such matters as the character of the accused's military service prior 

to the offense charged and his record prior to entry into the military 

service, if known. 

(e) Specific recommendation as to the disposition of the charges. 

33. ACTION BY OFFICER EXERCISING SUMMARY 

COURT-MARTIAL JURISDICTION.-Upon the receipt of charges 

or information indicating that a member of his command has committed an offense punishable by the code, the officer exercising summary court-martial jurisdiction over the accused will-subject to the 

basic considevations stated in 30--ordinarily dispose of the case in the 

following manner : 

a. Preliminarg inquirg.-When charges have not already been preferred, and the officer exercising summary court-martial jurisdiction 

is also the commander exercising immediate jurisdiction over the 

accused under Article 15, he may take the action outlined in 32. 

However, if the officer exercising summary court-martial jurisdiction 

becomes an accuser in fact, he renders himself ineligible to exercise 

whatever powers he may have had to convene a special or general 

court-martial for the trial of the case. See Articles 226 and 23b. 

Accordingly, when he has only an official interest in the case (5a (4) ) , he ordinarily will transmit the available information about the case 

to an officer of his command "for preliminary inquiry and report, 

including, if appropriate in the interest of justice and discipline, 

the preferring of such charges as appear to you to be sustained by 

the expected evidence." 

Unless otherwise directed, the officer to whom such a case is trans- 

' mitted will make a preliminary inquiry similar to that described in 
7 33e CHAPTER VII 

326. If the o5cer making the inquirg forwards his report without 

preferring charges, the o5cer exercising summary court-martial jurisdiction will take the action outlined in 32; if the o5cer making the 

inquiry prefers charges, the 05cer exercising summary court-martial . 

jurisdiction will dispose of them in accordance with the rules pre- . scribed in the remaining subparagraphs of this paragraph (33). 

6. Date of receipt.-Immediately upon the receipt of sworn charges 

against a member of his command, the officer exercising summary 

court-martial jurisdiction will cause the hour and date of receipt to 

be entered in the space provided on page 3 of the charge sheet (app. 

5). This date is important as it fjxes the end of the period of time 

which is to be considered in determining whether the prosecution of 

the accused is barred by the statute of limitations. See Article 436 

and c. 

c. Informing accused of charges.-If, when charges are received 

by the officer exercising summary court-martial jurisdiction, it ap- ' 

pears that the accused has not been advised of the charges against 

him, the action prescribed in 32f (1) will be taken promptly. 

d. Alterations.-The o5cer exercising summary court-martial jurisdiction will make a preliminary examination of the charges and the 

allied papers to determine whether the specifications are laid under 

the proper punitive articles and are supported by the expected evidence. Charges forwarded or referred for trial and the accompanying papers should be free from defect of form and substance, but 

delays incident to the return of papers to the accuser for correction . of defects which are not substantial will be avoided. Obvious errors 

may be corrected and the charges may be redrafted over the accuser's 

signature, provided the redraft does not include any person, offense, or . 

matter not fairly included in the charges as preferred. Corrections 

and redrafts should be initialed by the officer making them. If a 

change involves the inclusion of any person, offense, or matter not 

fairly included in the charges as preferred, new charges, consolidating all offenses .which are to be charged, should be signed and sworn 

to by an accuser. See Article 346. 

e. Investigations.-When the offenses are so serious that it may be 

appropriate to forward them with a recommendation for trial by general court-martial, he will appoint an officer to investigate the charges 

in accordance with 34 and Article 32, subject to the following 

exceptions : 

(1) Effect of investigation of subject matter 6efo.re charges preferred.-If an investigation of the subject matter of an offense was 

conducted prior to the time the accused bas charged with the offense . (e. g., court of inquiry), and if the accused was present at the investiL 

40 
'CHARGES-INVESTIGATION AND DISPOSITION T[ 33g 

gation of that charge and was affordedthe rights set forth in Article 

3271, no furthey investigation of that charge is necessary unless it is 

demanded by the accused after he is informed of the charge. A demand for further investigation in such a case entitles the accused to a recall witnesses for further cross-examination and to offer any new 

evidence in his own behalf. See Article 32c. 6 

(2) Efect of changing charges after investigation is made.- 

If the charges were investigated pursuant to 34 and Article 3271 before 

reaching the officer exercising summary court-martial jurisdiction, he 

need not direct another investigation unless there is reason to believe 

that a further inuestigation would aid in the administration of military justice. In any event, supplementary investigations by the same 

or a different investigating officer may be directed. If, at any time 

after an investigation under Article 326 has been conducted, the 

charges are changed tu allege a more serious or essentially different 

offense, a new investigation should be directed to give the accused an 

opportunity to exercise the privileges afforded him by 34 and Article 

32b with respect to the new or different matters alleged. In this connection, see 33d. 

f. Dismissal of charges.-He has the same authority as the 

. commander exercising immediate jurisdiction over the accused under 

Article 15 with respect to dismissal of all or part of the charges. In 

this connection, see 32d. 

If the officer exercising summary court-martial jurisdiction finds 

that trial of a particular case would be warranted except for the fact 

that it would probably be detrimental to the prosecution of a war or 

inimical to the national security, he will, without dismissing any 

charges that may have been preferred, forward the case to the officer 

exercising general court-martial jurisdiction over the command who, 

if he concurs in such &ding, will forward the case through the chain 

. of command to the Secretary of the appropriate Department. In this 

connection, see Article 43e. Any officer exercising general court-martial jurisdiction who receives the charges in such a case is authorized to 

determine whether trial' of the accused is warranted under the circumstances and, if so, whether the security considerations involved are 

paramount to trial. In an appropriate case, such a commander may, 

instead of forwarding the charges, dismiss them or authorize their 

trial. 

g. Non-judicial punishment.-He has the same authority as the 

commander exercising immediate jurisdiction over the accused under 

Article 15 with respect to the imposition of non-judicial punishment. 

See 32e, 129, and 131. He may impose such punishment himself or he 

may direct the immediate commander of the accused to take appropri- 
V33i CHAPTER VII 

ate action. In the case of warrant officers and officers, he will usually 

impose such punishment or, if he believes a forfeiture of pay to be 

appropriate in the interest of justice and discipline, he will forward 

the charges and allied papers or the report of preliminary inquiry 

(if charges have not been preferred) to the officer exercising general 

@ court-martial jurisdiction with a specific recommendation over his . own signature as to the exact punishment he believes should be 

imposed. 

h. Disposition of the charges bg trial.-If he determines that 

some punishment should be adjudged against the accused, but that 

punishment under Article 15 is not appropriate or has in a proper 

case been refused by the accused, he must decide to which kind of 

court-martial the case should be referred. Subject to jurisdictional 

limitations, charges against an accused, if tried at all, should be tried 

at a single trial by the lowest court that has the power to adjudge an 

appropriate and adequate punishment. See 331. The fact that, upon. 

conviction of a particular offense, the Table of Maximum Punishments 

(127c) may authorize a punishment in excess of that which can be 

adjudged by a summary or special court-martial does not in itself 

preclude reference of such an offense to a summary or special courtmartial for trial. In this connection, see 15a and 16a as to the authority to cause a capital case to be tried by an inferior court-martial. He 

should take into consideration the character and prior service of the 

accused, as well as the established policies of superior authority, in 

deciding upon his action or recommendation. For example, he should . not hesitate in a proper case involving offenses of a purely military 

nature, to dismiss the charges (32d) or refer them to an inferior 

court-martial for trial. When any offense charged is not of a purely . 

military nature, he should take into account the fact that the retention 

in the armed forces of thieves and persons guilty of moral turpitude 

injuriously reflects upon the good name of the military service and 

its self-respecting personnel. If he determines that the offense is so 

serious that the accused, if convicted, should be separated from the 

service by a punitive discharge, he must decide to which court the 

case should be referred in order that the appropriate kind of discharge--dishonorable or bad conduct-may be adjudged. In this 

connection, see 76a (6) and (7). Ordinarily, a specification as to 

which the statute of limitations (Art. 43) apparently may be successfully pleaded should not be referred for trial. See 68c. 

i. Forwarding charges.-When trial by a special or general courtmartial is deemed appropriate, and he is not empowered to convene 

such a court for the trial of the case (5a, b), he will forward the 
CHARGES-INVESTIGATION AND DISPOSITION lT 331 

charges and necessary allied papers (ordinarily through the chain of 

to the officer exercising the appropriate kind of courtmartial jurisdiction. The charges will be forwarded by indorsement 

or letter of transmittal, signed by the forwarding officer, and containing his recommendation as to their disposition. If the charges are 

forwarded with a recommendation for trial by general court-martial, 

the forwarding officer should observe the following rules: 

(1) He will inclose a copy of the report of investigation made 

under 34 and Article 32 or will explain why such an investigation 

was not made prior to forwarding the charges. 

(2) If an investigation under 34 and Article 32 was made, he 

will cause a copy of the substance of the testimony taken on both 

sides during the investigation to be furnished to the accused and 

will report that fact in his indorsement or letter of transmittal. 

(3) He will note in the indorsement or letter of transmittal 

whether any material witnesses may not be available at the time of 

the trial and the action that has been initiated to have such witnesses 

or their depositions available at the trial. See chapter XXIII and 

Article 49. 

j. Reference for trial, (I) Manner of ref ereme.--Charges are 

ordinarily referred to a court-martial for trial by means of the indorsement on page 3 of the charge sheet (app. 5). Although the 

indorsement is usually completed on all copies of the charge sheet, only 

the original need be signed. The indorsement may include any proper 

instructions; for instance, a direction that the eharges be tried with 

certain other charges against the accused (24b), or in a common trial 

I with other persons (331), or that 'a capital case be treated as not 

capital (15a (3) ; Art. 49f). If for any proper reason it is desired 1. , to refer charges to a court different than that to which they were 

originally referred, the new reference is customarily accomplished by 

means of a new indorsement abed to the charge sheet. In such a 

case, the original indorsement is lined out and initialed. 

(2) Special court-martial.-The officer exercising summary 

court-martial jurisdiction (5c; Art. 24) is often &so empowered ,to 

I convene speck1 courts-martial (56; Art. 23). If he is so empowered 

and determines that trial by special court-martial is appropriate, he 

should complete the indorsement in the prescribed manner and transmit the charges and alli.ed papers (ordinarily in duplicate, but with 

one additional copy of the charges for each accused in excess of one) 1 to the trial counsel of the court. 

(3) Smmry court-martial.-If he determines that trial by summary court-martial is appropriate, he should complete the indorse43 
CHAPTER VII 

ment in the prescribed manner and transmit the charges (ordinarily 

in triplicate) to the summary court-martial. If the only officer present with a command decides to try the charges as summary court-martial, no indorsement is required. 

k. Reporters in trials by special courts-martial.-When the convening authority is authorized to direct that a reporter not be .appointed for trials by special courts-martial, he may, in an appropriate 

case, include in the indorsement referring the charges for trial the 

direction, "Reporter not authorized." In this connection, see 7. 

Z. Common trial.-If two or more persons are charged with the 

commission of an offense or offenses which, although not jointly committed (26d), were committed at the same time and place and are provable by the same evidence, the convening authority may in his discretion direct a common trial for such offenses only. Offenses charged 

against different accused which are not closely related should not be 

tried in a common trial, notwithstanding the fact that some gther 

offenses with which each accused is charged may be closely related. 

See 69d (Motion to sever). For example, when A and B are each 

charged with larcenies alleged to have been committed at the same 

time and place, and B is also charged with an aggravated assault alleged to have been committed several days later, the assault specification against B should not be tried in a common trial, although the 

charges of larceny may properly be tried at such a trial. The convening authority may exercise his discretion in determining the order 

in which such charges shall be tried. 

m. Suspected insanity.-If he suspects that an accused lacks mental 

capacity or that he was not meqttally responsible at the time of the 

offense charged, he should initiate an inquiry into the mental condition of the accused as provided in 121. 

34. INVESTIGATION OF CHARGES.-a. Introductory statement.-No charge shall be referred to a general court-martial for trial 

until a thorough and impartial investigation thereof has been made 

(Art. 32). 

The officer appointed to make such an investigation should be a 

mature officer, preferably an officer of the grade of major or lieutenant 

commander or higher, or one with legal training and experience. 

Neither the accuser nor any officer who is expected to become the law 

officer or a member of the prosecution or defense upon possible trial 

of the case will be designated-as investigating officer. 

In conducting the investigation, the investigating officer will comply 

with Articles 31 and 32. The purpose of the investigation required 

by Article 32 is to inquire into the truth of the matters set fortla in 

the charges, the form of the charges, and to secure information upoa 
which to determine what disposition should be made of the case. It 

is not the function of the investigating officer to perfect a case against 

the accused, but to ascertain and impartially weigh dl available facts 

in arriving at his conclusions. He is required to conduct a thorough 

ad impartial investigation and is not limited to the examination of 

witnesses and documentary evidence listed on the charge sheet or 

mentioned in the papers accompanying the charges. He should extend his investigation as far as may be necessary to make it thorough. 

The investigation should be dignified and military, as brief as is consistent with thoroughness and fairness, and limited to the issues 

raised by the charges and to the proper disposition of the case. Any 

failure to comply substantially with the requirements of Article 32 

which results inLprejudice to the substantial rights of the accused at 

the trial--such as a denial of a reasonable opportunity to secure 

material witnesses for use at the trial or of an opportunity to prepare 

his defense-may require a delay in disposition of the case or disapproval of..the proceedings. See 69c and 87c. Similarly a failure to 

comply with the provisions of Article 31 may result in,a miscarriage 

of justice. Recommendations of an investigating officer are advisory 

only. 

The remainder of this paragraph (34) is intended primarily to 

indicate a proper procedure in the usual cases. Variations to meet 

the circumstances of other cases or exceptional or local conditions, 

or for any other good reasons, are not only permissible but should be 

adopted, provided the spirit and purpose of the statutory requirements 

referred to above are observed and carried out. 

b. Advising the accused.-At the outset of the investigation the 

' accused will be informed of the following : The offense charged against 

him; the name of the accuser and of the witnesses against him as far 

as then known by the investigating officer; the fact that charges are 

about to be investigated; his right to have counsel represent him at 

the investigation if he so desires, as provided in Article 32; his right 

to cross-examine witnesses against him if they are available and to 

present anything he may desire in his own behalf, either in defense, 

extenuation, or mitigation ; his right to have the investigating officer 

examine available witnesses requested by him; his right to make a 

statement in any form, but that he is not required to make any statement regarding the offense of which he is accused or being investigated, and that any statement he may make may be used as evidence 

against him in a trial by Court-martial. 

c. Counsel.-If the accused requests that he be represented by 

counsel, the investigating officer will promptly report the request to 
7 3(4d CHAPTER VII 

the officer who referred the charges for investigation. The .latter 

will take the following action : 

(1) If the accused requests civilian counsel of his own selection, 

he will give the accused a reasonable opportunity to obtain the civilian counsel without unduly delaying the investigation, but such 

counsel will not be provided at government expense. 

(2) If the accused desires military counsel of his own selection, 

and if the requested military counsel is reasonably available within 

the command, he will provide such military counsel. If the counsel 

is not under the command of the officer who referred the charges 

for investigation, that officer will take prompt action to ascertain 

the availability of the requested counsel and, if available, to obtain 

his services without unduly delaying the investigation. 

(3) If counsel is not provided as indicated in (1) or (2) above, 

and if the officer who ordered the investigation is the officer exercising general court-martial jurisdiction over the command, he will 

detail a competent officer to represent the accused as counsel at the 

investigation; otherwise he will forward the request ~f the accused 

directly and expeditiously to the officer exercising general courtmartial jurisdiction over the command, who will promptly designate 

and provide such counsel. It may be appropriate for the officer 

exercising general court-martial jurisdiction to designate a permanent pretrial counsel to act in all cases arising within a particular 

area or at a particular station, thus avoiding delay in investigations. 

For example, the regularly appointed defense counsel and assistant 

defense counsel of the general court-martial appointed to sit at a 

particular station may be designated as pretrial counsel. , 

If practicable, charges must be ,forwarded to the officer exercising 

general court-martial jurisdiction within eight days after an accused 

is ordered into arrest or confinement .(Art. 33). The investigation 

should be conducted promptly, while the events are fresh in the minds 

of witnesses. An investigation will not be delayed if the accused 

is unable to provide civilian counsel of his own selection within a 

reasonable time after having been given an opportunity to obtain such 

counsel. 

The principles stated in 426 and 48 apply equally to the counsel at 

the investigation. Whenever counsel is requested by the accused, the 

investigation will be conducted in the presence of the counsel unless 

the accused expressly excuses him. 

d. Witnesses.-All available witnesses, including those requested 

by the accused, who appear to be reasonably necessary for a thorough 

and impartial investigation will be called and examined in the pres- 
ence of the accused, and if counsel has been requested, in the presence 

of the accused and his counsel. Ordinarily, application for the atr 

tendance of any witness subject to military law will be made to the 

immediate commanding officer of the witness. The decision of the 

officer exercising summary court-martial jurisdiction over the command to which the witness belongs is final as to availability. There 

is no provision for paying compensation to any witness who gives 

evidence at the pretrial investigation. There is no provision for 

compelling the attendance of witnesses not subject to military 

jurisdiction. 

Witnesses who give evidence during the investigation should be 

examined on oath or affirmation and, unless procurement of their 

signatures will cause undue delay in the completion of the investigation, they should sign and swear to the truth of the substance of 

their statements after they have been reduced to writing. If the accused elects to make a statement, he shall have the option of making 

it under oath or a5rmation or of making an unsworn statement; he 

should be afforded the opportunity of signing and swearing to the 

trutheof the substance of .his statement after it has been reduced to 

writing. See 114 for forms of oaths. If material witnesses on behalf of the accused or the prosecution are not reasonably available, 

and if it appears that they may not be available at the time of trial, 

the investigating officer should initiate action with a view toward 

obtaining necessary depositions. See 30e, 117, and Article 49. 

When the investigating officer makes known to the accused the 

substance of the testimony expected from a witness as ascertained 

from a written statement of the witness, interview with the witness, 

or othersimilar means, and the accused states that he does not desire 

to cross-examine the witness, the witness need not be called even if 

available. When a witness requested by the accused is available, the 

witness need not be called if the accused withdraws his request upon 

being informed that the testimony expected by the accused from the 

witness will be regarded as having been actually taken. 

To the extent required by fairness to the Government and the 

accused, documentary evidence and statements of witnesses who are 

not available will be shown, or the substance thereof will be made 

lmown, to the accused and, if counsel has been requested, to his counsel. 

e. Formal report.-Whenever it appears that the case may be dis- - 

posed of by reference to a general court-martial for trial, a formal 

report of investigation will be made to the officer who directed it. In 

this connection, see 34f. Such a report ordinarily will be made in 

triplicate, but one additional copy will be made for each accused in 

excess of one. For a form of report, see appendix 7. Although 

47 
7 34f CHAPTER VII 

previously prepared forms may be used, special care should be exercised to insure that the use of forms of report of investigation does not 

result in perfunctory or inaccurate certifications of compliance with 

the requirements of this paragraph (34). ~hle$s otherwise indicated 

by him, the submission of his report by an investigating officer will 

be regarded as a statement that to the best of his knowledge and belief 

the investigation of the matters set forth in the charges was made in 

substantial conformance with all requirements, the matters set forth 

in the charges as to which he recommends trial are true, and such 

charges are in proper form. 

A formal report by indorsement or letter will include or carry as 

inclosures or by reference to other papers returned or submitted by 

him with the report: 

(1) A statement of the name, organization, or address of counsel 

and information as to the presence or absence of counsel throughout 

the proceedings in all cases in which counsel has been requested by 

the accused. 

(2) A statement of the substance of the testimony taken on both 

sides, including any stipulated testimony (e. g., wheh an accused 

withdraws a request for a witness upon being told that the testimony expected would be regarded as taken). One additional copy 

of the statement of the substance of the testimony taken will be 

prepared for each accused to enable the officer exercising summary 

court-martial jurisdiction to furnish each accused with a copy if 

the charges are forwarded to the officer exercising general courtmartial jurisdiction. See 33i (2) and Article 326. 

(3) Any other statements, documents, or matters considered by 

him in reaching his conclusions or making his recommendations, 

or recitals of the substance or nature of such items. 

(4) A statement of any reasonable ground for the belief that 

the accused is, or was at the time of an offense, mentally defective, 

deranged, or abnormal. 

(5) A statement as to whether essential witnesses will be available in the event of trial. If essential witnesses will not be available, the reasons for nonavailability will be stated. . (6) The recommendation of the investigating o5cer as to what 

disposition should be made of the case. 

f. Informal report.-Unless competent superior authority has directed otherwise, if it does not appear that the case will be disposed of 

by reference for trial by general court-martial, an informal report to 

the officer who directed the investigation will be made orally or by a 

brief memorandum, indorsement, notations on the charge sheet, or 
I CHARGES-INVESTIGATION AND DISPOSITION 1[ 35b 

1 &her suitable means. However made, the report need include in 

abbreviated form only the first, second, fourth, and sixth items of 

the formal report, but the sources of any material evidence for either 

side which were not shown in the papers received by the investigating 

officer should be reported. 

35. ACTION BY OFFICER EXERCISING GENERAL 

COURT-MARTIAL JURISDICTION.--a. General.-The charges 

received by the o5cer exercising general court-martial jurisdiction 

ordinarily will have-been investigated under the provisions of 34 and 

Article 32, and will have been examined and forwarded with an appropriate recommendation by an officer exercising summary court-martial jurisdiction. The charges and allied papers usually will be in 

triplicate, with one additional copy for each accused in excess of one. 

With respect to the disposition of charges received by him, he is 

empowered,'as the officer exercising general court-martial jurisdiction, 

to refer them for trial to a general court-martial convened by him, 

to authorize the trial of certain capital offenses by inferior courtsmartial, or, in lieu of trial, to impose forfeitures of pay in appropriate 

cases upon officers and warrant officers of his command under the 

provisions of Article 15. In addition to these powers-none of which 

may be delegated-he may take any action on the charges which the 

immediate commander (32) or the officer exercising surmnary courtmartial jurisdiction (33) is authorized to take. He may take this 

latter action himself or he may return the charges and allied papers 

to a proper subordinate commander with the instruction that appropriate action be taken by him. 

6. Reference to staf7 judge advocate or legal officer.-Before directing the trial of any charge by general court-martial, the convening 

authority shall refer it to his staff judge advocate or legal officer for 

consideration and advice. The convening authority shall not refer 

a charge to a general court-martial for trial unless he has found that 

the charge alleges an offense under the code and is warranted by 

evidence indicated in the report of investigation (Art. 34a). 

Subject to the provisions of this paragraph (35), reference to a staff 

judge advocate or legal officer will be made and his advice submitted 

in such manner and form as the convening authority may direct, but 

the convening authority shall at all times communicate directly and 

personally with his staff judge advocate or legal o5cer in matters relating to the administration of military justice. See Article 66. No 

person who has acted as investigating officer, law officer, or member 

of the court, prosecution, or defense in any case shall subsequently 

. act as staff judge advocate or legal officer in the same case. See 

Article 6c. 
T35c CHAPTER- YII 

c. Action of the staff judge advocate or legal officer.-The advice 

of the staff judge advocate or legal officer shall include a written and 

signed statement as to his findings with respect to whether there has 

been substantial compliance with the provisions of Article 32, whether 

each specification alleges an offense under the code, and whether the 

allegation of each offense is warranted by the evidence indicated in 

the report of investigation ; it shall also include a signed recommendation of the action to be taken by the convening authority. Such recommendation will accompany the charges if they are referred for 

trial. See 44g (1) and h. 
Chapter VIII 

APPOINTMENT OF COURTS-MARTIAL 

APPOINTING ORDERS-CHANGES IN PERSONNELINSTRUCTING 

PERSONNEL OF COURT 

36. APPOINTING ORDERS.--a. General.-See 4 to 6, inclusive, 

for various matters relating to the appointment of courts-martial, 

including the appointment of a law officer, and the appointment of 

trial counsel, defense counsel, and their assistants. Appointment of 

personnel to court-martial duty is prima facie evidence that they are 

on active duty with an armed force. See Article 25. 

6. Form and content.-A court-martial is created by an appointing order issued by the convening authority. The appointing order 

designates the kind of court, the place and time it is to meet, lists the 

members of the court, and, when appropriate, the law officer and the 

members of the prosecution and defense. The qualifications of the 

law officer under Article 26 and of the members of the prosecution and 

defense under Article 27 are shown in the appointing order. If enlisted personnel are appointed as members of the court, the unit (company, squadron, ship's crew, or corresponding body (4a; Art. 25c)) . 

of which each is a member is shown. The appointing order may contain a provision for the withdrawal of unarraigned cases from other 

courts-martial andveferral of those cases to the new court; it should 

contain no reference as to whether a reporter or interpreter is authorized. See appendix 4 for forms of appointing orders. 

c. Selection of personnel.-(1) General.-Courts-martial are ordinarily composed of personnel of the convening authority's command. With respect to utilizing personnel of other commands or 

other armed forces, see 49. If his subordinate commands are separated geographically, the convening authority may appoint a court 

for each locality, using personnel from the area where the court is to 

sit. When a general court-martial is to be, or has been, appointed to 

sit at a post, camp, station, or subordinate command at a distance from 

the officer exercising general court-martial jurisdiction, and the personnel of the court are selected from such post, camp, station, or subordinate command, the commander of the installation or subordinate 

command should transmit timely recommendations to the convening 

authority as to the availability of members of his command (as affected by leave, reassignment, relief from active duty, or other 

matters) to act as personnel of any court to which they have been or 

may be appointed. 
7 37b CHAPTER Vlll 

(2) Edisted members.--When charges against an enlisted person have been referred to a general or special court-martial to which 

enlisted members have not been appointed, and, psior to the convening of the court for trial, the accnsed personally has requested in 

writing that enlisted persons serve on the court (61g, i; Art. 25c), 

the convening authority shall : 

(a) Appoint a sufficient number of eligible enlisted persons to 

the court and, if appropriate, relieve a sufficient number of officers 

or warrant officers from the court to the end that at least one-third 

of the members who will actually participate in the trial of the case 

will be enlisted persons ; or 

(6) Withdraw the charges from the cdurt to which they were 

originally referred and refer them to a court which is composed 

of the required percentage of eligible enlisted persons; or 

(c) Advise the court before which the charges ara pending to 

proceed with the trial in the absence of enlisted members if eligible 

enlisted persons cannot be obtained because of physical conditions 

or military exigencies. When this action is taken, the convening 

authority should transmit to the trial counsel, for inclusion in the 

record of trial, a detailed written statement of the reasons why 

enlisted persons could not be obtained for the trial of the case. 

(This statement may be transmitted to the trial counsel when the 

charges are referred to trial if the facts are known at that time.) 

37. CHANGES IN PERSONNEL.-a. General.-Subject to the 

exceptions stated below (3'7b), it is within the discretion of the convening authority to make changes in the composition of courtsmartial appointed by him. For instance, he may appoint new members to a court in lieu of, or in addition to, the members of the original 

court; or he may appoint a new law officer, trial counsel, or defense 

counsel in lieu of the personnel designated to perform those respective 

duties by the original appointing order. When practicable, the convening authority should change the composition of courts-martial 

from time to time to provide the maximum opportunity to eligible 

personnel to gain experience in the administration of military justice. 

6. Exceptions.-No member of a general or special court-martial 

shall be absent or excused after the accused has been arraigned 

except for physical disability or as a result of a challenge or by order 

of the convening authority for good cause (Art. 29a). Military 

exigencies or emergency leave, among others, may cohtitute good 

cause for such a relief. The determination of facts which constitute 

good cause for the excuse from attendance or the relief of a member 

after arraignment rests within the discretion of the mnvening aathor- 
COURTS-MARTIAL-APPOINTMENT 38 

ity. Ordinarily, he should not appoint additional members to a general or special court-martial after the arraignment of an accused 

unless the court is reduced below a quorum; if practicable, he should 

excuse from future sessions of the court in a particular case any member who was absent when testimony on the merits was heard, or other 

important proceedings were had. 

See 41c for procedure when a member is absent because of physical 

disability. 

c. Manner in which effected.-(1) Formal changes.-Permanent 

changes in the composition of a court-martial, such as changes which 

involve the appointment of new personnel to a court or the relief of 

a member, are usually accomplished by promulgation of formal written orders amending the original appointing order. If it is necessary 

to make a formal change by oral order, despatch, or signal, the oral 

order, despatch, or signal should be confirmed by written orders. 

For forms of amending orders, see appendix 4. Ameiidments of the 

original appointing order should be kept to a minimum. To avoid 

making a number of separate changes by the way of amendment, it 

is better practice to appoint a new court. Any unarraigned case 

which is pending before the old court may be withdrawn from it and 

referred to the new court. In appointing a new court, the old court 

should not be dissolved, nor the order appointing the @ld court 

rescinded or revoked, as it may be necessary to reassemble the old 

court for revision proceedings. 

(2) Informal changes.-If the convening authority excuses a 

member or counsel from attendance at future sessions of a general or 

special court-martial in a particular case or series of cases, but does not 

desire to relieve him permanently as a member or counsel, he may 

take such action by oral order, despatch, or signal and need not confirm 

the action by a written order. See 41c,44b, and 46b. 

38. INSTRUCTING PERSONNEL OF COURT.-A convening 

authority may, through his staff judge advocate or legal officer or otherwise, give general instruction to the personnel of a court-martial 

which he has appointed, preferably before any cases have been referred 

to the court for trial: When a staff judge advocate or legal officer is 

present with the command such instruction should be given through 

that officer. Such instruction may relate to the rules of evidence, 

burden of proof, and presumption of innocence, and may include information as to the state of discipline in the command, as to the prevalence of offenses which have impaired efficiency and discipline, and of 

command measures which have been taken to prevent offenses. Except as provided in this manual, the convening authority may not, 
7 38 CHAPTER Vlll 

however, directly or indirectly give instruction to, or otherwise unlawfully influence, a court as to its future action in a particular case. In 

this connection, see 67fd 

Convening authoriti,es are expressly forbidden to censure, reprimand, or admonish a court appointed by them, .or any member, law 

officer, or counsel ther,eof, with respect to the findings or sentence a;djudged by the court, or with respect to any other exercise of its or his 

functions in the conduct of the proceedings. No person subject to the 

code shall attempt to coerce or by any unauthorized means influence 

the action of a court-martial or any other military tribunal, or any 

member thereof, in reaching the findings or sentence in any case. See 

Articles 37 and 98. 
Chapter ZX 

PERSONNEL OF COURTS-MARTIAL 

LAW OFFICERPRESIDENT-MEMBERS-COUNSEL; GENERAL PROVISIONS--SUSPENSION OF COUNSELTRIAL COUNSEL--ASSISTANT 

TRIAL COUNSELDEFENSE COUNSEGASSISTANT DEFENSE COUNSEISCOUNSEL FOR THE ACCUSED-REPORTER-INTERPRETERGUARDS, CLERKS, AND ORDERLIES 

39. LAW OFFICER.-a. Selection.-See 4e for qualifications of 

the law officer. 

6. Duties.-(1) General.-The law officer is responsible for the fair 

and orderly conduct of the proceedings in accordance with law in all 

cases which are referred to the court to which he is appointed. He 

may, after conferring with counsel (39c), make recommendations to 

the senior member of the court as to the time of assembly of the 

court for the trial of a case. During the trial, he rules upon all interlocutory questions except challenges (57) and advises the court on 

questions of law and procedure which may arise. His ruling upon 

any interlocutory question other than a motion for findings of not 

guilty or the question of the accused's sanity is final (57d). He is 

not a member of the court and does no€ vote with the members of the 

court upon a challenge or other'interlocutory question properly referred to the court for decision, or upon the findings or sentence. Before the court closes to vote on the findings, he instructs it as to the 

elements of each offense charged, the presumption of innocence, 

reasonable doubt, and burden of proof (731, and may give it such 

additional instructions as will aid it in arriving at just findings, such 

as what lesser offenses, if any, are included in the offense charged 

and the possible findings the court may make by way of exceptions 

and substitutions. After the court has finally voted on the hdings, 

he may, at the request of the court;,assist it in putting the findings 

In proper form (74f;'~rt. 39). Before the court closes to vote upon 

a sentence, he should advise it as to the maximum authorized punishment for each offense of which the accused has been found guilty. 

(2) Interference in conduct of trial.-The law officer may prop 

erly intervene in a trial-of a case to prevent unnecessary waste of 

time or to clear up some obscurity. However, he should bear in mind 

that. his undue interference or participation in the examination of 

witnesses, or a severe attitude on his part toward witnesses, may tend 

to prevent the proper presentation of the case, or hinder the ascertainment of the truth. 
'II 390 I 

CHAPTER IX . 

Consultation between the lam officer and counsel in court is often 

necessary, but the law officer should avoid controversies which are 

apt to obscure the issues before the court. In addressing counsel, the 

accused, witnesses, or the court, he should avoid a controversial 

manner or tone. He should avoid interruptions of counsel in their 

arguments except to clarify his mind as to their positions, and he 

should not be tempted to the unnecessary display of learning or a 

premature judgment. 

c. Record,All proceedings involving rulings or instructions made 

or given by the law officer during the courSe of a trial shall be made 

a part of the record and, except when the law officer assists the court 

in putting its findings in proper order, shall be made or given in open 

court in the presence of the accused and the counsel for the prosecution and defense. See Article ,39. A conference between the law 

officer and the counsel for either side, or the senior member of the 

court, held outside of court for the purpose of discussing the time 

of the commencement or continuation of the trial, need not be made 

a part of the record. See 586 as to postponement of assembly'of 

the court for a trial. See also 57g (2) for rules governing proceedings had outside the presence of members of a general court-martial 

with respect to preliminary evidence, offers of proof, and arguments 

as to the admissibility of proffered evidence, and 730 (2) for rules 

governing the preparation of additional. instructions by the law 

0fficel.. L 

d. Absence of law officer.-Tha law officer must be present at all 

times during the trial of a case except when the court is closed to 

deliberate or vote (Art. 39). When the law officer is absent from 

any open session of the court during the trial of a case, the court will 

adjourn until either the law officer is pyesent or a new law officer is 

regularly appointed and is present. In appropriate cases the court 

will report the absence of the lam officer to the convening authority. 

If, before trial, it appears to a lam officer that he should not sit on 

the court, either at all or in a particular case, for reasons enumerated in 62f or for other reasons, he will bring the matter to the attention of the convening authority. 

e. New law officer.-The law officer should pqt be changed during 

the progress of a trial except for a good reason. If a new law officer 

is appointed to the court in the course of a trial and is sworn (opportunity to challenge him for cause having been given), the trial mag 

proceed after the substance of all proceedings have been ma'de known 

to him and the recorded testimony of each witness previously 

examined has been read to him in the presence of the court, the accused, 
COURTS-MARTIAL-DUTIES OF PERSONNEL 7 40b 

and counsel. However, see 80b for the procedure to be followed when 

a new law officer is present at revision proceedings. 

f. Authentication of record.-The law officer who was present at 

the conclusion of the proceedings in a case will authenticate the record 

of trial. See 82f in this connection. 

40. PRESIDENT.-a. General.-The senior in rank among the 

rnembgr~ appointed to a general or special court-martial is the president; however, the senior member present at a trial, whether or not 

he is the senior member appointed to the court, is president of the 

court for the trial of that case. See 40c. 

b. Duties.- (1) General court-martial.-The president of a general court-martist1 has the duties, powers, and privileges of members 

in general. He has the following additional powers and duties: 

(a) After consultation with the trial counsel and, when appropriate, the law officer (58b), he sets the time and place of trial 

and prescribes the uniform to be worn. 

(b) As the presiding officer of the court, he takes appropriate 

action to preserve order in the open sessions of the court in order 

that the proceedings may be conducted in a dignified, military 

manner, but, except for his right as a member to object to certain 

rulings of the law officer (57d, 118), he shall not interfere with those 

rulings of the law officer which affect the legality of the proceedings. 

(c) He administsrs oaths to counsel. 

(d) For good reason,-he may recess or adjourn the court (e. g., 

394, subject to the right of the law officer to rule finally upon a 

motion or request of counsel that certain proceedings be completed 

prior to such recess or adjournment, or that a continuance be 

'granted (58). Whether a matter of recess or adjournment has 

become an interlocutory question will be finally determined by the 

law officer (57d). 

(e) He presides over closed sessions of the court and speaks for 

the court in announcing the findings and sentence and the result 

of any vote upon a challenge or'other interlocutory question properly presented to the court for decision. 

(f) He speaks for the members of the court in conferring with, 

or in requesting the advice of, the law ofticer upon any question of - 

law or procedure. 

(2) Special court-martial.-The president of a special courtmartial is responsible for the fair and orderly conduct of the proceedggs in accordance with law in all cases referred to the court. In 

addition to performing the duties prescribed for the president of a 

67 
K 41d CHAPTER IX 

general court-martial, he will rule upon all interlocutory questions 

except challenges, and, before the court closes to vote on the findings, 

will instruct the court as to the elements of each offense charged, the 

presumption of innocence, reasonable doubt, and burden of proof (73a, 

6). His rulings upon interlocutory questions may be objected to by 

any other member of the court (57~). With respect to the conduct of 

trials, he will be guided by the principles outlined in 396 (2). 

c. Authentication of record.-The senior member of the court 

who was present at the conclusion of the proceedings in a case will 

authenticate the record of trial as president. See 82f and 830 in this 

connection. 

41. MEMBERS.-a. Selection.-See 4a to d, inclusive, for qualifications of members of courts-martial. 

6. Duties.-Members of courts-martial hear the evidence, determine 

the guilt or innocence of the accused and, if the accused is found guilty, 

adjudge a proper sentence. Each member has an equal voice and vote 

with other members in deliberating upon and deciding all questions 

submitted to a vote or ballot, the senior member having no greater 

rights in such matters than any other member. In this connection, see 

57f, 62h (3), 74d, and 766 (2). Members will be dignified and attentive. Although a court has no power to punish its members, improper 

conduct by a member, such as a refusal or fa'11ure to vote or properly 

to discharge any other duty under his oath or otherwise, is a military 

offense. 

c. Absence of members.-No member of a general or special courtmartial may be absent from the court during the trial of a case except 

for physical disability, as a result of a challenge, or by order of the 

convening authority. If, before the assembly of the court for the trial 

of a case, it appears to a member that he should not sit on the court, 

either at all or in a particular case, for reasons enumerated in 62f or 

for any other reason except physical disability, he will take appropriate steps to bring the matter to the attention of the convening 

authority. 

If he is able to do so, a member of a general or special court-martial 

who is, or has reason to believe that he will be, abs'ent from a session 

of the court because of physical disability will so inform the trial counsel. The latter will make an informal inquiry to verify the cause of 

the absence and, if it occurs after the arraignment of the accused, will 

report his findings to the court (41d (4) ) . d. Effect of absence.-(1) General.-When less than a iuorum 

(minimum number of members required by Article 16) is present, the 

court cannot be organized as such or proceed with a trial. Less than a 
COURTS-MARTIAL-DUTIES OF PERSONNEL m41f 

quorum may adjourn until a prescribed time. When a quorum is 

present and one member is challenged, the remaining members may 

pass on the challenge. 

(2) Edisfed members.--When, pursuant to Article 250, an enlisted person requests participation of enlisted members in his trial by 

general or special court-martial, the court shall not proceed with his 

trial unless one-third of the members actually sitting on the court 

throughout his trial are enlisted members or the convening authority 

has directed that the trial be held without enlisted persons. See 40 

and 36c (2). 

(3) Before arrraignmnt.-The unauthorized absence of a member of a general or special court-martial from a session of the court 

may be.a military offense, but his absence prior to the arraignment of 

the accused will not prevent the court from proceeding with the trial if 

a quorum is present. However, the trial counsel will report any unauthorized absence of a member to the convening authority. 

(4) Afier arraignment.-If a member who was present at the arraignment of the accused is absent from a future session of the court 

in the same case, the court may proceed only if a quorum remains and 

the absence is the result of a challenge, physical disability, or the order 

of the convening authority for good cause. As to the latter, see 376. 

In determinhg whether a member is absent because of physical disability, the court mayiccept the statement of the trial counsel as to the 

results of his informal, inquiry into the cause of absence (41c) or it 

may require the trial qounsel to procure and present other evidence, 

such as a certificate from a physician or a proper official as to the 

illness of the absent member. To determine whether a member is 

absent by order of the convening authority, the court may accept the 

statkment of the trial counsel that he has been advised by oral order, 

signal, or despatch that the member has been excused by the convening authority from further attendance in the case (37c). 

e. New member of geheral court-martial.-When a member who 

was previously absent from, or who has been newly appointed to, a 

general court-maAia1 has been sworn (opportunity to challenge him 

having been given), the trial may proceed after the substance of all 

proceedings had shall have been made known to him and the recorded 

testimony of each witness previously examined has been read to him 

in the presence of the law officer, the accused, counsel, and the other 

members of the conrt. See Article 296. 

f. New ?nember of special court-martial.-When a member who 

was previously absent from, or who has been newly appointed to, a 

special court-martial has been sworn (opportunity to challenge him 

having been given), the trial shall proceed as if no evidence had pre- 
1[ 42c CHAPTER IX. 

viously been introduced, unless the substance of all proceedings had 

shall have been made known to him and a verbatim record of the 

testimony of previously examined witnesses or a stipulation thereof 

is read to the court in the presence of the accused and counsel. See 

Article 290. 

42. COUNSEL; GENERAL PROVISIONS.-a. Definition of 

ferns.-The term "counsel" as used in this manual will be interpreted 

to include, unless otherwise indicated by the context, the appointed 

trial counsel and defense counsel of a general or special court-martial 

and their assistants, if any, and any individual counsel (civilian or 

military). Whenever the term "trial counsel" is meitioned, it will 

be understood to refer to the appointed trial counsel of a general or 

special court-martial and to include, unless otherwise indicated by 

the context, assistant trial counsel, if any. Whenever the terms "defense counsel'' or "counsel for the accused'' are used, they are to be 

understood to include, unless otherwise indicated by the context, the 

appointed defense counsel, appointed assistant defense counsel, if any, 

and any individual counsel. The term "individual counsel-" shall be 

understood to refer to military counsel selected by the accused or to 

civilian counsel provided by him. 

6. General rules of conduet.-In performing their duties before 

courts-martial, counsel should maintain a courteous and respectful 

attitude toward the law officer, the membersof the court, and opposing counsel, and should treat adverse witnesses'and the accused with 

fairness and due consideration. Personal colloquies between counsel 

which cause delay or promote unseemly wrangling shbuld be carefully 

avoided. The conduct of counsel before the court and with each other 

should be characterized by candor and fairness. Counsel should not 

knowingly misquote the contents of a paper, the testimony of a witness, the language or argument of opposing counsel, or the language 

of a decision or a textbook; nor, with knowledge of its invalidity, 

should counsel cite as authority a decision that has been reversed or 

an o5cial directive of the Department of Defense or any of the Departments, or one of their agencies, bureaus, branches, forces, cornmands, or units, that has been changed or rescinded. As publication ' 

in the public press, or on the radio or television, of the circumstances 

of a pending case may interfere with a fair trial and otherwise prejudice the due administration of justice, counsel should refrain from 

discussing such circumstances with representatives of the press, radio, 

or television unless authorized by the convening authority or other 

competent superior authority. 

c. Interviewing witnesses.-Counsel may properly interview any 

witness or prospective witness for the opposing side in any case with- 
COURTS-MARTIAL-DUTIES OF PERSONNEL X44d 

out the consent of opposing counsel or the accused. See 44h as to 

between the prosecution and the accused. In interviewing a 

witness, counsel should scrupulously avoid any shggestion calculated 

to induce the witness to suppress or deviate from the truth when appearing as a witness at the trial. See Article 31. 

48. SUSPENSION OF COUNSEL.-Rules defining professional 

or personal misconduct which disqualify a person from acting as 

counsel before courts-martial may be announced by the Judge Advocates General of the armed forces in appropriate departmental regulations which shall provide for notice and opportunity to be heard and 

%.ill also establish procedures to provide for the suspension of persons from acting as counsel before courts-martial. When any person 

actipg as counsel before a court-martial is guilty of professional or 

prsonal misconduct, action may be taken by a convening authority, in 

accordance with such regulations, to recommend suspension of the person affected from practice as counsel before courts-martial of the armed 

force concerned. Suspension will not be effected except by the Judge 

Advocate General of the armed force concerned. The Judge Advocate 

General concerned may, upon good cause shown, modify or revoke a 

prior order of suspension. 

44. TRIAL C0VNSEL.-a. Selection.-See 6 for qualifications of 

trial counsel . 6. Disqualification.-Whenever it appears to the court or to the 

trial counsel himself that any member of the prosecution named in the 

appointing order is for any reason, including misconduct, bias, prejudice, hostility, previous connection with a particular case, or lack of 

legal qualifications (for general courts-martial), disqualified or unable properly and promptly to perform his duties, a report of the facts 

mill be made at once to the convening authority and appropriate action 

taken to insure that the disqualified member shall not act for the prosecution. 

c. Absence.-For a proper reason {e. g., preparation of another 

.case) the convening authority or the president may excuse from attendance during a trial or trials such of the personnel of the prosecution as will not be required. 

d. General duties.-The trial counsel shall prosecute in the name 

of the United States, and shall, under the direction of the court, prepare the record of the proceedings (Art. 3%). When charges are referred to him for trial, it is his duty to bring them promptly to trial 

before the court indicated in the reference for trial. In general, he 

may bring cases to trial in such order as he deems expedient. He will 

be given ample opportunity to prepare properly the prosecution of 

each case. 
7 44f CHAPTER IX 

e. Reports.-(1) Statw of cases on hand.-Unless otherwise directed by the convening authority, he will submit a weekly report to the 

latter through the president of a special court-martial or the law officer 

of a general court-martial, in which, in addition to such matter as 

may be required by the convening authority, will be included a statement of the reasons for deIay in disposing finally of cases that have 

been on hand for over two weeks. 

(2) ResuZt of t*.-Upon ha1 adjournment of the court in a case, 

the trial counsel will, in writing, notify the immediate commanding 

officer of the accused of the result, including any findings reached and 

any sentence imposed by the court. Unless otherwise directed by the 

convening authority, the trial counsel will furnish a copy of this report to the convening authority and, if the accused is in conhement, 

to the commanding officer to whose command the place of conhement 

is subject. Immediate action will be taken to release the accused in 

the event the trial results in an acquittal or in a sentence not involving 

confinement. See 21d and 22 in this respect. 

f. Duties prior to trial.-(1) Examination of file.-He will report 

to the convening authority any substantial irregularity in the order 

appointing the court or in the charges or accompanying pape'rs. Tf 

the membership of the court to which the case is referred is reduced 

below a quorum for any reason or if the trial counsel has good reason to 

anticipate such a reduction, he will report the facts through appropriate channels to the convening authority. See 366 (1). Ordinarily 

he will correct and initial slight errors or obvious mistakes in the 

charges, but will not without authority make any substantial change 

therein. See 33d and e (2). He will take proper action to assure that 

the data on the charge sheet and any evidence of previous convictions 

are complete and free from errors of substance or form. 

(2) Notifiation of persmel; witnesses.-Unless otherwise directed by the president or unless obviously unnecessary, he will give 

timely oral or written notice to the members of the court and to all 

others concerned (including the officer, if any, whose duty it is to 

see that the accused attends.) of the date, hour, and exact place of any 

meeting of the court. He may include in this notice such other matter as the president may direct, such as a statement of the uniform 

to be worn. Prior to trial he will notify and arrange to have present 

at the trial witnesses who are to testify in person (including witnesses 

desired by the defense) and the reporter and interpreter if required. 

Before deciding that the presence of any particular witness is necessary, he should first consider whether the evidence which the witness is expect,ed t,o give is material and necessary and whether i depo- 
COURTS-MARTIAL-DUTIES OF PERSONNEL q44f 

,ition will properly answer the purpose. See Article 49. If in disagreement with the defense counsel as to whether the attendance of a 

witness requested by the defense is necessary, he will report the matter tosthe convening, authority in the manner prescribed in 115a. 

(3) Preparing for t./.iaZ.-Before the court assembles he will obtain a suitable room for the court, see that it is in order, procure requisite stationery, prepare a copy of the charges and specifications for 

each member of the court and the law officer, and take such other 

action as will enable him to make a prompt, full, and systematic presentation of the case at the trial. As to each offense charged, the 

burden is on the prosecution to prove beyond a reasonable doubt by 

competent evidence that the offense was committed, that the accused 

committed it, that he had the requisite criminal intent at the time, and 

that the accused is within the jurisdiction of the court, except to the 

extent that such burden is relieved by a plea of guilty. Whatever the 

defense may be, this burden never changes. Proper preparation to 

meet this burden includes a consideration of the essential elements of 

the offense and of the pertinent rules of evidence, to the end that only 

competent evidenc'e will be introduced at the trial, and requires a . 

determination of the order in which the evidence will be introduced. 

In general, evidence should be presented in sequence of events as nearly 

as practicable, Lnd, when several offenses are charged, especially if 

unrelated, the evidence should be directed to the development of their 

proof in the order charged so that neither the court nor the accused 

may be in doubt at any time as to the offense to which the evidence 

being introduced refers. If evidence is to be presented out of proper 

siquedce to suit the convenience of witnesses or for other reasons, the 

trial counsel may invite the attention of the court to the anticipated 

deviation. 

(4) Legal research.-If he finds that the provisions of this man- I 

ual do not clearly set;tle a question likely to arise at the trial, he should I 

endeavor to secure for use at the trial authorities to sustain his contentions, such as pertinent decisions of the courts or authoritative milii tary precedents. To secure these authorities he may communicate 

with the convening authority. 

(5) Reporting inadvisa6iZity of tm'u-3.-If, while preparing a 

case, he discovers a matter which in his opinion makes it inadvisable 

to bring the case. to trial he will inform the convening authority at 

once, provided it is reasonably apparent that the matter was not 

known to the convening authority when the charges where referred 

for trial. For example, such action would be appropriate when the 

trial counsel discovers that there has not been a substantial com- 
7 44g CHAPTER IX 

pliance with Article 32, and it appears that the accused may be 

prejudiced thereby, or that the accused was or is insane, or that the 

only witness to an essential fact has disappeared or repudiates the substance of the testimony expected from him. 

g. Duties during trial.-(1) Genera?.-He executes all orders of 

the court. Under the directior, of the court he keeps or superintends 

the keeping of the'required record of proceedings. 

Although his primary duty is to prosecute, any act (such as the 

conscious suppression of evidence favorable to the defense) inconsistent 

with a genuine desire to have the whole truth revealed is prohibited. 

With a view to saving time and expense, he should join in appropriate 

stipulations as to unimportant or uncontested matters. See 154b 

(Stipulations). 

While the court is in open session, he should respectfully call its 

attention to any apparent illegalities or irregularities in its action 

or in the proceedings. 

He will take care that any papers in his possession which relate 

to a case referred to him for trial and which are not in evidence are 

not exposed to any risk of inadvertent examination by members of the 

court; nor will he bring to the attention of the court any intimation 

of the views of the convening authority, or those of the staff judge 

advocate or legal officer, with respect to the guilt or innocence of 

the accused, appropriate sentence, or concerning any other matter 

exclusively within the discretion of the court. See Article 37. 

Aside from opinions expressed in the proper discharge of his duty 

to prosecute (e. g., in his closing argument or in~n argument on a 

motion or on the admissibility of evidence), he should not give the 

court his opinion upon any point of law arising dpring the trial except 

in open court when it is requested by the law officer (president of a 

special court-martial). It is improper for him to assert before the 

court his personal belief as to the guilt or innocence of the accused. 

When lie addresses the court he will rise. 

, (2) Presentation of the case.-After the pleas, the trial counsel 

will, to the extent required by the law officer (president of a special 

court-martial), read the parts of this manual or of authoritative 

precedents that are pertinent to the definition and proof of any offense 

charged and to the defense thereto. 

He may make an opening statemenethat is, a brief statement 

of the issues to be tried and what he expects to prove-but will avoid 

including or suggesting matters as to which no admissible evidence 

is available or intended to be offered. Ordinarily such a statement 

is made immediately before the introduction of evidence for the 
COURTS-MARTIAL-DUTIES OF PERSONNEL 7 450 

prosecution, but in exceptional cases the court may, in its discretion, 

perrriit like statements to be made at later stages of the proceedings. 

On behalf of the prosecution he conducts the direct and redirect 

of the witnesses for the prosecution and the cross and 

recross-examination of the witnesses for the defense. He will, unless 

the law officer (president of a special court-martial) otherwise direct~, conduct the direct and redirect examination of witnesses called 

by the court, and if such witnesses are adverse to the prosecution, may 

conduct the crbss-examination on behalf of the prosecution. 

See 72 as to closing arguments. 

h. Relations with the accuaed and his counsel.-Except to the 

extent that this manual may otherwise require, it is not his duty to 

assist or advise the defense. 

Immediately upon receipt of charges referred to him for trial he 

will serve a copy of the charge sheet, as received and corrected by him, 

on the accused and will inform the defense counsel of the court that 

such copy has been so served. Except as otherwise directed by the 

convening authority, he will permit the defense to examine from time 

to time any paper accompanying the charges, including the report of 

investigation and papers sent with the charges on a rehearing. He 

will also permit the defense to examine from time to time the order 

appointing the court and all amending orders. Prior to trial, he 

should advise the defense' of the probable witnesses to be called by 

the prosecut~on, and the fact that the defense has not been so advised 

with'respect to a witness who appears at the trial may be a ground 

for a continuance. 

His dealings with the defense should be through any counsel the 

accused may have. Thus, if he desires to know how the accused intends to plead or whether an enlisted accused desires enlisted members 

on the court, he will ask* the regularly appointed defense counsel or 

other counsel, if any, of the accused. He will not attempt to induce 

a plea of guilty. 

The trial counsel will furnish every person tried by the court a 

copy of the record of the proceedings as soon as it is authenticated. 

In this connection, see 82g (1) and 83d (Disposition-Delivery to 

accused). 

i. Duties after trial.-See 82 and 83 for rules governing the preparation, authentication, and disposition of the record of trial. 

45. ASSISTANT TRIAL COUNSEL.-a. General court-martial.-Unless he is disqualified by reason of prior participation in the 

case (6a), any person named in the appointing order as an assistant 

trial counsel of a general court-martial may, under tha direction of 
fi 46d CHAPTER IX 

the trial counsel or when he is'qnalified to be a trial counsel as required 

by Article 27b, perform any duty imposed by law, regulation, or the 

custom of the service upon the trial counsel of the court. See Article 

38d. He will perform those duties in connection with trials which 

the trial counsel may designate. Except when the contrary affirmatively appears of record, all duties performed outside of court by the 

assistant trial counsel of a general court-martial shall be deemed to 

have been performed under the direction of the trial counsel; however, an assistant trial counsel wko is not qualified to be a trial counsel as required by Article 27b may not perform duties in connection 

with the conduct of the prosecution of a 'case during the open sessions 

of a general court-martial except in the presence of a trial counsel or 

assistant trial counsel who is so qualified. See 6a and d for rules as to 

when the conduct of the prosecution devolves upon an assistant trial 

counsel. 

b. Special court-martid.-Udess he is disqualified by reason of 

prior participation in Che case, any person named in the order as an 

assistant trial counsel of a special court-martial may perform any duty 

of the trial counsel. See Article 38d. He will perform those duties 

in connection with trials which the trial counsel may designate. 

46. DEFENSE COUNSEL.-a. Selection.-See 6 fur qualifications of defense counsel. 

b. Disqualification.-A reporit of facts will be maze at once to the 

convening authority for his appropriate action, whenever it appears 

to the court or to the defense counsel himself that any member of the 

defense named in the appointing order is for any reason, including 

unfitness, bias, prejudice, hostility toward the gccused, lack of legal 

qualifications, or previous connection with the same case, unable 

promptly to perform his duties in any case. 

* 

c. Absence.-For a proper reason (e. g., preparation of another 

case) the president may, with the express consent of the accused, 

excuse from attendance during a trial such of the personnel of the 

defense as will not be required. See Article 386. 

d. General duties.-When the defense is not in charge of individual 

counsel (42a) the duties of defense counsel are those outlined in 48. 

When the defense is in charge of individual counsel, civil or military, 

the duties of defense counsel as associate counsel are those which the 

individual counsel may designate. 

When charges are referred to a court for trial the defense counsel 

will inform the accused immediately that he has been appointed to 

defend him at the trial, explain his general duties, and advise him 

of his right to select individual counsel, civil or military, of his own 
COURTS-MARTIAL-DUTIES OF PERSONNEL 480 

choice pursuant to Article 38b. If the accused expresses a desire to 

be represented by individual counsel, the defense counsel will immediately report the fact to the convening authority, through the trial 

counsel, and take appropriate steps to secure and consult the requested 

counsel and, if the accused desires, act as associate counsel. Unless 

the accused otherwise desires, the defense counsel will undertake the 

immediate preparation of the defense without waiting for the appointment or retaining of any individual counsel. 

47. ASSISTANT DEFENSE COUNSEL.-Unless he is disqualified by reason of prior participation in the case (6a; Art. 27a), any 

person named in the order as an assistant defense counsel of a general 

or special court-martial under the direction of the defense counsel 

or when he is qualified to be the defense counsel as required by Article 

27, perform any duty imposed by law, reg~zlations, or custom of the 

service upon counsel for the accused. See Article 38e. Unless in 

charge of the defense, 'he will perform those duties in connection with 

the trial that the counsel in charge of the defense may designate. 

Except when the contrary a~matively.appears of record, all duties 

performed outside d court by the assistant defense counsel shall be 

deemed to have been performed under the direction of the counsel in 

charge of the defense; however, unless !he has been selected by the 

accused as individual counsel, an assistant defense counsel who is not 

qualified to be defense counsel as required by Article 27 may not perform duties in connection with the conduct of the defense of a case 

during the open sessions of a general or special court-martial except 

in the presence of a defense counsel or assistant defense counsel who 

is so qualified, or in the presence of individual counsel. See 6a and 

d for rules as to when the conduct of the defense devolves upon an 

assistant defense counsel,. 

48. COUNSEL FOR THE ACCUSED.-a. Statutory right to 

counsel of his own choice.-The accused shall have the right to be represented in his defense before a general or special court-martial by 

civilian counsel if provided by him, or by military counsel of his own 

selection if reasonably available, or by the defense counsel duly 

appointed pursuant to Article 27. Should the accused have counsel 

of his own selection, the duly appointed defense co~msel and assistant 

defense cornlsel, if any; shall, if the accused so desires, act as his associate counsel; otherwise they shall be excused by the president of the 

court (Art. 386). Civilian counsel will not be provided at the expense 

of the Government. Military personnel on active duty or persons 

employed by the armed forces shall not solicit or accept fees of any 

kind from an accused as reimbursement for acting as his counsel before 
7 48c CHAPTER IX 

a court-martial or before any of the appellate agencies concerned with 

the administration of justice under the code. 

b. Detail of individual militarg counsel.-The application for the 

detail of a person requested by the accused as military counsel may be 

made by the accused or by anyone on his behalf, b~ut it is usually forwarded by the defense counsel, through the trial counsel, to the convening authority. The convening authority will take the following 

action : 

(1) If the requested counsel is reasonably available within his 

command, he will make the detail and order any necessary travel. 

(2) If the requested counsel is not under +'command, he will 

take prompt action to ascertain whether' the requested counsel is 

reasonably available and, if so, to obtain his sel.w-ices. 

(3) If he determines that the requested coun,sel is not reasonably 

available, he will so advise the accused. 

A person who has acted as a member of the prosecution in the same 

case, or who has been named in the appointing &der as the trial 

counsel or assistant trial counsel in the case, shall be deemed not to 

be available for detail as individual counsel. See 6a and Article 27. 

The decision of the convening authority as to the availablity of the 

requested counsel is subject to revision by his next superior authority 

on appeal by or on behalf of the accused. A mili~tary person who has 

been made available to act as individual counsel will, so far as is practicable, be relieved of all other duties which mayinterfere with the 

proper preparation and presentation of the accused's case. 

c. Duties in general.-An officer or other military person acting as 

counsel for the accused before a general or special court-martial will 

perform such duties as usually devolve upon the munse) for a defendant before a civil court in a criminal case. He will gusrd the interests 

of the accused by all honorable and legitimate means known to the law. 

It is his duty to undertake the defense regardless of his personal opinion as to the guilt of the accused; to disclose to the accused any interest he may have in connection with the case, any ground of possible 

disqualification, and any other matter which might influence the 

accused in the selection of counsel; to represent the accused with undivided fidelity, and not to divulge his secreh or confidence. It is 

improper for him to assert in argument his personal belief in the innocence of the accused or to tolerate any manner of fraud or chicaiie. . When a defense counsel is designated to defend two or more coaccused in a joint or common trial, he should advise them of any conflicting interests in the conduct of their defense which would, in his 

opinion, warrant a request on the part of any of the accused for other 

counsel. 
COURTS-MARTIAL-DUTIES OF PERSONNEL 7 481, 

d. Securing witnesses.-He should make timely request to the trial 

counsel to secure the attendance of defense witnesses, and with a view 

to saving time, labor, and expense, he should cooperate with the trial 

counsel in the preparation of depositions and in appropriate stipulations as to unimportant or uncontested matters. See 1546 (Stipulations). 

e. Request for enlisted members for the court.-Before the trial 

he will advise an accused enlisted person of his right to have enlisted 

' as members of the court. See Article 256. If the accused 

elects to exercise this right, the defense counsel will prepare the 

written request required by Article 250, have it signed by the accused, 

and forward it without delay, through the trial counsel, to the convening authority or to the court if trial is imminent. 

f. Consultation with the accused.-He will explain to the accused 

the meaning and effect of a plea of guilty and his right to introduce 

evidence after such plea (70; app. 8a) ; his right to testify or to remain 

silent (148e, 1496; app. 8a) ; his right, after findings are announced, 

to make an unsworn statement and to introduce evidence as to matters 

in extenuation and hitigation (75c, 1396 ; app. 8a) ; and his right to 

assert any proper defense or objection, such as the statute of limitations in an appropriate case (68c, 74h). These explanations will be 

made regardless of the intentions of the accused as to testifying or as 

to how he willplead. Counsel should endeavor to obtain full knowledge of all the facts of the case before advising the accused, and he is 

bound to give the accused his candid opinion of the merits of the case. 

g. Preparation for trial.-Ample opportunity will be given the 

accused and his counsel to prepare the defense, including opportunities to interview each other and any other person. See 42c and 44h. 

Counsel's preparation for trial should include a consideration of the I 

essential elements of each offense charged and of the pertinent rules i of evidence, to the end that the evidence he proposes to introduce in 

defense may be confined to competent evidence, and that he may be 

ready to make appropriate objection to any incompetent evidence that 

1 might be offered by the prosecution. If pracLicable, he should plan to 

i introduce the defense evidence in sequence of events and to defend 

1 against the alleged offenses in the order charged. When he addresses 

the court, he will rise. ' The provisions of 44f (4) apply equally ta counsel for the defense. 

h. Presentation of the defense.-Counsel may make an opening 

statement for the defense similar to that indicated in 449 (2). This 

statement is ordinarily made just after the prosecution has rested or 

immediately following the opening statement of the trial counsel, but 
in exceptional cases the court may, in its discretion, permit it or other 

like statements to be made at other stages of the proceedings. 

On behalf of the defense, he conducts the direct and redirect examination of witnesses for the defense. He conducts cross and recrossexamination of prosecution witnesses and of witnesses called by the 

court if they are adverse to the defense. 

See 72 as to closing arguments. 

i. Absence of accused.-When the trial proceeds after the accused 

has voluntarily absented himself without authority (11) , the counsel 

should continue to represent the accused. . 

j. Duties after trial.-(I) CZernency petition.-At the close of the 

trial or as soon thereafter as practicable, if the accused is found guilty, 

the defense counsel shall, in a proper case, prepare a recommendation 

for clemency setting forth any matters as to clemency which he desires 

to have considered by the members of the court or the reviewing 

authority. He shall secure the signatures of those members of the 

court who have indicated their willingness tp sign the recommendation, and shall submit it to the trial counsel for attachment to the 

record of trial. See 77a. 

(2) AppZlate brief.-In every court-martial proceeding, the 

defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of such matters as he feels 

should be considered in behalf of the accused on review, including any 

objection to the contents of the record which he m8y deem appropriate (82e; Art. 38c). 

(3) Advising accused of appellate rights.-In the event the accused is convicted, the defense counsel will, immediately after trial, 

advise him generally of his appellate rights. Foc. example, he should 

advise him of his right to be represented before the board of review 

and, in an appropriate case, he will assist the accused to secure such 

appellate representation by preparing a letter for the signature of 

the accused, addressed to the appellate defense counsel, or by other 

appropriate means. Although direct communication with the appellate defense counsel is authorized, a request for appellate representation ordinarily will be forwarded to the convening authority in order 

that it may be attached to the record of trial. The accused shall have 

10 days from the date the sentence is adjudged in his case to forward 

a request that he be represented by appellate counsel before a board 

of review. Such a request should be made conditional upon the record 

being referred to a board of review under the provisions of Article 66 

or Article 69. The failure of the accused to forward within 10 days 

a request for such representation may be regarded as a waiver of his 
COURTS-MARTIAL-DUTIES OF PERSONNEL 7 49b 

right to appellate counsel before the board of review, if such board 

has taken its final action in the case prior to receipt of such request. 

The defense counsel should also advise the accused of any right he 

may have to appeal to the Court of Military Appeals and to be represented before that court by appellate defense counsel. -See 102 in this 

corinection. 

(4) Examimtim of record.-See 82e for duties in connection 

with examination of the record of trial. 

49. REPORTER.--a. Authority for appointment.-See 7 for the 

authority for, and the manner of, appointment and 33k as to the 

manner of directing that a reporter not be used in a special courtmartial. 

6. Duties.-(1) GeneraZ.-He shall record the proceedings of and 

testimony taken before courts-martial, courts of inquiry, or military 

for which he is appointed (Art. 28) and may set down 

the same in the first instance in longhand, shorthand, or by mechanical 

or sound recording device. If a question is raised at trial as to 

whether any prticnlar matter is included in the term, "proceedings 

of and testimony taken," the court will determihe the question in 

accordance with applicable law and regulation. There will be no L'off 

the record" discussions in open court or when the law officer is conferring with the court with respect to the form of the findings in 

closed session. See Article 39. The reporter will follow the forms 

prescribed for the preparation of records contained in appendix 

9 and will be familiar with the provisions of 82. He will discharge 

his duties as promptly as practicable under the circumstances. 

(2) Copies of record.-In general and special court-martial cases 

in which the sentence adjudged affects a general or flag officer, or 

includes death, dismissal, dishonorable or bad conduct discharge, 

or confinement for one year or more, the reporter will prepare an 

original and two copies of each record and of all documentary exhibits 

received in evidence, and additional copies of each record and of 

all documentary exhibits equal to the number of accused tried. In all 

other general and special court-martial cases, the reporter will prepare an original of each record and of all documentary exhibits 

received in evidence and copies of each record and of all documentary 

exhibits equal to the number of accused tried. 

In any general or special court-martial case, the convening authority may direct that additional copies of the record and of documentary exhibits be prepared. 

(3) Oath; compensation.-See 114 as to oath and appropriate 

departmental regulations as to compensation. 
7 51 CHAPTER IX 

50. INTERPRETER.-a. Authority for appointment.-See Article 28. See 7 for the authority for, and the manner of, appointment 

and 5% for the rule as to appointment of an interpreter for an accused 

who does not understand the English language. 

b. Duties; oath; compensation.-He shall interpret for the court, 

commission, or the accused. In questioning a witness through an 

interpreter the question should be put in the same interrogatory 

form as when questioning a witness not through an interpreter. The 

interrogator, for example, will ask, "What is your name?" rather 

than state to the interpreter, "Ask the witness mhat his name is." 

The interpreter should translate questions and answers as given to 

him. Thus, if the question is, "What is your name?" the question 

should be asked in the language of the witness, and the interpreter 

should not use such a form as, "They want to know mhat your name 

is." 

See 114 as to oath and appropriate departmental regulations as to 

compensation. 

51. GUARDS, CLERKS, AND ORDERLIES.-When appropriate, the convening authority or (if the trial iS to be held at a distance) the commanding officer of the post, camp, or station where the 

trial is to be held will provide guards and detail suitable enlisted 

persons as clerks and orderlies to assist the members and officers of 

the court. 
Chapter X 

GENERAL PROCEDURAL RULES 

REFERENCE TO CONVENING AUTHORITY-MISCELLANEOUS MATTERS--LNTRODUCTION OF EVIDENCE--ACTION WHEN EVIDENCE 

INDICATES AN OFFENSE NOT CHARGEILWITHDRAWAL OF SPECIFICATIONS - INTERLOCUTORY QUESTIONS OTHER THAN CHALLENGES-CONTINUANCES 

52. REFERENCE TO CONVENING AUTHORITY.-Whenever 

a matter as to future proceedings in a trial by court-martial is referred 

to a convening authority exercising general court-martial jurisdiction, 

he will refer the matter to his staff judge advocate or legal officer for 

consideration and advice. 

53. MISCELLANEOUS MATTERS.-a. Order of proceedings.-The chrono~ogical order of the usual proceedings in trials by 

general and special courts-martial is indicated in the guide to procedure 

in appendix 8 and in the forms of records in appendices 9 and 10. 

b. Proceedings in each case to be complete.-In each case the proceedings and the record thereof must be completed without reference 

to any other case. For example, if several accused, who are to be 

tried at separate trials by the same court, are present while the personnel of the court, counsel, and the reporter are sworn (1126; app. 

8; Art. 42), the fact that the required oaths were administered in the 

presence of an accused must be shown in his record of trial and not 

by reference to the record of trial of one of the other accused. 

c. Joint and common trials.-In joint trials (26d) and in common 

trials (331) each of the accused must in general be accorded every 

right and privilege which he would have if tried separately. For example, each accused may, if he desires, be defended by individual counsel, make individual challenges for cause (62h), make individual peremptory challenges (62e), cross-examine witnesses, testify in his own 

behalf, introduce evidence in his own behalf, and, if an enlisted person, 

make an individual request that the membership of the court include 

enlisted persons (4a, 61g). In a joint or common trial, both court and 

counsel must be careful to notice evidence which is admissible against 

only one or some of the joint or several accused and consider it only 

against such accused. For example, see 1406 (Confessions), When 

the evidence is equally applicable to several or all accused, however, 

needless repetition may be avoided by the use of appropriate language 

and consolidation of evidence pertinent to all accused. 
d. Sessions.-A general or special court-martial will sit in closed 

sessions during the deliberation and voting upon the findings and 

sentence, and upon interlocutory 'questions, including challenges. 

Only the members of the court who are to vote shall be present at such 

closed sessiom. See 62h (3) with regard to voting on challenges. 

After a general court-martial has finally voted on the findings, the 

court may request the law officar and the reporter to appear before the 

court in closed session to put the findings in proper form, and such 

proceedings shall be on the record. See 74f (1) for procedure. All 

other proceedings, including any other consultation of the court with 

counsel or the law officer, shall take place in open s~ssion, shall be made 

a part of the record, and shall be conducted in the presence of the 

accused, the defense counsel, the trial counsel, and, in general courtmartial cases, the law officer. See Article 39. See 57g (2) and 736 (2) 

for rules governing certain proceedings had outside the presence of 

members of a general court-martial. 

e. Spectutors; publicity,-As a general rule, the public shall be 

permitted to attend open sessions of courts-martial. Unless otherwise 

limited by departmental regulations, however, the convening authority 

or the court may, for security or other good reasons, direct that the 

public be excluded from a trial. When practicable, notices of the time 

and place of sessions of courts-martial will be published so that persons 

subject to the code may be afforded opportunity to attend as spectators 

provided attendance does not interfere with the performance of their 

duties. See also 118 (Contempts). 

The taking of photographs in the courtroom during an open or 

closed session of the court, or broadcasting the proceedings from the 

courtroom by radio or television will not be permitted without the 

prior written approval of the Secretary of the Department concerned. 

f. Witnesses.-Ordinarily, witnesses other tha; the accused should 

be excluded from the courtroom except when they are testifying. To 

prevent the false shaping of testimony through collusion, coercion, or 

other means, the court, upon its own motion or upon motion of counsel, 1 

may instruct a witness to refrain from discussing his testimony or 

prospective testimony with anyone except counsel or the accused in 

the case. See appendix 8 for form of instruction. 

g. Opportunitg to present and support contentions.-Both sides 

are entitled to an opportunity properly to present and support their . respective contentions upon any question or matter presented to the 

court for decision. Restricting argument, particularly in long and 

complicated cases, or an arbitrary refusal to entertain argument on an 

interlocutory question, may constitute error; however, the right to 
TRIALS-GENERAL PROCEDURAL RULES fl54a 

present argument should not be abused, and the court may in its discretion limit or refuse to hear argument when it is trivial, mere repetition, or made for the purpose of delay. Arguments throughout the 

trialmay be oral, in writing, or both. See 826 (4) in this connection. 

h. Explanation of rights of accused.-Ordinarily, the court need 

not volunteer advice to the accused during the course of the trial as it 

may be assumed that his counsel has performed his duties properly, has 

, advised the accused of his rights and the law affecting the case, and 

that, for reasons best known to them, they desire to pursue a certain 

course. When deemed necessary, the court will cause to be explained 

to the accused any right which he appears not to understand. The 

right of the accused with respect to Article 43 (Statute of limitations 

(68c) ) , the meaning and effect of a plea of guilty (70), the right to 

remain silent or to testify as a witness (148e, 149b; Art. 31), and, 

after any finding pf guilty is announced, to make a statement (75c) 

will, when applicable, be explained in open court unless it otherwise 

affirmatively appears of record that the accused is aware of his rights 

in the premises. See appendix 8a for forms of instructions. Whenever it appears warranted, the court should advise the accused of his 

right to testify for i limited purpose. For example, if it appears that 

the accused does not understand his right to testify for the limited 

purpose of showing the circumstances under which a confession was 

obtained without subjecting himself to cross-examination on the issue 

of guilt or innocence, an explanation should be made by the court. 

See 140a and 1496. 

i. Right of accused to interpreter.-Upon a showing by the defense that the accused 'does not understand the English language and 

desires the services of an interpreter, the court will direct the trial 

counsel to take appropriate action to provide the accused with a competent interpreter. The latter will interpret for the accused all proceedings had in open court and all testimony given in any language 

> other than that understood by the accused. The interpreter will be 

sworn before entering upon his duties. See 114 for form of oath. 

54. INTRODUCTION OF EVIDENCE-a. Presentation of the 

case.-Witnesses are usually examined in the following order: Witnesses for the prosecution, witnesses for the defense, witnesses for the 

prosecution in rebuttal, witnesses far the defense in rebuttal, witnesses for the court. The order of examining each witness is usually 

direct examination, cross-examination, redirect examination, recrossexamination, and examination by the court. In a general courtmartial, the examination by the court is ordinarily conducted by the 

law officer; thereafter, if necessvy, members of the court may ask 
1 54d CHAPTER X 

questions of the witness. The court should protect every witness 

from improper questions, harsh or insulting treatment, and unnecessary inquiry into his private affairs. See 150 and Article 31 for 

questions which a witness cannot.be required to answer over his objection. See also 148, 149, 151, and 153 for other rules respecting 

the examination of witnesses. 

6. Responsibility of the court.-The court is not obliged to content 

itself with the evidence addnced by the parties. When such evidence appears to be insufficient for a proper determination of the 

matter before it, or when nat satisfied that it has received all available admissible evidence on an issue before it, the court may take 

appropriate action with a view to obtaining available additional evidence. The court may, for instance, re.quire the trial counsel to 

recall a witness, to summon new witnesses, or to make an investigation 

or inquiry along certain lines with a view to discovering and producing additional evidence. 

c. Exclusion of improper evidence.-When proffered esdence 

would be excluded on objection, the court may in its discretion bring 

the matter to the attention of any party entitled, but failing, to object 

to its admission. Such action is particularly important when improper questions are asked by a member. of the court, or when improper testimony is elicited by questions asked by a member of the 

court-the reason for this being the natural hesitancy of the parties 

to object to a question asked by a member of the court and the weight 

likely to be given to testimony elicited through questions by the court. 

In the interest of justice, a court may always of its own motion exclude inadmissible evidence. 

Rules of evidence are stated in chapter XXVII and in various 

connections throughout' this manual; for example, in 1226 (Insanity), 162 (Fraudulent enlistment), and 164 (Desertion) . d. Documentary evidence.-In its discretion f$e court may direct 

that a document, although excluded as not admissible in evidence, 

be marked for identification and appended to the record for the 

consideration of the convening authority, and the court will so direct 

on request of the party offering the document. See 1540 (Offer of 

proof). 

When a document, such as an original record, which must or 

should be returned to the source from which it was obtained, is.received in evidence or marked for identification, a suitable copy or 

extract copy thereof, certified as such by the trial counsel, will be substituted for such document and it will then be returned. Similar action may be taken to substitute an accurate description for an item 
TRIALSF-ENERAL PROCEDURAL RULES X55a 

of real evidenEe which must be returned to its source or is too bulky 

for inclusion in the record of trial. In this connection, see 138c 

(Real evidence). 

e. Views and inspections.-In exceptional circumstances, the court, 

in the exercise of its sound discretion may proceed to view or inspect 

the premises or place or an article or object if such view or inspection 

is necessary to enable the members better to understand and apply 

the evidence in the case. The proceeding is authorized only if conducted in the presence of counsel, the accused, and, in general courtmartial cases, the law officer. The view should not be undertaken if 

the courb hs already fahiliar with the premises involved, or if photographs, diagrams, or haps adequately present the situation. The 

court may be escorted to the view by any person familiar with the 

premises and objects. The escort, without making any statement in 

the nature of evidence or argument, may point out particular features to be noted by the court. Before entering on his duties as 

escort, he will take the oath or affirmation prescribed in 114. 

The members may consider and apply the evidence in the light of 

the knowledge obtained by their inspection. The court should not 

hear witnesses or take evidence at the view, but anything said thereat 

by counsd, the authorized escort, or the court will be recorded verbatim and constitute a part of the record of trial in any general courtmartial case or in any special court-martial case in which a verbatim 

record is taken. Re-enactments of the events involved or acts alleged 

to have bean committed are not authorized upon a view. 

The fact that a view or inspection has been made does not preclude 

the introduction in evidence of photographs or diagrams of articles 

or objects viewed, nor of maps or sketches of the premises or place 

viewed, if such evidence is otherwise admissible. 

f. Inpuirg into mental status.-See 122 for action by the court 

when it appears that further inquiry into the mental responsibility of 

the accused is warranted in the interest of justice. 

55. ACTION WHEN EVIDENCE INDICATES AN OFFENSE 

NOT CHARGED.-a. GeneruZ.-If at any time during the trial it 

becomes manifest to the court that the available evidence as to any 

specification is not legally sufficient to sustain a finding of guilty 

thereof or of any lesser included offense thereunder, but that there is 

substantial evidence, either before the court or offered, tending to 

prove that the accused is guilty of some other offense not alleged in 

any specification before the court, the court may, in its discretion, 

either suspend trial pending action on an application by the trial 

counsel to the convening authority for direction in the matter or it 
7 56b CHAPTER X 

may proceed with the trial. In the latter event a report of the 

matter may properly be made to the convening authority after the 

conclusion of the trial. 

b. Examples.-Application of this rule would be appropriate when 

in a trial for the larceny of a watch the proof shows that the article 

taken was a compass, or when in a trial for the wrongful sale of property (Art. 108) the proof shows that the accused negligently lost the 

property. 

G. Trial of new charges.-In any such case, if charges for the offense indicated by the evidence are preferred and are referred for 

trial, they should be referred to a court none of whose members has 

participated in the former trial. 

56. WITHDRAWAL OF SPECIFICATI0NS-a. General.-The 

convening authority may direct the prosecution to make a declaration 

of record that a certain specification and, when appropriate, the 

charge under which it is laid is withdrawn and will not be pursued 

further at that trial. A specification will be withdrawn only when 

directed by the convening authority who may give such direction 

either on his own initiative or on application duly made to him. The 

convening authority may not withdraw a specification if the court has 

finally terminated the proceedings thereon by a finding or a ruling 

which amounts to a finding of not guilty. In a joint case or in a case 

referred for a common trial, he may limit the direction to one or more 

of the accused. 

b. Grounds for withdrawal.-Proper grounds for the withdrawal 

of a specification include substantial defect in the specification, insufficiency of available evidence to prove the specification, and the fact 

that it is proposed to use one of the accused as a witness. 

If evidence on the issue of guilt or innocence has been received 

after a plea has been entered, a withdrawal of a specification because 

of a failure of available evidence or witnesses, without any fault of the 

accused, amounts to jeopardy and constitutes a trial in the sense of 

Article 44. However, withdrawal of a specification because of manifest necessity in the interest of justice is not a bar to further prosecution. Thus, if urgent and unforeseen military necessity requires that 

a trial be terminated, and it does not appeat that the military situation will permit resumption of the trial within a reasonable time, the 

withdrawal of a specification will not prevent a later trial for the 

same offense. Similarly, if inadmissible information, highly prejudicial to either the Government or the accused, has been brought to 

the attention of the court, and it appears to the convening authority 

that the members of the court cannot be reasonably expected to re- 
TRIALS--GENERAL PROCEDURAL RULES lr 57c 

uniduenced thereby, he may withdraw the case from that court 

and refer it to another court. The power to withdraw a case after 

has been taken on the issue of guilt or innocence will be exercised only with the greatest caution, under urgent circumstances, and 

for very plain and obvious causes. A specification will not be withdrawn arbitrarily or unfairly to the accused in any case. When a 

specification is withdrawn after evidence has been taken on the issue 

o$ guilt or innocence, the reasons therefor should be stated in the 

record of trial. 

c. Effect of withdrawal.-A withdrawal of a specification during 

trial is not in itself equiwalent to an acquittal or to a grant of pardon 

is not as such a groknd of objection or a defense in a subsequent 

trial. If the proceedings amounted to a trial in the sense of Article 

44, the defense of former jeopardy should be asserted (68d). If a 

specification is withdrawn pursuant to a grant of immunity (148e, 

150b), such grant of immunity may be asserted as a defense. 

d. Withdrawal before arraignment.-If a specification is withdrawn before the court convenes for the trial of a case, the trial counsel 

should line out and initial the withdrawn specification on the charge 

sheet and renumber the remaining specifications or charges when appropriate. When a specification is withdrawn after the court has 

convened, but before the arraignment of the accused, the withdrawal 

should be announced before the arraignment and the withdrawn specification should not be brought to the attention of the court. See 65a. 

57. INTERLOCUTORY QUESTIONS OTHER THAN CHALLENGES.-a. Statutory provisions.-The law officer of a general 

court-martial and the president of a special court-martial shall rule 

upon interlocutory questions other than challenges arising during the 

proceedings. Any such ruling made by the law officer of a general 

court-martial upon any interlocutory question other than a motion 

for a hding of not guilty or the question of accused's sanity shall be 

ha1 and shall constitute the ruling of the court; but the law o5cer 

may change any ruling at any time during the trial (Art. 516). 

b. Applicability of this paragraph-This paragraph (57) applies 

to all interlocutory questions arising during the proceedings in open 

court (i. e., to all questions other than the hdings and sentence) except the question of whether a challenge shall be sustained. Any 

statement or indication in this manual to the e%ect that a certain 

question should be decided by the court is not to be understood as 

making an exception to the foregoing rule. See, for example, 53, 54, 

55,58, and 137. 

c. Rulings by the president of a special csurt-martial.-The 

president of a special court-martial mlll ruIe in open court upon all in- 
7 57f CHAPTER X 

terlocutory questions other than challenges arising during the trial, 

such as questions as to the admissibility of evidence offered during the 

trial, incompetency of witnesses, continuances, adjournments, recesses, 

motions, order of the introduction of witnesses, and the propriety of 

any argument or statement of the trial or defense counsel. If a member objects to a ruling of the president upon a question, the court shall 

be closed and the question voted om as stated in 57f. 

d. Rulings by the law officer.-(1) General.-A ruling by the law 

officer on an interlocutory question other than on a motion for a fhding of not guilty or the question of the accused's sanity, being final so 

far as concerns the court, no repetition of the ruling is necessary. 

However, any question as to whether a ruling of the law officer is conclusive shall be determined by the law officer. Rulings by the law officer on a motion for a finding of not guilty (71a) and on the question of 

the sanity of an accused (122b) are final unless objected to by a member of the court. When proper objection is made to a ruling of the law 

officer on these two matters, he may give the court such instructions as . 

will better enable the members to understand the question they are to 

determink and the manner in which it is to be determined. Thereafter 

the court will be closed and the question decided by a vote of the members of the court. The law officer shall not be present while the court 

is closed to deliberate or vote. 

(2) Treatmnt of proffered elJidelzi.e.--The law officer may examine a proffered item of real or documentary evidence before ruling 

upon its admissibility. He will take care that a proffered document 

(or, when practicable, an item of real evidence) is not exposed to risk 

of inadvertent examination by members of the court until he has ruled 

that the document (or item of real evidence) is admissible. In this 

connection, see 57g (2) for rules governing certain proceedings had 

outside the presence of the members of a general court-martial. The 

law o5cer should give the court appropriate instructions to disregard ePidence which, once having been admitted, is excluded by a subsequent ruling. 

e. Form of ruling.-Each ruling by the president of a special 

court-martial and each ruling by the law offic?r which is subject to objection should be prefaced by a statement such as, "Subject to objection by any member." 

f. Voting on interlocutorg questions.-When voting on any interlocutory question other than n challenge, the members of the court 

shall vote orally, beginning with the junior in rank, and the question 

shall be decided by a majority vote. A tie vote on a motion for a 

finding of not guilty or on a motion relating to the question of the 
. TRIALS-GENERAL PROCEDURAL RULES d 579 

sanity shall be a determination against the accused. A tie 

vote on any other question (e. g., an objection by either side to the admissibility of certain evidence in a trial by special court-martial) shall 

be a determination in favor of the accused. See Articles 516 and 52c. 

The voting is in closed session, but the president announces the decision 

in open court. See 62h (3) for the manner of voting on challenges. 

g. Necessar~ inquiry to be made; preponderance of evidence 

control~.-(l) Genera2.-The ruling or decision on an interlocutory 

question should be preceded by any necessary inquiry into the pertinent facts and law. Far example, the party making the objection, 

motion, or request may b6 required to furnish evidence or legal authority in support of his contention. Upon such inquiry, questions of fact 

are determined by a preponderance of the evidence. 

(2) Law officer.-The law officer is responsible for rulings made 

by him, but he may consult with the court in open session upon appropriate matters such as a continuance, adjournment, or recess before 

making his ruling. When necessary, he may recess the court for a 

time sufficient to enable him to consult pertinent legal authorities 

before making his ruling. 

Except with respect to hearing arguments of counsel on proposed 

additional instructions (73c (2) ), there is no requirement in courtsmartial that the law officer conduct any hearings out of the presence 

of the members of the court. However, if it appears to the law officer that an offer of proof (154c), or preliminary evidence or argument 

with respect to the admissibility of proffered evidence, may contain 

matter prejudicial to the rights of the accused or the Government, he 

may, upon his own motion or upon motion of counsel, direct that the 

members of the court be excluded during the presentation of such offer 

of proof, preliminary evidence, or argument. Counsel for both sides, 

the accused, and the reporter will be present during such proceedings 

which, if they include the presentation of preliminary evidence, will 

be fully recorded, transcribed, and appended to the record of trial 

for the information of the convening authority. If such proceedings 

involve only arguments or offers of proof, they ordinarily vill not be 

recorded but, in his discretion, the law officer may direct that such 

arguments or offers of proof, or pertinent parts thereof, be recorded, 

transcribed, and appended to the record of trial for the information 

of the convening authority. In this connection, however, see 154c for 

a limitation on the discretion of the law officer with respect to recording an offer of proof made by the defense. 

When, as a result of a hearing held out of the presence of the 

members of the court, the law officer rules that proffered evidence is 
IS~C CHAPTER x 

admissible, such evidence will be offered in open court subject to the 

rules of evidence; in addition, if preliminary evidence adduced at 

such a hearing goes to the weight of the evidence admitted by the ruling of the law ogcer, both sides .will be given an opportunity to present for the consideration of the members of the court any competent 

evidence affecting the weight to be given to the evidence so admitted. 

In this connection, see 140a (Confessions and admissions). 

In lieu of, or in addition to, any oral arguments of counsel with 

respect to the admissibility of evidence, the law officer may also direct 

counsel to submit written arguments or briefs on questions of law. 

Such written arguments or briefs need not be brought to the attention 

of the members of the court or made a part of the record of trial in the 

case. In his discretion, however,'the law officer may direct that such 

written arguments or briefs, or pertinent parts thereof, be appended 

to the record of trial for the consideration of the convening authority. 

(3) President of a speciaz court-martid.-While the responsibility for a ruling devolves upon the president of a special court-mar- . 

tial, he may properly close the court and consult with the other members of the court before making his ruling. 

58. CONTINUANCES.-u. General.-A court-martial may, for 

reasonable cause, grant a continuance to any party for such time and 

as often as may appear to be just (Art. 40). There is no limit to the 

number of continuances which may be.grante'd. 

6. Postponement of trial.-The necessity for a formal continuance 

may often be avoided by requesting the president to postpone the 

assembling of the court or by requesting the court to adjourn or to 

take a recess. As the law officer rules finally on any application for 

a continuance presented while the court is in session, the president of , 

a general court-martial properly should obtain the advice of the law 

officer with respect to the request of a party for the postponement of 

the time for the assembling of the court. 

c. Grounds for continuance.-Among the grounds that may be 

considered as reasonable are the absence of a material witness; sickness 

of the trial counsel, accused, defense counsel, or a witness; insufficient 

time to prepare for trial; and a pending prosecution in a civil court 

based on the same act or omission. 

'A failure by the trial counsel to cause a copy of the charges to be 

served as required by Article 35 may be a ground for a continuance. 

In time of peace no person shall, against his objection, be brought to 

trial before a general court-martial within a period of five days subsequent to the service of the charges upon him, or before a special 

court-martial within a period of three days subsequent to the service 

of charges upon him (Art. 35). 

82 
TRIALS--GENERAL PROCEDURAL RULES 7 58f 

a?. Effect of denying application for continuance.-The refusal 

by a court to grant a continuance when reasonable cause is shown will 

not ordinarily nullify the proceedings, but may be a good ground for 

directing a rehearing. The right to prepare for trial and to secure 

necessary witnesses is fundamental and must be extended to accused 

persons. Although the question of a continuance is one for the sound 

discretion of the court, whenever it appears that the court has abused 

its discretion and denied the accused a reasonable opportunity to prepare for trial or otherwise perfect his defense, the proceedings should 

be disapproved. A rehearing should be ordered only if the prejudice 

to the rights of thegccused can be cured thereby. 

e. Application and action thereon.-Application should be made 

to the court if in session, otherwise to the convening authority, but 

an application to the court for an extended delay, if based on reasonable cause, may be referred by the court to the convening authority. 

Although the proper time for making an application to the court is 

after the accused is arraigned and before he pleads, the court may permit it to be made at any other time. 

f. Evidence in support of application.-Reasonable cause for the 

application must be alleged. For instance, when a continuance is 

desired because of the absence of a witness, the application should 

show that the witness id material, that due diligence has been used to 

procure his testimony or attendance, that the party applying for 

the continuance has reasonable ground to believe that he will be able 

to procure such testimony or attendance within the period stated in 

the application, the facts which he expects to be able to prove by such 

witness, and that he cannot safely proceed with the trial without such 

witness. 

In general the facts as set forth in the application may be accepted 

as substantially true; but if long or repeated delay is involved, or the 

facts are disputed or improbable, or if any other good reason therefor 

exists, the applicant may be required to furnish further proof. On 

any issue of law or fact arising in the proceedings on an application 

for a continuance, both parties will be given an opportunity to present evidence and to make an argument. 

An application based on the absence of a witness may be denied 

when the opposite party is willing to stipulate that the absent witness 

would testify as stated in the appli,cation unless it clearly appears 

that such denial would be prejudicial. 
Chapter XI 

ORGANIZATION OF THE COURT AND 

ARRAIGNMENT OF THE ACCUSED 

ASSEMBLING THE COURT-ATTENDANCE AND SECURITY OF ACCUSED - PRELIMINARY ORGANIZATION OF THE COURT - CHAL 

LENGEfLWITNESS FOR THE PROSECUTION-INVESTIGATING OFFICER-ARRAIGNMENT 

59. ASSEMBLING THE COURT.-A general or special courtmartial assembles at its first session in accordance with the order 

appointing it-thereafter according to adjournment. When, as is 

usually the case, the appointing order, after stating the hour and date 

of the first meeting, adds the words "or as soon thereafter as practicable"; or when, as is often the case, the court adjourns to meet at 

the call of the president, or whenever advisable or necessary for any 

reason, the president of the court, after conferring with the law officer 

in an appropriate case, will fix the hour and date for the first er 

subsequent meeting, as the case may be, and advise the trial counsel 

in order that proper notice of the meeting may be given to all concerned. See 58b (Postponement of trial). 

A court-martial may hold sessions at any hour of the day, but should 

not meet at unusual hours, nor should the duration of the sittings be 

unusually protracted, unless the court is informed by the convening 

authority that the case is one of extraordinary urgency and that such 

a measure is therefore warranted. 

60. ATTENDANCE AND SECURITY OF ACCUSED.-The 

convening authority, the ship or station commander, or other proper 

officer in whose custody or command the accused is at the time of trial 

is responsible for the attendance of the accused before the court. The 

accused will be properly attired in the class of dress or uniform prescribed by the president for the court. An accused officer, warrant 

officer, or enlisted person will wear the insignia of his rank or grade 

and may wear any decorations, emblems, or ribtons to which he is 

entitled. 

The presence of the accused throughout the proceedings in open 

court is, unless otherwise stated, essential. See llc (Effect of voluntary absence from trial) and 74f (1). (Form of the findings--General 

court-martial). 

Neither the court nor the trial counsel as such is responsible for, 

or has any authority in connection with, the security of a prisoner 

being tried, and neither the court nor the trial counsel as such has 
TRIALS--ASSEMBLY OF COURT, ARRAIGNMENT 7 61~ 

any control over the imposition or nature of the arrest or other status 

of restraint of an accused. However, the court or the trial counsel 

may make recommendations to the proper authority as to these matters. The court does have control over the accused insofar as his personal freedom in its presence is concerned. 

61. PRELIMINARY ORGANIZATION OF THE COURT.-a. 

preconvening procedure.-A court-martial should not be called to 

order for the trial of a new case until the law officer (president of a 

special court-martial), after examining the order appointing the court 

and making an informal inquiry of the personnel present, has determined that the accused and a quorum of the court are present for the 

trial of the casq and that the appointed members of the prosecution 

and defense present are apparently qualified, as prescribed by Article 

27b or c, to conduct the prosecution and defense of the case. In de- 

- termining the presence of a quorum of the court, the law officer or 

president should consider whether an enlisted accused has made a 

proper request for enlisted members; if so, at least one-third of the 

members present must be enlisted members unless the convening authority has determined that eligible enlisted persons are not available. 

In this connection, see 36c (2) and 41d (2). 

b. Seating of personnel and the acensed.-When the court is 

ready to proceed, it is called to order by the president. The members 

mill be seated with the president in the center and other members alternately to the right and'left according to rank. If the rank of a 

member is changed, he will sit according to his new rank. The law 

officer will sit apart from t'he court. Depending upon the size and 

arrangement of the courtroom, other personnel and the accused will 

be seated as the president directs, except that the accused will be permitted to sit with his counsel. See appendix 8 for suggested seating 

arrangements for general and special courts-martial. 

I c. Announcing personnd of the court nand the accused.-After 

, 

the court is called to order for the trial of a new case, the trial counsel 

will announce the name of the accused and mill state by what appoiniing order (including any amendment thereof) the court is convened. 

He will then announce the namm of the lav officer, the members, and 

counsel who are present, and the names of members and counsel who 

are absent. Similar announcement will be made whenever there is a 

change in the law officer, the 'members, or counsel present, either 

through the appearance of new personnel or personnel previously 

absent, or through the absence of personnel previously present. When 

the court assembles after an adjournment or recess, or after it has been 

closed for any reason, the trial counsel will state in open court whether 
76lf CHAPTER XI 

. all parties to the trial who were present at the time of the adjournment 

or recess, or at the ~tbe the court closed, are present. 

d. Swearing reporter and interpreter.-After accounting for the 

personnel, the trial counsel will swear the reporter and interpreter, 

if any. See 114 far oath. A new reporter or interpreter appointed 

during the course of a trial will be sworn before entering upon his 

duties. 

e. Introduction d prosecution counsel.-The trial counsel will 

next announce whether the legal qualifications of the members of the 

prosecution are other than as stated in the appointing order and 

whether any member of the prosecution has acted as investigating 

officer (64), law officer, court member, or member of the defense in 

the same case, or has acted as counsel for the accused at a pretrial 

investigation or other proceedings involving the same general matter 

(6a; Art. 27). If it appears that the trial counsel or any of his assistants may be disquaMed by reason of prior participation in the case, 

the court will initiate an inquiry to determine whether the individual 

concerned is, in fact, disqualified and, if so, whether he has acted for 

the prosecution (6a, d) . When it appears that a member of the prosecution is disqualified by reason of prior participation and that he has 

acted as a member of the prosecution in the case before the court, the 

court should adjourn and report the facts to the. convening authority. 

If the disqualified member has not acted for the prosecution, the proceedings may continue, but the disqualified member will not be permitted to act for the prosecution during any future stage of the proceedings and he will be excused forthwith. ' When, as a result of 

excusing a disqualified member of the prosecution, no qualified trial 

counsel or assistant tria1,counsel remains, the cohrt should adjourn and 

report the facts ta the convening authority. ' 

Any change in prosecution counsel during the trial and the qualifications of any new counsel should be brought to the attention of the court 

in the manner prescribed in the preceding subparagraph. 

f. Introduction of defense counsel.-(1) General rules as to leg& 

qualifications.-A general court-martial is not legally constituted 

unless the appointed defense counsel has been certified 9s competent to 

perform such duties by the Judge Advocate General of the armed 

force of which he is a member (Art. 27b). Similarly, a special courtmartial is not legally constituted unless the following jurisdictional 

requirements with respect to the legal qualifications of appointed 

defense counsel are satisfied : 

(a) If the appointed trial counsel is qualified to act as counsel 

before a general court-martial, the appointed defense counsel shall 

be a person similarly qualified (Art. 276 (1) ) ; or 

86 I 
TRIALS---ASSEMBLY OF COURT, ARRAIGNMENT 61f 

(6) If the appointed trial counsel is a judge advocate, or a law 

sp&ialist, or a member of the bar of a Federal court or the highest 

court of a State, the appointed defense counsel shall be one of the 

foregoing (Art. 27c (2) ) . 

In addition to the foregoing requirements, which are jurisdictional, it is a purpose of Articles 27 and 38 that an accused person shall, 

if he desires, be represented at his trial by general or special courtmartial by s counsel having legal qualifications equivalent to those 

of any member of the prosecution who has legal qualifications. For 

example, in a trial by special court-martial, if an assistant trial counsel is qualified to act as counsel of a general court-martial or has any 

of the legal qualifications enumerated in Article 27c (2), the accused 

should be advised that he is entitled to be represented by counsel having equivalent qualifications, even though the appointed trial counsel 

has no legal qualifications; similarly, in a trial by general courtmartial, should the accused be represented by counsel of his own selection who is not qualified to act as counsel before a general court-martial, 

the accused should be advised that he is entitled to be represented by 

counsel who is qualified-to act as counsel before a general court-martial. 

(2) Asce~taining legal qualifications of cownseT for the defense.- 

After the court has ascertained the qualifications of the members of 

the plsosecution, the trial counsel will ask the accused whom he desires 

to introduce as counsel. Counsel representing the accused will then 

be asked to state whether the legal qualifications of the appointed 

members of the defense are other than as stated in the order-appointing 

the court. 

, Should the accused introduce counsel of his own selection, and. 

the qualifications of such counsel are not shown in the order appointing the court, his selected counsel will be asked to state whether he has 

been certsed by an appropriate Judge Advocate General as competent 

to act as counsel before a general court-martial, and, if not, whether 

he has any of the legal qualifkations enumerated in Article 276 (1). 

(3) Action when defense counsel 2 wt legaZly quaZified.-If the 

appointed defense counsel of a general court-martial has not been certified as competent to perform such duties by the Judge Advocate 

General of the armed force of which he is a member (Art. 276), the 

court will adjourn and report the matter to the convening authority. 

Similar aciion will be taken by ai special court-martial when it 

appears : 

(a) That the appointed trial counsel is qualified to act as counsel 

before a general court-martial, but the appointed defense counsel 

is not so qualified (Art. 2-70 (1) ) ; or 

87 

B21786"--41-7 
7 619 CHAPTER XI 

(6) That the appointed trial counsel is a judge advocate, or a 

law specialist, or a member of the bar of a Federal court or the 

highest court of a State, but the appointed defense counsel is not 

one of the foregoing (Art. 27c (2) ). 

If the foregoing jurisdictional requirements have been met, but 

no member of counsel for defense present, including the individual 

counsel, has legal qualifications equivalent to those of any member 

of the prosecution who is legally qualified, the law officer (president 

of a special court-martial) mill advise the accused of his right to such 

counsel and will ask him whether he is milling to proceed to trial 

without counsel so qualified. If the accused expressly requests that 

he be represented by the defense counsel then present, including individual counsel, if any, and states that he does not wish the services 

of a counkel who has the requisite equivalent legal qualifications, the 

trial will proceed. If not, the court will adjourn pending procusement 

of a defense counsel who has the requisite qualifications. RegardIess 

of the legal qualifications of individual counsel, the duly appoint.ed 

defense counsel and assistant defense counsel shall, if the accused so 

desires, act as his associate counsel; otherwise they shall be excused 

by the president of the court (Art. 386). 

(4) Prior participation of defense counsel in same case.-After 

the court has determined that the defense counsel has the requisite 

legal qualifications, thestrial counsel mill ask the counsel representing 

the accused to state whether any member of the defense present, including individual counsel, is the accuser or has acted in the same case 

as a member of the prosecution (6a, d) , or as investigating officer (641, 

law officer, or court member. If it appears that any member of the 

defense has previously acted in the same case for the prosecution, such 

member will be excused forthwith. If a member of the defense is the 

accuser or has participated in the same case as an investigating officer, 

law officer, or court member, he will be excused unless the accused 

expressly requests his services. If, as a result of excusing a member of 

the defense, the mused is Ieft without counsel having the requisih 

legal qualifications, the court will adjourn and report the matter to 

the convening authority. 

(5) Change of defense counsel during trial.-Any change in 

defense counsel during the trial and the qualifications of any new 

counsel should be brought to the attention of the court and the accused 

in the manner prescribed in this subparagraph (61f). 

g. Announcement of request for enlisted members.--When the 

court has ascertained that counsel representing the prosecution and 

defense are qualified to perform their respective duties, the law officer 
TRIALS-ASSEMBLY OF COURT, ARRAIGNMENT 62b 

(president of a special court-martial) will so state. Thereupon, the 

tridl counsel will, in the case of an enlisted accused, announce whether 

the accused has made a request in writing that the membership of the 

court include enlisted persons. See appendix 8. If a written request, 

signed by an enlisted accused, is not made prior to or at this time, the 

accused may not thereafter assert his right to have enlisted members 

on the court. If a proper request for enlisted members is made prior 

to or at this time, the trial may not proceed unless at least one-third 

of the members actually sitting on the court are enlisted persons or 

unless the convening authority has directed that the trial proceed in 

the absence of enlisted members. See 4a and c. When one or more, 

but not all, of the accused being tried at a joint or common trial make 

a proper request for enlisted members, the court will take action 

similar to that prescribed when a motion to sever has been granted. In 

this connection, see 69d. 

h. 'Administration of oaths.-The accused, a quorum of the court, 

properly qualified counsel, and, in a general court-martial, the law 

officer, being present, the members of the court and the law o5cer will 

be sworn by the trial counsel;-thereafter, the president of the court 

will swear the members of the prosecution and the defense, including 

any individual counsel (civilian or military). All personnel, including the law officer, counsel, the accused, the reporter, and the interpreter, if any, will staid while the oaths are being administered. See 

114 as to oaths. 

i. Convening of court.-After the oaths have been administered, 

the convening of the court is complete. 

62. CHALLENGES.-a. Statutory provisions.-Members of a 

general or special court-martial and the lam officer of a general courtmartial may be challenged by the accused or the trial counsel for cause 

stated to the court. The court shall determine the validity of challenges for cause, and shall not receive a challenge to more than one 

person at a time. Challenges by the t~ial counsel shall ordinarily 

be presented and decided before those by the accused are offered. 

Each accused and the trial counsel shall be entitled to one peremptory 

challenge, but the law officer shall not be challenged except for cause 

(Art. 41). q 

6. Disclosing grounds for challenges.-After the members of 

the court, the law officer, and counsel have been sworn, the trial counsel will announce to the court the general nature of the charges, the 

name of the accuser, the investigating officer, the officer or o5cers 

forwarding the charges to the convening authority, and the name of 

auy court member or law officer who participated in any proceed- 
ll62d CHAPTER- XI 

ings already had. He will then disclose in open court every ground 

for challenge believed by him to exist in the case and will request 

that the law officer and each member do likewise with respect to 

grounds of challenge, whether against the law officer or member him, 

self or against any others who are subject to challenge for cause. 

Among the grounds for challenge which a member or the law officer 

should disclose are these: That he has participated in the investigation of the case, has acted as counsel for the accused, will be a witness 

for the prosecution, or has forwarded the charges to the convening 

authority with a recommendation concerning trial .by court-martial. 

Similar disclosures+and requests will be made by the trial counsel 

with respect to a new member or law officer; and the trial counsel, 

any member, or the law officer will disclose any such ground at any 

time during the proceedings that he becomes aware of it. 

Without challenging a member for cause, the trial or defense counsel may question the court, or individual members tlereof, conberning the existence or nonexistence of facts which may disclose a proper 

ground of challenge for cause. Thus the trial counsel, after advising 

the court that an offense charged against the accused is punishable 

by death, might ask, "Does any member of the court have any conscientious scruples against imposing the death penalty in a proper 

case?" If he desires, the trial counsel might ask individual members 

to answer such a question. Similarly, the defense counsel might 

question the court, or individual members .thereof, with respect to 

whether they know the accused and, if so, whether they are hostile or 

friendly toward him. It is optional with the questioning party 

whether the member being questioned shall be sworn to testify as 

to his competency before answering such preliminary questions. 

c. Action upon disclosure.-If 'lt appears frdm any disclosure that 

the law officer or a member is subject to challenge on any ground 

stated in clauses (1) to (8) of 62f, and the fact is not disputed, the 

law officer or member will be excused forthwith. If the law officer 

is excused or the court is reduced below a quorum, the court will 

adjourn pending appointment of a new law officer or additional members. Except as just stated, no action is required under this paragraph 

(6%) with respect to any disclosure that may be made; but proceedings under this paragraph are without prejudice to any rights 

of challenge on either side. 

d. When made; reconsideration; opportunitg to challenge new 

member.-Challenges should be made before arraignment, but the 

court may permit a challenge for cause to be presented at any stage 

of the proceedings. A challenge will be so permitted if the chal- 
TRIALS-ASSEMBLY 'OF COURT, ARRAIGNMENT U 62f 

lenger has exercised due diligence or if thezhallenge is based on any 

of the grounds stated inclauses (1) to (8.) of 62f. 

The fact that a particular challenge for cause has been adversely 

determined does not preclude the court from again entertaining it 

if good cause, such as newly discovered evidence, is shown. Bull 

and timely opportunity will be given to challenge every new member or law officer. 

e. Peremptorg challenges.-A peremptory challenge does not require any reason or ground therefor to exist or to be stated. It may 

be used before, during, or after challenges for cause, or against 

a member unsuccessfully challenged for cause, or against a new member if not previously utilized in the trial. It cannot be used against 

the law officer. A member challenged peremptorily will ,be excused 

forthwith. 

In a joint or common trial each accused is entitled to one peremplory challenge. 

f. Challenges for cause-grounds for.-bong the grounds of 

challenges for cause against members of special and general courtsmartial and (unless otherwise indicated by the context) the law officer 

of a general court-martial are the following: 

(1) That the challenged law officer or member is not eligible to 

serve as law officer or member, respectively, on courts-martial. 

(2) That he is not a member or law officer of the court. 

(3) That he is the accuser as to any offense charged. See Article 

1 (11) for definition of accuser. 

(4) That he will be a witness for the prosecution. See 63 for 

definition of witness for the prosecution. 

(5) That he mas the investigating officer as to any offense 

charged. See 64 for definition of investigating officer. 

(6) That'he has acted as counsel for the prosecution or the 

accused as to any offense charged. 

(7) That (upon a rehearing or a new trial) he was a member 

of the court which first heard the case. 

(8) That he is an enlisted member who is assigned to the same 

unit as the accused. See 4a and Article 25c (2) for definitions of the 

word "unity'. 

(9) That he has forwarded the charges in the case with his 

personal recommendation concerning trial by court-martial. 

(10) That he-has formed or expressed a positive and definite 

opinion as to the guillt or innocence of the accused as to any offense 

charged. 
I 62g CHAPTER XI 

(11) That he has acted in the same case as the convening authority or as the legal officer or staff judge advocate to the convening 

authority. 

(12) That he will act in the same case as the reviewing authority 

(84) or as the legal officer or staff judge advocate to the reviewing 

authority (85a). 

(13) Any other facts indicating that he should not sit as a member or law officer in the interest of having the trial and subsequent proceedings free from substantial doubt as to legality, fairness, and impartiality. Examples of other facts constitnting 

grounds for challenge are: That (upon a rehearing or new trial) he 

was the law officer of the court which first heard the case; that he 

will be a witness for the defense; that he testified or submitted 

a written statement in connection with the investigation of the 

charges (unless at the request of the accused) ; that he has officially 

expressed an opinion as to the mental condition ofbe accused ; that, 

when it can be avoided, a member is junior in rank or grade to the 

accused; that he has a direct personal interest in the result of the 

trial; that he is in any way closely related to the accused; that he 

participated in the trial of a closely related case; that he is decidedly hostile or friendly to the accused; that (in a case involving an 

offense punishable by death) a member has conscientious scruples 

against imposing the death penalty; that, not having been present as 

a member when testimony on the merits was heard, or other important proceedings were had in the case, his sitting as a member will 

involve an appreciable risk of injury to the substantial rights of an 

accused, which risk will not be avoided by a reading of the record. 

In connection with this last example, see 418 and f, and 62h (1). 

g. Limitations on inquiry as to eligibility of law officer.-A challenge against a law officer based on the ground that he is not eligible 

to act as law officer (62f (1) ) will not be sustained unless it is shown : 

(1) That he is not an officer; or (2) that he is not on active duty with 

an armed force; or (3) that he is not a member of the bar of a Federal court or of the highest court of a State of t%e United States ; or 

(4) that he has not been certified to be qualified for duty as a law 

officer by the Judge Advocate General of the armed force of which 

he is a member. The hearing on such a challenge will be limited 

to the issue of determining whether any one of the four reasons enumerated above exists. In this connection the appointment of an officer 

as law officer of a general court-martial is prima facie evidence that 

he is an officer on active duty with an armed force; the recital of his 

legal qualifications in the appointing order is prima facie evidence 
TRIALASSEMBLY OF COURT, ARRAIGNMENT P 62h 

of the facts recited therein. An inquiry into the general educational, 

legal, or judicial experience of the law officer is improper. 

h. Procedure.- ( 1) Manner of making challenges.-Af ter any 

made by the trial counsel have been decided, he will, after 

with any request made by the accused to be permitted to 

examine the papers referred to in 44h, give the accused an opportunity 

to exercise his rights as to challenge. The accused thereupon may 

challenge, in turn, the law officer and each member to whom he objects. 

As to peremptory challenges, see 62e. Full and timely opportunity 

will be given to the accused, including each accused in a joint or 

colnmon trial, to exercise his right of challenge. A challenge may be 

withdrawn by the challenger for any reason, as when the challenged 

member makes a statement or reply which is satisfactory to the challenger. A challenge on the ground that a member was absent when 

testimony on the merits OT other important proceedings was had will 

often be withdrawn by the challenger upon his being informed that 

certain witnesses will be recalled and re-examined. 

(2) Inquiry.-If a member or law officer is challenged for any 

of the first eight grounds enumerated in 62f, and he admits the fact 

upon which the challenge is based, or if in any case it is manifest 

that a challenge will be unanimously sustained, the member or law 

officer will be excused forthwith unless objection or question is made 

or raised; otherwise the challenge, if not withdrawn, must be passed 

on by the court after both sides have been given an opportunity to 

introduce evidence and to make an argument, The challenger may 

subject the challenged member or lam officer to an examination under 

oath as to the subject matter of the challenge. For form of the oath, 

see 114. Ordinarily, th'e person against whom a challenge for cause 

Bas been made will take no part in the hearings upon such challenge 

except when caDed upon to testify or to make. a statement as to his 

competency ; however, the law officer {president of a special courtmartial) shall continue to rule Gpon interlocutory questions arising 

during the hearing although the challenge was made against him and 

although he may, at the time such a question arises, be testifying under 

oath as to his competency. In the latter event, he should preface any 

ruling by a statement such as, "As ram officer (president) I rule 

that . . ." 

Courts should be liberal in passing upon challenges, but need not 

sustain a challenge upon the mere assertion of the challenger. The 

burden of maintaining a challenge rests on the challenging party. A 

failure to sustain a challenge when good ground is shown may require 
864 CHAPTER XI d 

a disapproval on jurisdictional grounds or cause a rehearing because 

of error injuriously affecting the substantial rights of an accused. 

(3) Deliberation and voting.-Deliberation and voting upon a 

challenge will be in closed session, and the law officer and the challenged - 

member, if any, will be excluded. The vote upon the challenge is by 

secret written ballot, which ballot may be in the form "Sustained" or 

"Not sustained." See Article 51a as to counting and checking the vote 

and announcing the result of the ballot. Deliberation on the challenge 

may properly include full and free discussion. The influence of superiority in rank will not be employed in any manner in an attempt 

to control the independence of members in the exercise of their judgment. A majority of the bhllots cast e the members present at the 

time the vote is taken shall decide the question of sustaining or not sustaining the challenge. A tie vote on a challenge disqualifies the member challenged (Art. 526). Upon the court being opened the president 

shall state in open court that the challenge has been sustained or not 

sustained. When five members of a general court-martial (three in a 

special court-martial) are present and one is challenged, the remaining four (two) may vote on the challenge. 

(4) Action.-If the challenge is sustained, the challenged member or law officer will withdraw from the court; otherwise he will resume his seat. The court mill then proceed to consider the next challenge, if one be presented. When a court has been reduced below a 

quorum, or when the number of enlisted persons on a court is reduced 

below one-third in a case in which the accused has requested enlisted 

members, or when a challenge of the law officer for cause is sustained, 

the court will adjourn and report the matter to the convening 

authority. 

63. WITNESS FOR THE PROSECUTION.-If at any stage of 

the proceedings the law officer or any member of the court is called as 

a witness by the prosecution, he shall, before qualifying as a witness, be 

excused from further duty as law officer ot member, respectively, in 

the case. Whether the law officer or a member called as a witness for 

the court is to be considered as a witness for the prosecution depends 

on the character of his testimony. In case of doubt he will be excused 

as law officer or member, respectively. If a witness called by the 

defense testifies adversely to the defense, he does not thereby become 

a "witness for the prosecution." 

64. INVESTIGATING OFFICER.-Withili the meaning of the 

fifth clause of 62f and Articles 25d (2), 26a, and 27a, the term "investigating officer," as applied to a particular offense, shall be understood to 

include a person who, under the provisions of 34 and Article 32, has in- 
TRIALZ--ASSEMBLY OF COURT, ARRAIGNMENT (I 65b 

vestigated that offense or a closely related offense alleged to have been 

committed by the accused. The term also includes any other person 

who, as counsel for, or a member of, a court of inquiry, or as an investigating officer or otherwise, has conducted a personal investigation 

of a general matter involving the particular offense; however, it does 

not include a person who, in the performance of his duties as counsel, 

has conducted an invwtigation of a particular offense or a closely related offense with a view to prosecuting or defending it before a courtmartial. But see 6a and 62f (6). 

65. ARRAIGNMENT.-a. General.-The court being organized 

and both parties ready to proceed, the trial counsel will present 

the law officer and the members of the court with copies of the charges 

and specifications upon which the accused is about to be tried. See 

56d in this connection. . He will then read to the accused the charges 

and speciiications, and will call upon each of the accused to plead 

thereto. This proceeding constitutes the arraignment. The pleas 

are not part of the arraignment. -The fact that the service of the 

charges was within five days .of the arraignment before a general 

court-martial (three days in a case before a special court-martial) 

does not prevent the arraignment, even though the accused objects 

on that ground to the proceedings, but such fact is available, in time 

of peace, as a ground of valid objection to any further proceedings 

in the case at that time (Art. 35). 

The accused may waive the reading of the charges and specifications. 

As a rule, after arraignment in a case involving several charges and 

specifications, the procedure to be followed will be to receive pleas 

according to numerical order on the specifications of the first charge, 

then on the first charge, and so on with the rest. When appropriate, 

a single plea may be entered as to all charges and specifications without enumerating them. 

b. Additional charges.-After the mused has been arraigned 

. upon certain chargrs, additional charges, which the accused has had 

no notice to defend and regarding which the right to challenge has 

not been accorded him, cannot be introduced, nor may the accused be 

required to plead thereto. However? if all the usual proceedings 

prior to arraignment are first had with respect to such additional 

charges, including proceedings as to qualifying counsel and excusing 

and challenging the law officer and members of the court, such charges 

may be introduced, the accused may be arraigned on them, and the 

trial may proceed on both sets of charges as the trial of one case. It 

is not necessary that any official or clerical assistant of the court be 

resworn ,when additional charges are introduced. An application for 

a reasonable continuance should be granted. 

95 
. Chapter XI1 

PLEAS AND MOTIONS 

GENERAGMOTIONS RAISING DEFENSES AND OBJECTIONS-MOTIONS 

TO DISMISSMOTHlNS TO GRANT APPROPRIATE RELIEF-PLEASMOTIONS PREDICATED UPON THE EVIDENCE 

66. GENERAL.-For matters dealing with the arraignment, see 65. 

Pleas in court-madial procedure are pleas of guilty, not guilty, and 

pleas corresponding to permissible findings (70,74b). Defenses and 

objections raised befo~e ap$a is entered shall be raised only by motion 

to dismiss or to grant appropriate relief as provided in this chapter. 

Pleas are entered and, except as otherwise stated, motions raising 

defenses and objections are made after arraignment. 

67. MOTIONS RAISING DEFENSES AND OBJECTIONS.- 

a. Defenses and objections which may be raised.-Any defense or 

objection which is capable of determination without trial of the issue 

raised by a plea of not guilty may be raised before trial by reference 

to the convening authority, or by motion to the court before a plea is 

entered. Reference of such matters to the convening authority before 

trial is an administrative procedure and action thereon shall be without prejudice to the renewal of the assertion by motion to the court. 

Defenses and objections such as that trial is barred by the statute 

of limitations, former jeopardy, pardon, constructive condonation of 

desertion, former punishment, promised immunity, lack of jurisdiction, and failure of the charges to allege an offense should ordinarily 

be asserted by motion to dismiss before a plea is entered; but failure 

to assert them at that time does not constitute a waiver of the defense 

or objection. Unless otherwise stated; failure to assert any such defense or objection--except lack of jurisdiction or failure of the charges 

to allege an offen-before the conclusion of the hearing of the case 

constitutes a waiver. 

6. Defenses and djections which must be raised.-Defenses and 

objections based on defects in the preferring of charges, reference for 

trial, form of the charges and specifications, investigation, or other 

pretrial proceedings other than objections going to the jurisdiction 

of the court or the failure of the charges to allege an offense may be 

raised only by a motion for appropriate relief before a plea is entered. 

Failure to present any such objection prior to plea constitutes a waiver 

thereof, but the court for good cause shown may grant relief from 

the waiver. 
TRIALGPLEAS AND MOTIONS 1 67e 

c. Form and content of motion.-The motion raising a defense or 

objection should include all such defenses and objections then available 

and known to the accused. Defenses and objections which may appear 

to be available to the accused shall, if not asserted, be brought to the 

attention of the accused in any case in which he is not represented by 

counsel and may be brought to his attention in any case. 

The motion should briefly and dearly set forth the nature and 

pounds of the defense or objection which it is intended to raise. It 

may be presented orally or in writing. The substance of the motion 

and not its form or designation will control; for instance, if an accused 

makes a motion which he calls a motion for appropriate relief, but 

which in fact raises an objection to trial on jurisdictional grounds, the 

motion will be treated as a motion to dismiss. 

d. Time of making motions.-A motion raising any of the defenses 

and objections discusied in a and b above should be made before the 

plea is entered, but the court may permit it to be made within a reasonable time thereafter. 

Certain other motions predicated upon issues raised by the evidence 

in the case, such as motions for a finding of not guilty and motions to 

dismiss the proceedings on the grounds of res judicata, should generally be made after the prosecution has rested its case or at the conclusion of all the evidence. A motion to inquire into the mental condition of the accused (122.) or to dismiss the proceedings on the ground 

that the accused lacks the requisite mental capacity (120c) may be 

raised at any time during the trial. 

e. Hearing on the motion.-A motion raising a defense or objection will be determined at the time it is made unless the court defers 

action on the motion until a later time. Before passing on a contested motion, the court will give each side an opportunity to introduce pertinent evidence and to make an argument. Except as otherwise indicated in the discussion of motions (68c, Statute of limitations) and elsewhere (122a, Insanity), the burden rests on the accused 

to support by a preponderance of evid~nce a motion raising a defense 

or objection. A decision on such a motion is an interlocutory matter. 

If the motion raises a contested issue of fact which should properly 

be considered by the court in connection with its determination of the 

accused's guilt or innocence, the introducbion of evidence thereon may 

be deferred until evidence on the general issue is received. For example, if a specification alleges that an offense was committed at a time 

which is .within the period permitted by the statute of limitations and 

the accused makes a motion to dismiss on the gr wnd that trial is barred 

by Article 43, asserting that the offense was committed at an earlier 
I 67f CHAPTER XI1 

time than that alleged, the introduction of evidence pertinent to the 

motion may be deferred and the matter considered by the court in 

its deliberation on the issue of guilt or innocence. See also 12271 for 

a discussion of the question of the mental responsibility of the accused 

in connection with the hdings on the general issue. 

f. Effect of rulings on motion.-The denial of a motion raising a 

defense or objection does not prevent the entering of another motion 

to the same specification or charge. The court may reconsider its 

action in denying or sustaining a motion as long as the case is before 

the court. 

Except as otherwise indicated in the discussion on motions, an 

accused will not be required to plead to a specxcation or charge so 

long as the action of the couxt in sustaining a motion to dismiss or 

for appropriate relief relating to the specification or charge stands; 

but when all such motions as to a given charge or specification are 

denied, the accused should enter a plea or, if he stands mute, a 'plea 

of not guilty should be entered for him by the court. 

Notwithstanding the action of the court on a motion raising a 

defense or objection, the trial may proceed in the usual course as 

long as one or more specifications and charges remain as to which a 

plea stands. For example, when a motion to dismiss is sustained as to 

all but one specification and chargo to which the plea is not guilty, 

the trial on that specification and charge may continue. But when 

the trial cannot proceed further as the result of the action of the court 

on a motion raising a defense or objection, the court will adjourn and 

submit the record of its proceedings so far as had to the convening 

authority. 

The convening authority may not return to the court for reconsideration a ruling of the court which amounts to a finding of not 

guilty, such as the granting of a motion to dismiss because of lack of 

mental responsibility at the time of the offense (120b), or the granting 

of a motion for a finding of not guilty (71a; Art. 62). As to motions 

granted by the court which do not amount to a &ding of not guilty, 

the convening authority may, if he disagrees, return the record of 

trial to the court with a statement of his reasons for disagreeing and 

with instructions to reconvene and reconsider its ruling with respect to 

the matters as to which he is not in accord with the court (Art. 62a). 

To the extent that the court and the convening authority differ as to 

a question which is solely one of law, such as whether the charges allege 

an offense cognizable by a court-martial, the court will accede to the 

views of the convening authority; but if the matters as to which the 

convening authority disagrees are issues of fact, such as those which 
TRIALS-PLEAS AND MOTIONS %,68b 

may be presented on an objection to trial on the ground that the 

accused lacks the requisite mental capacity at the time of trial (120c), 

the court will exercise its sound discretion in reconsidering the motion. 

The order returning the record should include an appropriate direction with respect to proceeding with the trial or any further appropriate action (Art. 62a). If the convening authority finds that the 

action of the court was proper but that the defect raised by the motion 

can be cured, he will take appropriate action to remedy the defect and 

I return the record to the court for trial as above indicated. If he I does not wish to return the record for trial, he will take appropriate action to conclude the case by the publication of appropriate 

orders in cases wherein the action of the court operates as a bar to 

I further prosecution. Generally such action should be taken if the 

I proceedings are termina,ted by sustaining a motion to dismiss because 

of former jeopardy, pardon, constructive condonation of desertion, 

promised immunity, or when findings of not guilty are entered on 1 motion. In other cases, he will take action appropriate under the 

I circumstances. 

g. Inadmissible defenses and ob jections.-Such objections as that 

the accused, at the time of the arraignment, is undergoing a sentence 

I of a general court-martial, or that owing to the long delay in bringing I him to trial he is unable to disprove the charge or to defend himself, or 

i that his accuser was actuated by malice or is a person of bad character, 

I or that he was released from restraint upon the charges are not proper 

1 subjects for motion prior to plea, however much they may constitute 

ground for a continuance or affect the questions of the truth or falsity 1 of the charge or of the measure of punishment. The same is true in 

general as to objections that are solely matters of defense under a 

plea of not guilty and, in effect, merely contest the truth of the allegations of a charge. 

68. MOTIONS TO DISMISS-a. General.-A motion to dismiss 

properly relates to any defense or objection raised in bar of trial. 

Among the defenses and objections ~hich may' be raised by this 

motion prior to entering a plea are lack of jurisdiction (68b), failure 

of the charges to allege an offense (68b), running of the statute of 

limitations (68c), former jeopardy (684, pardon (68e), constructive 

condonation of desertion (68 f) , former punishment (68g), and 

promised immunity (68h). 

6. Lack of jurisdiction; failure to dlege an offense.-(1) Gemeral.-If the court lacks jurisdiction or if the charges fail to allege 

any offense under the code the proceedings are a nullity. These objec- 

, tions cannot be waived and may be asserted at any time. 
f 68s CHAPTER XI1 

(2) Jurisdictiort of the court oser the person.-A motion to 

dismiss on the ground of lack of jurisdiction over the person may be 

based on the absence of any of the requisites stated in 8. 

(3) PaiZure to allege an offense.-By a motion to dismiss the . 

accused may object to the sufficiency of a specification to allege any 

crime or offense. With the exceptions stated in 14a, courts-martial 

do not have jurisdiction to try any offenses nor; cognizable under the 

code. Unless the specification of a charge alleges an offense of which 

a court-martial may take cognizance, a motion to dismiss should be 

granted as to the specscation. If the motion is sustained the court 

will direct that the specification be stricken and disregarded. 

c. Statute of limitations.-For all but a few crimes or offenses, 

exemption from liability tb be tried by a court-martial or punishment 

under Article 15 may, with certain limitations, be claimed after two 

(or three) years. See Article 43 in appendix 2. In the case of any 

offense the trial of which in time of war is certified to the President by 

the Secretary of a Department to be-detrimental to the prosecution 

of the war or inimical to the national security, the period of limitation 

prescribed for the trial of the offense shall be extended to six months 

after the termination of hostilities as proclaimed by the President or 

by a joint resolution'of Congress (Art. 43e). When the United States 

is at war, the running of any statute of limitations applicable to certain 

other offenses under the code shall be suspended until three years after 

the termination of hostilities as proclaimed by the President or by a 

joint resolution of Congress. See Article 43f. 

If, prior to 31 May 1951, the trial or punishment of any crime or offense has been barred by the running of the statute of limitations under 

the law in effect prior to that date, Article 43 of the code shall not be 

construed as reviving liability to teal or punishment for such crime 

or offense. However, if the statute of.limitations has not run prior to 

31 May 1951, the running of the statde of limitations shall be governed by the provisjons of Article 43 of the bode. 

The period of limitation begins to run on the date of the commission 

of the offense. With respect to liability to trial by court-martial, 

it ends when sworn charges and specifications are received by any 

officer exercising summary court-martial jurisdiction over the command which includes the accused. See 3371 and Article 24. The termination of the period of limitation may be proved, prima facie, by the 

signed receipt for the charges and specifications prescribed in 38b. 

With respect to liability to non-judicial punishment, the period of limitations ends with the imposition of punishment under Article 15 (Art. 

436). Certain offenses, as, for example, wrongful cohabitation, are 
TRIAL%PLEAS AND MOTIONS S 68c 

I 

continuing offenses, and the accused cannot avail himself of the statute 

of limitations for any part of continuing offenses not within the bar 

of klle statute of limitations. Absence without leave (Art. 86), desertion (Art. 85), and fraudulent enlistment (Art. 83 (1)) are not continuing offenses and are committed, respectively, on the data the person so absents himself, deserts, or first receives pay or allowances under 

the enlistment. If it appears that the statute of limitations bars trial 

of an alleged desertion or absence without leave the court may not find 

by exceptions and substitutions that such desertion or unauthorized 

absence began at a later time not barred by the statute. However, in 

cases in which the statute of limitations is not involved, the court may 

find by exceptions and substitutions that a desertion or unauthorized 

absence began at a later time than that alleged (but within the period 

alleged), but such finding by exceptions and substitutions may not 

increase the amount of punishment that might be adjudged. As to 

amending charges when appropriate, see 33d. 

In applying this statute the court will be guided by the crime or 

offense as described in the spec&cation, and not by the article stated 

in the charge. Thus, if an offense properly chargeable under Article 

121 is erroneously charged under Article 134, the limitation is lievertheless three years rather than two years. 

If it appears from the. charges that the statute has run against an 

offense or (in the case of a continuing offense) a part of the offense 

charged, the court will bring the matter to the attention of the accused 

and advise him of his right to assert the statute unless it otherwise 

affirmatively appears that the accused is aware of his rights in the 

premises. See 53h. This action should, as a rule, be taken at the time 

of arraignment. If the accused pleads guilty to a lesser included offense against which the statute of limitations has apparently run, the 

court will advise the accused of his right to interpose the statute in bar 

of trial and punishment as to that offense. See also 74h. 

The burden is not on the defense to show that neither absence from 

the territory in which the United States has authority to apprehend 

him nor other impediment prevents the accused from claiming exemption under Article 43. For example, if it appears from the charges 

in a peacetime desertion case that more than three years have elapsed 

between the date of the commission of the offense and the date when 

sworn charges and specifications were received by an officer exercising 

summary court-martial jurisdiction over the cormnand which includes 

the accused, the motion should be sustained unless the prosecution 

shows by a preposlderance of evidence that the statute does not apply 

because of periods which, under the provisiow of Article 43d, are to be 

excluded in computing the three years. 
V 68d CHAPTER XI1 

Since the statute of limitations is a matter of defense, it may be 

waived by the accused provided he is aware of his right to assert it. A 

plea of guilty, after explanation of its effect with respect to the statute 

of limitations, operates as such waiver. If an accused pleads guilty 

to a' lesser included offense against which the statute of limitations 

has run and persists in the plea after the meaning and effect thereof 

have been explained to him including his right to interpose the statute 

of limitations as to the lesser included offense, the plea of guilty, as 

long as it stands, is a waiver of his right to interpose the statute of 

limitations in bar of punishment. Under these circumstances he may 

not, after a finding of guilty of such lesser included offense, assert 

the statute in bar of punishme9t. It is not imperative that the accused, in order to avail himself of this defense, do so by means of a 

motion to dismiss. The limitation may equally be taken advantage of 

under a plea of not guilty by establishing the defense by evidence during the trial. See 67e for an example of a case in which it is appropriate to raise this defense under a plea of not guilty. In such a case, 

however, the accused must advise the court that he is insisting upon 

the defense of the statute of limitations under his plea of not guilty, 

since failure to assert the defense during the hearing constitutes a 

waiver (67a). 

d. Former jeopardy.-No person shall be tried a second time for 

the same offense without his consent (Art. Ma.). No proceeding in 

which an accused has been found guilty by a court-martial upon any 

charge or specification shall, as to such charge or specification, be held 

to be a trial in the sense of Article 44 until the finding of guilty has 

become final after review of the case has been fully completed (Art. 

446). But the disapproval or setting aside of a finding of guilty as 

to any charge or specification for lack of sufficient evidence in the 

record to support the hdings of guilly is a bar to rehearing upon that 

charge or specification (Arts. 63a, 66d, 6%). 

If, subsequent to the introduction of any evidence on the general 

issue (the issue of guilt or innocence raised by a plea), a proceeding 

is dismissed or terminated by the convening authority or on motion 

of the prosecution because of failure of available evidence or witnesses 

without any fault of the accused, such proceeding shall be a trial in 

the sense of Article 44 (Art. 44c). The word "terminated" as herein 

used means a final conclusion of the hearing, and not a mere continuance for the purpose of obtaining additional evidence or for any 

other purpose. Except as provided in Article 44c, a proceeding is 

not a trial in the sense of Article 44 if, because of manifest necessity 

in the interest of justice, it was terminated before findings (566). 
TRIALS--PLEAS AND MOTIONS U 6Be 

A person has not been tried in the sense of Article 44 if the proceedings were void for any reason, such as lack of jurisdiction to try 

the person or the offense. 

The same acts constituting a crime against the United States cannot, 

after acquittal or conviction of the accused in a civil or military 

court deriving its authority from tho United States, be made the basis ' of a second trial of the accused for that crime in the same or in another 

such court without his consent. The civil courts in the Territories 

and possessions of the United States, as well as the district and other 

courts of the United States, derive their authority from the United 

States. The same acts when committed in a State may constitute 

two distinct offenses, one against the United States and the other 

against the State. In such a case trial by a State court does not bar 

trial by court-martial. 

In general, once a person 'is tried for an offense in the sense of 

Article 44, he cannot without his consent be tried for an offense 

necessarily included therein. When onca tried for a lesser offense, 

an accused cannot be tried for a major offense which differs from the 

lesser offense in degree only. Thus a trial for manslaughter may be 

interposed in bar of trial for the same homicide subsequently charged 

as murder because both offenses involve the same unlawful killing and 

are distinguished from each other only by the state of mind of the 

accused. On the other hand, a trial for a homicide is not barred by a 

dormer trial for an assault and battery. Sea 716, however, for an 

example of a case when the defense of res judicata may be asserted 

after acquittal of a. lesser included offense. A trial for absence without leave (Art. 86) bars trial for the same absence charged as desertion 

and vice versa if the same enlistment is involrad in both cases, since 

both offenses invo~llve the same unauthorized absence. But when a 

person in the miIitary service deserts and re-enlists, trial for absence 

without leave from the second enlistment does not bar trial for desertion from the first enlistment although the same period of time may 

in part be involved! in both cases. 

Subject to the rules as to documentary evidence, including the 

mles as to the use of copies, former jeopardy by court-martial may be 

proved in appropriate cases by the order publishing the result of trial. 

Former jeopardy by civil court may be proved by the indictment and 

record of conviction or acquittal. When necessary or desirable 

former jeopardy by any court may be proved by the record of trial by 

eoul-t-martial or cia court. 

e. Pardon.-A pardon is an act of tha President which exempts 

the individual on whom it is bestowed from lh~ punishment the law 
ll69b CHAPTER XI1 

inflicts for a crim~ he has committed. A pardon may be interposed , 

in bar of trial by a motion to dismiss. The usual rules as to doc-Jmentary evidence apply to a written pardon, whether in the nature 

of an individual pardon or of a general amnesty. If the document is 

not sufficiently explicit to determine whether the motion should be 

sustained, the defsnw. may introduce other evidence tending to , 

establish the pardon. 

f. Construcfive condonation of desertion.-If an officer exercising general court-martial jurisdiction unconditionally restores a 

deserter to duty without trial with knowledge of the alleged desertion, 

this action amounts to' a constructive condonation of the desertion and 

may be interposed in bar of t%-ial subsequently ordered. 'If an officer 

exercising general court-martial ,lurisdi.ction shall have directed that 

a deserter be restored to duty but that he remain subject to trial for 

the offense, such a restoration is not a constructive condonation of the 

desertion and the individual so restored remains subject to trial. 

g. Former punishmeni.-Non- j udicial punishment previously imposed under Article 15 for a minor offense may be interposed in bar 

of trial for the same offense. For a definition of LLminor offense," see 

128b. Such punishment, however, does not bar trial for another crime 

or offense growing oat of the same act or omission. For instance, 

punishment under Article 15 for the careless discharge of a firearm 

would not bar trial for involuntary manslaughter if the careless act 

caused a death. See Article 15e. 

h. Pr0mise.d immunity.-See 148e (Testimony of accomplices). 

69. MOTIONS TO GRANT APPROPRIATE RELIEF.-+. 

General.-A motion to grant appropriate relief is one made to cure 

a defect of form or substance which impedes the accused in properly 

preparing for trial or conducting his defense. Among the objections 

which may be raised by such a: ,motion are defects in charges and 

specifications which do not amount to a failure of the charge to allege 

an offense (69b), a substantial defect in the conduct of the pretrial 

investigation (see 34,69c, Art. 32), prejudicial joinder in a joint trial 

(69d), and misjoinder in a common trial (331,69d). In general these 

objections are waived if not asserted prior to the entry of a plea, but 

the court may grant relief from the waiver for good cause (67b). The 

motion should briefly and clearly set forth the nature of and the 

grounds for the request, objection, or questions it is intended to make 

or raise. The motion admits nothing as to either the jurisdiction of 

the court or the merits of the case. 

6. Defects in charges and specifications.-(1) Ge~ru2.-If a 

specification, although alleging an offense cognizable by courts-mar. 

tial, is defective in some matters of form as, for example, that it is in- 
TRIALS-PLEAS AND MOTIONS '1 69b 

drawn, indehite, redundant, or that it misnames the accused, 

or is laid under the wrong article, or does not contain sufficient allegations as to time and place, the objection should be raised by motion for 

appropriate relief. 

(2) When accused is not misled.-If it clearly appears that the 

has not in fact been misled by the form of the charges and 

specifications, and that a continuance is not necessary for the protection of his substantial rights, the court may proceed immediately with 

the trial upon directing an appropriate amendment of the defective 1 charge or specification. 

(3) When accused may be misled.-If the specification is defec- I tive to the extent that it does not fairly apprise the accused of the particular offense charged, the court, upon the defect being brought to its I attention, will, according to the circumstances, direct the specification 

to be stricken and disregarded, or continue the case to allow the trial 

counsel to apply to the convening authority for directions as to further 

proceedings, or permit the specification to be amended so as to cure 

the defect, and continue the case fw such time as in the opinion of the 

court may suilice to enable the accused properly to prepare his defense 

in view of the amendment. 

In determining which of the courses mentioned in the preceding 

subparagraph is to be followed, the court will exercise its sound discretion in the light of the circumstances of each particular case. The 

following discussion is intended td provide guidance only and is not to 

be considered as providing a solution for every case. 

When a defective specification alleges a relatively minor offense, 

and there remain before the court one or more specifications alleging 

serious offenses as to which a delay of the trial might prejudice the 

interests of the accused or the Government, the court may strike the defective specification and proceed with the trial of the remaining offenses charged. 

Proper occasions for amending a defective specification and continuing the case may arise when the prosecution is prepared to propose 

an appropriate amendment which, without changing the nature of the 

offense charged, supplies sufficient pafrticulars to enable the accused 

properly to prepare his defense. 

Whenever the trial counsel is not prepared to propose an appropriate amendment to a defective specification, or when a proposed 

amendment to such a specification would change the nature of the 

offense intended to be alleged and when the interests of justice do not 

require that the defective specification be stricken in order that the trial . may proceed with respect to other specifications, the court may continue the case in order to permit the trial counsel to refer the matter 

105 
8 69d CHAPTER .XI1 

to the convening authority. This procedure is also appropriate in any 

case when the court is in doubt as to the proper relief which should 

be granted with respect to a defective specification. 

c. Defects arising out of the pretrial investigation.-A substantial failure to comply with the requirements of 34 and Article 32 may 

be brought to the attention of the court by a motion for appropriate 

relief. Such a motion should be sustained only if the accused shows 

that the defect in the conduct of the investigation bas in fact prevented him from properly preparing for trial or has otherwise injuriously 

affected his substantial rights. If the motion is sustained the court may 

grant a continuance to enable the accused to prepare his defense properly, or may adjourn the proceedings to permit compliance with 34 and 

Article 32 and report the basis of its action to the convening authority. 

The latter may, after taking necessary action to cure the defect, return 

the record to the court with instructions to proceed with the trial. 

d. Motion to sever.-A motion to sever is a motion by one of two or 

more co-accused to be tried separately from the other or others. Occasion for the motion may arise in either a joint or a common trial. 

In a common trial a motion to sever will be liberally considered. It 

should be granted on the motion of an accused arraigned in a common 

trial with other accused against whom offenses are charged which are 

unrelated to those charged against the mover (331). 

The motion should be granted in any case if good cause is shown; 

but when the essence of the offense is a combination between the 

parties-conspiracy, for instance-the court may properly be more exacting than in other cases as to whether the facts established in support 

of the motion constitute good cause. The more common grounds for 

this motion are that the mover desires to use at his trial the testimony 

of one or more of his co-accused, or the testimony of the wife of one, or 

that a defense of the other accused is antagonistic to his own, or that 

evidence as to the other accused will in some manner prejudice his 

defense. 

If the motion is granted, the court will first decide which accused 

it will proceed to try and, in the case of joint charges, direct an 

appropriate amendment. of the charges and specifications. For 

instance, if after severance the court proceeds with the trial of B in a 

case in which A and B have been jointly charged with an offense, the 

specification should be amended to allege, in effect, either that B 

committed the offense or that B committed the offense in conjunction 

with A. The amendment should be formally made as a part of the 

proceedings, no actual alteration being made in the charge sheet itself. 

For an example see the procedural guide, appendix 8a. When, as a 
TRIALS--PLEAS AND MOTIONS 1 70a 

I.esdt of action on a motion to sever, trial of one or more accused is 

deferred, the trial counsel will report the facts at once to the convening 

autllority so that he may take appropriate action to try the deferred 

accused or to make other disp.osition of the charges as to such accused. 

&. Miscellaneous motions for relief.-In addition to grounds for 

motioll~ discussed above in this paragraph (69), there are others which 

may be made for the purpose of raising a specific objection on the 

prior to trial of the general 'issue. For examples, see 121 and 

122 (Insanity). If a motion amounts in substance to an application 

for a continuance, or to a challenge, motion to dismiss, or other matter 

for which a procedure is provided, the motion will be regarded as such 

application, challenge, motion to dismiss, or other matter. A motion 

to elect-that is, a motion that the prosecution be required to elect 

upon which of two or more charges or specifications it will proceedwill not be granted. 

70. PLEAS.--a. General.-In court-martial procedure, pleas include guilty, not guilty, and pleas cgrresponding to permissible findings of lesser included offenses. See '74b (3). The court may refuse 

to accept a plea of guilty and should not accept the plea without first 

determining that it is made voluntarily with understanding of the 

nature of the charge. If an accused arraigned before a court-martial 

makes any irregular pleading, or after a plea of guilty sets up matters 

inconsistent with the plea, or if it appears that he has entered the 

plea of guilty improvidently or through lack of understanding of its 

meaning and effect, or if he fails or refuses to plead, a plea of not 

guilty shall be entered in the record, and the court shall proceed as 

though he had pleaded not guilty (Art. 452). The term "irregular 

pleading" includes such contradictory pleas as guilty without criminality or guilty to a charge after pleading not guilty to all specXcations thereunder. 

A plea of guilty by the accused shall not be received to any charge 

or specification alleging an offense for which the death penalty may 

be adjudged {Art. 456; see 15a (3)), but a plea of guilty may be 

received as to a noncapital offense which is necessarily included in a 

capital offense alleged. 

Except as to matters covered by a plea of guilty, a plea admits 

nothing as to the jurisdiction of the court and nothing as to the merits 

of the case. Any admfssion or waiver involved in a plea of guilty to 

any offense has effective existence only as long as the plea stands. A 

plea of not guilty or guilty will, in the absence of a motion to grant 

appropriate relief, be regarded as a waiver of any objection which 

must be raised by such motion before pla, including any. objection 
based on a misnomer 'of the accused whether under an alias or otherwise. See 676. By standing muts an accused does not waive any 

objections otherwise waived by a plea. 

The accused has a legal and moral right to enter a plea of not guilty 

even if he knows he is guilty. This is so because his plea of not guilty 

amounts to nothing mare than a statement that he stands upon his right 

to cast upon the prosecution the burden of proving his alleged guilt. 

A plea of guilty does not exclude the taking of evidence, and in the 

event that there be aggravating or extenuating circumstances not 

clearly shown by the specification and plea, any available and admissible evidence as to such circumstances may be introduced. If a plea of 

guilty to a lesser included offense is entwed the trial counsel shall 

proceed with the prosecution of the offense charged. 

6. Procedure if plea of guilty is entered.-The following procedure is prescribed f or all cases in which a plea of guilty is entered : 

(1) In general and special court-martial cases, the plea of 

guilty will be received only after the accused has had an opportunity to consult with the counsel appointed for or selected by him. 

If the accused has refused counsel, the plea should not be received. 

(2) Before accepting a plea of guilty the meaning and effect thereof will be explained to the accused by the law officer of a general 

court-martial, or the president of a special court-martial or by the 

summary court-martial unless it otherwise affirmatively appears that 

the accused hnderstands the meaning and effect thereof. See 53h. 

Such explanation will include the followingThat the plea admh every act or omission alleged and every element of the offense charged (or of the lesser included offense to 

which it relates) and authorizes conviction of the offense to which 

the plea relates without further 'proof; 

That the maximum punishment authorized for the offense to which 

the accused has pleaded guilty may be adjudged upon conviction 

thereof; 

That unless the accused indicates that he understands the meaning 

and effect of the plea as explained, the plea of guilty will not be accepted. See appendix 8a for an example of such explanation. 

(3.) The explanation made and the reply of the accused thereto will 

.be set forth verbatim in the record of trial of a general court-martial or of a special court-martial in which a verbatim record is kept. 

In other records of trial by speoial court-martial the substance of the 

explanation and reply will be set forth in the record of trial. In 

records of trial by summary court-martial, the fact that a plea of 

'+ guilty wm explained will be recorded in the space provided. 
TRIALS-PLEAS AND MOTIONS 17la 

(4) The question whether the plea will be received will be treated 

as an interlocutory one. 

Whenever an accused, in the course of trial following a plea of 

guilty, makes a statement to the court, in his testimony or otherwise, 

inconsistent with the plea, the court will make such explanation and 

statement as the occasion rbquires. If, after such explanation and 

statement, it appears to the court that the accused in fact entered the 

plea improvidently or through lack of understanding of its meaning 

and effect, or if the accused does not voluntarily withdraw his inconsistent statement, the court will proceed to trial and judgment 

as if he had pleaded not guilty. See Article 45a. Occasion for 

making this explanation and statement frequently arises in desertion 

cases when the accused, after pleading guilty testifies or states in effect 

that throughout his unauthorized absence he had the intention of 

returning. When, after a plea of guilty has been received, the accused asks to be allowed to withdraw it and substitute a plea of not 

guilty or a plea to a lesser inclbded offense he should be permitted to 

do so. Whenever a plea of guilty previously entered is set aside the 

prosecution will be given an opportunity to reopen its case and produce any available evidence which it did not introduce in view of 

the plea of guilty. 

One plea may be entered as applicable to all or to certain specified 

charges and specifications, such as "Not guilty to all charges and 

specifications." 

71. MOTIONS PREDICATED UPON THE EVIDENCE.-a. 

Motion for finding of n~t guilty.-The court on motion of the defense 

may enter a finding of not guilty as to one or more offenses charged 

after the evidence on either side is closed if the evidence is insufficient 

to sustain a conviction of such offense or offenses. If a motion for a 

finding of not guilty at the close of the evidence offered by the prosecution is not granted, the defense may offer evidence without having reserved the right to do so. But if all the evidence in the record, whether 

adduced by the defense or the prosecution, or both, is sufEcient to sustain a conviction, such conviction need not be set aside upon review 

merely because the court erred in denying such motion for a finding of 

not guilty at the time it mas made. 

The court in its discretion may require that the motion specifically 

indicate wherein the evidence is legally insufficient. The court will 

determine the matter as an interlocutory question. See 57 and Article 

51b. If there is any substantial evidence which, together with all 

proper inferences to be drawn therefrom and all applicable presumptions, reasonably tends to establish every essential element of an offense 
P 71b CHAPTER XI1 

charged or included in any specification to which the motion is directed, 

the motion will not be granted. The court in its discretion may defer 

action on any such motion as to any specification and permit or require 

the trial counsel to reopen the case for the prosecution and to produce 

any available evidence. If the motion is sustained as to any specification, the ruling amounts to a finding of not guilty of such specscation and, when appropriate, of the proper charge. 

6. Res judicata-The defense of yes judicata is based on the rule 

that any issue of fact or lam put in issue and finally determined by a 

court of competent jurisdiction cannot be disputed between the same 

parties in a subsequent trial even if the second trial is for another 

offense. The accused, in a proper case, may assert an issue of fact 

finally determined by an acquittal as a defense. Thus, if B has been 

acquitted by a court-martial (or by any'court wherein the United 

States, any of its Territories or possessions, or their political subdivisions, or the District of Columbia .mas a party) of having committed an assault with a knife upon A, E can assert the acquittal as a 

defense if, upon the subsequent death of A as a result of the wound 

inflicted in the assault, I3 is later tried for murder, although the defense of former jeopardy might not be available to him (684. A 

motion raising the defense of res judicata should ordinarily bd made 

after the prosecution has rested its case or later unless it can be shown 

at an earlier stage of the trial that the issue of fact or lam in the case 

on trial and in the case relied upon to sustain the motion are the same. 

Proof of the former adjudication may be made by the record of the 

trial relied upon to sustain the motion. Generally, res judicata will 

not be asserted by the prosecution in any trial by court-martial. However, with respect to jurisdiction of an offense committed prior to a 

fraudulent separation, a. final convictipn of fraudulent separation in 

violation of Article 83 (2) may be shown by the prosecution as a final 

adjudication of such fraudulent separation and the accused may not 

dispute the jurisdiction of the court as to the earlier offense on the 

ground that his separation from the service was not fraudulent. See 

Article 36. 
Chapter XIII 

MATTERS RELATED TO FINDINGS AND 

SENTENCE 

ARGUMENTS-INSTRUCTIONS-FINDINGS-PRESENTENCING 

PROCEDURE-SENTENCE--CONCLUSION OF THE TRIAL 

72. ARGUMENTS.-a. General.-After both sides have rested, 

may be made to the court by the trial counsel, the accused, 

and his counsel. The trial counsel has the right to make the opening 

argument and, if any argument is made on behalf of the defense, the 

closing argument. The closing argument of the trial counsel is 

generally limited to the discussion of propositions or matters argued 

by the defense. If the trial counsel is permitted by the court to introduce new matter in his closini :argument, the defense should be 

afforded an opportunity to reply thereto, but this will not preclude 

the trial counsel from presenting a final argument. 

If the arguments indicate that a plea of guilty was entered improvidently, the court will take appropriate action as indicated in 70. 

Arguments of counsel may be oral, in writing, or both. See 82b (4) 

in this connection. 

b. Content-A reasonable latitude should be allowed counsel in 

presenting their arguments. Restricting argument, particularly in 

long and complicated cases, may constitute error; however, the court 

may in its discretion limit argument when it is trivial or mere 

repetition. 

Counsel may make a reasonable comment on the evidence and may 

draw such inferences from the testimony as will support his theory 

of the case. The testimony, copduct, motives, and evidence of malice 

on the part of witnesses may, so far as disclosed by the evidence, be 

coininented upon. It is improper to state in an a.rgument any matter 

of fact as to which there has been no evidence. A party may, however, 

argue as though the testimony of his own witnesses conc1usiveIy established facts related by them. 

The prosecution may not comment upon the failure of the accused to 

take the witness stand; however, if the accused has testified on the 

merits with respect to an offense charged, and if he fails in such 

testimony to deny or explain specific facts of an incriminating nature 

that the evidence of the prosecution tends to establish with respect 

to that offense, such failure may be commented upon. When an 

accused is on trial for a number of offenses and has testified to one or 
U 73c CHAPTER Xlll 

more of them only, no comment can be made on his failure to testify 

as to the others. 

Refusal of a witness to answer a proper question may be commented 

upon. As to permissible comments on the fact that one witness testified after hearing another, see 149a (Examination of witnesses). 

c. Improper argument.-Argument should not be interrupted by 

the other side or by the court unless it becomes improper, in which case 

it may be appropriate for the court to order that the argument be 

codned to proper matters, and that any improper part already made 

be disregarded. 

73. INSTRUCTIONS.-cz. Elements of the offense.-After clming arguments have been concluded, the law officer (president of a 

special court-martial) mill instruct the court as to the elements of each - 

offense charged. Information as to the elements of an offense mag. be 

obtained from the subparagraphs entitled "Discussion" and "Proof'? 

which appear in the discussion of tae punitive article under which 

the offense is charged. See chapter XXVIII. The instruction may be 

given in the language of the applicable subparagraph. If there is 

any doubt as to the elements of a particular offense, the law officer 

(president of a special court-martial) may call upon the trial counsel 

to produce any law available on the matter, including information or 

instructions on the lam from the convening authority. 

6. Charging the court.-After instructing the court as to the elements of each offense charged, the law officer (president of a special 

court-martial) shall, in all cases, including those in which a plea of 

guilty has been entered, charge the court (ht. 5lc) : 

(1) That the accused must be presumed to be innocent until his 

guilt is established by legal and competent evidence beyond reasonable doubt ; 

(2) That in the case being cbnsidered, if there is a reasonable 

doubt as to the guilt of the accus'ed, the doubt shall be resolved in 

favor of the accused and he shall be acquitted; 

(3) That if there is a reasonable doubt as to the degree of guilt, 

the finding must be in a lower degree as to which there is no reasonable doubt; and 

(4) That the burden of proof 'to establish the guilt of the accused beyond reasonable doubt is upon the Government. 

To the foregoing, explanatory matter may, but need not, be added. 

c. Additional instruction by law officer.-(1) General.-The law 

officer is not required to give the court any instructions other than 

those required by Article 51c (73a, 13). , However, when he deems it 

necessary or desirable, he may give the court such additional instructions as will assist it in making its findings. For example, he may, 
TRIALS-FINDINGS AND SENTENCE P 73t 

in an appropriate case, make a simple and ordeimly statement of the 

issues of fact, summarize and comment upon the evidence that tends 

to support or deny such issues, and discuss the law applicable thereto. 

The law officer may advise the court as to what offenses, if any, are 

included in an offense charged and the possible findings the court may 

malce by way of exceptions and substitutions. If the accused has 

 leaded guilty to an offense and the plea still stands, the law officer should invite the attention of the court to the fact that no further 

poof of the offense to which the plea relates need be introduced by . the prosecution to warrant a finding of guilty of that offense. In 

this connection, see 70. 

In summarizing or commenting upon the evidence, the law officer 

should use the greatest caution to insure that his remarks do not 

extend beyond an accurate, fair, and dispassionate statement of what 

the evidence shows, both in behalf of thB prosecution and the defense. 

He sliould not depart from the role of ah impartial judge, or assume 

the role of a partisan advocate. He should not assume as true the 

existence or nonexistence of a material fact in issue as to which the 

evidence is conflicting, as to which there is dispute, or which is not 

supported by the evidence, and he should make it clear that the members of the court are left free to exercise their independent judgment 

as to the facts. 

All additional instructions given by the law officer will be given 

in open court in the presence of the accused and counsel for both sides. 

The accused and counsel may not interrupt the law officer while he is 

instructing the court. 

(2) Preparing additional imtructiom.-If the law officer deems 

it necessary or desirable that the court be given additional instructions, he may recess the court so that he may have time to prepare such 

instructions; he may request counPsel for both sides to furnish him 

with proposed additional instructions as to a particular issue in the 

case or as to any or all of the offenses charged. Counsel need not 

submit proposed instructions even when requested to do so by the law 

officer. Any proposed instructions submitted by counsel will be presented in writing to the law officer and copies will be furnished to the 

opposing counsel. The law officer may accept, reject, or modify any 

proposed instruction that is submitted, and may substitute instructions of his own or refuse to give any instructions on a matter included 

in a proposed instruction submitter1 by counsel. However, he will 

cause all. proposed instructions to be marked for identification and 

appended tothe record of trial for the consideration of the convening 

authority. The law officer may permit counsel to present argument 

upon proposed illstructions. The members of tho general court-mar- 
9 74a CHAPTER Xlll 

tial will be excluded during the presentation of any argument upon 

a proposed instruction and, as a. general rule, such argument will not 

be recorded. However, the law officer may direct that any argument, 

or part thereof, made upon a proposed instruction be recorded, transcribed, marked for identification, and appended to the record of 

trial for the consideration of the convening authority. ' 

74. FINDINGS-. General.-In addition to such instructions as 

may be given in open court by the law officer (president of a special . court-martial), the court will observe the following rules when it is 

making its findings : 

(1) Basis of findings.-Only matters properly before the court 

as a whole may be colisidered. A member should not, for instance, be 

influenced by any knowledge of the acts, character, or service of the 

accused not based on the evidence or other proper matter before the 

court; by any opinions not properly in evidence; or by motives of 

partiality, favor, or affection. Matters as to which comment in argument is prohibited cannot be considered. 

(2) Weighing evidence.-In weighing the evidence a member is 

expected to utilize his common sense and his knowledge of human 

nature and of the ways of the world. In the light of all the circumstances of the case he should consider the inherent probability or 

improbability of the evidence, and, with this in mind, he may properly 

believe one witness and disbelieve several witnesses whose testimony is 

in conflict with that of the one. In this connection, see 153 (Credibility of witnesses) and 140a (Confessions and admissions). 

(3) Reasonable doubt.-In order to convict of an offense the 

court must be satided beyond a reasonable doubt that the accused is 

guilty thereof. By "reasonable doubt:' is intended not fanciful or ingenious doubt or conjecture but substantial, honest, conscientious doubt 

suggested by the material evidence, or lack of it, in the case. It is an 

honest, substantial misgiving, generated by insufficiency of proof of 

guilt. It is not a captious doubt, nor a doubt suggested by the ingenuity 

of counsel or court and unwarranted by the testimony; nor a doubt born 

of a merciful inclination to permit the accused to escape conviction; 

nor a doubt prompted by sympathy for him or those connected with 

him. The meaning of the rule is that the proof must be such as to 

exclude not every hypothesis or possibility of innocence but any fair 

and rational hypothesis except that of guilt; what is required is not 

an absolute or mathematical certainty but a moral certainty. A courtmartial which acquits because, upon the evidence, the accused may 

possibly be innocent, falls as far sho~:t of appreciating the proper 

amount of proof required in a criminal trial as does a court which 

convicts on a mere possibility that the accused is guilty. 

114 
TRIAL%FINDINGS AND SENTENCE P 74b 

The rule as to reasonable doubt extends to every element of the 

offense. If, in a trial for desertion with intent to remain away permanently, a reasonable doubt exists as to such intent, the accused 

cannot properly be convicted as charged, although he might be convicted of the lesser included offense of absence without proper 

authority (app. 12). It is not necessary that each particular fact 

advanced by the prosecution be proved beyond a reasonable doubt; it 

is sufficient to warrant conviction if, on the whole evidence, the court 

is satisfied beyond a reasonable doubt that the accused is guilty. Prima 

facie proof of an essential element of an offense does not preclude the 

existence of a reasonable doubt with respect to that element. The 

court may decide, for instance, that the prima facie evidence presented 

does not outweigh the presumption of innocence. With respect to 

making and weighing presumptions, see 138a. 

If a reasonable doubt exists as to the mental responsibility of 

an accused for an offense charged, the accused canHot legally be convicted of that offense. See 120b as to the standard df mental responsibility and 122 as to the burden of proof and presumption of sanity. 

A reasonable doubt may arise from the insufficiency of circumstantial evidence, and such insufficiency may be with respect either 

to the evidence of the circumstances themselves or to the strength of 

the inferences drawn from them. When the only competent evidence 

of the comrnission of an offense is circumstantial in nature, the 

inference to be drawn from such evidence must not only prove all 

the elements of the offense, but must at the same time exclude every 

reasonable hypothesis of innocence. 

6. Findings as to the specifications.-(1) GemraZ.-Permissible 

findings include guilty ; not guilty; ,auilty with exceptions, with or 

without substitutions, and not guilty of the exceptions and guilty 

of any substitutions, as stated below. 

The finding as to a specification should be consistent throughout. 

A finding of guilty without criminality should not be made. 

When two or more accused are tried jointly, the fmdings as to each 

accused should be stated separately. Any different hdings as to two or 

more joint accused should be consistent with one another. Thus, if 

A and B are joint accused and the- court hds B guilty of the offense 

charged and finds A not guilty, B should be found guilty by excepting 

from the specification the name of A and the words in the specification which indicate that the offense mas a joint one. 

(2) Exceptions and suhstiiMiom.4ne or more words or figures 

may be excepted and, when necessary, others substituted, provided the 

facts as so found constitute an offense.by an accused which is punishable by the court, and provided that such action does hot change the 
CHAPTER. Xlil 

nature or identity of any offense charged in the specification or increase the amount of punishment that might be imposed for any such 

offense. The substitution of a new date or place may, but does not necessarily, change the nature or identity of an offense. For action to be 

taken when the- evidence indicates an offense not charged, see 55. 

(3) Lesser incZuded offenses.-If the evidence fails to prove the 

offense charged but does prove the commission of an offense necessarily included in that charged or of an attempt to commit the offense 

charged or of an offense necessarily included therein, the court mag 

by its findings except appropriate words and figures of the specification, and, if necessary, substitute others, finding the accused not guilty 

of the excepted matter but guilty of the substituted matter. For a 

discussion of included offenses, see 158 ; for a discussion of attempts, 

see 159. 

A table listing some commonly included offenses appears in appendix 12. 

(4) Offenses arising out of the kame act or transmtiolt.-The accused may be found guilty of two or more offenses arising out of the 

same act or transaction, without regard to whether the offenses are 

separate. In this connection, however, see 76a (8). 

c. Findings as to $he charges.-Permissible findings include 

guilty; not guilty ; not guilty, but guilty of a violation of Article-. 

An attempt should be found as a violation of Article 80 unless the 

attempt is included in the express terms of some other article. For 

examples, see Articles 85,94,100,104, and 128. 

The finding as to a charge should not be inconsistent with, but 

should support, the findings as to the specifications thereunder. Thus, 

if two specifications of desertion are under one charge and the accused 

is found guilty of the first specification, but guilty of absence without 

leave only as to the second specification, the finding as to the charge 

should be : Of the Charge : As to Specification 1 : Guilty. As to Specification 2: Not guilty, but guilty of a violation of Article 86. A finding of guilty of one specification appropriate to its charge requires a 

finding of guilty of the charge, but a. finding of not guilty of another 

such specification under tliat charge does not require any finding of the 

charge as to it. Thus, upon finding an accused guilty of one of the two 

specifications under a proper charge, and not guilty of the other, the 

finding as to the charge should be simply guilty. 

A court may not find an offense as a violation of an article under 

which it was not charged solely for the purpose of increasing the 

authorized punishment or'for the purpose of adjudging less than the 

prescribed mandatory punishment. 

. - 
TRIALE--FINDINGS AND SENTENCE l74e 

d. Procedure.-(1) GeneraZ.--After the law officer (president of 

a special court-martial) has instructed the court as prescribed in 73, 

the court will close to deliberate and vote on the hdings. Only the 

of the court will be present. Deliberation may properly include full and free discussion as to the merits of the case. The influence of superiority in rank shall not be employed in any manner 

in an attempt to contra1 the independence of members in the exercise 

of their judgment. 

(2) Voting.-Voting is by secret .written ballot (Art. 51a) and 

is obligatory. The order in which the several charges and specifications are to be voted upon will ordinarily be determined by the president, subject to the objection of a majority of the court, except that 

dl the specifications under a charge shall precede that charge. The 

members normally vote upon a specification or charge by marking on 

their ballots: "Guilty;" "Not guilty ;" or "Not guilty, but guilty of 

- The junior member of the court shall in each case count the 

votes; the count shall be checked by the president, who shall forthwith 

announce the result of the ballot to the members of the court (Art. 

51a). 

(3) Number of votes required.-No person shall be convicted of 

an offense for which the death penalty is made mandatory by law (i. e., 

Art. 106), except by the concurrence of all the members of the courtmartial present at the time the vote is taken. No person shall be 

convicted of any other offense, except by the concurrence of twothirds of the members present at the time the vote is taken (Art. 52). 

If, in computing the number of votes required, a fraction results, such 

fraction will be counted as one; thus, if five members are to vote, a 

requirement that two-thirds concur is not met unless four concur. A 

finding of not guilty results as to any specification or charge if no 

other valid finding is reached thereon ; &owever, a court may reconsiaer 

any finding before the same is formally announced in open court. 

The court may also reconsider any finding of guilty on its 0-wn motion 

at any time before it has first announced the sentence in the case. 

e. Requesting additional instructions.-If, during its deliberation 

on the findings, a general court-martin1 is in doubt as to the applicability of the lam or. the effect of certain evidence in a case, such 

as whether it may make a finding of guilty of a specification by substitutions and exceptions, or whether there is any lesser included 

offense of which it may find the accused guilty, it may open and request additional instructions from the law oflicer. Such instructions 

mill be given in open court in the presence of the accused and counsel 

for both sides and will be made a part of the record. 
174h . (CHAPTER Xlll 

If a special court-mzai-&ial desires additional information on the 

subjects mentioned in the above subparagraph, it may open and request counsel for both sides to present legal authorities on the question, or it may direct the trial counsel to obtain sueh information from 

t,lle convening authority. 'The proceedings, including any information that is given the caurt by the trial counsel pursuant to such direction, will be in open court in the presence of the accused and his 

counsel and will be made a part of the record. 

f. Form of the 8ndimlgs.-(1) Gewd cm~t-martial.-,4fter a 

general court-martial has finally voted on the findings,,it may request 

the law officer and the reportser to appear before it to put the findings 

in proper form, and such proceedings shall be made a part of the 

record. See Article 39. The president shall speak for the court in 

discussing the findings .with the law officer and he shall be careful 

not to disclose the vote of any particular member of the court ; he may, 

however, indicate whether a finding mas concurred in by two-thirds 

or all of the members, as the case may be. See Article 52a in this 

connection. 

(2) Special cour6mrtid.-A special court-martial puts its findings in proper form in closed session, following the forms indicated 

in appendix 8a and the instructions contained in 746 and c. 

(3) Reason for fidiqs.-No finding should include any indication of the reasons far making it. For the information of the convening authority-but nat as part of a finding-in its discretion the 

court may formulate for inclusion in the record a statement of the 

reasons which led to a &ding and a statement of the weight given to 

certain evidence. Proper occasions for such action may arise, for 

example, .when the court fkds an aeeused not guilty because of a reasonable doubt as to his sanity, or because of the operation of the 

statnte of limitations. See 122c and 68c, respectively. 

g. Announcing the findings.-As soon as a court-martial has determined the findings in a case, it will announce them in open court in 

the presence of the lam oflicer, counsel, and the accused. Only the 

required percentage of members who concurred in findings of guilty 

should be announced. 

h. Statute of 1imitatiom.-If by exceptions and substitutions an 

accused is found guilty of a lesser included offense to which he has 

not entered ? plea, and against which it appears that the statute of 

limitations (Art. 43) has run, the law officer (president of a special 

court-martial) will, as soon as such a hdipg is announced, advise him 

in open court of his right to avail himself of the statute in bar of punishment. If an accused interposes the statute in bar of punishment, 
TRIALE--FINDINGS AND SENTENCE f 75b 

the issue will be determined in substantially the same manner as a 

motion to dismiss on the grounds of the statute of limitations (68c). 

EIowever, if an accused pleaded guilty to a lesser included offense 

and persisted in his plea after the meaning and effect thereof had been 

explained to him, including his right to interpose the statute of limitations as to the lesser included offense, he is deemed to have waived 

the right to interpose the statute of limitations in bar of punishment 

for such offense as long as his plea of guilty stands. Under these circumstances an accused may not, after a finding of guilty of such lesser 

included offense, assert the statute in bar of punishment. 

75. PRESENTENCING PROCEDURE.-a. General.-After the 

court has announced &dings of guilty, the prosecution and defense 

may present appropriate matter to aid the court in determining the 

kind and amount of punishment to be imposed. 

Matter which is presented to the court after findings of guilty have 

been announced may not be considered as evidence against the accused 

in determining the legal sufficiency of such &dings of guilty upon 

review. If any matter inconsistent with a plea of guilty is received, 

or if it appears from any matter received that a plea of guilty was 

entered improvidently, the court should take the action outlined in 70. 

b. Matter presented bg the prosecution.-(1) Data as to service.-The trial counsel will read to the court from the first page of 

the charge sheet the data as to the age, pay, and service of the accused, 

and the duration and nature of any r~traint imposed prior to trial. 

If the defense objects to such data as being inaccurate or incomplete 

in a specified material particular, or as containing certain specified 

objectionable matter, the court shall determine the issue. Objections 

not asserted may be regarded as waived. 

(2) Evidence of previous conuictions.-The trial counsel will 

next introduce evidence of any previous convictions of the accused 

by courts-martial. Such evidence is .not lirnieed to offenses similar 

to the one of which the accused stands convicted. The evidence must, 

however, relate to offenses committed during a current enlistment, 

voluntary extension of enlistment, appointment, or other engagement 

or obligation for service of the accused, and during the three years 

next preceding the commission of any offem8 of which the accused 

stands convicted. When the last enlistment, appointment, or other 

engagement or obligation for service was terminated under other than 

honorable conditions, or when the accused deserted and subsequently 

fraudqlently enlisted, all convictions by courts-martial of offenses 

committed in the prior term of service, if wikfi the three-year period, 

are-admissible, even though such prior term of service mas in an armed 
(I 75c CHAPTER XI11 

force other than the one is which he is serving at the time of trial. 

In computing the three-year period, periods of unauthorized absence 

as shown by the findings in the case or by the evidence of previous 

convictions should be excluded. 

For the purpose of determining the admissibility of previous 

convictions, retention of an accused beyond the normal expiration 

date of his term of service by operation of lam shall not be deemed to 

create a new enlistment, a voluntary extension of enlistment, a new 

appointment, or other new engagement or obligation for service. 

Unless the accused has been tried for an offense within the meaning of Article 44b, evidence as to the offense is not admissible as evidence of a previous conviction. See 68d (Former jeopardy). 

Subject to the rules as to documentary evidence, including the 

rules as to the use of copies, previous convictions may be proved by the 

order publishing the result of trial. Ordinarily, however, they are 

proved by the service record of the accused or an admissible copy or 

extract copy thereof. In the absence of objection, an offense may be 

regarded as having been committed during the prescribed threeyear period unless the contrary appears. If the defense objects, the 

court shall determine the issue. 

(3) Matter showing aggrawation of an offense to which a pba 

of guilty has been entered.-If a finding of guilty of an offense is 

based upon a plea of guilty and available and admissible evidence as 

to any aggravating circumstances was not introduced before the 

findings, the prosecution may introduce such evidence after the findings are announced. See 70 in this connection. 

G. Matter presented by the defense.-(1) General.-Whether or 

not it introduced evidence on the issue of guilt or innocence, the 

defense may, after findings of guilty are announced and before the 

court closes to vote on the sentence, introduce matter in extenuation or 

mitigation. With respect to matter in extenuation and mitigation 

offered by the defense, the court may relax the rules of evidence to . 

the extent of receiving affidavits, certificates of military and civil 

officers, and other writings of similar apparent authenticity and reliability. See 1?7 and 14671 in this connection. 

(2) Xtatement of accused.-Whether or not he testified on the 

issue of guilt or innocence or as to matters in extenuation or mitigation, the accused may make an unsworn statement to the court in 

mitigation or extenuation of the offenses of which he stands convicted, but the right to make such an unsmorn statement does not 

permit the filing of the affidavit of the accused. This unsworn statement is not evidence, and the accused cannot be cross-examined upon 

it, but the prosecution may rebut statements of fact therein by evi120 
TRIALS-FINDINGS AND SENTENCE fl 76a 

dence. The statement may be oral or in writing, or both. It may be 

by the accused, by counsel, or by both. The statement should 

not include what is properly argument, but ordinarily the court will 

,lot stop a statement on that ground if it is being made orally and 

personally by the accused. 

(3) Matter in extenuation.-Matter in extenuation of an offense 

serves to explain the circumstancw surrounding the commission of 

the offense, including the reasons that actuated the accused but not 

extending to a legal justification. In this connection, see the illustration in the second subparagraph of 139b. 

(4) Matter in mitigation.-Matter in mitigation has for its purpose the lessening of the punishment to be assigned by the court or the 

furnishing of grounds for a recommendation for clemency. The fact 

that non-judicial punishment under Article 15 has been imposed and 

enforced against the.accused may be shown by the accused as a factor 

in mitigation upon trial for an offense growing out of the same act 

or omission for which such punishment was imposed and enforced. 

See 68g. Such matter may include particular acts of good conduct 

or bravery. It may exhibit the reputation or record of the accused 

in the service for efficiency, fidelity, subordination, temperance, courage, or any other traits that go to make a good officer or enlisted person. For example, the accused may introduce evidence of the character given him on any former discharge from the military service, 

subject to the right of the prosecution to introduce in rebuttal evidence of the character given the accused on other discharges from 

the service. 

d. Rebuttal evidence.-After matter in aggravation, extenuation, 

or mitigation has been introduced the prosecution or defense has the 

right to cross-examine any witnesses and to offer evidence in rebuttal. 

76. SENTENCE.-+. Basis for determiing.-In determining 

the kind and amount of punishment'.to be imposed, the court should 

consider the following matters : 

(1) Except for an offense for which a mandatory punishment 

is prescribed, the determination of a proper punishment for an 

offense rests within the discretion of the court subject to the limitations prescribed in chapter XXV and by the article violated. See 

particularly the Table of Maximum Punishments (1276). To the 

extent that punishment is discretionary, the sentence should provide a legal, appropriate, and adequate punishment. In this connection sea 33h. 

(2) When applicable, the Table of Maximum Punishments prescribes the maximum limits authorized for each offense listed 

therein. Normally the maximurn punishent will be reserved for 
f 76a CHAPTER Xlll 

an offense which is aggravated by the circumstances, or after conviction of which there % received by the court evidence of previous 

convictions of similar or greater gravity. In the exercise of its 

discretion in adjudging a sentence, the court should consider evidence contained in the record respecting the character of the accused as given in former discharges, the number and character of 

previous convictions, hhe nature and duration of any, pretrial restraint, and the circumstances extenuating or aggravating the offense. It must also consider collateral features which limit the 

punishment-such as value in larceny, the length of absence in absence without leave, or the fact that the convening authority has 

directed that a capital case be treated as not capital (Art. 49). 

For matters to be considered upon a rehearing, see 81d. See 145b 

and Article 50 for Mtations resulting from the use by the prosecution of testimony contained in a record of a court of inquiry. 

(3) Although evidence of previous convictions may always be 

considered in determining the proper measure of punishment, evidence of previous convictions of offenses materially less grave than 

the offense or offenses of which the accused stands convicted is 

not to be regarded as in itself justifying a sentence of maximum 

severity. 

(4) Among other factors which may properly be considered are 

the penalties adjudged in other cases for similar offenses. With 

due regard for the nature and seriousness of the circumstances 

attending each particular case, sentences should be relatively uniform throughout the armed forces. In special circumstances, to 

meet the needs of local conditions, sentences more severe than those 

normally adjudged for similar offenses may be necessary. Courts 

will, however, exercise their own discretion, and will not adjudge 

sentences known to be excessive in reliance upon the mitigating 

action of the convening or higher authoi-ity. Comments with 

respect to matters proper for consideration in fixing the punishment are made in other connections. For example, see 123 (Mental 

impairment or deficiency), 127c (Permissible additional punishments). See also 166,126e,154a, and 1746. 

(5) The imposition by courts-martial of inadequate sentences 

upon military persons convicted of crimes which are punishable 

by the civil courts tends to bring the armed forces into disrepute 

as lacking in respect for the criminal laws of the land. 

(6) Dishonorable discharge should be reserved for those who 

should be separated under conditions of dishonor, after having 

been convicted of offenses usually recognized by the civil law as 

- 
TRIALS--FINDINGS AND SENTENCE A 76b 

felonies, or of offenses of a military nature requiring severe 

punishment. 

(7) A bad conduct discharge may be imposed in any case in 

which a dishonorable discharge may be imposed as well as in certain 

other cases. It is a less severe punishment than dishonorable discharge and is designed as a punishment for bad conduct rather than 

as a punishment for serious offenses of either a civil or military 

nature. It is appropriate as punishment for an accused who has 

been convicted repeatedly of minor offenses and whose punitive 

separation from the service appears to be necessary. 

(8) The maximum authorized punishment may be imposed for 

each of two or more separate offenses arising out of the same act 

or transaction. The test to be applied in determining whether the 

offenses of which the accused has been convicted are separate is 

this: The offenses Ge separate if each offense requires proof of 

an element not requifed to prove the other. Thus, if the accused 

is convicted of escape from confinement (Art. 95) and desertion 

(Art. 85)-both offenses arising out of the same act or transactionthe court may legally adjudge the maximum punishment authorized 

for each offense because an intent th remain permanently absent 

is not a necessary element of the offense of escape, and a freeing 

from restraint is not a necessary element of the offense of desertion. 

An accused may not be punished for both a principal offense and 

for an offense included therein because it would not be necessary 

in proving the included offense to prove any element not required 

to prove the prfncipal offense.' 

6. Procedure.- (I) Advice as to mm*mwm punishment.-Before a 

general court-martial closes to deliberate and vote on the sentence, the 

lam officer may advise it of the maximum punishment which may be 

adjudged for each of the offenses of which the accused has been found 

guilty. If a special court-martial has any question as to the madmwn 

punishment it ma.y adjudge in a particular case, it may request the 

trial counsel to procure and present this information to the court. 

Such advice and information will be given in open court in the presence 

of the accused and counsel for both sides and shall be made a matter 

of record. 

(2) DeZiberaSion and voting.-The court sitsin closed session during deliberation and voting upon the sentence. Only the members 

of the court mill be present. Deliberation may properly include full 

2nd free discussion. %he influence of superiority in rank shall not 

be employed in any manner in an attempt to control the independence 

of members in the exercise of their judgment. 
When the discussion is completed, any member who desires to 

propose a sentence writes his proposal on a slip of paper. The junior 

member collects these proposed sentences and submits them to the 

president. The court then votes on the proposed sentences, beginning 

with the lightest, until a sentence is adopted by the concurrence of the 

required number of members. Voting is by secret written ballot. 

The junior member shall in eaeh case collect and count the votes ; the 

count shall be checked by the president who shall forthwith announce 

the result of the ballot to the members of the court. 

It is the duty af each member to vote for a proper sentence for 

the offense or offenses of whfch the accused has been found guilty, 

without regard to his opinion or vote as to the guilt or innocence of 

the accused. Any sentence, even in a case where the punishment is 

mandatory, must have the concurrence of the required number of 

members. 

(3) Number of votes requ+ed.-No person shall be sentenced to 

suffer death, except by the concurrence of all the members of the courtmartial present at the time the vote is taken. No person shall be 

sentenced to life imprisonment or to confinement in excess of ten years, 

except by the conculrence of three-fourths of the members present at 

the time the vote is taken. All other sentences shall be determined by 

the concurrence of two-thirds of the members present at the time 

the vote is taken. See Article 52b. If, in compu.ting the number of 

votes required, a fraction results, such fraction will be counted as one; 

.thus, if six members are to vote, a requirement that three-fourths 

concur is not met unless five concur. 

(4) Porn of se.ntence.-Forms of sentences appear in appendix 

13. The sentence adjudged should follow one of these forms or a 

combination or modification of such forms. Por the information 

of the convening authority-but not as a part of the sentence itselfthe cgurt may formulate for inclusion in the record a brief statement 

of the reasons for the sentence. 

G. Announcing sentence.-As soon as it has determined the sentence, the president will announce the sentence in open court in the 

presence of the law officer, the accused, and counsel for both sides. 

Only the required percentage of members who concurred in thk sentence should be announced. If the law officer of a general courtmartial notes any ambiguity or apparent illegality in the sentence as 

announced by the court, he should bring the irregularity to the attention of the court so that it may close to reconsider and correct the 

sentence. The court may not, however, reconsider the sentence with 

a view to increasing its severity after the sentence has been announced 

unless the sentence prescribed for the offense of which the accused has 

124 
TRIALE--FINDINGS AND SENTENCE 11 77c 

been convicted is mandatory (Art. 626). In a trial by special courtmartial, an ambiguous or apparently illegal sentence may be called 

to the attention of the court by the trial counsel. 

Within the limitations prescribed in this pamgraph, the court may 

reconsider a sentence on its own motion at any time before the record 

of trial has been authenticated and transmitted to the convening 

authority. In such a case, however, all personnel of the court, the 

accused, counsel for both sides and, in a general court-martial, the law 

officer must be present. 

77. CONCLUSION OF THE TRIAL.-*. Recommendation for 

clemency.-After the sentence has been announced, the defense may 

submit in writing for attachment to the record any matters as to 

clemency which it desires to have considered by the members of the 

court or the convening authority. The rules of evidence are not 

applicable to such .matters, but they should not be cumulative of 

matters presented to the court before the sentence was announced. 

Mitigating circumstances which could not be taken into consideration in determining the sentence may be the basis of a recommendation 

for clemency by individual members of the court. The recommendation should represent the free and voluntary expression of the individuals who join therein. It should be specific as to the amount and 

character of the clemency recommended an$ as to the reasons for the 

recommendation. 

A recommendation for clemency will never be based upon a doubt 

as to the guilt of the accused. If, contrary to law, such a recommendation is made, it mill not im~each the finding of the court on the matter 

of guilt. The guilt or innocence of the accused is determined by the 

findings of the court, and, if the necessary number of members do not 

. concur in a fhding of guilt, the accused must be acquitted. A recommendation for clemency which clearly expresses a doubt as to guilt 

divulges the vote or opinion of any member making such a recommendation and thereby violates his oath.' 

6: Adjournment.-At the conclusion of the case, the court may proceed to other business, adjourn until a definite time, or adjourn to meet 

at the call of the presideqt. 

c. Post trial matters.-See 48j (2) as to the right of the defense to 

submit a brief of the matters which he desires to have considered in 

behalf of the accused on review. 

As to the duty of trial counsel tc notify the accused's commanding 

ofFicer of the result of trial, see Me (2). For preparation and authentication of the record, see chapter XVI. 
lChapfer XIV 

PROCEDURE INFERIOR COURTS-MARTIAL 

78. SPECIAL COURTS-MARTIAL.-Unless otherwise stated, the 

procedure of special courlts-madial will, so far as practicable, be that 

prescribed for general courts-martial. The principal distinction in 

procedure between special and general courts is that in the former all 

rulings on interlocutory questions other than challenges are made by 

the president (there being no law officer), subject to objection by other 

members (57). Similarly, before the court closes to vote on the 

findings, the president of a special court-martial instructs the court 

as to the elements of each offense charged, the presumption of innocence, reasonable doubt, and burden of proof (73a, b). See also 

appendix 8a. With respect to the preparation of records of trial by 

special courts-martial, see 83 and appendices 9 and 10; as to the 

disposition of such records by the convening authority, see 9171. 

79. SUMMARY COURTS-MARTIAL.+. Function-The function of a summary court-martial is to exercise justice promptly for 

relatively minor offenses under a simple form of procedure. In the 

trial of the case the summary court represents both the Government 

and the accused. In the a.bsence of a plea of guilty, he-will thoroughly 

and impartially investigate both sides of the matter and will assure 

that the interests of both the Government and the accused are safeguarded. Unless otherwise stated, the procedure prescribed for a 

general court-martial will, when applicable, serve as a guide for a 

summary court-martial. See appendix 8a in this connection. 

6. Power to obtain evidence.-A summary court has the same 

power as the trial counsel of a general or 'special court-martial to 

compel the attendance of civilian witnesses by subpoena (115; Art. 

46) and to take depositions in proper cases (117; Art. 49). To obtain 

the attendance of witnesses, the summary court will take action similar 

to that taken by the trial counsel of a general or special court-martial. 

In this connection, see 44f (2). 

c. Examination of Ale.-When charges are referred to a summary 

court-martial, the court will carefully examine the charges and allied 

papers to see that the charges are in proper form and that the data on 

the charge sheet and any evidence of previous convictions are complete and free from error of substance or form. The summary court 

will report to the convening authority any substantial irregularity 

in the charges or accompanying papers. Ordinarily, the court will 
TRIALS--INFERIOR' COURTS B 79d 

correct and initial slight errors or obvious mistakes in the charges, 

but if substantial changes are required, will refer the matter to the 

convening authority. See 33d. 

d. Trial procedure.-(1) Determining juAsdiction.-After determining that the charges and other data are in proper form, the summary court should arrange for the presence of the accused. When the 

accused appears, the court should advise him of the following matters : 

The general nature of the charges; the fact that they have been referred to a summary court-martial for trial; who appointed the court ; 

the name of the accuser ; the names of the witnesses who will probably 

be called; the right of the accused to cross-examine them or have the 

court ask any questions which the accused desires answered ; the right 

of the accused to call any witnesses or produce any evidence in his 

own behalf with the assurance that the court will assist him in every 

possible way to do so ; his rigl~to testify on the merits or to remain 

silent (148e; app. 8a; Art. 31) and, after any findings of guilty are 

announced, to make an unsworn statement in mitigation or extenuation of any offense of which he may be convicted (756; app. 8a) ; the 

maximum sentence which the coud can adjudge if the aceused is found 

guilty. of the ogense or -offenses charged. 

If it does not appear that the accused has been permitted and has 

elected todrefuse punishment under Article 15 for all the offenses 

charged, the summary court will advise him of his right to object to 

trial by summary court-martial (Art. 20) a.nd will ask him whether he 

consents or objects to such trial. After giving the accused a reasonable time to consider the question, the summary court will record his 

response in the space provided on page 4 of the charge sheet. 

If the accused objects to trial and it does not appear that he has 

been permitted and has elected to refuse punishment under Article 15 

for all the offenses charged, the summary court will note such facts 

on page 4 of the charge sheet and will ratm the charges and allied 

papers to the convening authority. 

If the acoused consents to trial, or if he objects to trial and it appears that he has been permitted and has 'elected to refuse punishment under Article 15 for all the offensks alleged, the summary court 

will proceed with the trial. 

(2) Arraignment and pZeas.-Af@r complying with the provisions of the preceding paragraph (792 (1) ) and determining that it 

has jurisdiction over the accused, the summary eourt will read or show 

the charges and specifications to the accused. Any necessary explanation of the charges may be made. The mused should then be asked 

how he pleads to each specification and charge. If he pleads guilty 

to any specification or charge, the summary court mill explain the de- 

'127 
t 79d CHXPTER XIV 

ments of the offense to which he has pleaded guilty, will advise him that 

the court may find him guilty of such offense without considering further proof, and will inform him of the maximum sentence which the 

court can impose for any offense to which he has pleaded guilty. 

If the accused desires to change his plea, or if the summary court 

is in doubt as to his understanding and desire to plead guilty, or if at 

any time during the trial the accused makes a statement, sworn or unsworn, inconsistent with his plea of guilty, a plea of not guilty will be 

entered. If a plea of guilty to all specifications and charges is allowed to stand, the court may proceed at once to find the accused 

guilty and to adjudge an appropriate sentence; however, the court 

may, in the interest of justice, proceed with the trial and consider 

evidence on the merits or in mitigation or extenuation. If, after hearing such evidence, the court believes the plea of guilty to have been improvidently entered, it shall enter a plea of not guilty and proceed as 

though the accused had pleaded not guilty. See 70 and Article 45. 

(3) Presentation of evidence.-If the accused has pleaded not 

guilty or if, in the interest of justice following a plea of guilty, the 

court has determined to consider evidence on the merits or in extenuation or mitigation, arrangements will be made for the attendance of 

necessary witnesses. Witnesses (other than the accused) should be excluded from the courtroom until called to testify. Witnesses for the 

prosecution will be called fist and examined under oath as to all matters relevant to ihe offense charged, whether on the merits or in extenuation or mitigation. The accused will be extended the right to crossexamine such witnesses. The summary court will aid the accused in 

the cross-examination, and, if the accused desires, will ask questions 

suggested by the accused. On behalf of the accused, the court will obtain the attendance of witnesses, administer the oath and examine 

them, and will obtain such other evidence as may tend to disprove or 

negative guilt of the charges, explain the acts or omissions charged, 

show extenuating circumstances, or establish grounds for mitigqtion. 

Before determining the findings, he will explain to the accused his right 

to testify on the merits or to remain silent, and will give the accused 

full opportunity to exercise his election. See appendix 8 for form of 

explanation. 

(4) Findings and sentence.-The applicable principles stated in 

74 and 76 should be considered by a summary court-martial in determining the findings and sentence, respectively. The court will announce the findings to the accused as soon as they are determined, If 

the accused has been found guilty of any offense, the summary court 

will advise him of his right to submit matter in extenuation or mitigation, including the making of an unsworn statement (75c; app. 8). 
TRIALS-INFERIOR COURTS ll79e 

Before determining the sentence, the summary court will show or read 

to the accused any admissible evidence of previous convictions (75b 

(2) ) and the pers~nal dqta appearing on the first page of the charge 

.sheet and will ask him whether they are correct. If the accused claims 

they are not correct in any particular, the court will determine the issue 

(756 (I), (2) ). The court will advise the accused of the sentence as 

soon at it is determined. If the sentence includes confinement, the summary court will take such action as may be prescribed by the convening authority to hwe the accused delivered to an appropriate place of 

confinement. 

e. Record.-See appendix 11 for form of record of trial by summary court-martial. The charge sheet ordinarily will be received in 

triplicate by the summary court-martial. So much of the proceedings as relate to pleas, findings, and sentence must be recorded in the 

appropriate place on page 4 of all three copies of the charge sheet. 

The number of previous convictio& considered and the fact that the 

accused was advised of the matters outlined in 79d will also be noted 

in the spaces provided on page 4 of all three copies of the charge sheet. 

Unless otherwise prescribed by the convening or higher authority, the 

evidence considered by the summary court-martial need not be summarized or attached to the record of trial. The summary court should, 

however, line out and initial the name or names of any witnesses who 

are listed on page 1 of the charge sheet but who were not called to testify. If the testimony of witnesses other than those listed was considered, the court should insert their na.mes and addresses on all three 

copies of the charge sheet and note whether they testified for or against 

the accused. The summary court will authenticate the record by 

signing it in triplicate. He will forward all three copies and the accompanying papers without formal letter of transmittal to the convening authority. If the summary court is the only officer present with 

the conmand, the record will so state, and that o5cer thereafter holds 

the record as convening authority fop purposes of review. For disposition of summary court-martial records, see 91c. 
Chapter XV 

PROCEDURAL ASPECTS OF REVISION PROCEEDINGS, REHEARINGS, AND NEW TRIALS 

REVISION-REHEARINGS AND NEW TRIALS 

80. REVISION.--a. General.-The procedure of .a general or 

special court-martial when reconvened for the purpose of revising its 

action or correcting its record will in general be as indicated by the 

form of record of proceedings in revision (app. 8c). See Article 62 for 

matters that cannot be reconsidered and 67f as to procedure in reconsideration of action on motions and similar matters. A certificate of 

correction may be used to make the record show the true proceedings. 

In this connection, see 86c (Correction of record). 

6. Personnel.-Proceedings in revision may be taken only by the 

members of the court who participated in the hdings and sentence. 

Such proceedings may not be taken if the court has been dissolved. 

In this connection, see 37c(l). The law officer, the accused, and 

counsel for both sides must be present during the open sessions of the 

court in revision. The absence of a member of the court who participated in the hdings and sentence does not invalidate the proceedings if a quorum is present (five for a general court-martialthree for a special court-martial). The same law oEcer and counsel 

who participated in the trial of the case should be present, but the 

legality of the proceedings will not be affected if a new law officer is 

properly appointed to the court, is sworn (opportunity to challenge 

him for cause having been given), and has familiarized himself with 

those portions of the record which are to be considered by the court 

in taking its action in revision. Similarly, the legality of the proceedings is not affected if a member of the prosecution or defense is 

present who was previously absent from, or who has been newly 

appointed to, the court, provided he has the requisite legal qualifications and is sworn. 

c. Procedure.-In cases in which the court has not reconvened on 

its own motion, the trial counsel will read in open court the communication from the convening authority returning the record and directing the reconvening. If a general court-martial has any doubt as to 

the action which it may take, the law officer should be requested to 

give it additional instructions. If a special court-martial has any 

doubt as to its action in such a case, it may direct the trial counsel 

to produce such legal authority and other information as may be 

necessary. Such instructions will be given in open court and will 
TRIALS-REVISIONS, REHEARINGS, NEW TRIALS fl 81.c 

be made a matter of record. The court will then close, consider, and 

determbe the appropriate action to be taken on the matter before it. 

As soon as it has determined its action, the court will open and announce such action in the presence of the law officer, the accused, and 

counsel for both sides. In this connection, see 74f (Form of findings). 

It will then adjourn. 

As the action which may be taken is entirely corrective, a case 

will not be reopened by the calling or recalling of witnesses or otherwise. The law officer (trial counsel of a special court-martial) may 

invite the attention of the court to any ambiguous or apparently illegal 

action taken by it. 

d. Record.-All proceedings in open court. will be in the presence 

of the law officer, the accused, and counsel for both sides, and will 

be made a matter of record which will be authenticated in the manner 

prescribed for the original record. -No physical change will be made 

in the original record. Amendments to the original appointing order 

detailing a new law officer or counsel will be incorporated in the record 

of revision. See 826 (Contents of record) and appendices 8c (Revision procedure) and 9b (Authentication of record). 

e. Revision action by summary court-martial.-What has been 

said with respect to the procedure in revision by general or special 

courts-martial will, so far as applicable, govern such procedure by 

summary court-martial. 

81. REHEARINGS AND NEW TRIALS.-a. Related provisions.-See 92 (Ordering rehearing), 94a (2) (Review of records of 

trial pursuant to Article 65c), 109 and 110 (New trial), 145b (Former 

testimony), Articles 63, 664 and 67e (Rehearings), and Article 73 

(New trial). 

6. Procedure.-The procedure in rehearings and new trials in general is the same as in other trials. 

c. Examindion of record of former proceedings.-No member of 

a general or special court-martial upon a rehearing or upon a new 

trial should be permitted to examine the record of the former pro- ' ceedings or any document (other than the charges) referred with the 

charges to the trial counsel, except when received in evidence at the 

rehearing or new trial. However, the law 05cer {president of a special 

court-martial) may examine that part of the record of any prior 

proceedings which relates to errors committed at the former proceedings when necessary to enable him to decide upon the admissibility of 

offered evidence or other questions of lam involved. In this connection, see the seventh subparagraph of 92. Such part of the record may 

be read to the court when necessary for it to pass upon a ruling made 

subject to objection by any member under Article 51b. See 57 and 67f. 
a?. Sentence.-Before a court-martial retires t 0 determine a sentence 

upon a rehearing or new rtrial, the trial counsel should advise the court 

of the sentence adjudged upon the original trial and invite the attention of the court to any pertinent limitations upon its discretion ih 

adjudging a new sentenca. See Article 63b with respect to such limitations in rehearings and 1099 (2) with respect to new trials. If the 

accused is found guilty upon any charge and specification upon a new 

trial under Article 73 or a rehearing the ~0~1% mill, subject to such 

pertinent limitations, adjudge an appropriate sentence (76a) without 

regard to any credit to which the accused may be entitled by virtue of 

the prior execution of any part of the sentence. However, upon a new 

trial ordered pursuant to section 12, act of 5 Ma.y 1950 (64 Stat. 147; 

60 U. S. C. 740), the court may consider the executed portion of the 

prior sentence as a matter in mitigation. See 89c (7) (Action on 

rehearings) for the action of the convening authority with respect to 

t,he sentence adjudged on a rehearing. See 1'09R and 11% for such 

action on the sentence adjudged upon a new trial. 
Chapter XVI 

RECORDS OF TRIAL 

GENERAL COURTS-MGRTIALINFERTOR COURTS-MARTIAL 

82. GENERAL COURTS-MARTIAL.--a. Responsibility for 

preparation.-Each general court-martial shall keep a separate record 

of the proceedings of the trial of each case brought before it. The 

record is prepared by the trial counsel under the directian of the court, 

but the persons authenticating the record are responsible for its accuracy. See Articles 38a and 54a. It is immaterial to the sufficiency of 

a record whether it was kept or written by the trial counsel or by a 

reporter acting under his direction. 

If practicable, the trial counsel will .retain or cause to be retained 

my notes (stenographic or otherwise) or any mechanical or voice 

recording devices from which the record of trial was prepared for at 

least 30 days after delivery of a copy of the record to the accused or 

60 days after the record of trial is forwarded to the convening 

authority, whichever period expires first. 

6. Contents.-(1) Generd.--The record of the proceedings in each 

case will be separate and complete in itself and independent of any 

other document. The record will show all the essential jurisdictional 

facts. It mill set forth a verbatim transcript of all proceedings had 

in the open sessions of the court and any consultation between the 

court and the law officer in closed sessions with respect to the form 

of the findings. See 74f (1) and Article 39. If testimony is given 

through an interpreter, the ~ecord will SO state. The record will set 

forth material conclusions arrived at by tke members of the court in 

closed session. When a trial is terminated gr=lor to findings or seatence, the record of trial will show the proceedings up to the time of 

such termination. For details of contents and certain exceptions to 

khe foregoing rules, see appendix 9. 

(2) Striking matter from the record.-Alt11ough not considered 

by the court as evidence, any remarks or te,sltimony ordered stricken 

will nevertheless be fully recorded. 

(3) Record of revision proceedings.-B%en a record is amended 

in revision proceedings, the record of the proceedings in revision will 

show specifically, ordinarily by page and line,, the part of the original 

record that is changed and the changes made; in such a case, no 

physical change will be made in the oripsl record. See 80d and 

appendix 8c. 
(4) Arguments.-The court will take necessary action to insure 

that all oral arguments and statements of counsel made in open court 

are set forth verbatim in the record. Thus, if the speed of an oral 

argument is such that the reporter is unable to record it verbatim, the 

court should direct counsel either to reduce the speed of his argument 

or to submit the argument in writing. A written argument or statement of counsel is ordinarily read ko the court by the party submitting 

it; it is thereafter attached to the record as an exhibit for that party. 

(5) Appendages.-Accompanying the original record-securely 

bound together-will be the original charge sheet and, if not used as 

exhibits or properly disposed of otherwise, the 'other papers which 

accompanied the charges when referred for trial, including the report 

of investigation under Article 32 and, if the trial was a rehearing or 

a new trial, the record of the former hearing or hearings. 

The following matters will, in an appropriate case, be bound into 

the record immediately following the exhibits : Recommendations and 

other papers relative to clemency (7'7~) ; proffered exhibits which mere 

excluded as not admissible in evidence (54d) ; proceedings held outside of the presence of members of a general court-martial (579 (2) ) ; 

proposed instructions and any arguments made thereon (730 (2) ) ; the 

certificate of a medical officer as to the physical condition of an accused 

who has been sentenced to conhement on diminished rations or on 

bread and water (125). 

Copies of vouchers for the payment of reporters or witnesses 

need not be attached to the record. 

c. Copies.-For instructions as to the preparation of copies of the 

record, see 49b (2) and appendix 9f. All copies of the record 

except those delivered to the accused will be attached to the original 

record of trial when it is forwarded to the convening authority. 

d. Securitg classification.-When the record contains information 

which is required to be classified by the security regulations of the 

armed force concerned, the trial counsel will take appropriate action 

in accordance with the pertinent regulations of the Department concerned to assign a proper security classification to the record. However, convening authorities, staff judge advocates, and legal officers 

will be on the alert to downgrade or declassify a record of trial which 

does not contain data requiring security protection. If the papers 

accompanying the record of trial include classified matter which is not 

material to the inquiry, such matter should be withdrawn from the 

papers to be bound with the record if the withdrawal will permit downgrading or declassification of the record. If the accon~panying papers 

include classified matter which is material to the inquiry, action 

should be taken to have such matter declassified or downgraded, if 

1 34 
RECORDS OF TRIAL-PREPARATION 

possible, if the action will permit downgrading or declassification of 

the record. 

e. Correction of record.-After the record has been transcribed, 

but before it is authenticated, the trial counsel should examine it 

carefully for errors or omissions. If any are discovered, he should 

make and initial such changes as are necessary to make the record 

shorn the true proceedings. If major corrections are necessary, he 

should direct the reporter to rewrite the record or the part of it that 

is defective. Changes may not be made by the trial counsel after the 

record is authenticated. 

When undue delay will not result, the trial counsel should permit 

the defense counsel to examine the record before it is forwarded to 

the convening authority. A suitable notation that this examination 

has been accomplished by the defense counsel should be included in 

the record, preferably on the page bearing the authentication. See 

appendix 9c for form. If the defense counsel discovers errors or 

omissions in the record, he should suggest. to the trial counsel appropriate changes to make the record show the true proceedings. If the 

trial counsel does not concur with the defense counsel as to a suggested 

change, or if the record has already been authenticated, the trial 

counsel should invite such suggestions to the attention of those who 

'\ authenticate the record. 

At any time before the record is forwarded to the convening authority, the persons who authenticate the record may change it to 

make it show the true proceedings. Such changes, as well as any 

changes made by the trial counsel, should be initialed by the persons 

who authenticate the record. 

f. Authentication.-The reco~d in each case shnll be authenticated 

by the president (senior member) and law officer who were actually 

present at the conclusion of the proceedings. If, after trial, either 

of the persons who served in those cap-acities is unable to authenticate 

beca.use of death, disability, or absence, the record mill be signed by a 

member of the court who mas present at the conclusion of the proceedings. If both the persons who served in those capacities are 

unable to authenticate because of death, disability, or absence, the 

record will be signed by two members of the court who were present 

at the conclusion of the proceedings. When some one other than 

the president or lam officer authenticates, the reason will be stated. 

See appendix 9 b for forms of authentication. 

g. Di.sposiBolt.-(1) DeZisery to accused.-Subject to the exceptions noted below with respect to security matters, the trial counsel 

will give the accused a copy of the record and all documentary exhibits received in evidence as soon as the record is authenticated. See 
5448, 143a (2), appendix 9f, and Article 54c. The receipt of the 

accused for the copy of the record furnished him will be attached 

to the original record of trial. If it is impracticable to secure a receipt from the accused before the original record is forwarded to the 

convening authority, the trial counsel will attach to the origjnal 

record a certificate to the effect that a copy of the record has been 

transmitted to the accused-giving the means of transmission and 

the addressee. In such a case, the receipt of the accused will be forwarded to the convening authority as soon as it is obtained. 

The accused is also entitled to an authenticated copy of a record 

in revision to the same extent that he is to a copy of the original 

proceedings. 

If the copy of the record prepared for the accused contains matter requiring security protection, the trial counsel, unless otherwise 

directed by the convening authority, will forward the accused's copy 

to the convening authority. The latter will excise or withdraw from 

the accused's copy any matter squiring security protection (82d) and 

will, thereafter, cause the expurgated copy to be delivered to the accused together with a certificate to the effect that certain matter has 

been deleted or withdrawn from the accused's copy of the record for 

reasons of national security, and that the original record of trial may 

be inspected in the files of the Judge Advocate General of the appropriate Department under such regulations as may be prescribed by the 

Secretary of the Department. The certificate will list : 

(a) The pages from which matter has been deleted ; 

(b) The pages which have been removed in their entirety; and 

(e) The exhibits which have been withdrawn. 

A copy of this certificate, together with a statement signed by 

the accused acknowledging receipt of an expurgated copy of the 

record of trial, or a certificate of delivery of same, shall be attached 

to the original record of trial. 

(2) Porzoarding to eollvening authority.-The original record 

and accompanying papers, including a properly executed CourtMartial Data Sheet and all copies of the record not delivered to the 

accused, will be forwarded by the trial counsel to the headquarters of 

the convening authority or to his successor in command, or, in the case 

of a court appointed by the President of the United States or the 

Secretary of a Department, to the Judge Advocate General of the 

Department concerned. See Articles 176 and 60. 

h. Loss of record.-When a record of trial is lost or destroyed, a 

new record will be prepared if practicable and will become the record 

of trial in the case. The new record will, however, be prepared only 
RECORDS OF TRIALPREPARATION '1 83b 

when the available original notes or other sources are such as to enable 

the preparation of a complete and substantially accurate record of 

the case. In any case of loss of a record prior to action by the convening authority, the trial counsel or other proper person will fully 

inform the convening authority as to the facts and as to the action, 

if any, taken. 

i. Loss of notes or devices containing original record of proceedings.-If the notes or devices by means of which the proceedings in 

court were recorded are lost before the record of trial has been prepred, the convening authority will be fully informed of the facts. 

Thereafter, unless the convening authority directs otherwise, a record 

of trial will be prepared following, as nearly as practicable, the form 

of record prescribed in appendices 8 and 9. The record will be authenticated and disposed of as provided in 82f and g. The fact that such 

a record does not contain a verbatim transcript of all the proceedings 

may deprive the accused of his right under the code to a full appellate 

review of his case and, thus, be a proper reason for disapproving any 

sentence adjudged, but it shall not preclude the convening authority 

from ordering a rehearing as to any offense of which the accused was 

found guilty if the &ding is supported by the summary of the evidence 

contained in the record. In this connection, see 92. 

83. INFERIOR COURTS-MARTIAL.-a. Special court-martial 

records involving bad conduct discharge.-Subject to the exceptions 

sat forth in appendices 8 and 9, a record of trial by special courtmartial in which a bad conduct discharge is adjudged will contain 

a verbatim transcript of all proceedings in open court. It will follow 

the form in appendix 9 and will be prepared and disposed of in accordance with the rules prescribed in 82 for a record of trial by general 

court-martial. As to authentication, see 83c and appendix 96 (2). 

b. Special court-martial records not iauoluing bad conduct discharge.-(1) General rules.-Except as otherwise indicated in 836 

and c and appendix 10, the provisions of 82 will serve as a useful guide 

in the preparation of a record of trial by special court-martial in which 

a summarized report of the proceedings is made. 

(2) Contents.-When a bad conduct discharge is not adjudged, 

a record of trial by special court-martial need contain only a summarized report of the testimony, objections, and other proceedings as 

indicated in appendix 10. However, in such a case, if a reporter was 

appointed and actually served in that capacity throughout the trial, 

the convening or higher authority may direct that the proceedings be . 

reported verbatim as prescribed by 83a and appendices 8 and 9. The 

notes or devices by means of which the original proceedings were 
1 83e CHAPTER XVI 

recorded need not be retained after the record of trial has been 

authenticated. 

(3) Preparcz&n.-It is immaterial to the sufEciency of a record 

whether it was kept or wrikten by the trial counsel or by one of his 

assistants, a clerk, or a reporter acting under his direction. 

(4) Copies.-Unless otherwise directed by the convening authority, the trial counsel will prepare or cause to be prepared an original 

of each record and of all documentary exhibits received in evidence and 

copies of each vecord and of all documentary exhibits equal to the 

number of accused tried. However, if the case involves a general or 

flag officer, two additional copies of the record must be prepared. See 

496 (2) and appendices 9f and 106. 

c. Authentication.-The record of trial in each case tried by special 

court-martial shall be authenticated by the signature of the president 

(senior member) and the trial counsel (senior member of the prosecution) present at the conclusion of the proceedings. If, after trial, 

either of the persons who served in those capacities is unable to authenticate because of death, disability, or absence, the record will be signed 

by another member (who was present at the conclusion of the proceedings) in lieu of the president, and by an assistant trial counsel (who 

was present at the conclusion of the proceedings) in lieu of the trial 

counsel. If, because of death, disability, or absence, no member of the 

lxosecution is able to authenticate the record, it shall be authenticated 

for the trial counsel by a member of the court who was present at the 

conclusion of the proceedings. When someone other than the president 

or the senior trial counsel authenticates, the reason will be stated. See 

appendix 9b (2) for forms of authentication. 

d. Disposition.-The provisions of 82g for the disposition of records 

of trial by general courts-martial are applicable also to records of trial 

by special courts-martial. 

e. Summary courts-martial.-For the preparation, authentication, 

and disposition of records of trial by summary courts-martial, see 79e. 
Chapter XVII 

INITIAL REVIEW OF AND ACTION ON 

RECORDS OF TRLAL 

WHO MAY TAKE INITIAL ACTION-REFERENCE TO STAFF JUDGE 

ADVOCATE OR LEGAL OFFICER-MISCELLANEOUS POWERS AND 

DUTIES OF THE CONVENING AUTHORITY-EXAMINATION OF FINDINGS OF GUILTY-POWERS OF THE CONVENING AUTHORITY WITH 

RESPECT TO THE SENTENCELFORMS OF ACTION AND RELATED 

MATTERS-ORDERS AND RELATED MATTERS-DISPOSITION OF THE 

RECORD AND RELATED MATTERS 

84. WHO MAY TAKE INITIAL ACTION.+. General.-After 

every trial by court-martial, including rehearings and new trials, the 

record shall be forwarded to the convening authority for initial review 

and action. As used in this chapter, the term "convening authority" 

shall be understood to include the ofher who convened the court, an 

officer commanding for the time being, a successor in command, or any 

oicer exercising general court-martial jurisdiction. See Article 60. 

The convening authority cannot delegate his functions as such to anyone. The fact that the accused is not a member of, or is not present 

in, the command of the convening authority does not divest the latter 

of his right to take initial action on the record of trial. 

b. Normal convening authority.-The officer who convened the 

court-martial which adjudged the sentence i: a particular case is 

normally the convening authority who takes initial action on the 

record of trial of that case. The po-wer of an officer to take initial 

action as convening authority on a record of trial vests in the office, 

not in the person, of the authority so acting. Thus, when ,an assigned 

commander is not present for duty with his command because of illness, leave, or for any other cause, the officer temporarily succeeding 

to command during such absence is; within the meaning of Article 

64 the officer commanding for the time being and, as such, is authorized 

to take initial action as convening authority on a recotd of trial of a 

court appointed by the assigned commander. Similarly, if an officer has assumed permanently the command functions of a predecessor 

by reason of assignment, absorption of one command by another, or 

otherwise, he is, within the meaning of Article 60, a successor in 

command and, as such, is authorized to take initial action as convening 

authority on a record of trial of a court appoirrtad by his predecessor. 

c. Officer exercising general court-martiad jurisdiction.-When 

it is impracticable for the officer who convened! the court, the officer 

commanding for the time being, or a successor in command to take 
P 85a CHAPTER XVll 

initial action upon a record of trial, such action may be taken by 

any officer exercising general court-martial jurisdiction. For example, in a case in which a command has been inactivated or has been 

alerted for immediate overseas movement, action upon a sentence adjudged by a court-martial appointed by the commander prior to such 

inactivation or movement may be taken by any officer exercising general court-martial jurisdiction. Similar action mould be appropriate 

if a~ officer who sat as armember of the court which adjudged the 

sentence became the commander for the time being or a successor in 

command. In such a case, the norn~al convening authority pill forward the record of trial--ordinarily through the chain of commandto an officer authorized to exercise general court-martial jurisdiction. 

For purposes of regularity, the record sl~ould be forwarded by a letter of transmittal containing a statement of the reasons for the failure 

of the normal convening authority to act on the record. 

d. Action when a bad conduct discharge is adjudged by a special 

court-martial.-Ordinarily, action upon a record of trial is talcen by 

only one convening authority. When, however, the convening authority who has approved a sentence of bkd conduct discharge adjudged 

by a special court-martial does not exercise general court-martial 

jurisdiction, and has not been authorized to forward snch a record 

directly to the appropriate Judge Advocate General for action 

(94a (3) ) , the officer exercising general court.martia1 jurisdiction over , the command within which tlie accused was tried by special courtmartial also reviews and takes action upon the record in the same 

manner as on a record of trial-by general court-martial. See Article 

656. In such a case, the officer exercising general court-martial jurisdiction shall act only with respect to the findings and sentence as approved by the convening authority. As to the vacation of a suspended 

sentence, see 97b. 

85. REFERENCE TO STAFF JUDGE ADVOCATE OR 

LEGAL OFFICER.-a. General.-Before acting upon a record of 

trial by general court-martial,, or a record of trial by special courtmartial which involves a sentence of bad conduct discharge, a convening authority who exercises general court-martial jurisdiction will 

refer it to his staff judge advocate or legal officer for review and advice. See Articles 61 and 656. 

No person who bas acted as member, law officer, trial counsel, assistapt trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case shall subsequently act as a staff judge 

advocate or legd officer to any reviewing (convening) authority upon 

the same caee (Art. 66). 
REVIEW-INITIAL ACTION ON RECORD r ~SC 

If a convening authority has no staff judge advocate or legal officer, or if the person serving in that capacity is ineligible to act as 

staff judge advocate or legal officer for any reason (e.g., Art. 6c), he 

may request the assignment of a staff j;dge advocate or legal officer 

to review the record, he may forward the record to the appropriate 

Judge Advocate General for reviqw and advice before acting thereon, 

or he may forward the record for action to an officer exercising general court-martial jurisdiction as provided in 84c. 

6. Form and content of review.-The staff judge advocate or legal 

officer to whom a record of trial is referred for review and advice will 

submit a written review thereof to the convening authority. The 

review will include a summary of the evidence in the case, his opinion 

as to the adequacy and weight of the evidence and the effect of any 

error or irregularity respecting the proceedings, and a specific recommendation as to the action to be taken. Reasons for both the opinion 

and the recommendation will be stated. The convening authority may 

direct his staff judge advocate or legal officer to make a more comprehensive ,written review or supplementary bra1 or written reviews or 

reports. 

If the ha1 action of the court has resulted in an acquittal of all 

charges and specifications, the review shall be limited to questions 

of jurisdiction (Art. 61). 

c. Disagreement between convening arcthoritg and staff judge 

advocate or legal officer.-Ordinarily, the convening authority 

should accept the opinion of his staff judge advocate or legal officer 

as to the effect of any error or irregularity respecting the proceedings, 

as to the adequacy of the evidence, and as to what sentence can legally 

be approved. However, it is within the particular province of the 

convening authority to weigh evidence, judge the credibility of witnesses, determine controverted questions of fact that may have been 

raised in the record, and to determine what legal sentence should be 

approved. In those unusual cases in .which a convening authority is 

in disagreement with his staff judge advocate or legal officer as to 

the effect of any error or irregularity respecting the proceedings, as 

to the adequacy of the evidence, or as to what sentence can legally be 

approved, the convening authority may transmit the record of trial, 

with an expression of his own views and the opinion of his staff judge 

advocate or legal officer, to the Judge Advocate General of the armed 

form concerned for advice. In any case wlich is forwarded to the 

Judge Advocate General, if the convening authority takes an action 

different from that recommended by his staff judge advocate or bgal 

officer, he should state the reasons for his action in a letter transmitting 

the record to the Judge Advocate General (41a). 
1 86b CHAPTER XVll 

d. Disposition of redew.-Two signed copies of the review of the 

staff judge advocate or legal officer will be attached to the original 

record of trial if the record is forwarded to the appropriate Judge 

Advocate General. In the interest of instruction in the administration of justice, copies the review customarily are made available to 

the trial counsel and law officer who participated in the trial of the 

case. Similarly, in a case involving a bad conduct discharge adjudged , 

by a special court-martial, a copy is ordinarily transmitted to the 

convening authority. 

86. MISCELLANEtOUS POWERS AND DUTIES OF THE 

CONVENING AUTWORITY.--a. General.-Express approval of a 

sentence by a convening authority is an action which must precede 

the execution of the sentence (Arts. 60,61, 64, 65,Tld). Express approval of the findings is unnecessary and, in the absence of express 

approval of the sentemce, is not sufEcient to give the sentence legal 

effect. In acting on the findings and sentence of a court-martial, the 

convening authority shall 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 as he in his discretion determines should be 

approved. Unless he indicates otherwise, approval of any part of the 

sentence shall constitute approval of the findings of guilty. See 

Article 64. 

Unless the convening authority indicates otherwise, disapproval of 

the entire sentence constitutes disapproval of all findings of guilty. 

If he disapproves the findings and sentence of a court-martial, he 

may, except when there -is lack of sufficient evidence in the record to 

support the findings, order a rehearing. In this connection, see 92 

and Article 63. 

b. Matters to be consipered on review.-( 1) When proceedings 

~esulted in a sentence.-Before he may approve a finding of guilty of 

an offense or the sentence adjndged therefor, the convening authority 

lnust determine : 

(a) That the colnrt was legally constituted throughout the trial 

(chs. 11,111) and had jurisdiction over the offense (87a (2) ) and 

the person tried (ch. IV) ; 

(6) That the accused had the requisite mental capacity at the time 

of trial and the requisite mental responsibility at the time of the 

cornmi~sion of the offense (ch. XXIV, especially 124) ; 

(c) That the competent evidence of record (87a (3) ; ch. XXVII) 

established each element of the offense of which the accused was 

found guilty (ch. XXVIII) ; 
REVIEW-INITIAL ACTION ON RECORD 1 86~ 

(d) That the sentience was within the power of the court to 

adjudge (ch. IV) and within the prescribed limitations on punishments (1099 (2) ; Art. 636 ; ch. XXV) ; 

(e) That there were no errors which materially prejudiced the 

substantial rights of the accused (8'76). . 

(2) Finding of not guiZty or ding amounting to finding of not 

guilty.-Neither a finding of not guilty nor a ruling of the court which 

amounts to a finding of not guilty requires any action by the convening authority thereon. The latter should neither approve nor disapprove the action of the court in such a case. Disapproval cannot 

in any event affect the finayity of a legal acquittal or a ruling of the 

court that amounts to a legal.acquitta1. The record of trial in a case 

involving an acquittal of all charges and specifications should be examined, however, to determine whether the court was properly constituted and had jurisdiction over the accused and the offense tried. A 

similar examination should be made with respect to findings of not 

guilty of some, but not all, of the specifications upon which the 

accused was tried. In this connection, see 87a (2), 896 (I), and 92. 

Such a record may also show that administrative action is appropriate. For example, if the court acquitted the accused of all charges 

and specifications because of his lack of mental r.esponsibility at the 

time of the offense (120b), the disposition of the accused will be in 

accordance with pertinent departmental regulations. 

No action can be taken by the convening authority that would 

amount to censure of the court or the members thereof. See Article 

37. 

For action when the coniening authority differs with the court 

with respect to a ruling which goes not amount to an acquittal, see 67f. 

c. Correction of record.-A record of trial may upon review be 

found to be incomplete or defective in some material respect, as, for 

example, when it fails to show that the members of the court were 

sworn, or that the required number of rhembers concurred in the vote 

on the findings or sentence. The court may have performed its duty 

properly but through clerical error or inadvertence the events may 

have been improperly recorded. In such a case, the record must be 

corrected to make it show the true proceedings. It may be returned 

to the president of a general or special court-martial or to the summary court-martial for a certificate of correction to relate the true 

facts. The certificate will be authenticated in the same manner as the 

record of trial. See 82f, 834 and 79e. In general and special courtmartial cases, the authenticated certificate will be attached to the 
11 87a CHAPTER XVll 

record of trial after the original signatures authenticating the record. 

Except in the case of a summary court-martial, the accused mill be 

furnished a copy of the certscate of correction, and his receipt will 

be obtained and attached to the record of trial. See 82g (1) and 

appendix 9. A copy of the certificate will be attached to all other 

copies of the record which mere prepared. See 79e and appendices 9f 

and 10c. A certificate of correction may be used only to make the 

record correspond to that which actually occurred at, the trial. If the 

court was not sworn, for example, the error cannot be cured by a 

certificate of correction. 

d. Revision proceedings.-For procedure in revision, see 80. When 

there is an apparent error or omission in the record, or when the 

record shows improper or inconsistent action by a court-martial with 

respect to a finding or senten~e which can be rectsed withort material prejudice to the substantial rights of the accused, the convening 

authority may return the record to the court for appropriate action 

(Art. 62b). For example, if a previous conviction was erro~~eously 

considered by the court, and it is believed that the consideration of such 

conviction influenced the court in adj~dging the sentence, or if the 

sentence adjudged is less than the mandatory sentence for the offense, 

the convening authority may return the record to the court to reconsider the matter and revise its proceedings accordingly. In such a 

case, the record is ordinarily transmitted to the trial counsel of a 

general or special court-marti a1 or to the summary court-martial 

by a written communication pointing out the apparent defect in the 

record and directing the reconvening of the court for the purpose of 

reconsideration and revision of its proceedings. See Article 626 as 

to matters that cannot l;e reconsidered. Except for the purpose of 

making the record show the true proceedings and the exceptions stated 

in Article 626 (2) and (3), proceedings in revision may not be had in 

any case in which any part of the sentence has been ordered executed. 

e. Action when insanitg indicated.-For action to be taken by the 

convening authority when it appears from the record or from any 

other sourcehhat the accused may have been insane at the time of the 

commission of the offense or at the time of trial, regardless of whether 

such question was raised at the trial or how it was determined if 

raised, see 124. 

87. EXAMINATION OF FINDINGS OF GUILTY.-a. Findings as to a specification.-(1) General.-In considering the legality 

of a finding of guilty: of a specification, the convening authority will 

be guided by the principles stated in 74a and b. 

(2) Leg& sufficiency of the specification.-If a specification of 

which the accused has been found guilty fails to allege any offense, the 
REVIEW-INITIAL ACTION ON RECORD 'I Orb 

proceedings as to that specification are a nullity and will be declared 

invalid (86b (2), 896 (I), 92; app. 14, form 25). The proceedings 

as to a specification should not be held-invalid solely because the specification is defective unless it appears from the record that the accuse6 

was in fact misled by such defect or that his substantial rights mere in 

fact otherwise materially prejudiced thereby. The test of the sufficiency of a specification is not whether it could have been made more 

definite and certain, but whether the facts alleged therein and reasonably implied therefrom set forth the offense sought to be charged with 

sufficient particularity to apprise the accused of what he must defend 

against, and whether the record is sufficient to enable him to avoid 

a second prosecution for the same offense. In this connection, see 28, 

696, and appendix 6. 

(3) Suflciemy of the evidelzce.-In the course of taking action 

upon a record of trial, the convening authority is empowered to weigh 

evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard 

the witnesses. In considering the evidence, he will be guided by the 

principles stahd in 74a and chapter XXVII. Unless he determines 

that a finding of guilty was established beyond a reasonable doubt by 

the competent evidence of record, he should disapprove the finding. 

(4) Lesse~ included ofeme.--When the evidence, although legally 

insufficient to establish guilt of the accused as to the offense of which 

he was found guilty, is sufficient to support a finding of guilty of a 

lesser included offense, the convening authority may approve so much 

of the finding of guilty as involves a finding of guilty of the lesser included offense. In this connection, see 158, appendices 12 and 14b 

(forms 14-17), and Article 596. In approving only so much of a 

finding 'of guilty as involve; a lesser included offense, all elements of 

the offense intended to be approved should be clearly indicated in the 

statement of approval. 

b. Consideration of the findings as fo fhe chrge.-Although the 

criminal liability of the accused is, in general, determined by the 

hding as to tlve specification, there should be a consistent finding as to 

the charge under which the specification is laid. If the finding as to 

a specification is not consistent with the finding as to the charge, and 

the inconsistemcy raises a reasonable doubt as b the intent of the 

court (e. g., when the court finds the accused guilty of a proper specification, but hds him not guilty of, or malres no findings as to, the 

charge under which it is laid), the convening authority should return 

the record to the court for reconsideration and revision. However, if 

the inconsistency leaves no doubt as to the intent of the court, it may 

be corrected by the convening authority in his action. For example, 

145 
ll 87c CHAPTER XVll 

when, in a trial for desertion in violation of Article 85, the court finds 

the accused guilty only of absence without leave, but finds such offense 

to be a violation of Article 85 instead of Article 86, the convening 

authority may correct the inconsistency by approving only so much of 

the finding of guilty of the specification and charge as involves a finding of guilty of the specification in violation of Article 86. 

c. Effect of errors on the findings.-Although the competent evidence of record may be sufficient to establish the guilt of the accused 

as to a particular offense, the convening authority may not approve a 

finding of guilty if, as a result. of an error concerning the admission 

of incompetent evidence prejudicial to the accused or the rejection of 

competent evidence favorable to the accused, or any matter of procedure affecting a fin'ding of guilty of an offense, the substantial rights 

of the accused are materially prejudiced. See Article 59. For 

example, when a court-martial finds the accused guilty of a lesser 

included offense to which he entered no plea, and it appears from 

the record that trial of such offense is barred by Article 43 and that 

the court failed to advise the accused of 'his right to avail himself of 

the provisions of Article 43 in bar of punishment, the convening authority will disapprove the finding or any separable part of it that 

involves a finding of guilty of an offense the trial of which is barred 

by the provisions of Article 43. In this connection, see 68c. 

Article 59, taken together with Article 64, vests a sound legal discretion in the convening authority to the end that substantial justice 

may be done. The effect of a particular error within the purview of 

Article 59 should be weighed by him in the light of all the facts as 

shown by the record and, unless it appears to him that the substantial 

rights of the accused were materially prejudiced, he should disregard 

the error as a basip for concluding that the findings of guilty of a particular offense should be disapproved. 

In general, the convening authority may disregard an error if he is 

convinced that the error did not influence, or had but slight effect 

upon, the decision of the court. The inquiry cannot be merely whether 

there was enough competent evidence to slipport the result apart from 

the phase affected by the error. The test to be applied in determining 

whether an error materially prejudiced the substantial rights of the 

accused is this : An error pejudiiial to the rights of the accused must 

be held to require the disapproval of a finding of guilty of an offense, 

or the part thereof, to which it relates unless the competent evidence 

of record is of such quantity and quality that a court of reasonable 

and conscientious men would have made the same finding had the error 

not been committed. 
REVIEW-INITIAL ACTION ON RECORD U 88b 

Regardless, however, of the test in the subparagraph above, if the 

error is such a flagrant violation of a fundamental right of the accused 

as to amount to a denial of due process (e. g., when the disloyalty of 

defense counsel directly aids the prosecution) the finding must be 

disapproved regardless of the compelling nature of the competent 

evidence of record. - 

If the court lacked jurisdiction as to some of the offenses for which 

the accused was tried, the proceedings as to the other offenses tried are 

not invalid for thah reason. 

88. POWERS OF THE CONVENING AUTHORITY WITH 

RESPECT TO THE SENTENCE-. General.-Neither the convening authority nor any other officer is authorized to add to the 

punishment imposed by a court-martial. A sentence adjudged by 

the court may be approved if it was within the jurisdiction of the 

court to adjudge and it does not exceed the maximum limits prescribed 

by the President under Article 56 (ch. XXV) for the offenses of which 

the accused legally has been found guilty. When a sentence in excess 

of the legal limits is divisible, such part as is legal may be approved. 

See 125 for limitations upon approval of a sentence which includes 

confinement on bread and water. See 1099 (2) for limitations upon 

punishments adjudged at a new trial and Article 63b for limitations 

upon punishments adjudged at a rehearing. With respect to action 

on a rehearing, see also 890 (7). 

The disapproval of a sentence nullifies it as a basis for punishment ; 

a&mation of a disapproval is not required. For limitations upon 

ordering a rehearing after. disapproval of a sentence, see 92. An 

approval or a disapproval of a sentence should be express and explicit 

and should not be left to implication. For example, in approving 

''only SO much" of a sentence as involves a mitigated sentence, the entire 

sentence intended to be approved should be set forth clearly in the 

statement of approval. 

6. Determining wht sentence should be approved.-In determining what sentence, or part thereof, should be approved, the convening authority mill be guided by the principles stated in 76. The 

sentence approved should be that which is warranted by the circumstances of the offense and the previous record of the accused. Appropriate action should be taken to approve a less severe sentence 

when the sentence, though legal, appears unnecessarily severe. In approving severe sentences, consideration should be given to all factors, including the possibility of rehabilitation as well as the possible 

deterrent effect. 

The convening authority may properly consider as a basis for approving only a parit. of a legal sentence not only matters relating 
solely to clemency, such as long confinement pending trial or the fact 

that, as an accomplice, the accused testified for the prosecution, but 

any other pertinent factors. 

c. Approval of a part of Q sentence.-See 105a and Article 71 as 

to commutation. The convening authority may, subject to the limitations in 88a, approve a part of a sentence adjudged by a courtmartial, but unless he is empowered to commute a sentence, that is, 

to change the nature of the punishment, the sentence approved by 

him must be included in the sentence adjudged by the court and 

must be one that the court might have imposed in the case. However, when a court has adjudged a mandatory sentence to imprisonment for life (Art. 118 (1) and (4)), the convening authority may 

approve any sentence included in that adjudged by the court. 

In determining whether the part of the sentence to be approved 

is one that legally could have been adjudged by the court, the convening authority will be guided by the applicable rules in chapter 

XXV. For example, a sentence as approved may not provide for 

confinement of an enlisted person for more than six months without dishonorable or bad conduct discharge; nor may it provide for 

restriction in excess of two months, or hard labor without codnement 

for more than three months. 

A sentence is included in the sentence adjudged by the court if 

it amounts to a mitigation of the sentence adjudged, that is, a reduc- . 

tion in quantity or quality, the general nature of the punishment remaining the same. Thus a sentence of dishonorable discharge may 

be mitigated to bad conduct discharge, but a bad conduct discharge 

may not be mitigated to any other ptinishment. Forfeiture of pay 

may be mitigated to detention of pay for a like period or less, within applicable legal limits; however, a fine may not be changed to a forfeiture, nor a forfeiture to a fine, as this action would constitute 

commutation. Confinement on bread and water may be mitigated 

to confinement at hard labor for a like period or less. Confinement 

at hard labor may be mitigated to hard labor without confinement 

for a like period or less, but within applicable legal limits. A sentence of dishonorable or bad conduct discharge, forfeiture of all pay 

and allowances, and confinement at hqrd labor for a definite period 

may be mitigated to a lesser punishment; for example, to codnement at hard labor for a period, within applicable legal limits, not 

exceeding that adjudged, and a forfeiture of not more than twothirds of the enlisted person's pay per month for a definite period, 

within applicable legal limits. 

In mitigating a sentence, the convening authority may, when appropriate, apportion an adjudged punishment among several less set40 
REVIEW-INITIAL ACTION ON RECORD 1 880 

vere kinds of punishment of the same general nature. Although he 

may mitigate a punishment to a less severe kind of punishment (reduce it in quality), he may not increase it in quantity. Thus a sentence of confinement at hard labor for one month may not be mitigated 

60 restriction for two months, or for any period in excess of one 

111011th; nor could it be mitigated to hard labor without confinement 

for one month and restriction for one month;. however, it could be 

mitigated to hard labor without confinement for 15 days and restriction for 15 days. 

d. Execution of sentence.-xxcept in the case of a new trial (109 

and IlO), the convening' authority may, at the time of approval of any 

sentence, order its execution if, as approved by him, it does not involve 

a general or flag officer, a sentence of death or dismissal, or an unsuspended sentence of dishonorable discharge, bad conduct discharge, 

or confinement for one year or more. See Article 71. Except in 

the case of a new trial, if the convening authority in his action 

approves but suspends the execution of that part of a sentence providing for dishonorable or bad conduct discharge, or confinement 

for one year or more, he may o~der all other parts of the sentence 

into execution unless any part thereof requires the approval of the 

President under Article ?'la or the Secretary of a Department under 

Article 716. 

The authority ordering the execution of a sentence of death issues 

instructions concerning the time an& place of execution, any designations or instructions in this particular matter by the court or the 

convening authority being disregarded. 

e. Suspension of execuEion of sentence.-(I) General.-See 976 

for the procedure involved in the vacation of a suspension, and 97a 

for the general rules affecting suspensions. 

At the time he approves a sentehce, the convening authority may 

suspend the execution of all or any part of it except a sentence of 

cleath. Ordinarily, the purpose of suspending the execution of a 

sentence is to grant the accused a probationary period within which 

he may show by his conduct that he is entitled to have the suspended 

portion of the sentence remitted. The convening authority should 

suspend the whole of a sentence (except death) when it appears to 

him that such action will promote.discipline and aid in the rehabilitation of the accused. 

The convening authority should not suspend the execution of a 

punitive discharge or dismissal in a case involving conviction of an 

offense which shows that degree of moral turpitude which obviously 

disqualifies the accused for further military service. . c 
1 88s CHAPTER XVll 

A part of a sentence should not be suspended if it mould be contrary to the customs of the service to execute the portion of the 

sentence that remajns unsuspended. For example, with respect to a 

sentence of dishonorable or bad conduct discharge, forfeiture of all 

pay and allowances, and codnement at hard labor, it would be contrary to the customs of the service to suspend the execution of the 

punitive discharge and the confinement and order the totall forf eitures into execution. 

(2) Types of swpensiom.-(a) General.-Except as otherwise 

provided in this paragraph (88e) or as may be provided by departmental regulations, the convening authority may, at the time he approves a sentence, suspend its execution for an indekite period of time. 

Similarly, he may suspend its execution for a stated definite period of 

time if he provides in his action that unless the suspension is sooner 

vacated the expiration of the period of suspension shall operate as a 

complete remission of the suspended sentence. Such a provision shall 

not, however, prevent an earlier remission of th0 suspended sentence. 

In this connection, see 97a, 1056, and Article 74. 

(6) Suspending d&honora6Ze or bad co&C discharge when sentence aZso inchides confimment.-If the approved sentence involves a 

dishonorable or bad conduct discharge and conhement, the convening 

authority may determine that the execution of the punitive discharge 

should be suspended to the end that the accused may have the opportunity of redeeming himself in the military service, but that the execution 

of the confinement should not be suspended. In such a case, he may 

suspend the execution of the punitive discharge until the release 

of the accused from confinement, or for a definite period thereafter, 

and provide in his action for the automatic remission of the suspended 

sentence as indicated in the preceding subparagraph. However, the 

convening authority may suspend the execution of the dishonorable or 

bad conduct discharge until the release of the accused from confinement 

without providing for an automatic remission of the suspended portion. 

In such a case, when the accused is released from confinement, the 

necessary administrative action may be taken to effect the punitive 

discharge without the publication of further court-martial orders and 

without a hearing under the provisions of Article 72. To avoid the 

possibility in such a case of the inadvertent execution of the punitive 

discharge prior to completion of appellate review, the action should . 

provide for the suspension of the punitive discharge until the accused's 

release from confinement or the completion of appellate review, whichever occurs later. In this connection, see appendix 14 (forms 28 and 

39). Suspension of the execution of a dishonorable or bad coilduct 

discharge until the release of the accused from confinement will not 

150 
REVIEW-INITIAL ACTION ON RECORD a 89b 

prevent earlier action to vacate the suspension, to remit the punitive 

discharge, or to suspend it for an additional period (97a, b). 

(c) Suspending the execution of forfeii5wre.-If a sentence includes a forfeiture of pay or allowances in addition to confinement 

not suspended, such forfeiture will apply to pay or allowances accruing 

to the accused on and after the date the convening authority approves 

such a sentence unless the convening authority, at the time he approves 

the sentence, suspends the execution of that portion of the sentence 

to forfeitures. See Article 57a. However, in a case involving an approved sentence of confinement and forfeiture of pay. 

if the convening authority 'does not desire to suspend the execution of 

the confinement or the forfeiture, but determines that the circumstances of the case warrant continuation of the accused in a pay 

status pending completion of appellate review, ha may provide in his 

action that the application of the forfeiture shall be deferred until 

such time as the sentence as a whole is carried into execution. See 

appendix 14 (f orrn 34). 

When the approved sentence includes a forfeiture of pay or allowances in addition to confinement not suspended, the convening authority, unless he orders the execution, suspends the execution, or defers 

the applicability, of the forfeitures, should include in his action on the 

case a statement that the approved forfeiture mill apply to pay or 

i~llowances accruing to the accused on and after the date of his action. 

See appendix 14 (form 34). This statement will aid disbursing and 

personnel officers in. determiding the effect of the approval by tlze 

convening authority of a sentence which includes a forfeiture of pay 

or allowances. 

89. FORMS OF ACTION AND RELATED MATTERS.-a. 

General.-The convening authority will state at the end of the record 

of trial in each case his decisions and orders. This requirement equally 

applies in summary court-martial cases, including those in which the 

convening authority is the officer that tried tlze case as summary court. 

See 5c and 79e. The action will be signed by the convening authority 

in his own hand. Below his signature will appear his rank and the 

fact that he is the commanding officer or other fact authorizing him 

to take the action. Appendix 14 contains forms of action of the 

convening authority. These forms, or a combination or modification of 

them, should be used whenever they are appropriate. 

b. Modification of initial action.-The convening authority may 

recall and modify any action taken by him at any time before it has 

been published or the accused has been officidy notified thereof. 

When, as an incident of the review of a record of trial pursuant to 

Artj(~1~~ tiah, 66, or 67, or exanlination of a record of trial pursuant 

151 

921786"-51-11 
1 89c CHAPTER XVll 

to Article 69, any incomplete, ambiguous, void, or inaccurate action 

of the convening authority is noted, such action will be modified by 

him in accordance with the advice or instructions of a higher reviewing authority or the Judge Advocate General. See 95. Any supplementary or corrective action taken by the convening authority shall 

be signed by the convening authority in his own hand. 

c. Action on findings and sentence.-(1) GeneraZ.-If the court 

acquitted the accused of all charges and specifications, no action is 

required unless the proceedings are declared invalid because of a lack 

of jurisdiction or failure of the specifications, or any of them, to 

allege any offense cognizable by courts-martial. In this connection, 

see 86b (2), 87a (2), and 92. 

(2) Disapproval of se.nZence.-As disapproval of the entire sentence, without mention of the findings, constitutes disapproval of all 

findings of guilty, the action in a case in which all the findings of 

guilty are to be disapproved ordinarily will not mention the findings. 

If the convening authority disapproves the sentence and does not 

order a rehearing, he mill dismiss the charges. If a rehearing is ordered or if any finding is declared invalid because of the failure of a 

specification to allege any offense, the disapproval or the declaration 

of invalidity, together with the reasons t'herefor, will be set forth in 

the action. See 92. Similarly, if the reasons for the disapproval of a 

particular finding of guilty might aid in determining the effect of the 

proceedings upon future administrative disposition of the accused, 

the reasons for the disapproval should be set forth in the action. Such 

action would be appl.opriate, for example, when a finding of guilty is 

disapproved because of the insai~ity of the accusecl (124), or because 

trial of the offense mas barred by the statute of limitations (686; 

Art. 43), or if a finding of guilty of desertion is disapproved. The 

reasons for the disapproval of a finding of guilty may be set forth 

in any case. 

(3) Approval of sentence.-When any part of the sentence is to 

be approved, mention will be made in the action only of those findings 

or parts of findings which are to be disapproved. See 896 (2) for rule 

as to stating reasons for disapproving a finding of guilty. Approval 

of the sentence, standing alone: constitutes approval of all findings 

of guilty. 

(4) Execution; suspemnsio~.-A statement of the approval of all 

or a part of the sentence should be followed in the action by a statenlent, when appropriate, of whether, as approved, the sentence is to be 

executed or whether the execution of all or any part thereof is to be 

suspended. See appendix 14 for forms. The reasons for the approval, 

execution, or suspension of all or any part of B sentence need not be 

152 
REVIEW-INITIAL ACTION ON RECORD U 89~ 

stated in the action. See 8Se (2) (c) for action to be taken when an 

qproved sentence involves confinement unsuspended and forfeitures 

are not ordered executed, suspended, or deferred. 

When the convening authority is xot empowered to commute a 

sentence, but feels that any approved sentence involving a general or 

flag officer, or extending to death or dismissd, sllould be commuted, he 

nlay make a recommendation to that effect in his action. 

(5) Place of con$hemenS.-If the convening authority orders a 

sentence of confinement: .at hard labor into execution, the place of 

confinement, as prescribed in pertinent departinental regulations, will 

be designated in his action. When a sentence of confinement is ordered 

into execution subsequent to the initial action of the convening authority, the authority ordering such execution will designate the place of 

confinement in the promulgating order. In this connection, see 93. 

(6) Temporary custody.-When a record of trial involving an 

approved sentence is required to be forwarded to the appropriate 

\ Judge Advocate General (Art. 65a, b), the convening authority will, 

unless he orders any approved sentence of confinement into execution 

and designates a place of confineinent, provide in his action for the 

temporary custody of the accused pending final disposition of the case 

upon appellate review. If practicable: the accused in such a case 

should be re~ained within the command of the officer exercising general court-martial juriscliction over the accused until the sentence has 

become final after completion of any appellate review. See appendix 

14 (form 34) for form of acti6n and 96 for action to be taken in event 

the place of temporary custody (confinement) is changed prior to final - 

disposition of the case upon appellate review. 

(7) Action on rehearing.-The convening authority may approve 

a sentence adjudged upon a rehearing without regard to whether any 

portion or amount of the punishment adjudged at the former trial has 

been served or executed. ~owever,'in computing the term or amount of 

punishment actually to be served or executed under the new sentence, 

the accused will be credited with any portion or amount of the former 

sentence that was served or executed prior to the time it was disapproved or set aside. For example, if the original sentence consisted 

of confinement at hard labor for six months and forfeiture of $50 per 

month for six months, of which one month's conhement has been 

served (Art. 57b) but no forfeitures have been executed, and the sentence adjudged upon the rehearing is identical to that originally adjudged, the person charged with administrative execntion of the new 

sentence would cre&t the accused with one month's confinement; the 

accused would have a balance of confinement for five months and forfeitures for six nzonths yet to be executed. To insure that credit shall 

i S3 
8 900 CHAPTER XVll 

be given in proper cases, the convening authority shall, if he approves 

any part of a sentence adjudged upon a rehearing, direct in his action 

that any portion or amount of the former sentence served or executed 

between the date it was adjudged and the date it was disapproved or 

set aside shall be credited to the accused. See appendix 14 (forms 18 

and 38). 

If, in his action on the record of a rehearing, the convening authority disapproves the findings of guilty of all charges and specifications 

which were tried at the former hearing and that part of the sentence 

which was based on such findings, he will, unless a further rehearing 

is ordered, provide in his action that all rights, privileges, and property affected by any executed portion of the sentence adjudged at the 

former hearing shall be restored. If the court, at a rehearing, acquits 

the accused of all charges and specifications which were tried at the 

former hearing, the promulgating order will provide for the restoration of all rights, privileges, and-property affected by any executed 

portion of the sentence adjudged at the former hearing. See Article 

75 and appendix 14 (forms 9 and 23). 

(8) Reprimand; admonition.-Any reprimand or admonition 

proJided for by the sentence of a general or special court-martial as ordered executed by the convening authority, will be included in his 

action. In those cases in which the execution of the sentence, including the reprimand or admonition, requires the approval of the President under Article 71a or the Secretary of a Department under Article 

716, a reprimand or admonition will not be set forth in the action of the 

convening authority and need not be set forth in the action of the President or Secretary, but it is included in the promulgating order directing the execution of the sentence. 

90. ORDERS AND RELATED MATTERS.-a. General.-An 

order promulgating the result of a trial by general or special court, 

and any action by the convening or higher authorities on the record of 

trial, although not necessary to the validity of the trial, will be issued 

whether such result was an acquittal or otherwise, and regardless of 

the action of the convening or higher authorities thereon. For forms 

of orders and data to be shown therein, see appendix 15 and pertinent 

regulations. 

An order promulgating the proceedings and the initial action of the 

convening authority will bear the date of the action of the convening 

authority on the record of trial except when the order promulgating 

the result of a trial by special court-martial involving a bad conduct 

discharge is issued by the officer exercising general court-martial 

jurisdiction over the command (90b (1)). In the latter case, the 

order will bear the date such officer took action on the record of trial, 
REVIEW-INITIAL ACTION ON RECORD U 90~ 

but will recite in the body of the order the action of the convening 

authority and the date thereof. 

An order promulgating an acquittal or action on the findings or 

sentence taken subsequent to the initial action of the convening authority will bear the date of its publication. 

The promulgating order will state the date,upon which the sentence was adjudged by the:court or the date upon which the acquittal 

was announced. 

b. Bg whom issued.-(1) Initid orders.-The order promulgating 

the result of trial and the initial action of the convening authority 

will be issued by the convening authority in all cases except those in 

which a record of trial by special court-martial involving an approved 

bad conduct discharge is forwarded to the officer exercising general 

court-martial jurisdiction over the command under the provisions of 

Article 656. In the latter case, the promulgating order will be issued 

by the officer exercising general court-martial jurisdiction who takes 

action on the mec cord. 

(2) Orde~s issued subsequent to inita action of the convening 

nuthom'ty.-Action taken on the findings or sentence subsequent to the 

initial action thereon by the convening authority shall be promulgated, 

as may be appropriate under the circumstances, by the convening 

:tuthority who took the initial action in the ease, the commanding 

officer of the accused who is authorized to take the action being promulgated, an officer exercising general court-martial jurisdiction over 

the accused at the time of the action, or by the Secretary of the Department. In connection with action taken s~ibseq~~ent to the initial action 

of the convening authority, see 94 (Review of sentences of special and 

summary courts-martial) , 95 (Correction of records of trial subject 

to appellate ra~ew), 97a (Remission and suspension), 97b (Vacation 

of suspension), 1006 (Action when sentence set aside), 100c (Action 

when sentence is affirmed in whole or in part), 107 (Court-martial 

orders), 109E (New trial ; court-martial orders). 

c. Orders containing classified information or matter unfit for 

~pubEication.-'When an order contains information which must be 

classified, only the order retained in the unit files and those copies 

which accompany the record of trial are to be complete. When the 

order contains obscene matter that is unfit for open publication, only 

the order retained in the unit files, those copies mhich accompany the 

record of trial, those which are furnished the chief custodian of the 

personnel records of the armed force concerned, the authorities of the 

command vhese the accused is held in custody or to which he is to be 

transferred, and the commander of the place where the accused is to be 

conhed (if confinement is involved) are to be complete. 
t 91a CHAPTER XVll 

All other copies are prepared to eliminate, by use of asterisks, sufficient data to avoid the necessity of classification, and such obscene 

matter as may be unfit far open publication. 

d. Distribution.-Distribution of promulgating orders will be in 

accordance with pertinent depprtnlental regulations. In this connection, however, see 91a, 91b, and appendices 9e and 106. 

e. Summary court-muri!iuZ.- order promillgating the result of 

:I trial by summary court-martial is not issued. In lieu thereof, the 

action of the convening authority mill be shown on all three copies of 

the record of trial. See 79e and appendix 11. The action on the original copy will bear the signature of the convening authority; the 

action on the duplicate and triplicate copies either mill bear the signature of the convening authority or will be prepared and certified as 

true copies of the original. 

Each record of trial by summary court-martial (including those 

involving an acquittal) will be numbered serially by the convening 

authority in the order in which he receives them for action. 

Any action talren on a summary court-martial case subsequent to the 

initial action of the convening authority mill be promulgated in such 

orders as may be prescribed by pertinent departmental regulations. 

91. DISPOSITION OF THE RECORD AND RELATED MATTERS.-a. General court-marfiak.-A record of trial by general 

court-martial, with the action of the convening authority thereon, 

ordinarily will be transmitted without letter of transmittal direct to 

the Judge Advocate General of the armed force concerned. However, 

if the convening authority has taken an action contrary to that recommended by his staff judge advocate or legal officer, he should forward 

the record by a letter of transmittal containing an explanation of his 

action. See 856. 

With the original record of trial mill be forwarded the accompanying papers (82b) and, unless otherwise prescribed by departmental 

regulations, 10 authenticated copies of the order promulgating the 

result of trial as to each accused and two signed copies of the review 

of the staff judge advocate or legal officer. If the approved sentence. 

in the case affects a general or flag officer or extends to death, dismissal of an officer, cadet, or midshipman, dishonorable or bad conduct discharge, or confinement for one year or more, two additional 

copies of the record of trial will be attached to the original record. 

If a copy of the record cannot be delivged to the accused for any 

reason, the copy prepared for him will also be attached to the record 

with an explanation of the reason for nondelivery. 

See appendix 9e for the arrangement of the record and accompanying papers for forwarding. 
REVIEW-INITIAL ACTION ON RECORD 0 91c 

6. Special court-martial.- (1 ) Action by convening authority.- 

Except when he is authorized to forward a record of trial involving 

an approved sentence to bad conduct discharge direct to the appropriate Judge Advocate General (94a (3) ), a convening authority of a 

special court-martial who does not exercise general court-martial jurisdiction will forward the record of trial, with his action thereon, direct 

to the officer exercising general conrt-martial jnrisdiction over the 

command. With the record will be forwarded the accompanying 

papers and four authenticated copies of the order, if any, promulpting the result of trial (906). If the case involves an approved 

bad conduct discharge, two additional copies of the record of trial 

will be attached to the original record. If a copy of the record cannot 

be delivered to the accused for any reason, tlie copy prepared for him 

will also be attached with a statement of the reasons for nondelivery. 

See appendix 9e for the arrangement of a verbatim record and appendix 106 for arrangement of the record in other cases. 

When he is authorized to forward a record of trial involving an 

approved bad concluct discharge direct to the appropriate Judge 

Advocate General (94a (3)), a convening authority who does not 

exercise general court-martial jurisdictio~l ivill dispose of the record in 

the manner prescribed in 91a for records of trial by general courtsmartial. 

(2) Action by oficer exercising generaS court-martiaZ jurisdiction.-A record of trial by special court-martial which involves a 

sentence to- bad conduct discharge .ipproved by an officer exercising 

general court-martial jurisdiction (either as the convening authority 

or as prescribed in 94a (3)) will be disposed of in the manner prescribed in 91a for records of trial by general courts-martial. 

c. Summary court-martial.-The original and two copies thereof 

will, after action by the convening authority, be delivered to the 

custodian of the personnel recoids of the unit, who will, in the case 

af an approved sentence, enter the essential data on the service record 

of the accused and on such other records a.s may be prescribed by 

departmental regulations. A notation that snch entry has been made 

mill be recorded on all copies of the record of trial. 

Thereafter, unless otherwise prescribed by clepartmental regulations, 

distribution of the copies of the record of trial will be made as 

f~lloms: The original and one copy mill be forwarded, ordinarily 

without letter of transmittal, to the officer exercising general courtmartial jurisdiction over the command. The remaining copy will be 

retained in the unit files. Disposition of the retained copy will be 

in accordance with pertinent departmental regulations. 
T 91c CHAPTER XVll 

If the sentence, as ordered executed, involves confinement on bread 

and water or diminished rations, the medical certificate required by 

125 will be attached to the original record of trial; a copy of such 

certificate will be attached to each copy of the record. 
Chapter XVIU 

ACTION 

ORDERING REHEARING--PLACE OF CONFINEMENT 

92. ORDERING REHEARING.-If the convening authority disapproves the findings of guilty and the senteilce of a court-martial 

he may, except where there is lack of sufficient evidence in the record 

to support the findings, order a rehearing, in which case he sllall state 

the reasons for disapproval (Art. 63a). A rehearing may not be 

ordered in a case in which there is a lack of evidence in the recorcl 

to support a finding of guilty of the offense charged or of an offense 

necessarily included in that charged; but if proof of guilt consisted 

of inadmissible evidence, for which there is available an admissible 

substitute, a rehearing may properly be ordered. For example, if 

proof of guilt of absence without leave was made on the basis of 

improperly authenticated documentary evidence, over the objection 

of the defense, the convening authority may disapprove the findings 

of guilty and the sentence and order a rehearing if he has reason 

to believe that properly authenticated documentary evidence will be 

available for use at the rehearing. On the other hand, if no proof 

of unauthorized absence mas introduced at the trial, a rehearing may 

not be ordered. If a sentence is disapproved because of any procedural error prejudicial to the substantial rights of the accused, 

a rehearing may properly be ordered, subject to the foregoing restrictions. A rehearing may be ordered as to any offense if the conviction 

thereof is based on a plea of guilty. 

Under like limitations a rehearing may be ordered by a board of 

reviey (Art. 666) or the Court of Military Appeals (Art. 67e). 

If a board of review or the Court of Military dppeals has ordered a 

rehearing, but the convening authority finds a rehearing impracticable, 

he may dismiss the charges. 

A rehearing may not be ordered by an authority competent to 

take that action if, upon taking his final action, he approves a part 

of the sentence. The order directing a rehearing will be made at 

the time of disapproving or setting aside the sentence and will ordinarily be included in the action on such sentence. If, as a result of 

review by higher authority, a rehearing is ordered in a case in which 

the sentence or any part thereof has already been ordered into execution, the order of execution shall be vacated at the time the rehearing 

is ordered. 
1 92 CHAPTER XVlll 

Additional charges (248) may be referred for trial together mith 

charges as to which a rehearing fins been directed. 

Every rehearing shall take place before a court-martial composed 

of members who were not inenhers of the conrt-martial which first 

heard the case. Upon such rehearing the accused shall not be tried 

for any offense of which he was found not guilty by the first comtmartial, and no sentence in excess of or more severe than the original 

sentence shall be imposed unless the sentence is based upon a finding 

of guilty of an offense not co~lsidered upon the merits in the original 

proceedings or unless the sentence prescribed for the offense is mandatory (Art. 63b). 

If, at the first trial, the accused is found guilty of a lesser included 

offense a rehearing may properly be ordered only as to such lesser 

included offense or as to an offense necessarily included in that found. 

If, however, a rehearing should be ordered improperly on the original 

offense charged and the accused sh'ould be found guilty thereof, such 

finding may be valid as to the lesser offense of which he was found 

guilty at the first trial. If the accused was found guilty of the offense 

charged on the first trial, a rehearing may be ordered as to any offense 

necessarily included therein, provided there is evidence in the record 

which tends to prove such lesser included offense. 

When a rehearing is ordered by the convening authority there will 

be referred to the trial counsel, in order to inform him of the errors 

iilade at the former hearing which have necessitated the rehearing, 

not only the charges, but also the record of the fornler proceedings 

and all pertinent accompanying papers, together with a copy of any 

decision of the board of review or the Court of Rgilitary Appeals, the 

review of the staff judge advocate, and the statement by the convening 

authority of his reasoils for disapproving the original sentence. 

See 81 for the procedure to be followed at a rehearing, 89c (7) for 

the action by the convening authority upon the record of a rehearing, 

and 94a (2) for rehearings directed as a result of the action of the officer having supervisory authority mith respect to summary court-martial cases and special court-martial cases in which a bad conduct 

discharge is not adjudged. For related provisions as to a new trial 

upon the application of the accused see 109-110. 

If the convening or higher authority finds the original proceedings 

to be invalid because of lack of jnrisdiction (8) or failure of the charges 

to allege any offense cognizable by courts-martial (68b), such authority will, in his action, state the basis for declaring' the proceedings 

invalid. For form, see appendix 14. I11 such: a case another trial 

may be directed and such trial is not subject to the restrictions pre- 
REVIEW-REHEARING, PLACE OF CONFINEMENT U 93 

scribed by Article 636. However, such a case should be referred to 

SL COLI~~ none of whose members has participated in the former trial. 

93. PLACE OF CONFINEMENT.-For action of the convening 

authority in providing for the temporary custody of the accused pending final disposition of the case upon appellate review, see 890 (6) 

and appendix 14. . The authority who orders a sentence to confinement into execution 

shall designate the place of confilzeinent in accordance with pertinent 

departmental regnlations. Under such instructions as the Department concerned may prescribe, any sentence to confinement adjudged 

by a court-martial or other military tribuna~l, whether or not such 

sentence includes discharge or dismissal, and whether or not such 

discharge or disiiiissal has beell executed, may be carried into execution by confinement in any place of confinement under the control of 

any of the armed forces, or in any penal or correctional institution 

under the control of the United States, or which the United States may 

be allowed to use; alld persons so confined in a penal or correctional 

institution not under the control of one of the armed forces shall be 

subject to the same discipline and treatment as persons confined or 

committed by the courts of the United States or of the State, Territory, 

District, or place in which the institution is situated (Art. 58a). 
Chapter XIX 

ACTION AFTER PROMULGATION 

REVIEW OF SENTENCES AND FILING OF RECORDS OF SPECIAL AND 

SUMMARY COURTS-MARTIALCORRECTION OF RECORDS OF TRIAL 

SUBJECT TO APPELLATE REVIEW-REPORTS IN CERTAIN CASES 

MISCELLANEOUS MATTERS 

94. REVIEW OF SENTENCES AND FILING OF RECORDS 

OF SPECIAL AND SUMMARY COURTS-MARTIAL.-a. Reuiew.-(I) GemraT.-The officer immediately exercising general 

court-martial jurisdiction over a command and such otber authority 

as may be designated by the Secretary of a Department have supervisory powers over special and summary courts-martial in such 

command. 

(2) Reeiew of recwds of trial pursuant to ArticZe 65c.-When 

forwarded to him for review (91), the officer having supervisory 

authority will cause a judge advocate, a law specialist, or a lawyer 

of the Coast Guard or Treasury Department to review records of trial 

by summary court-martial and records of t~ial by special court-martial 

which do not include approved sentences to bad conduct discharge 

(Art. 656). If the action of the court has resulted in an acquittal of 

all charges and specifications, or if the convening authority has disapproved the findings of guilty and the sentence and has dismissed the 

charges, the review shall be limited to the question of jurisdiction. 

The officer having supervisory authority may, in the interest of justice, 

set aside in whole or in part findings of guilty and the sentence, and 

thereupon restore any rights, privileges, and property affected by that 

part of the sentence set aside ; he may mitigate or suspend any part or 

amount of the unexecuted portion of the sentence. 

The officer having supervisory authority may bring any fatal 

error to the attention of the convening authority or his successor. If 

warranted by the circumstances, he may advise the convening authority that he has the power to withdraw his previous action, disapprove 

the findings of guilty and the sentence, and either direct a rehearing 

or dismiss the charges pursuant to Article 63. See 92. After a finding of guilty upon a rehearing, the court will adjudge an appropriate sentence without regard to any credit to which the accused mag 

be entitled by virtue of the prior execution of any part of the original 

sentence. See 81. Persons charged with the administrative duty 

of executing a sentence adjudged upon a rehgaring after the sentence 

has been ordered into execution shall credit the accused with any 
REVIEW-ACTION AFTER PROMULGATION U 94b 

executed portion or amount of the original sentence in computing the 

term or amount of punishment actually to be executed pursuant to 

the sentence adjudged' upon such rehearing. See Article 75a. 

If a review, made pursuant to this subparagraph, indicates that 

proceedings in revision (Art. 62b) are necessary, the record will be 

returned to the convening authority or to an officer competent to take 

the action of the convening authority (Art. 60) with advice to take the 

necessary action. 

When, upon review pursuant to this paragraph, the proceedings, 

findings, and sentence as approved by the convening authority have 

been found correct in law and fact, the proceedings shall be final in the 

sense of Articles 44 and '76. 

(3) Review of special cozcrt-martial records pwrsuant to Article 

656.-If the sentence of a special court-martial as approved by a convening authority who does not exercise general court-martial jurisdiction includes a bad conduct discharge, whether or not suspended. 

the record shall, ordinarily, be forwarded to the officer exercising general court-martial jurisdiction over the command to be reviewed and 

acted upon in the same manner as a record of trial by a general courtmartial (Art. 656). Such authority shall act only with respect to the 

findings of guilty and the sentence as approved or suspended by the 

con~ening authority. In the event the officer exercising general courtmartial jurisdiction has no judge advocate or law specialist assigned 

to his staff, or if he deems direct transmittal to the Judge Advocate 

General more expeditious, the officer exercising general court-martial 

jurisdiction may authorize the convening authority to forward such 

records of trial directly to the appropriate ~udge Advocate General 

to be reviewed by a board of review (Art. 65b). Such direct transmittal may be restricted or limited by the Secretary of a Department. 

If the sentence as approved by an officer exercising general courtmartial jurisdiction (either as the convening authority (Art. 60) or as 

prescribed in this subparagraph) includes a bad conduct discharge, 

whekher or not suspended, the record shall be forwarded to the appropriate Judge Advocate General to be reviewed by a board of review 

(Art. 656). If the sentence as approved by the officer exercising general court-martial jurisdiction does not include a bad conduct discha~ge, the record of trial shall thereafter be treated as a special courtmartial record not involving a bad conduct discharge. 

6. Filing of records.-After review as prescribed by 94a (2), records of trial by summary court-martial and records of trial by special 

court-martial which do not involve approved sentences to bad conduct discharge shall be transmitted and disposed of as the Secretary 

of a Department may prescribe by regulation. Special court-martial 

163 
U 97a CHAPTER XIX 

records whi& involve approved sentences to bad conduct discharge 

shall be filed in the office of the appropriate Judge Advocate General. 

95. CORRECTION OF RECORDS OF TRIAL SUBJECT TO 

APPELLATE REVIEW.-TYII~~ a record of trial by general coortmartial, or a record of trial by special court-martial in mhicl~ asentence 

to bad conduct discharge has been approved, has been forwarded by 

a convening authority to higher authority and error of the kind mentioned in 866 and d is no'ted by the higher authority, the record will be 

returned to the convening authority (Art. 60) pith directions for the 

correction of the record or revision of the proceedings. 

When, as an incident of the review of a record of trial pursuant to 

Articles 656, 66, 67, or 69, it is noted that the action of the convening 

auth?rity or of a higher authority is incomplete, ambiguous, or contains clerical errors, the authority who took the incomplete, ambiguous, 

or erroneous action may be instructed to withdraw the original action 

and to substitute a corrected action therefor. See appendix 14 for a 

form of corrected action by the convening autliority. 

96. REPORTS IN CERTAIN CASES.-In the case of an officer, 

immediately upon pron~ulgation of ally sentence of a court-martial 

which does not require appellate review under Article 66 but which 

involves suspension from rank and conlmand, restriction, or any other 

material change in the status of the officer, the commander issuing the 

order will, by prompt means, advise the appropriate officer of the 

Department concerned of the sentence imposed as approved or 

mitigated and the date of promulgation thereof. 

IVhenever an accused person under a court-martial sentence subject 

to review under Article 66 is transferred from the general court-martial jurisdictioil which has been clesignated as the command having 

temporary custody of such accused (89c (6) ) before such accused has 

been notified of the decision of the board of review, the officer ordering 

such transfer will, by prompt means, notify the appropriate Judge 

Advwate General. 

97. MISCELLANEOUS MATTERS.-a. Remission and'suspension.-As to the power of the convening authority to mitigate or 

suspend a sentence at the time he takes his action or orders the sentence 

illto eqecution, see S8 and Articles 64 and 71d. 

The Secretary of a Department and, when designated by him, any 

Under Secretary, Assistant Secretary, Judge Advocate General, or 

commanding officer may remit or suspend any part or amount of the 

uuexecuted portion of any sentence, incluclilig a11 uncollected forfeitures, other than a sei~tence approved by the President (Art. 74a). 

The officials authorized by the Secretary of a Department to exercise 

these powers after the sentence has been ordered into execution shall 

164 
REVIEW-ACTION AFTER PROMULGATION f97b 

be designated in departmental regulations. The officer having supervisory authority (94a (1) ) and the co~nrnanding officer of the accused 

who has immediate authority to convene a court of the kind that 

adjudged the sentence are empowered to remit or suspend any part 

or amount of the unexecuted portion of any sentence by suminary 

court-martial or of a sentence by special court-martial which does 

not include a bed conduct discharge. Such action may be talcen 

without regard to whether the person acting has previously approved 

the sentence. 

Any sentence (except a sentence to death) or any part thereof may 

be suspended under Article 71d or 74a for a period beyond any term 

of confinement but rritlzin the current enlistment or periocl of service. 

The period within which a sentence may be suspended may be further 

limited by departmental regulations. If the authority who suspends 

a sentence specifically provides in his action that the expiration of 

the period of suspension shall operate as a renlission unless the suspension is sooner vacated (see app. 14), the expiration of the period 

of suspension without vacation thereof shall operate as a complete 

remission of the suspended sentence without further action. See 888. 

The death or honorable discharge of a person under suspended 

sentence shall operate as a complete remission of any unexecuted or 

unremitted part of suclz sentence. If an order of suspension is not 

vacated prior to the actual discharge of a military person not iiz confinement under the sentence, the confinenlent and other unexecuted 

portions of the sentence are remitted by execution of such discharge. 

The Secretary of a Department may, for good cause, substitute an 

administrative form- of discharge for a discharge or dismissal 

executed in accordance with the sentence of a court-martial (Art. 74b). 

b. Vacation of suspension.-Prior to the vacation of the suspension of a special court-martial sentence which as approved includes a 

bad conduct discllarge, or of ally general court-martial sentence, the 

officer having specla1 court-martial juriscliction over the probationer 

shall hold a hearing on the alleged violation of probation. The probationer shall be represented at such hearing by couilsel if he so 

desires (Art. 72a). Insofar as applicable the procedure at the hearing 

shall be similar to that prescribed for investigations conducted under 

the provisions of 34. See appendix 16 far a form of record of this 

proceeding and a procedural guide. 

The recorcl of the hearing and the recolnmendations of the officer 

having specid court-martial jurisdiction shall be forwarded for action to the officer exercising general court-martial jurisdiction over 

the probationer. If this officer vacates the suspension, the vacation 

shall be effective to execute any unexecuted portion of the sentence 
(1 97c CHAPTER XIX 

except a dismissal or a sentence to dishonorable discharge, bad conduct discharge, or confinement for one year or more which has not 

been affirmed by a board of +eview and, in cases reviewed by it, the 

Court of Military Appeals (Art. 726). If the original sentence includes dishonorable or bad conduct discharge or confinement for 

one year or more, such vacation rrill not be effective to execute the 

unexecuted portion of the sentknce until completion of the appellate 

review provided by Articles 66 and 67. See Articles 71c and 72b. 

If the suspended sentence includes a dismissal, the unexecuted portion of the sentence may not be ordered into execution until such 

vacation is approved by the Secretary of the Department (Art. 725). 

The suspension of any sentence by summary court-martial, or of 

a sentence by special court-martial which does not include a bad conduct discharge, may be vacated {without a hearing) by any authority 

competent to convene, for the command in which the accused is serving 

or assigned, a court of the kind that imposed the sentence. See 

Article 72c. 

For forms of orders vacating suspension, see appendix 15. 

c. Interruptions of execution of a sentence.-A sentence to confinement, hard labor without confinement, restriction to limits, 

deprivation of privileges, or suspension from rank, command, or duty 

is continuous until the term kpires, with certain exceptions. These 

exceptions include the following: 

When delivery under Article 14 is made to any civil authority 

of a person undergoing sentence of a court-martial, such delivery, 

if followed by conviction in a civil tribunal, shall be held to interrupt 

the execution of the sentence of the conrt-martial, and the offender 

after having answered to the civil authorities for his offense shall, 

upon the request of competent military authority, be returned to 

military custody for the completion of the said court-martial 

sentence (Art. 14b). 

Periods during which the person undergoing such a sentence is 

absent without authority, or is absent under a parole which proper 

authority has suspended and later revoked, or is erroneously released from confinement through misrepresentation or fraud on 

the part of the prisoner, or is erroneously released from confinement upon his petition for a writ of habeas corpus under a court 

order which is later reversed by a competent tribunal, shall be excluded in computing the service of the term of the punishment. 

Periods during which a sentence to copfinement is suspended shall 

be excluded in computing the service of the term of confinement 

(Art. 5'76). 
REVIEW-ACTION AFTER PROMULGATION U 9719 

d. Changes in place of confinement.-Subject to departmental 

regulations, the authority who designated the place of confinement, 

or higher authority, or any other authority authorized by departmental regulations, may change the place of confinement of any prisoner under his jurisdiction. 

e. Distribution- of court-martial orders.-The distribution of 

orders promulgating the results of courts-martial and any action 

after promulgation of the sentence will be as prescribed in departmental regulations. 
Chapter XX 

APPELLATE REVIEW-EXECUTION OF 

SENTENCES 

GENERAGPRELIMINAR'P ACTION-REVIEW BY THE BOARD OF REVIEW-REVIEW BY THE COURT OF MILITARY APPEALS-APPELLATE 

COUNSELREVIEW IN TBE OFFICE OF THE JUDGE ADVOCATE GENERAkBRANCM OFFPCES-COMMUTATION, REMISSION, AND SUSPENSION-RESTORATION-COURT-MAEtTIAL ORDERSFINALITY OF 

COURT-MARTIAL JUD GhLENTS 

98. GENERAL.-A sentence of a court-martial may not be executed 

until approved by the convening authority (Arts. 60, 61, 64, 65, 7ld). 

A special court-martial sentence which, as approved by the convening 

authority, includes a bad conduct discharge must, generally, also be 

approved by the officer exercising general court-martial jurisdiction 

over the command (94a (33 ; Art. 65b). In addition to such approval, 

certain sentences may not be executed until approved or affirmed by 

higher authority. The scope of this chapter deals generally with 

departmental review, review by the Court of Military Appeals, and 

approval by the Secretary of a Department and by the President. 

No court-martial sentence extendhg to death or involving a general 

or flag officer shall be executed until affirmed by a board of review 

and the Court of Military Appeals and approved by the President 

(Arts. 666,676 (1) and ?la). No sentence extending to the dismissal 

of an officer (other than a general or flag officer), cadet, or midshipman shall be executed until affirmed by a board of review and, in cases 

reviewed by it, the Court of Military Appeals, and approved by the 

Secretary of the Department concerned (or such Under Secretary or 

Assistant Secretary as may be designated by him) (Arts. 666, 716). 

No sentence to dishonorable or bad conduct discharge (whetl~er or not 

suspended) shall be executed until affirnlecl by a board of review and, 

in cases reviewed by it, the Court of Military Appeals. No sentence 

which iacludes, ~ulsuspe~ided, a clishonorable or bad conduct discharge, or confinement for one year or more shall be executed until 

affirmed by a board of review and, in cases reviewed by it, the Court 

of Military Appeals (Arts. 676; 716, 726). All other court-martial 

sentences, unless suspended, may be ordered executed by the convening 

authority when approved by him (Art. 71d). 

99. PRELIMINARY ACTION.-A11 records of trial by general 

courts-martial and records of trial by special courts-martial which, as 

approved by the convening authority and by tlia officer exercising 

general court-martial jurisdiction over the command, include a bad 
APPELLATE REVIEW-EXECUTION OF SENTENCE BlOOb 

conduct discharge are forwarded after approval by the proper authority (Arts. 65a, 6) to the Judge Advocate General of the armed force 

of which the accused is a inenlber (Arts. 176, 65). In all oases so forwarded, a general or special court-martial order announcing the result 

of the trial and the action of the collvenillg or higher authority will 

be promulgated prior to forwarding 

See 88 as to sentences and portions of sentences which may be ordered 

illto executioil prior to forwarding. 

100. REVIEW BY THE, BOARD OF REVIEW.-a. General.- 

The Judge Advocate General shall refer to a board of review the record 

in every case of trial by court.martia1 in which the sentence, as approved, affects a general or flag officer or extends to death, dismissal 

of an officer, cadet, or midshipman, dishonorable or bad conduct discharge, or confinement for one year or inore (Art. 66b). In a case referred to it, the board of review shall act only with respect to the 

findings and sentence as approved by proper authority. It shall affirm only such findings of guilty or such part of a finding of guilty 

as includes a lesser included offense, and the sentence or such part of 

the sentence, as it hds correct in law and fact and determines, on the 

basis of the entire record, should be approved. In considering the 

record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, 

recognizing that the trial court saw and hearcl the witnesses (Art. 666). 

A fincling or sentence of a caulk-martial shall not be held incorrect 

on the ground of an error of 'law unless the error nlaterially prejudices the substailtial rights of the accused (Art. 59a). 

6. Action when sentence is set aside.- (1) If the board of review 

sets aside the fi~ldings of guilty and the sentence it mag, except when 

the setting aside is based on lack of sufficient evidence in the record 

to support the findings, order a rehearing. If it sets aside the findings ancl senteilce and does not order a rehearing it shall order the 

charges to be dismissed (Art. 664. 

(2) In his discretion, the Juclge Advocate General may forward 

the decision of the board of review and the record of trial to the 

Court of Military Appeals for review with respect to any matter of 

lam (Art. 676 (2), 676). In such cases lie will cause a copy of the 

decision of the board of review and his order of reference to be served 

upon the accosed and upon the appellate clefense counsel. 

(3) If the Juclge Advocate General does not order the case 

forwarded to the Court of Militafy Appeals he shall advise the convening authority (84; Art. 60) to take action in accordance with the 

decision of the board of review. If the board of review has ordered 

a rehearing the record shall be returned to the convening authority. 
ll 100c CHAPTER XX 

If the convening auth'ority finds a rehearing impracticable, he may 

dismiss the charges (Ad. Me). Ordinarily, the final action mill be 

promulgated by the convening authority. If the charges are dismissed, all rights, privileges, and property affected by an executed 

portion of the senknee wKich has been set aside, except an executed 

dismissal or discharge, shall be restored (Art. 75a). See 109j and 

110 as to the action which may be 'taken if an executed dismissal or 

dishoilorable or bad conduct discharge is not sustained on a new triaI. 

c. Action when sentence is affirmed in wIzole or in part.-(1) 

Sentences which do not repire th.e app~ovaT of She President.- 

(a) If the sentence, as aflbrned by the board of review extends to 

ciismissal, dishonorable or bad conduct discharge, pr codnement for 

one year or more, the Judge Advocate General, in his discretion, 

may take the action prescribed in 1006 (2) above. Otherwise he 

will transmit a copy of the preliminary court-martial order (906 (1) ) 

and two copies of the decision of the board of review, with such 

instructions as to future action as may be appropriate (Art. 66e) and 

with instructions to cause a copy of the decision to be served upon the 

accused, to the officer immediately exercising general court-martial 

jurisdiction over the command which includes the accused. This copy 

vill bear an indorsement notifying the accused of his right to petition 

the Court of Military Appeals for a grant of a review with respect 

to any matter of law within 30 days from the time he is notified of the 

decision of the board of review, and that any petition for a grant of 

review will be forwarded through the officer immediately exercising 

general court-martial jurisdiction over the accused and through the 

appropriate Judge Advocate General. The receipt of the accused for 

the copy of the decision of the board of review, in duplicate (or a 

certificate of service upon him), showing the date of such service will 

be transmitted by expeditious means to the appropriate Judge Advocate General. The latter will forward one copy of the receipt or certificate of service to the Clerk of the Court of Military Appeals. If 

the officer who exercises immediate general court-martial jurisdiction over the accused is not the officer who convened the court (or his 

successor in command) the Judge Ad~ocate General shall also transmit a copy of the decision of the board of review to such convening 

authority for his information. 

The accused shall have 30 days from the time he is notified of 

the decision of a board of review to petition the Cotlrt of Military 

Appeals for a grant of review. If the accused does not so petitioll, . 

the convening authority, or the officer immediately exercising general 

court-martial jurisdiction over the accused, or the Secretary of the 

Department concerned (Art. 60) may order any sentence which, as 

170 
APPELLATE REVIEW-EXECUTION OF SENTENCE l101 

affirmed by the board of review, extends to dishonorable or bad conduct discharge or confinement for one year or more into execution 

or take such other authorized appropriate action (Art. 74a) as the 

circumstances may warrant. 

(6) If an accused, whose sentence as affirmed by the board of 

extends to dismissal, does not forward a timely petition for a 

pant of review, the Judge Advocate General will transmit the record, 

the decision of the board of review, and his recommendations to the 

Secretary of the Department or to the appropriate Under Secretary 

or Assistant Secretary for action under Article 716. Such Secretary 

shall approve the sentence or such part, amount, or commuted form 

of the sentence as he sees fit, and may suspend the execution of 

any part of the sentence approved by him. In time of war or national 

emergency he may commute a sentence of dismissal to reduction to 

any enlisted grade. A person who is so rduced may be required to 

serve for the duration of the war or emergency and six months thereafter (Art. 716). The action of the Secretary af the Department will 

be promulgated by departmental court-martial orders. 

(c) If the accused forwards a timely petition for a grant of review no supplemental order of execution will be promulgated until 

final action by the Court of Military Appeals is taken. 

(2) Sentences which require the approad of the President.-If 

the board of review affirms any sentence which affects a general or 

flag officer or which, as affirmed by it, extends to death, the Judge 

Advocate General shall transmit the record af trial and t-he decision 

of the board of review wibh his recommendations directly to the 

Court of Military Appeals. He shall cause a copy of the decision of 

the board of review to be served upon the accused and upon the 

appellate defense counsel. 

d. Rules of procedure.-Uniform rules of procedure for proceedings in and before boards of review are prescllbed from time to time 

by the Judge Advocates General of the armed fa~ces. 

101. REVIEW BY THE COURT OF MILJTARY APPEALS.- 

Under such rules as it may prescribe, the Court of Military Appeals 

shall review the record in the following cases (Art. 6771) : 

(1) All cases in which the sentence, as affirmed by a board of 

review, affects a general or fla.g officer or extends to death; 

(2) All cases reviewed by a board of review which the Judge 

Advocate General orders forwarded to the Court of Military Appeals for review ; and 

(3) All cases reviewed by a board of r'eview in which, upon 

petition of the aceused and on good cause shown, the Court of 

Military Appeals has granted a review. (But see 103 and Art. 69.) 

171 
ll 102b CHAPTER M 

The accused shall have 30 dsys from the time he is notified of the 

decision of a board of review to petition the Court of Military Appeals 

for a grant of review. The court shall act upon such a petition within 

30 days of the receipt thereof (L4rt. 67c). 

In any case reviewed by it, tlae Court of Military Appeals shall act 

only with respect to the findings and sentence as approved by the convening authority and as afimed or set aside as incorrect in law by the 

board of review. In a case ~hicll the Judge Advocate General orders 

forwarded to the Court of Military Appeals, such action need be taken 

only with respect to the issues raised by him. In a case reviewed upon 

petition of the accused, such adion need be taken only wit11 respect to 

issues specified in the grant of review. The Court of Military Appeals 

shall take action only with respect to matters of lam (Art. 67d). 

If the Court of Military Appeals sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. 

If it sets aside the findings and sentence and does not order a rehearing 

it shall order that the charges be dismissed (Art. 67e). 

After it has acted on a case, the Court of Military Appeals may 

direct the Judge Advocate General to return the record to the board 

of review for further review in accordance with the decision of the 

court. Otherwise, unless there is to be further action by the President, 

er the Secretary of the Department, the Judge Advocate General shall 

instruct the convening authority to take action in accordance with that 

clecision. If the court has ordired a rehearing, but the convening 

authority finds a rehearing impracticable, he may dismiss the charges 

(Art. 67f). 

If the sentence, as affirmed by the Court of Military Appeals, re- , 

quires the action of the Secretary of a Department, action thereon 

will be taken in accordance with the procedures prescribed in 1006 (1) 

(6). If the sentence as affirmed by the Court of Military Appeals 

extends to death or affects a general or flag officer, the record of trial, 

the decision of the board of review, the recorninendations of the Judge 

Advocate General, and the decision of the Court of Military Appeals 

shall be transmitted to the Secretary of the Departinent concerned for 

the action of the President pursuant to Article 71a. 

102. APPELLATE C 0UNSEL.-a. A ppointment.-The Judge 

Advocate General shall appoint in'his ofice one or more officers as 

appellate Government counsel, and one or more officers as ~ippellate 

defense counsel who shall be qualified under the provisions of Article 

27b (1) (Art. 70a). 

6. Duties.-It shall be the duty of appellate Governnient counsel 

to represent the 'United States before the board of review or the Court 
Y 

APPELLATE REVIEW-EXECUTION OF SENTENCE ll 103 

of Military Appeals when directed to do so by the Judge Advocate 

General (Art. 7Ob). 

It shall be the duty of appellate defense counsel to represent the 

accused before the board of review or the Court of Military Appeals 

(Art. 706)- 

(1) when he is reqnested to do so by the accused; or 

(2) when the United States is represented by counsel; or 

(3) when the Judge Advocate General has transmitted a case to 

the Court of Military Appeals. 

For duties of the defense counsel who conducted the defense at the 

lrial with respect to advising the accused of his right to be represented 

by the appellate defense counsel in connection with the appellate 

of his case, see 48 j (3). 

If his opinion is requested, the appellate defense counsel will, to 

the best of his professional knowledge, advise the accusecl as to 

whether there are meritorious grounds for petitioning the Court of 

Military Appeals for a grant of review. If the appellate defense 

counsel is convinced that there are no substantial questions of lam 

presented by the record of trial with respect to the findings of guilty 

and the sentence as affirmed by the board of review, he should so 

advise the accused. Regardless of his personal opinion as to the 

merit of the issues which can be raised, the appellate defense coullsel 

will, if requested, assist the accused in the preparation of his petition 

and render such other assistance as may be proper if the accused decides to petition for a grant of review. He is authorized to cornniunicate directly with the accused and vith his counsel in the field. 

Such com~nui~icatio~~s are privileged. 

In any case in which the sentence as affirmed by the board of review is subject to review by the Court of Military Appeals, the 

officer exercising general court-martial jurisdiction over the accused 

shall, if requested by the accused, detail a qualified counsel to advise 

and assist the accused in connection with any proper matter concerning further appellate review. If he is reasonably available, the defense counsel who conducted the defense during the trial may perform 

these duties. 

c. Civilian counsel.-The accused shall have the sight to be represented before the Court of Military Appeals or the board of review 

by civilian counsel if provided by him (Art. 70d). 

103. REVIEW IN THE OFFICE OF THE JUDGE ADVOCATE 

GENERAL.--EV~~~ record of trial by general court-martial, in 

which there has been a finding of guilty a.nd a sentence, the appellate 

review of which is not otherwise provided for by Article 66, shall be 

examined in the office of the Judge Advocate General. If any part 
U 106 CHAPTER XX 

of the findings or sentence is found unsupported in law, or if the 

Judge Advocate General so directs, the record shall be reviewed by a 

board of review in accordance with Article 66, but in such event there 

will be no further review by the Court of Military Appeals unless 

the Judge Advocate General orders the record forwarded to the Court 

of Military Appeals pursuant to Article 6771 (2) (Art. 69). 

If a record of trial by general court-,martial is referred to a board 

of review pursuant to llrticl'e 69, the Judge Advocate General shall 

advise the appellate defense counsel of such reference if the accused 

has requested representation before the board of review (48j (3)) ; 

otherwise, the accused shall be advised of such reference and of his 

right to representation before the board of review pursuant to Article 

TO provided he forwards a prompt request for such representation. 

If the Judge Advocate General forwards a case to the Court of 

Military Appeals for review he will take the action prescribed in 

lOOb (2). 

104. BRANCH OFFICES.-Boards of review established in branch 

offices of the Judge Advocate General with distant commands and 

the Assistant Judge Advocates General in charge of such offices perform their duties in the manner prescribed for the Judge Advocate 

General and boards of review in his office. They operate under the 

general supervision of the Judge Advocate General. Records of trial 

involving sentences requiring action by the President shall be forwarded directly to the Judge hdvoc?te General without action in the ' 

branch offices. See Article 68. 

105. COMMUTATION, REMISSION, AND SUSPENSION.-a. 

Commutation.-The power to commute, that is to change a punishment to one of a different nature, may be exercised by the President 

and by the Secretary of a Department (or such Under Secretary or 

Assistant Secretary as may be designated by him). See Articles 71a 

and b. 

6. Remission and suspension.-If the Judge Advocate General is 

of the opinion that a sentence as affirmed by the board of review which 

does not require the approval of the President should be remitted or 

suspended in whole or in part, he may, before taking the action prescribed in 1006 (I), transmit the record of trial and the decision of 

the board of review with his recommendations in the premises to the 

Secretary of the Department for action pursuant to Article 74, or take 

such action as may be authorized by the Secretary of the Department 

under the provisions of Article 74. See also 97a. 

106. RESTORATION.-See 109j and 110 as to action which may 

be taken when the sentence adjudged upon a new trial is set aside or 

disapproved. 
APPELLATE REVIEW-EXECUTION OF SENTENCE ll 108 

I In other cases all rights, privileges, and property affected by an 

I executed portion of a sentence which has been set aside or disapproved 

by ally competent authority shall be restored unless a new trial or 

I rehearing is ordered and such executed portion is included in a sentence 

I imposed upon the new trial or rehearing (Art. 75a). Ordinarily, any 

restoration should be announced in the court-martial order promul- 

@ting the final results of the proceedings (90b (2), 107; app. 158). 

107. COURT-MARTIAL ORDERS.-General court-martial orders 

publishing the final results of proceedings in cases in which the President or the Secretary of a Department has taken final action are promulgated by departmental orders. In other cases the final action may 

be promulgated, as may be appropriate under the circumstances, by 

the convening authority,' or an officer exercising general court-martial 

jurisdiction over the accused at the time of final action, or by the 

Secretary of the Department. 

108. FINALITY OF COURT-MARTIAL JUDGMENTS.-The 

appellate review of records of trial provided by the code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by the code, and all dismissals and 

discharges carried into execution pursuant to sentences by courts- . 

martial following approval, review,.or affirmation as required by the 

code, shaIl be final and conclusive, and orders publishing the proceedings of courts-martial and all action taken pursuant to such proceedings shall be binding upon ajl departments, courts, agencies, and 

officers of the United States, subject only to action upon a petition for 

a new trial as provided in Article 73 and to action by the Secretary of 

a Department as provided in Article 74, and the authority of the 

President (Art. 76). 
Chapter XXI 

NEW TRIAL APilk) RELAT-ED MATTERS 

OFFENSES COMMITTED AETER 30 MAY 1951-WORLD WAR I1 

OFFENSES-RIGHT OF DISMISSED OFFICER TO TRIAL BY 

COURT-MARTIAL 

109. OFFENSES COMMITTED AFTER 30 MAY 1951.-a. 

General.-At any time within one year after approval by the convening authority of a court-martial sentence which extends to death, 

dismissal, dishonorable discharge, or bad conduct discharge, or confinement for one year or more, and which is based upon a conviction of an offense committed after 30 May 1951, the accused may petition the Judge Advocate General for a new trial on grounds of 

newly discovered evidence or fraud on the court (Art. 73). 

A petition may not be submitted after the death of an accused. 

Article 73 does not require that the execution of a sentence be delayed to permit a petition for a new trial. Presentation of a petition does not, of itself, operate to stay the execution of a sentence. 

6. Who may petition.-A petition for a new trial may be submitted 

either by the accused or by his counsel or representative regardless 

of whether the accused is in the service or has been separated therefrom. See loge. 

G. Who mag act on petition.-~f the case of an accused is pending 

before a board of review or before the Court of Military Appeals, 

the Judge Advocate General shall refer the petition to the board or 

court, respectively, for action. Otherwise, the Judge Advocate General of the armed force which reviewed the previous trial shall act 

upon the petition except that petitions submitted by persons who, $t 

the time of trial and sentence from which such petitioner seeks relief, 

were members of the Coast Guard, and who are members of the Coast 

Guard at the time the petition is submitted, will be acted upon in 

the Department in which the Coast Guard is serving at the time the 

petition is so submitted, i. e., either by the Judge Advocate General 

of the Navy or the General Counsel of the Treasury Department, as 

the case may be. See Article 73. 

d. Grounds for new trial.-(1) Ge.neraZ.-A new trial under the 

provisions of Article 73 will be granted only upon the grounds of 

newly discovered evidence or fraud on the court. Sufficient grounds 

for granting a new trial will be deemed to exist o$y if within the 

discretion of the authority considering the petition all the facts ancl 

information before such authority, including, but not limited to, 
NEW TRIAL 1 1090 

the record of trial, the petition, and other matters presented by the 

accused affirmatively establish that an injustice has resulted from 

the findings or the sentence and that a new trial would probably 

produce a,substantially more favorable result for the accused. 

(2) NewZy discovered evidence.-A new trial will not be granted 

on the grounds of newly discovered evidence unless the petition 

shows : 

(a) That the evi'dence is in fact newly discovered, that is, discovered since the trial. 

(6) That the petitioner exercised due diligence to discover the 

evidence at the time of trial. 

(o) That the newly discovered evidence, if considered by a courtmartial in the light of all other pertinent evidence: would probably 

produce a substantially more favorable result for the accused. 

(3) Fraud on the court.-No alleged fraud on the court will 

be deemed to constitute good cause nnless it had a substantial contributing effect upon the findings of guilty or upon the sentence adjudged. 

Examples of fraud on the court which may warrant the granting of a new trial are : 

(a) Confessed or proved perjury in testimony or forgery of 

documentary evidence which clearly had a substantial contributing 

effect upon a finding of guilty and without which there probably 

would have been a finding of not guilty or a failure of proof of 

the offense alleged. 

(6) Willful concealment by the prosecution from the defense 

of exculpatory evidence which, if produced and considered by the 

court in the light of all the other evidence, would probably have 

resulted in a finding of not guilty. 

(c) Willful concealment of a material ground for challenge of 

the law officer or any member of the court or of the disqualification 

of any official of the court or the convening anthority where such 

ground or disqualification is not known to the defense at the time 

of trial. 

e. Form of petition.-The petition will be in writing. It will be 

signecl under oath or affirmation by the accused, or by a person possessing the power of attorney of the accused for the purpose, or by a 

person with the autlioriz,ation of an appropriate court of law to sign 

the petition as the representative of the accused. It will be forwarded 

in triplicate directly to the Judge Advocate General of the armed 

force concerned. When practicable, the petition will be typewritten 

with lines double spaced and will contain the following : 

177 
11 1099 CHAIPTER XXI 

(1) The name and service number of the accused, the date of the 

trial, and the present address of the accused. 

(2) The request for a new trial. 

(3) The sentence or a description thereof as approved or affirmed, 

together with any subsequent reduction thereof by clemency or otherwise. 

(4) A brief description of any finding or sentence believed to be 

unjust. 

(5) A full statement of the newly discovered evidence or fraud 

on the court relied upon for the remedy sought. 

(6) AfEdavits pertinent to the facts asserted in (5) above. 

(7) The affidavit of each person *om the accused expects to present as a witness in the event of a new trial. Each affidavit should 

set forth briefly the relevant facts within the personal knowledge 

of the affiant. 

f. Action upon petition.-In cases referred to a board of review, 

it shall take action in accordance with the procedure prescribed by 

the Judge Advocate General of the armed force concerned. In cases 

referred to it, the Court of Military Appeals shall take action in 

accordance witb its rules. The authority considering the petition 

may cause such additional investigation to be made and such additional information to be secured as he may deem appropriate. 

Upon written request and within his discretion, the authority considering the petition may allow oralbargument upon a petition. Any 

hearing held by the Judge Advocate General or by a board of review 

mill be conducted under rules prescribed by the Judge Advocate General. If the petition is considered by the Judge Advocate General, 

t,he hearing may be before him or before an officer or officers designated 

by 'him. 

If the Judge Advocate General is of the opinion that meritorious 

grounds for relief under Article 74 have been established but that a 

new trial is not indicated, he may transmit the petition and related 

papers to the Secretary of the Department concerned with his recominendations in the premises for action under Article 74. 

A new trial shou.ld not be granted by a board of review or the Court 

of Military Appeals if a consideration of the record of trial indicates 

that appropriate action s'hould be taken under Articles 66d or 67e. 

g. Conduct of new trial.-(1) If a new trial is granted, the Judge 

Advocate General shall designate a convening authority who has 

power to convene a court-martial appropriate for the trial of the case. 

The new trial shall be held at such time and place as the convening 

authority directs. 
NEW TRIAL P 1091 

(2) Every new trial shall take place before a court-martial composed of persons who mere not members of the court-martial which 

first heard the case. Upon a new trial, the accused shall not be tried 

for any offense of which he was found not guilty, or upon which he 

was not tried by the first court-martial, and no sentence in excess of 

or more severe than the original sentence as approved or affirmed 

shall be adjudged. 

(3) If the accused is found guilty upon any charge or specification on a new trial the court will, subject to the foregoing limitations, 

adjudge an appropriate sentence without regard to any credit to which 

the accused may be. entitled by virtue of the prior execution of any 

part of the sentence. See 81d. 

h. Action bg the convening authoritg upon the record.-The convening authority's action is the same as in other cases except that 

he may not order any part of the sentence executed. See 88d, 89, 

and appendix 14. 

i. Disposition OF record of new trial.-Irrespective of the result 

of the new trial, the record thereof shall be forwarded to the appropriate Judge Advocate General after action by the convening authority and, in special court-martial cases reviewed by him, by the officei* 

exercising general court-martial jurisdiction over the command, or 

by another officer having supervisory authority (b4). 

j. Restoration; disposition of original sentence.-Except as hereafter provided, the Secretary of the Department concerned will order 

the restoration of rights, privileges, and property affected by an 

executed portion of a court-martial sentence which has not again been 

adjudged upon a new trial or which, after the new trial, has not 

been sustained upon the action of any reviewing authority (Arts. 60, 

65, 66, 67). ~;ck Secretary shall set aside so Gch of the findings 

and so much of the sentence adjudged upon the original trial as may 

be appropriate. 

If a previously executed sentence to dishonorable or bad conduct 

discharge is not sustained on a new trial, the Secretary of the Department shall substitnlte therefor a form of discharge authorized for 

administrative issuance unless the accused is to serve out the remainder 

of his enlistment (A&. 756). 

If a previously executed sentence to dismissal is not sustained on 

a new trial, the Secretary a% the Department shalI substitute therefor 

a form of discharge authorized for administrative issuance, and the 

offieer dismissed by such sentence may be reappointed by the President alone to such cammissioned rank and precedence as in the opinion 

of the President such former officer w~uld have attained had he not 
CHAPTER XXI 

been dismissed. The seappoindlnent of such a former officer shall , 

be without regard to position vacancy and shall affect the promotion 

status of other officers only insofar as the President may direct. All 

time between the dismissal and such reappointment shall be considered as actual service for a.ll purposes, including the right to receive 

pay and allowances (Art. l5c). 

k. Court-martial orders.-Court-martial orders promulgating the 

final action taken as a resulit of a new'trial including any restoration 

of rights, privileges, and property, shall be promulgated by departmental orders. See appendis 156. 

2. Action by persons charged with the execution of the sentence.-Persons charged ~ith the administrative duty of executing a 

sentence adjudged upon a new trial after it has been ordered into 

execution shall credit the accused with any executed portion or amount 

of the original sentence in computing the term or amount of punishment actually to be executed purs~xant to the new sentence. For example, if one year of an original sentence to colfinement for five years 

has been executed, ,and a-sentence to confinement for three years is 

adjudged and approved upon a new trial, the accused will be credited 

with the confinement for one year already served, leaving only con. 

fiiiement for two years of the new three-year sentence yet to be executed. 

110. WORLD WAR I1 OFFENSES.-a. General.--With respect 

to all trials by general courts-martial which resulted .in a conviction 

and with respect to any trial resulting in an approved sentence including a bad conduct discharge adjudged by any lesser court-martial for 

a violation of the ~rticles of War, the Articles for the Government of 

the Navy, or the disciplinary laws of the Coast Guard, committed at 

any time between 7 December 1941 and 30 May 1951, inclusive, an 

accused may, within one year after final disposition df the case upon 

initial appellate review or at any time before 31 May 1852, whichever is the later date, petition the Judge ~dvocate General of the 

armed force concerned to grant relief. Upon good cause shown, 

such Judge Advocate General may grant a new trial, or vacate the 

findings and sentence adjudged, and may order the restoration of 

rights, privileges, and property affected by the sentence, and in a 

proper case order the substitution for a dismissal, dishonorable discharge, or bad conduct discharge, previously executed, of a form of 

discharge authorized for administrative issuance (sec. 12, act 5 May 

1950, 64 Stat. 147; 50 U. S. C. 740). - 

Completion of review and of any confirming, approving, or affirming 

action required under the Articles of War, the Articles for the Government of the Navy, the disciplinary lnws of the Coast Guard, the 

Uniform Code of Military Justice, and any regulations prescribed I. 

180 
NEW TRIAL f 11Qf 

under any of the foregoing statutes constitutes final disposition of a 

case upon initial appellate review. 

A petition may not be submitted after the death of an accused. 

Section 12 does not require that the execution of a sentence be delayed to permit a petition.for a new trial. Presentation of a petition 

does not, of itself, operate to stay the execution of a sentence. 

6. Wlto may petition.-See 109b. 

c. Who ntay act on a petition.-,4ction 011 a petition for relief 

under Section 12 will ordinarily be taken by the Judge Advocate General of the armed force which reviewed the previous trial except that: 

(1) Petitions submitted by persons who, at the time of trial and 

se~ltence from which- such petitioners seek relief, were members of' 

the U. S. Army Air Corps, the Army Air Forces, or the Unitecl 

States Air Force will be acted upon by the Judge Advocate General, 

United States Air Force; and 

(2) Petitions submitted by persons who, at the time of trial and 

sentence from which such petitioners seek relief, were members of 

the Coast Guard, and who are members of the Coast Guard at the 

time the petition is submitted, will be acted upon in the Department 

in which the Coast Guard is serving at the time the petition is so 

submitted. 

d. Finality.-Only one petition may be enteitained with regard to 

ally one case. Final action upon a petition submitted pursuant to 

Article of War 53 shall be a bar to the consideration of any further 

petition under Section 12. 

8. Grounds.-Relief lander Section 12 will be granted only upon 

good cause shown. Good cause for granting a new trial, fer vacation 

of findings or a sentence, or for another remedy shall be deemed to 

exist only if, within the discretion of the Judge Advocate General of 

the armed force concerned, all the fa^; and information before him, 

jncluding, but not limited to, the record of trial, the petition, and other 

matter presented by the accused, afEir&atively establish that an injustice has resulted from the findings or sentence. No fact, ruling, or 

error other than matters relating to jurisdiction will be deemed to 

constitute good cause unless it had a substantial contributing effect 

upon the findings of guilty or upon tbe sentence imposed. ' The principles of 109d(2) and (3) are equally applicable to petitioils for relief under Section 12 with respect to petitions wherein the 

pound for relief relied upon is nevly discovered evidence or fraud 

on the court. 

f. Form of petition.-The form for a petition for relief under Section 12 ie general shall be that prescribed in 109e above except that 

181 
U 111, CHAPTER XXI 

the petition will indicate under (2) thereof the spec& relief requested 

and will provide a full statement of the fact, ruling, or error which is 

relied upon as good cause for the remedy sought under (5). 

g. Procedure.-Upon written request and within his discretion, 

the Judge Advocate General may allow oral argument upon a petition. 

Any hearing held will be conducted under rules prescribed by the 

Judge Advocate General. The hearing may be before the ,Judge' 

Advocate General or before an officer or officers designated by hi. 

The Judge Advocate General may cause such additional investig a t' lon 

to be made and such additional evidence to be secured as he may deem 

appropriate. 

Action in granting or denying a remedy under Section 12 shall be 

taken by the Judge Advocate General in writing signed in his own 

hand or by his direction. When appropriate, the action granting relief will be published in departmental orders. 

h. Conduct of new trial.-The principles of'l09g (1) and (2) 

apply equally to the conduct ainew trials under Section 12. See 81d. 

i. Action by the convening authority upon the record.-See 884 

89, and appendix 14. In approving any sentence adjudged upon a 

new trial under Section 12, the convening-authority may consider the 

executed portion of the prior sentence as a matter in mitigation. 

j. Disposition of record of new trial.-The principles of 109i 

apply equally to records of new trial under Section 12. 

k. Court-martial orders.-The principles of 109k apply equally 

to court-martial orders promulgating the final results of new trials 

under Section 12. 

111. RIGHT OF DISMISSED OFFICER TO TRIAL BY 

COURT-MARTIAL.-When any officer, dismissed in time of war by 

order of the President (see see. 10, act 5 May 1950, 64 Stat. 107, 146; 

50 U. S. C. 739), makes a written application for trial by court-martial, 

setting forth, under oath, that he has been wrongfully dismissed, the 

President, as soon as practicable, shall cause a general court-martial 

to be convened to try such officer on the charges on which he was dismissed. A court-martial so convened shall have jurisdiction to try 

the dismissed officer on such charges, and he shall be held to have 

waived the right to assert any statute of limitations applicable to 

any offense with which he is charged. The court-martial may, as 

part of its sentence, adjudge tlie affirmance of the dismissal, but if the 

court-martial acquits the accused or if the sentence adjudged, as finally 

approved or affirmed, does not include dismissal or death, the Secretary of the Department shall substitute for the dismissal ordered by 

the President a form of discharge ai~thorized for administrative 

issuance (Art. 4a). 
NEW TRIAL U 111 

If the President.fails to convene a general court-martial within six 

months from the presentation of an application for trial under Article 

4, the Secretary of the Department shall substitute for the dismissal 

ordered by the Presiaent a form of discharge authorized for administrative issuance (Art. 4b). 

Where a discharge is substituted for a dismissal under the authority 

of Article 4, the President alone may reappoint the officer to such 

commissioned rank and precedence as in the opinion of the President 

such .former officer would have attained had he not been dismissed. 

The reappointment of such a former officer shall be without regard 

to position vacancy and shall affect the promotion status of other 

officers only insofar as the President may direct. All time between 

the dismissal and such reappointment shall be considered as actual 

service for all purposes, including the right to receive pay and allowances (Art. 46). 

When an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the President, there 

shall not be a right to trial under Article 4 (Art. 4d). 
Chapter XXII 

OATHS 

OATHS IN TRIALS BY COURTS-MARTIAGAUTHORLTY TO ADMINISTER 

OATHS-FORMS OF OATHS 

112. OATHS IN TRIALS BY COURTS-MARTIAL.-a. General.-In this chapter, unless the context indicates the contrary, the 

word "oath" includes the word "affirmation."In the administration 

of an affirmation, thel words help you God" are omitted. Matters 

concerning oaths in proceedings of courts of inquiry are found in 

Article 135. 

b. Persons required to be sworn.-Prior to functioning in a trial, 

the law officer, all interpreters, and, in general and special courtsmartial, the members, the trial counsel, assistant trial counsel, the 

defense counsel, assistant defense dounsel, individual counsel, if any, 

and the reporter shall take an oath or affirm-ation in the presence of 

the accused to perform their duties faithfully (Art. 42a). All 

witnesses before courts-martial shall be exanlined on oath or affirmation 

(Art. 4271). All persons whose testimony is taken by deposition 

shall be examined on oath or affirmation (117~; Art. 49c). See 114 

for the oath of the escort on views or inspections by the court. Concerning the entry to be made in the record of each trial that the 

required oaths have been duly administered, see appendices 9 and 10. 

c. Oaths to be taken in the presence of accrcsed.-The officials 

and clerical assistants of the court who are required to act under 

oath during the trial of a case by a general or special court-martial 

must be sworn in the presence of the accused either (1) at the beginning of the trial of each accused or (2) at the first session of the court 

when the court sits for more than one trial and the accused in each 

trial is present in the court at the time the officials and clerical assistants thereof are initially sworn, such oath6 to be effective for the 

trials of all accused then before the court. 

See also 61h and appendix 8 concerning the point in the proceedings 

at which each of the various oaths is usually administered. 

d. Procedure for administering oaths.-There is no particular 

procedure which innst be used in administering an oath. As long as 

the prescribed oath is duly administered, any procedure which appeals 

to the conscience of the person to whom the oath is administered 

and which binds him to speak the truth is sufficient. The customary 

procedure in administering the prescribed oath to military personnel 

consists (1) of requiring the person taking it to place a hand up011 

184 
. OATHS / (1 114 

a Bible while the oath is administered or (234 the raising of the 

right hand by both the individual administering the oath and the individual taking the oath at the time of the reading thereof and the 

response thereto. Persons who recognize peculiar forms or rites as 

obligatory, and believers in other than the Christian religion, may be 

sworn in their own manner or according to the peculiar ceremonies 

of the religion they profess and which they declare to be binding. 

While the law officer, members, trial counsel and assistants, defense 

counsel and assistants, and individual counsel, if any, are being sworn, 

all persons present will stancl. While any other person is being 

qworn, he and the officer administering the oath will stand. If the 

trial counsel is to testify, his oath as a witness will be administered 

by the president; if the assistant trial counsel is to testify, the trial 

counsel will administer the oath. 

113. AUTHORITY TO ADMINISTER OATHS.-The following 

persons on active duty in the armed forces shall have authority to 

administer oaths necessary in the performance of their duties: The 

president, law officer, trial counsel, and assistant trial counsel for 

all general and special courts-martial; the president and the counsel 

for the court of any court of inquiry; ail officers designated to take 

a deposition; all persons detailed to. conduct an investigation; all recruiting officers ; and all other persons aesignated by regulations of the 

armed forces or by statute (Art. 1366). 

For other persons who are authorized to administer oaths, see 

Articles 490 and 136a, and the footnotes under Article 136 and section 

8, act of 5 May 1950 (app. 2a, b) . 114. FORMS OF OATHS.-Subject to the provisions of 1120, before a general court-martial sl~all proceed upon any trial the trial 

counsel shall administer to the Zazu officer the following oath or 

affirmation : 

"YOU, AB, do swear (or affirm) that you .will faithfully and impartially perforin, according to your conscience and the laws and 

regulations provided for trials by courts-martial, all the duties incumbent upon you as law officer of this court; that if any doubt 

should arise not explained by the laws and regulations, then according to the best of your understanding and the custom of war in like 

cases; and that you will not divulge the findings or sentence in any 

case until they shall have been duly anno,mced by the court. So 

help you God." 

Subject to the provisions of 1126, before a general or special courtmartial shall proceed upon any trial the trial counsel shall administer 

1 to the members of the court-martial the following oath or affirmation: 
'LY~~, AB CD * * " and YZ, clo swear (or a&m) that 

you will faithfully perform all1 the cluties incumbent upon you as 

a member of this court; that you will faithfully allcl impartially 

try, according to the evidence, your conscience, and the laws and 

regulations provided for trials by courts-martial, the case of (the) 

(each) accused now before this co~art; and that if any doubt should 

arise not explained by the lams and regulations, then according to 

the best of your understanding and the custom of war in like cases; 

that you will not divulge the fmdings and sentence in any case until 

they shall have been duly announced by the court; and that you will 

not disclose or discover the vote or opinion of any particular member of the court upon a challenge or upon the fmdings or sentence 

unless required to do so before a court of justice in due course of 

law. So help you God." 

When the oath or affirmation has been administered to the law 

officer and members of a genera1 court-martial or to the members of 

a, special court-martial, the president of the court shall administer 

to the trial cownseT and to each assistant triaT cozvnsel, if any, and 

thereafter to the defense counse2 and to each assistant defense co~msel, 

if any, and to the indisidmd counsel, if any, the following oath or 

affirmation : 

"You, AB, CD * * * and JK, do swear (or affirm) that you 

will faithfully perform the duties of (trial counsel) (defense counsel) (individual counsel) and mill not divulge the findings or sentence of the court to any but the proper authority until they shall be 

duly disclosed. So help you God." 

Every repo~ter of the proceedings of a court-martial shall, before 

entering upon his duties, make oath or affirmation, administered by 

the trial counsel, in the folIowing form: 

"You swear (or afFirm) that you will faithfully perform the 

duties of reporter to this court. So help you God." 

Every interpreter in the trial of any case before a court-martial 

shall, before entering upon his duties, make oath or affirmation, administered by the trial counsel, in the following form : 

"You swear (or affirm) that you will faithfully perform the 

duties of interpreter in the case now in hearing. So help you God." 

All persons who testify before a court-martial shall be examined 

on oath or affirmation, administered by the trial counsel before they 

first testify, in the following form: 
OATHS 1114 

"You swear (or affirm) that the evidence you shall give in the 

case now in hearing shall be the truth, the whole truth, and nothing 

but the truth. .So help you God." 

When a member is challenged concerning his competency to serve, 

the trial counsel shall adrdinister the following oat11 or affirmation to 

the challenged member who is to be examined under oath as to his 

competency : 

"You swear (or affirm) that you will answer truthfully to the 

questions touching your competency as a member of the court in 

this case.' So help you God." 

The escort on views or inspections by the court shall, before entering upon his duties as escort, take the following oath or affirmatioil 

which shall be administered by the trial counsel : 

"You'swear (or affirm) that you will escort the court and will well 

and truly point out to them (the place in which the offense charged 

in this case is alleged to have been committed) ( ) ; and that 

you will not speak to the court concerning (the alleged offense) 

( ), except to describe (the place aforesaid) ( ). So 

help you God." 

The form of oath to charges, which shall be administered by an 

oflicer of the armed forces authorized to administer oaths, is as 

follows : 

"You smear (or affirm) that you are a person subject to the 

Uniform Code of Military Justice; that you have personal knowledge of or have investigated the matters set forth in the foregoing 

charge(s) and specification(s) ; and that the same are true in fact 

to the best of your knowledge and belief. So help you God." 

The oath administered by the investigating officer to witnesses in arb 

iwuestigation under Article 3% is as follows : ' 

"You swear (or affirm) that the (statement given by you is) 

(evidence you are about to give shall be) the truth, the whole truth, 

and nothing but the truth. So help you God." 

All persons whose testimony is taken by deposition, whethbr on oral 

examination or by written interrogatories, shall, before they testify, 

be examined on oath or affirmation, administered by the officer. (civil 

or military) taliing the deposition, in the following form : 

"YOU swear (or affirm) that the evidence you are about to give 

shall be the truth, the whole truth, and nothing but the truth. So 

help you God." 
Chapter XXiII 

INCIDENTAL MATTERS 

ATTENDANCE OF WITNESSES-EMPLOYAlENT OF EXPERTS-DEPOSITIONS-CONTEMPTS-EXPENSES OF COURTS-MAFtTIAL 

115. ATTENDANCE OF WITNESSES.-a. General.-The trial 

counsel, defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence. Process issued in 

courts-martial cases to compel witnesses to appeaT a.nd testify and to 

compel the production of other evidence shall be similar to that which 

courts of the United States having criminal jurisdiction may lawflaIly 

issue and shall run to any part of the United States, its Territories, 

and possessions (Art. 46). \ 

The formal written instrument (process) that serves to summon 

a witness to appear and testify is termed a subpoena. Such process 

cannot be used for the purpose of compelling a witness to appear at 

an examination before trial. See, however, Article 135 as to courts 

of inquiry. 

In this paragraph (115) the term "trial counsel"includes a summary 

court-martial unless the context indicates otherwise. See 796 concerning the authority of summary courts-martial to compel the attendance 

of witnesses. 

The trial counsel will take timely and appropriate action to provide for the attendance of those witnesses who hare personal kaomltdge of the facts at issue in the case for both the prosecution and the 

defense. He will not of his own motion take such action with respect 

to a witness for the prosecution unless satisfied that the testimony of 

the witness is material and necessary. See Article 49d concerning the 

conditions under which a deposition, to be admissible, may be taken. 

The trial counsel will take similar action with respect to all witnesses 

requested by the defense, except that where there is disagreement 

between the trial counsel and the defense counsel as to whether the 

testimony of a witness so requested would be necessary, the matter will 

be referred for decision to the conveniilg authority or to the court, 

according to whether the question arises before or after the court 

convenes. A request for the personal appearance of a witness referred 

to the convening authority or to the court for decision will be submitted in writing, together with a statement, signed by the counsel 

requesting the witness, containing (1) a synopsis of the testimony 

that it is expected the witness will give, (2) full reasons which neces- 
WITNESSES, DEPOSITIONS, CONTEMPTS, EXPENSES ll 115d 

&ate the personal appearance of the witness, and (3) any other matter 

&owing that such expected testimony is necessary to the ends of justice. 

The trial counsel may consent to admit the facts expected from the 

testimony of a witness requested by the defense if the prosecution does 

not contest such facts or if they are unimportant. An application for 

the attendance of a witness may be ~vithdramn if the trial counsel 

and defense counsel enter into a stipulation as to the testimony of such 

a witness. See 486, 1546 (Stipulations). In connection with the subject of this paragraph, see 115d (3) (Warrant of attachment). 

b. Military ~uitnesses.-The attendance of a person in the military 

service stationed at the place of the meeting of the court, or so near 

that travel at government expense will not be involved, will ordinarily 

be obtained by notification, oral or otherwise, by the trial counsel, to 

the person concerned of the time and place he is to appear as a witness. I11 order to assure the attendance of the person, the proper 

commanding officer should be informally advised so that he can arrange for the timely presence of the witness. If for any reason formal 

notice is required, the trial counsel mill, through regular channels, 

request the proper cornmanding officer to order the witness to attend. 

If a military person, desired as a witness, is not present at the place 

where the court-martial is convened and his attendance would involve 

travel at government expense, the appropriate superior will be requested to issue the necessary order. 

The attendance of military persons not assigned to active duty 

should be obtained in the same manner as the attendance of civilian 

witnesses not in government employ. No travel order will be issued 

in such cases. 

If practicable, a request far the attendance of a military witness 

will be made so that the witness will have notice at least 24 hours before starting to- attend the meeting of the court. 

c. Production of documents in control of military authorities.- 

If documents which are to be introduced in evidence are in the custody 

and control of military anthorities, the trial counsel, the court, or the 

convening authority will, upon proper request, take necessary action 

to effect the production of such documents without the necessity of 

further legal process. 

d. Civilian witnesses.- (1) Issue, service, and return of su6- 

poem.-The trial counsel is authorized to subpoena as a witness, at 

government expense, any civilian who is to be a material witness and 

who is within any part of the United States, itsTerritories, and possessions, and can compel Lhe attendance of such a civilian (Art. 46). As to 

cmploymeilt of expert witnesses, see 116. 
11 115d CHAPTER XXlll 

A subpoena is prepared, signed, and issued in duplicate on the 

forms provided by the respective departments. See appendix 17 for 

the form of a completed subpoena with certificate of service. If a 

subpoena requires the witness to bring with him a docunlent or an 

exhibit to be used in evidence, each document or exhibit will be 

described in sufficient detail to enable the witness to identify it readily. 

If practicable, a subpoena will be issued in time to permit service 

to be made or accepted at least 24 hours before the time the witness will 

have to start from home in order to comply with the subpoena. 

Unless he believes that formal service is advisable, the trial counsel 

will mail the subpoena to the witness in duplicate, inclosing a penalty 

envelope bearing a return address, with the request that the witness 

sign the acceptance of service on the copy and return it in the penalty 

onvelope. The return envelope should be addressed to the trial counsel 

of the court and not to that officer by name. The trial counsel may, 

and ordinarily should, include with the request a statement to the 

effect that the rights of the witness to fees and mileage mill not be 

prejudiced by voluntary compliance with the request and that a 

voucher for fees and mileage going to and returning from the place of 

the sitting of the court will be delivered to him promptly on being 

discharged from attendance on the court. 

If formal service is believed to be necessary, the trial counsel will 

take appropriate action with a view to timely and economical service. 

For example, if the witness is near the place where the court is convened, the trial counsel, or some one detailed or designated by the 

commanding officer of the installation, may serve the subpoena ; if the 

witness is near some other military installation, the duplicate subpoenas may be inclosed with a suitable letter to the commanding o5cer 

of that installation ; or the duplicate subpoenas may be inclosed with a 

suitable letter to the commander of an army area, naval district, air 

command, or other comparable command within which the witness 

resides or may be found. Any such commander will take appropriate 

action to complete prompt service of the subpoena by the most economical available means. Travel orders for the purpose will be issued 

when necessary. Service will ordinarily be made by persons subject 

to military law, but may legally be made by others. Service is made by 

personal delivery of one of the copies to the witness. The other copy, 

with proof of service made as indicated on the form, mill be promptly 

returned to the trial counsel. If service cannot be made, the trial 

counsel will be promptly so informed. When use for it is probable, a 

return penalty envelope, addressed to the trial counsel of the court and 

not to that officer by name, may be sent to the person who is to serve 

the subpoena. 

190 
WITNESSES, DEPOSITIONS, CONTEMPTS, EXPENSES 11 115d 

In occupied enemy territory, the appropriate commander is empowered to compel the attendance of a civilian witness in response 

to a subpoena issued by the trial counsel. 

(2) Neglect or refusal to appear.--See Article 47 and Warrant 

of attachment below. In order to maintain a prosecution under Article 47, a person must not only be duly subpoenaed, but be paid or 

tendered fees, including the fee for one day of actual attendance and 

mileage both ways, "at'the rates allowed to witnesses attending the 

courts of the United States" (Art. 47). 

Whenever such action appears to be advisable, a finance or disbursing officer under the command of the convening authority, or the 

finance or disbursing officer of the same armed force as the convening 

authority and nearest the place where the witness is found, will, upon 

written request by the trial counsel or written order of the senior 

officer present, at once provide the trial counsel, or any other officer 

or person designated for the purpose, the required amount of money 

to be tendered or paid to the witness for one day of attendance and 

mileage for the journeys to and from the court. In this respect, see 

appropriate departmental regulations. If an officer charged with 

serving a subpoena pays from his personal funds the necessary fees 

and n~ileage to a witness, taking a receipt therefor, he is entitled to 

reimbursement. 

i (3) Warrant of attachment.-1n order to compel the appearance 

of a civilian witness in an appropriate case, the trial counsel will consult the convening authority or. the court, according to whether the 

question arises before or after the court has convened for trial of the 

case, as to the desirability of issuing a warrant of attachment (app. 

19) under Article 46. 

Whenever it becomes necessary to issue a warrant of attachment, 

the trial counsel will issue and deliver or send it for execution to an 

o5cer designated for the purpose by the commander of the proper 

army area, naval district, air command, or other appropriate command. 

As the arrest of a person under a warrant of attachment involves 

depriving him of his liberty, the authority for such action may be 

inquired into by a writ of habeas corpus. To enable the officer to 

make a full return in case a writ of habeas corpus is served upon him, 

the warrant of attachment will be accomp&ed by the orders appointing the court-martial, or copies thereof; a copy of the charges in the 

case, including the order referring the charges for trial, each copy 

certified by the trial counsel to be a fhll and krue copy of the original; 

the original subpoena, showing proof of service of a copy thereof; a 

certificate stating that the necessary witness fees and mileage have 

191 
CHAPTER XXlll 

been duly tendered; and an affidavit of the trial counsel that the 

person being attached is a material witness in the case, that su'ch 

person has willfully neglected or refused to appear although sufficient , 

time has elapsed for that purpose, and that no valid excuse has been 

offered for such failure to appear. 

In executing such process it is lawful to use only slich force as 

may be necessary to bring the witness before the court. Whene~er it 

appears that the use of force may be required or whenever travel or 

other orders are necessary, appropriate applicatioil to the proper 

commander for assistance or for orders mill be made by the o5cer who 

is to execute the process. 

For matters relating to habeas corpus proceedings in connection 

with attachments, see chapter XXIX. 

116. EMPLOYMENT OF EXPERTS.-When the employment of 

an expert is necessary during a trial by court-martial, the trial counsel, 

in advance of the employment, will, on the order or permission of the 

court, request the convening authority to authorize such employment 

and to fix the limit of compensation to be paid the expert. The request 

should, if practicable, state the compensation that is recommended by 

the prosecution and the defense. ?%'here in advance of trial the prosecution or the defense knows that the employment of an expert will be 

necessary, application should be made to the convening authority for 

permission to employ the expert, stating the necessity therefor and the I 

probable cost. In the absence of such previous authorization, no fees, 

other than ordinary witness fees, inay be paid for the employment of 

an individual as an expert witness. 

117. DEPOSITIONS.-a. General.-A deposition is the testimony of a witness, reduced to writing, under oath or affirmation, before 

a person empowered to administer oaths, in answer to interrogatories 

(questions) and cross-interro~atoriesubmitted by the party desiring 

the deposition and the opposlte party. Wm'tten interrogatories are 

questions, propounded by the prosecution or defense, or both, which 

are reduced to writing prior to submission to a witness whose testimony is to be taken by deposition on written interrogatories. The 

answers, reduced to writing and properly sworn to, constitute the 

deposition of the witness. Within the pur~iew of Article 49a, a deposition taken on oral examination constitutes an oral deposition; a 

deposition taken on written interrogatories constitutes a wm'tfea 

deposition. 

With reference to the use of depositions in-evidence, see 145a. Concerning the use of depositions in trials by summary courts-martial, 

see 796. For the form of a deposition, see appendix 18. 
WITNESSES, DEPOSITIONS, CONTEMPTS, EXPENSES (1 117b 

At any time after charges have been signed as provided in Article 

30, any party may take oral or written depositions unless an authority 

competent to convene a court-martial for the trial of such charges 

forbids it for good cause (Art. 49a). If a deposition is to be taken 

before charges are referred for trial, such an authority may designate 

~fficers, preferably the trial counsel and defense counsel of an existing 

court or their assistants, to tepresent the prosecution and the defense in 

taking the deposition of any witness. Although it is not required that 

officers designated to represent the parties in taking oral or written 

depositions be legally qualified lawyers, if the officer appointed to 

represent the prosecution is qualified in the sense of Article 27, the 

officer detailed to: represent the defense must have at least equivalent 

qualifications under the provisions of that article. See also 30e and 

34d concerning the taking of pretrial depositions. 

The party at whose instance a deposition is to be taken shall give to 

every other party reasonable written notice of the time and place for 

taking the deposition (Art. 496). Notice of the taking of a deposition 

for the prosecution may be given to the accused, his counsel (civil.or 

military), or the officer designated to represent the accused in the 

taking of the deposition. Notice of the taking of a deposition for the 

defense may be given to the trial counsel, an assistant trial counsel, 

or the convening authority. 

Depositions may be taken before and authenticated by any military 

or civil officer authorized by the laws of the United States or by the 

laws of the place where the deposition is taken to administer oaths 

(Art. 496). See 147 as to taking judicial notice of the seals of foreign 

notaries public with respect to the authentication of depositions taken 

before foreign notaries, and of the signatures of persons authorized to 

administer oaths under Article 136 and chapter XXII. 

If the name of the person whose deposition is desired is unknown, 

he may be identified in the interrogatories and any accompanying 

papers by his office or position, for example, "Commanding Officer, 

Company C, 27th Infantry, Fort Adams, Vermont"; "Commanding 

Officer, 3101st Maintenance Squadron, Reese Air Force Base, Lubbock, 

Texas"; "Cashier, Commercial National Bank, Fort Gavenworth, 

Kansas." 

In this paragraph (117), unless the context otherwise indicates, 

the term "trial counsel" includes a summary court-martial. 

6. Depositions on written interrogutosies.-Ordinarily, the side 

(prosecution or defense) desiring a, deposition on written interrogatories will submit to opposing cou.nse1 a list of written interrogatories 

to be propounded to the absent witness. After opposing counsel has 

examined the interrogatories and has been allowed a reasonable time 
11 117c CHAPTER XXlll 

for the preparation of cross-interrogatories and objections, if any, 

the papers (with objections noted thereon) will be submitted to the 

convening authority or to the law officer (president of a special courtmartial), depending on whether the court is in session. When the 

exigencies of the service render it impracticable to submit the papers 

to the convening authority, the matter should be referred to competent authority (Art. 49a) by expeditious means of communication. 

If submitted to the law officer (president of a special court-martial), 

he will examine the papers and approve the taking of the deposition 

or refer the papers to the convening authority if he deems the deposition should be forbidden for good cause. Additional interrogatories 

rnay be propounded on behalf of the convening authbrity or the court 

:LS may be necessaiy to elucidate the whole subject of the testimony 

to be given by the witness. 

If the court desires the deposition of a witness it may direct counsel 

50 submit appropriate interrogatories to the court. In any case, all 

parties in interest will be given full opportunity to submit crossinterrogatories and additional interrogatories, direct and cross, as 

desired. When the defense in a capital case submits interrogatories, 

cross-interrogatories may be submitted to the same extent as in a case 

not capital. 

If the interrogatories and cross-interrogatories are submitted to the 

law officer (president of a special court-martial), objections on any 

ground known at the time may be made and passed upon at that time. 

But see 145a as to objections at the trial. A wider latitude than usual 

should be allowed as to leading questions. 

c. Sending out 2nterrogafories.-All interrogatories are entered 

upon the prescribed form (app.. 18) as indicated by the notes and 

instructions thereon. According to the circumstances, and having 

regard to economy, promptness, and the proper taking of t'he deposition, the trial counsel may send the interrogatories to the commanding officer of the military station nearest the witness; to the commander 

of an army area, naval district, air command, or other comparable cornmand ; to a responsible person, preferably one competent to administer 

oaths ; to the witness himself ; or, in the case of the Army or Air Force, 

i o The Adjutant General. According to circumstances, the interrogatories will be accompanied by such of the following as are advisable 

or necessary: A proper explanatory letter, an addressed return penalty envelope, subpoena in duplicate, voucher for fees and mileage. 

The return penalty envelope should be addressed to the trial counsel 

of the court and not to that officer by name. The subpoena will, but 

the voucher will not, be signed ; but both subpoena and vouoher mill 

bo completed to the extent permitted by the known facts, and the 

i 94 
WITNESSES, DEPOSITIONS, CONTEMPTS, EXPENSES 11 117e 

latter will be accompanied by the required number of copies of t'he 

orders appointing the court. 

d. Action by person receiving inferrogat0ries.-When interrogatories are received by a military officer, he will take appropriate 

with a view to the prompt and economical taking of tile deposition by a competent person, the return of the.deposition to the trial 

counsel (addressed to him 'as trial counsel, not by name), and the 

payment of the necessary fees. Subject to limitations on his authority, 

he may, for example, send a suitable person to the residence of the 

witness, or arrange by mail or otherwise for the taking of the deposition; or, in the case of a civilian witness, subpoena him or arrange 

for his attendance witllout subpoena. It may be left to the person 

designated to take the deposition to indicate the time and place of 

the taking. A civilian who performs travel to give his deposition 

is entitled to the same fees and expenses as if he had attended personally before the court sitting at the place the deposition is taken. 

In the event tlmt the deposition cannot be talcen promptly up011 

receipt of the interrogatories, the person receiving the interrogatories 

will take immediate steps to advise the officer who requested the 

deposition of the delay and of the approximate date that the deposition mill be taken. In all cases the taking of a deposition will be 

expedited. 

e. Suggestions for person taking deposition.-If it is necessary 

to subpoena a civilian witness, the person designated to take the 

deposition will cause the duplicate subpoena to be served personally 

upon the witness and mill returli the original to the trial counsel by 

an indorsement staking that the duplicate has been delivered. 

If the deposition of a person in the military service is required, 

the officer designated to take the deposition, or the oficer who causes 

it to be taken, shall direct the witness to appear at the proper time 

and place. 

Before a witness gives liis answers to the interrogatories they should 

be read and, if necessary, explained to him, or he should be permitted 

to read them over in order that his answers may be clear, full, and 

to the point. The person taking the deposition should not advise 

the mitness how he should answer, but he should endeavor to see 

that the witness understands the questions, what is desired to be 

brought out by them, and that the answers are clear, full, and to 

the point. 

The person taking the deposition shall administer the oath to the 

witness, and the reporter and interpreter, if any (see 49, 50, 114; 

Art. 42), and in the presence of the witness shall record or cause to 

be recorded Llle testimony of the witness. Objections made at the 
11 1179 CHAPTER XXlll 

time of the examination shall be noted upon the deposition. Evidence 

objected to shall be itakan and recorded subject to the objections. 

When the testimony is fully transcribed the deposition will ordinarily be submitted to the witness for examination or read to him. 

Any changes in form or substance which the witness desires to make 

shall be entered by the person taking the deposition. The deposition 

will then be signed bp Lhe witness unless the witness is ill or cannot 

be found or refuses to sign. If the deposition is not signed by the 

witness, the person taking the deposition will, over his own signature, 

state the reason for the omission of the signature of the witness. 

The certificate of the person taking the deposition will then be executed. 

See appendix 18. 

If a military officer takes a deposition, he will ordinarily complete 

and certify thevoucher. When a deposition is taken by a civil officer, 

he should, if so requested, obtain and furnish with the return of the 

deposition the data necessary for the completion of the witness 

voucher. 

f. Action on receipt of deposition.-Upon receipt of the deposition the trial counsel will notify the accused or his counsel and will 

give the defense an opportunity to examine the deposition before 

the trial. The trial counsel, as the legal custodian of the deposition, 

is responsible that no alteration whatever is made therein. 

g. Depositions on oral examination.-If depositions on oral examination are to be taken before charges are referred for trial, the 

authority competent to convene a court for the trial of the charges 

may direct officers, preferabIy the trial counsel and defense counsel 

of an existing court, or an assistant trial counsel and assistant defense 

counsel, if any, to proceed to the residence of the witness, or other 

designated place, to take the deposition. 

If, after charges are referred for trial, depositions are to be taken 

on oral examination rather than on written interrogatories, each 

party concerned mill indicate in a separate letter or memorandum 

the reasons for the deposition and the points desired to be covered 

in the oral examination of the witness. Subsequent to submission 

to and inspection by opposing counsel, the papers will be submitted 

to the convening authority or to the law officer (president of a special 

court-martial) depending upon whether the court is in session. If 

submitted to the law officer (president of a special court-martial), 

he will examine the papers and approve the taking of the deposition 

or refer the papers to the convening a-uthority if it is deemed the 

deposition should be forbidden for good cause. 

Upon receipt of the approved letters or memoranda, the commanding officer or other person to whom the papers are sent, as con196 
WITNESSES, DEPOSITIONS, CONTEMPTS, EXPENSES 1118b 

ternplated in subparagraph c above, will, whenever practicable, in 

addition to designating a person authorized by law to administer 

oaths to take the deposition, detail officers, preferably officers exprienced in the duties of trial counsel and defense counsel, respectively, to represent both sides in propounding the oral questions which 

upon being propounded will be reduced to writing as will the answers 

thereto. The rules as to representation by individual counsel (48a, 6) 

are applicable. See 145a as to objections. 

118. C0NTEMPTS.-a, General.-The power to punish for contempt is vested in general, special, and summary courts-martial. 

A court-martial, provost court, or militwy commission may 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. Such punishment shall not exceed confinement for 

30 days or a fine of $100, or both (Art. 48). 

The words "any person," as used in Article 48, include all persons, 

whether or not subject to military law, except the law officer and the 

members of the court. These excepted persons may be punishable as 

indicated in 416. 

The conduct described in Article 48 constitutes a direct contempt. 

Indirect or constructive contempts (those not committed in the presence or immediate proximity of the court while it is in session) and 

the conduct and the action described or referred to in Article 47 (neglect or refusal to appear or to qualify or testify as a witness, having 

been duly subpoenaed) are not punishable under Article 48. Having 

been duly subpoenaed, persons not subject, to military law may be 

punished as provided in Article 47 for neglect or refusal to appear 

or refusal to qualify as a witness or to testify or to produce evidence. 

Persons subject to military law may be punished under Article 134 

for the offenses discussed in this subparagraph. 

When requested by a member or any party to tlie trial and when the 

court deems it advisable, the law officer of a general court, the president of a special court, or a summary court may warn a person that 

his conduct is such that his persistence therein may cause the court to 

hold him in contempt. 

b. Procedure when a person is charged with contempt.-When 

the conduct of a person before a court-martial constitutes a coiitempt within the meaning of Article 48, the regular proceedings of 

the court should be suspended and the person directed to show cause 

why he should not be held in contempt. He mill be given an opportunity to explain his conduct; however, the mere insistence by the person that his language or behavior was proper does not necessarily 

purge him of contempt. 
11 118b CHAPTER XXlll 

The preliminary question as to whether a person should be held 

in contempt will be disposed of in the same manner as a motion for 

a finding of not guilty (Art. 516). Thus the ruling of the law 

05cer (president of a special court-martial) thereon shall be made 

subject to the objection of any member of the court (576 (1)). 

If there is no objection to a preliminary ruling that the person 

not be held in contempt, no further action thereon is required, and 

the court will resume its regular proceedings. 

If any member objects to the ruling, the court will close and vote, 

as provided in Article 52, whether to sustain the ruling. The question 

shall be decided by a majority vote (57f). 

If, as a result of the vote of the court, or a ruling of &he law officer 

(president of a special eourt-martial) that is not objected to, there 

has been a preliminary determination that the person be held .in 

contempt, the court will close to determine, by secret written ballot, 

whether he shall be held in conkempt and, in the event of conviction, 

an appropriate punishment within the limits authorized by Article 

48 and chapter XXV. Concurrence of two-thirds of the members 

present at the time the vote is taken is required both to convict and to 

punish a person for contempt. 

Thereupon the court will open and the president will announce 

the holding and the punishment, if any, adjudged. 

The action thus taken is properly summary, a formal trial not being - 

required and no appeal or review (other than the automatic review 

by the convening authority) being authorized. 

Prior to resuming the original proceedings, a record will be made 

in and as a part of the regular record of the case before the couh, 

showing the facts concerning the contempt and the proceedings with 

reference to it; or the court may, upon the accomplishment of the 

record of the contempt proceedings, forthwith transmit such record 

to the convening authority, appropriate entries concerning such action 

being entered in and as a part of the regdlar record. For an example 

of proceedings in contempt, see appendix 8b. 

In order to be effective, a punishment for contempt requires approval of the convening authority. ' Upon notification of the action 

of the court and pending formal review of the record of the contempt 

proceedings, the conveninv authority may require the person to b undergo any confiiiement adjudged (21d; Art. 57b). The person held 

in contempt shall be advised, in writing, of the holding and punishment of the court and also of the action of the convening authority 

upon the proceedings for contempt. Copies of s~~chommunication 

shall be furnished to such other persons as may be concerned with 
WITNESSES, DEPOSITIONS, CONTEMPTS, EXPENSES 11 119 

the execution of the punishment; a copy shall also be included with 

the record of trial proper. 

The court, instead of proceeding as stated above, may cause the 

removal of the offender, and, in a proper case, initiate his prosecution 

before a civil or military court. 

A person held in contempt inay be allowed to continue to testify 

or to perform his functions before the court. A witness may not be 

,held in contempt for declining to answer a question the answer to 

which may tend to incrimixiate him; neither may an accused be held 

jn contempt for standing mute in lieu of pleading. 

c. Place of confinement of person held in contempt.-The place 

of confinement for a civilian or military person who is held in contempt and is to be punished by confinement shall, upon approval of 

the punishment by the convening authority, be desigaated by that 

officer. 

119. EXPENSES OF COURTS-MARTIAL.-See appropriate 

departmental regulations. 
INSANITY 

GBNERAL CONSIDERATION-INQUIRY BEFORE TRIAkINQUIRY BY 

COURT-EFFECT OF MEhTAL IMPAIR MIENT OR DEFICIENCY UPON 

SENTENCE-ACTION BY CONVENING OR HIGHER AUTHORITY 

120. GENERAL CONSIDERATION.-a. Insanity.-A person is 

insane within the meaning of this chapter either if be lacked mental 

responsibility at the time of itha offense as dehed in 1206, or if he lacks 

the requisite mental capacity at the time of trial as stated in 12Oc. 

b. Lack of mental responsibility.-If a reasonable doubt exists as 

to the mental responsibility of the accused for an offense charged, the 

accused cannot be legally convicted of tkaB offense (74a (3) ) . A person is not mentally responsible in a criminal sense for an offense unless 

he was, at the time, so far free from mental defect, disease, or derangement as to be able conw~ning the particular act charged both to distinguish right from wrong and to adhere ta the right. The phrase "mental defect, disease, or derangement" comprehends those irrational 

states of mind which are the result of deterioration, destruction, or 

malfunction of the mental, as distinguished from the moral, faculties. 

To constitute lack of mental responsibility the impairment must not 

only be the result of mental defect, disease, or derangement but must 

also completely deprive the accused of his ability to distinguish right 

from wrong or to adhere to the right as to the act charged. Thus a 

mere defect of character, will power, or behavior, as manifested by one 

or more offenses, ungovernable passion, or otherwise, does not necessarily indicate insanity, even tl~ough it may demonstrate a diminution or 

impairment in ability to adhere to the right in respect to the act 

charged. Similarly, mental disease, as such, does not always amount to 

mental irresponsibility. For example, if a person commits an assault 

under psychotic delusion with a view to redressing or revenging some 

supposed injury to his reputation, he is nevertheless mentally responsible if he knew at the time that the act was contrary to law, and if he 

was not acting under an irresistible impulse. On the other hand, an 

accused is not responsible for a partic'ular homicide if, as a result of 

mental disease, he had an insane delusion that another person was in 

the act of attempting to kill him and he tl~ereupon killed the supposed 

attacker under the delusion that it was necessary to kill the deceased to 

preserve his own life. 

c. Mental capacity ut.time of trial.-No person should be brought 

to trial unless he possesses snfficient mental capacity to understand the 

nature of the proceedings against him and intelligently to conduct or 

cooperate in his defense. 
INSANITY V 1226 

121. INQUIRY BEFORE TRIAL.-If it appears to any commanding officer who considers the disposition of charges as indicated 

in 32, 33, and 35 or to any investigating officer (34), trial counsel, or 

defense counsel that there is reason to believe that the accused is insane (120c) or was insane at the time of the alleged offense (120 b), 

that fact and the basis of.the observation should be reported through 

appropriate channels in order that an inquiry into the mental condition 

of the accused may be conducted before trial. When the report indicates substantial basis for the belief, the matter mill be referred to a 

board of one or more medical officers for their observation and report 

with respect to the sanity of the accused. At least one member of the 

board should be a psychiatrist. The board should be fully informed 

of the reasons for doubting the sanity of the accused and, in addition 

to other requirements, should be required to make separate and distinct 

findings as to each of the three following questions : 

a. Was the accused at the time of the alleged offense so far free 

from mental defect, disease, or derangement as to be able concerning 

the particular acts charged to distinguish right from wrong 

(1206) ? 

6. Was the accused at the time of the alleged offense so far free 

from mental defect, disease, or derangement as to be able concerning 

the particular acts charged to adhere to the right (1206) ? 

o. Does the accused possess suWcient mental capacity to understand the nature of the proceedings against him and intelligently 

to conduct or cooperate in his defense (1206) 8 

To determine these questions the board should place the accused 

under observation, examine him, and eonduct such further investigation as it deems necessary. On the basis of this report, further action 

in the case may be suspended, or the charges may be dismissed by an 

officer competent to appoiilt a court-martial appropriate to try the 

offense charged, or proceedings may be taken to discharge the accused 

from the service on the grounds of his mental disability, or the charges 

may be referred for trial. Such additional mental examinations may 

be directed at any stage of the proceedings as asircumstances may 

require. The officer directing or requesting the mental examination 

of the accused will attach the report of examination to the charges 

if referred for trial or forwarded. 

122. INQUIRY BY COURT.-a. Presumption of sanity; reasonable doubt; burden of proof.-The accused is presumed initially to 

be sane and to have been sane at the time of the alleged offense. This 

presumption merely supplies the required proof of mental capacity 
8 122b CHAPTER XXlV 

and responsibility and authorizes the court to assume that the accused 

is sane until evidence is presented to the contrary. When, however, 

substantial evidence tending to plove that the accused is insane (120c) 

or was insane at the time of his alleged offense (1206) is introduced 

either by the prosecution or by the defense or on behalf of the court, 

then the sanity of the accused is an essential issue. If, in the light 

of all the evidence, including that supplied by the presumption of 

sanity, a reasonabIe doubt as to the mental responsibility of the 

accused at the time of the offense (1206) remains, the court must find 

the accused not guiIty of that offense. If a reasonable doubt as to the 

mental capacity of the accused at the time of trial (1206) remains, 

the court will adjourn and transmit to the convening authori.ty the 

record of its proceedings as far as had with a statement of its determination of the issue of mental capacity. Although the defense 

usually raises the issue of insanity by producing evidence of mental 

irresponsibility or lack of capacity, it is the duty of the court to call 

for evidence on this matter whenever there is reasonable indication that 

such an inquiry is warranted in the interest of justice. The burden 

of proving the sanity of the accused, like every other fact necessary 

to establish the offense alleged, is always on the prosecution, but it is 

not incumbent upon the prosecution to introduce any evidence tending to prove the sanity of the accused until the question of sanity 

t becomes an issue in the case. 

6. Procedure.-The issue of insanity may be raised at any time 

while a case is before the court. The actions and demeanor of the 

accused as observed by the court or the bare assertion from a reliable 

source that the accused is believed to lack mental capacity or is mentally 

irresponsible may be sufficient to warrant inquiry. It should be re 

membered, however, that althougl~ aperson who lacks mental capacity 

or responsibility to the extent indicated in 120 should not be tried, 

sanity is presumed (122a), and a mere assertion that a person is insane 

is not necessarily sdicient to impose any burden of inquiry on the 

court, or to raise the issue of insanity. 

A request, suggestion, or motion that inquiry be had may be made 

by any member of the court, prosecution, or defense. The law officer 

of a general court-martial or the president of a special court-martial 

may rule, subject to objection by any member of the court and ha1 determination by the court, as to whether an inquiry should be made 

(Art. 51b). Upon such objection a tie vote of the members upon a 

motion relating to the sanity of the accused is a determination against 

the accused (Art. 52c). If it is determined to make such an inquiry, 

priority will be given to it, and the inquiry should exhaust all reasonably available sources of information with respect to the mental con202 
dition of the :tccused. If it appears that the inquiry will be protracted, or if the court desires to hear expert testimony, the court nlay 

and report the matter to the appointing authority with its 

recommendation in the premises. Such recommendation may include 

in a proper case a recommeilclatioil that the accused be examined as 

provided in 121 and that the officer or officers conducting the examination be made available as witnesses. In his discretion the convening 

authority may withdraw the charges from the court as a result of a 

report of evaminatim conducted under 121; or he may refer the 

matter to the court for its wnsideration subject to the provisions of 

122c. 

If the court finds the accused not mentally responsible for his acts 

(1206) it will forthwith enter findings of not guilty as to the proper 

charges and.specifications. If it finds the accused mentally responsible 

for his acts, but at the time of trial lacking requisite mental capacity 

(120c), it will record such findings. In either case the proceedings so 

far as had will be forwarded to the convening authority. If the 

accused is found to be sane the trial proceeds. 

If the issue of insanity is raised as an interlocutory question and 

the court hds the accused sane, the defense is not precluded by this 

finding from offering further evidence on the issue of insanity and, 

when all the evidence in the case has been received, the court may 

proceed to its hdings on the guilt or innocence of the accused. In 

consideration of its findings upon the general issue, if the court 

entertains a reasonable doubt that the accused was mentally responsible for his acts, it will enter findings of not guilty as to the proper 

charges and specifications (1205). 

If the convening authority disagrees with the court in its finding 

that the accused lacks requisite mental capacity at the time of trial 

(120c), or if the convening authority determines that the disability 

mas temporary and that the accused has recovered his mental capacity, 

he may return the case to the court with instructions to reconsider its 

findings and, if appropriate, to proceed with the trial. 

c. Evidence.-The issue of the sanity of the accused is one of fact, 

and the mades of proof and rules of evidence with respect to this 

issue are, generally, those prescribed in chapter XXVII. Although the 

testimony of an experk on mental disorders as to his observations and 

opinion with respect to the mental condition of the accused may be 

given greater weight than that of a lay witness, a lay witness who is 

acquainted with the accused and who has observed his behavior may 

testify as to his observations and may also give such opinion as to 

the general mental condition of the accused as may be within the 

bounds of the common experience and means of observation of men. 

203. 
(1 124 CHAPTER XXlV 

As in the proof of other matters, evidence should be presented by the 

testimony of witnesses in open court, depositions (145a), stipulated 

testimony, or documentary evidence. 

So much of the repod of a board of medical officers or any other 

medical record as pertains to entries of facts or events which are 

properly admissible under the official records or business entry exceptions to the hearsay rule (1446, c) may be received in evidence. The 

opinions as to the mental condition of the accused contained in such 

a report are not within these exceptions to the hearsay rule. They 

may be received in evidence by stipulation, and in a proper case, 

as memoranda of past +ecoUections recorded (146a). Such a report 

, or any other pertinent matter, although not necessarily admissible in 

evidence, may'nevertheless be examined by the law officer of a general 

court-martial or the president of a special court-martial for the 

limited purpose of determining whether further inquiry into the 

mental condition of the accused should be made by the court; and, in 

the event a ruling is objected to by any member, the court may also 

examine the document for the same limited purpose. 

For the rules of evidence as to expert witnesses, hypothetical questions, and similar matters, see 138e. 

123. EFFECT OF MENTAL IMPAIRMENT OR DEFICIENCY UPON SENTENCE.-In a case in which the issue of insanity is raised and the court thereafter determines the accused to be 

sane, it may, in arriving at its sentence, consider any evidence with respect to the mental co~ldition of the accused which falls short of creating a reasonable doubt as to his sanity. The fact that the accused is a 

person of low intelligence, or that by virtue of a mental or neurological 

condition his ability to adhere to the right is diminished, may be a 

mitigating factor. On the other hand, in determining the severity of 

a sentence, the court may consider evidence, properly introduced, tending to show that an accused has little regard for the rights of others, 

such as evidence showing that he possesses homicidal tendencies. 

124. ACTION BY CONVENING OR HIGHER AUTHORITY.-- 

After consideration of the record as-a whole, if it appears to the 

convening authority or higher authority that a reasonable doubt 

exists as to the sanity of the accused, he should disapprove any findings 

of guilty of the charges and specifications affected by such doubt and 

take appropriate action with respect to the sentence. Such authority 

will take the action prescribed in 121 before taking action on the 

record whenever it appears from the record of trial or otherwise that 

further inquiry as to the mental condition of the accused is warranted 

in the interest of j~zstice, regardless of whether any such question 

was raised at the trial or how it was determined if raised. 
Chapter XXV 

PUNISHMENTS 

GENERAL LIMITATIONS-MISCELLANEOUS LIMITATIONS-MAXIMUM 

LIMITS OF PUNISHMENTS 

125. GENERAL LIMITATIONS.-In all cases of conviction, a 

court-martial will adjudge. a legal, appropriate, and adequate punishment, due regard being had for the requirements of the code. See 

76a and 127 for the basis of determining adequate punishment. The 

punishment which a court-martial may direct for an offense shall not 

exceed such limits as the P~esident may prescribe for that offense 

(Art. 56). See also 118 (Contempts) ,126 (Miscellaneous limitations), 

and 127 (Maximum limits of punishments). 

No member of the armed forces of the United States sliall be placed 

in confineiiient in immediate association with enemy prisoners or 

other foreign nationals not members of the armed forces of the United 

States (Art. 12), nor, subject to the provisions as to the effective date 

of forfeitures set forth in 126h (5), sliall any person while being 

held awaiting trial or the results of trial be subjected to punishment 

cr penalty other than arrest or confinement upon the charges pending against him (see Art. 13). See 186 (3) concerning tlie facilities, 

accommodations, treatment, and training to be afforded to accused 

persons being held awaiting trial or in confinement pending action 

by the officer authorized to order the execution of the sentence adjudged by the court. During such periods prior to the order directing 

execution of the sentence, an accused of those classes will not be required to observe either duty hours or training schedules devised as 

punitive measures, nor required to perform punitive labor, nor required to wear other than the uniform prescribed for unsentenced 

prisoners, except that during such periods he may be subjected to 

minor punishment for infractions of discipline (see Art. 13). 

Punishment by flogging, branding, marking, tattooing on the body, 

or any other cruel or unusual punishment sliall not be adjudged by 

any court-martial or inflicted upon any person subject to the code. 

The use of irons, single or double, except for the purpose of safe 

custody, is prohibited (Art. 55). 

Courts-martial shall not impose any punishment not sanctioned 

by the custonl of the service, such as carrying a loaded knapsack, shaving the head, placarding, pillorying, placing in stocks, or tying up 

by the thumbs. Loss of good conduct time will not be adjudged as 

punishme~lt by a court-martial. Fonnal military duties, such as as- 
T 1260 CHAPTER XXV 

signment to a guard of honor, and duties requiring the exercise of 

a high sense of responsibility, such as guard or watch duties, will not 

be imposed as punishments. 

Neither confineme~t on bread and water or diminished rations nor 

solitary confinement shdl be adjudged by courts-martial as punishments against Army or hir Force personnel. But see chapter XXVT. 

Confinement on bread and water involves confinement in a place 

where the prisoner can comn~unicate vith no unauthorized person, the 

daily rations to consist solely of bread and water except that, while 

serving such a sentence, no accused sl~all be deprived of a full ration 

for a period longer than three consecutive days. Courts-martial shall 

exercise care and discretion in adjudging sentences of confinement on 

bread and water or diminished rations. Such sentences shall not be 

adjudged in excess of 30 days. Whenever any person is sentenced to 

be confined on bread and water or diminished rations, the signed certificate of a medical officer, containing his opinion as to whether serving the sentence would produce serious injury to the health of tlie 

accused, must be obtained before the sentence is ordered into execution. The certificate, mhieh shall be attached to the record of proceedings, shall be in the folluwing form : 

"I certify that from an examination of 9 

and of the place where he is to be confined, I am of the opinion 

that the execution of the foregoing sentence will (not) produce 

serious injury to his healtl~." 

Solitary confinement is restraint that includes the placing of a 

prisoner by himself where he can communicate with no unauthorized 

person. Solitary confinement should be imposed upon insubordinate 

or recalcitrant offenders only. It shall not be imposed upon any 

offender in excess of 30 days. 

126. MISCELLANEOUS LIMITATIONS. - a. General camments.-The death penalty is mandatory in the case of spies (&. 

106) ; it is mandatory that either death or life imprisonment be 

:idjudged for murder upon a finding of guilty under subsections (1) 

or (4) of Article 118. Punisllment as adjudged by the court must be 

in conformity with the article prescribing the offense ; for example, 

except in time of war when deatli or such other punishment as a courtmartial may direct is authorized, the sentence of a court upon conviction of a violation of Article 85 (Desertion) must be such punishment other than death as a court-martial may direct. (The maximum 

penalty is governecl also by the Table of Maximum Punishments 

except when the applicable limitations in the table are suspended.) 

A dislioiiorable discharge is by implication included in a death sen- 
PUNISHMENTS U 126c 

tence. When life imprisonment is adjudged, the court shall also 

adjudge dishonorable discharge and total forfeitures. 

A court-martial cannot adjudge the death penalty except for an 

offense made expressly so p~ulisl~able byan article of the code (Art. 

52b (1) ) ; see 15a (2) for an enumeration of the particular articles. 

Although an offense expressly may be made punishable by death, the 

death penalty cannot be adjudged for that offense if the applicable 

limit of punishment prescribed by the President under Article 56 (127) 

is less than death, nor can the death penalty be adjudged if the convening authority has directed that a case be treated as not capital (see 

Arts. 19,49). %th reference to the limitation on the imposition of 

the death penalty in the case of a rehearing or new trial, see 92 and 

1099 (2). 

In any case in which the sworn testimony contained in the proceedings of a court of inquiry is read in evidence pursuant to the provisions 

of Article 50, the maximum punishment which may be imposed for an 

offense committed either in time of peace or in time of war shall not 

extend to death or to the dismissal of an officer (see Art. 50a). The 

foregoing limitation does not apply where such testimony is read in 

evidence by the defense (see Art. 506). Where such testimony does 

not enter into proof of a11 the specifications, the limitation ajplies only 

to those specScations into which it enters. 

In adjudging the sentence of death a, court-martial will not prescribe 

the method of execution. A sentence to death which has been finally 

ordered executed will be carried into effect in the manner authorized 

or prescribed in the service concerned. 

Concerning the appropriateness of a sentence to dishonorable or bad 

conduct discharge, see 76a (Sentence-Basis for determining). 

6. General courts-martial.4eneral courts-martial may adjudge 

any punishment not forbidden by the code, including the penalty of 

death when specifically authorized b.y the code, and, in appropriate 

cases, any punishment permitted by the law of war (Art. 18). 

c. Special and summary courts-martial.-(1) SpaoiaZ courtsmartial.-Special courts-martial may adjudge any punishment not 

forbidden by the code except death, dishonorable discharge, dismissal, 

confinement in excess of six months, hard labor without cor&nement 

in excess of three months, forfeiture of pay exceeding two-thirds pay 

per month, or forfeiturk of pay for a period exceeding six months 

(Art. 19). Thus in adjudging a bad conduct discharge a special courtmartial cannot also adjudge forfeiture of all pay and allowances, but 

it may in such a case properly adjudge a forfeiture of two-thirds pay 

per month for a period not exceeding six months. See 15b: 
U 126d CHAPTER XXV 

(2) Xzwnmar y courts-mar8ial.-Summary courts-martial may adjudge any punishment not forbidden by the code except death, dismissal, dishonorable or bad conduct discharge, confinement in excess 

of one month, hard labor without confinement in excess. of 45 days, 

restriction to certain specified limits in excess of two months, or forfeiture of pay in excess of two-thirds of one month's pay (Art. 20). 

In the case of noncommissioned or petty officers above the fo~~rfh 

enlisted pay grade, summary courts-martial may not adjudge confinement, hard labor without confinement, or'reduction except to the 

' next inferior grade. See 166. 

(3) GeneraZ comments.-Special and summary courts-martial 

are not limited to the kinds of punishments set forth in Articles 19 

and 20. See 166 as to the apportionment that may be required if a 

summary court-martial wishes to adjudge both confinement and 

restriction. The Table of Equivalent Punishments (127~) will also 

guide apportionment. 

d. OEcers and warrant ofiers.-In general, any limitation as to 

the punishment that may be imposed on an officer (see Art. 1 (5) ) by a 

court-martial is applicable in the case of a warrant officer. Except as 

noted hereafter, an officer cannot, by sentence of a court-martial, be 

reduced iqrank, such as from captain to first lieutenant or from commander to lieutenant commander, nor to the grade or status of a 

warrant, noncommissioned, or petty officer, nor sentenced to bad 

conduct discharge. An officer may not be sentenced to confinement 

unless the sentence includes dismissal, nor may he be sentenced to hard 

labor without confinement in any case. Similar limitations apply in 

the case of a warrant officer. The separation from the service of a 

warrant officer by sentence of court-martial is effected by dishonornble 

discharge. 

An officer may be punished by dismissal and a warrant officer may be 

punished by dishonorable discharge for an offense in violation of 

an article of the code, but no officer or warrant officer shall be sentenced 

to confinement or forfeiture of all pay and allowances unless the sentence also includes dismissal or dishonorable discharge. In no case 

shall a sentence to confinement in the case of an officer or warrant officer 

exceed the maximum prescribed for enlisted persons by the Table of 

Maximum Punishments. 

A court-martial is not authorized to sentence an accused officer to be 

reduced to the ranks. However, in time of war or national emergency 

the Secretary of the Department concerned, or such Under Secretary 

or Assistant Secretary as may properly be designated, may commute 

a sentence of dismissal to reduction to any enlisted grade (Art. 716). 
PUNISHMENTS 11 126h 

e. Enlisted persons; prisoners sentenced to punitive discharge.- 

For the maximum limits of punishment for certain offenses committed 

by enlisted personnel, see 127. In the case of an enlisted person of 

other than the lowest pay grade, a sentence which, as ordered executed 

or as finally approved and suspended, includes either (1) dishonorable 

or bad conduct discharge, whether or not suspended, (2) confinement, 

or (3) hard labor without confinement, immediately, upon being 

ordered executed or upon being finally approved and suspended, 

reduces such enlisted person to the lowest enlisted pay grade ; however, 

the rate of pay of the person so reduced shall be commensurate with 

his cumulative service. 

A court-martial is auth~rized to sentence an enlisted person to be 

reduced to an inferior or intermediate grade. But see 16b and 1260 (2) 

concerning the limitations on the power of summary courts-martial 

to sentence noncommissioned or petty officers to be reduced. 

If a prisoner already under a suspended sentence to dishonorable 

or bad conduct discharge is tried by a court-martial, dishonorable or 

bad conduct discharge may be adjudged as well as other appropriate 

~enalties. However, if a prisoner has been separated from the service 

by dishonorable or bad conduct discharge, the adjudging of another 

punitive discharge would, in general, be futile. See 127b. 

f. Reprimand; admonition.-There is no restriction either as to 

the court which may adjudge a reprimand or admonition as punishment or as to the persons subject to the code upon whom such punishment may be imposed, but the court will not specify the terms or wording of a reprimand or admonition. 

g. Restriction to limits.-This form of punishment is a deprivation of privileges. There is no limitation either as to the court which 

may adjudge this punishment or as to the persons subject to the code 

upon whom it may be imposed, but it mill not be adjudged in excess 

of two months and will not in any event operate to exempt the person 

on whom it is imposed from any military duty. 

h. Forfeiture; fine; detention of pay.-(1) General.-To be effective any forfeiture, fine, or detention of pay must be adjudged 

in express terms. Loss of pay shall $e stated in dollars or dollars and 

cents, not in days' pay (see a,pp. 13). In dete~mining the amount of 

a forfeiture or fine, part~cularly a large he, the court should consider 

the ability of the accused'to pay. 

Fines and forfeitures accrue to the United' States and cannot be 

adjudged by a court-martial for the benefit of any individual. A 

court-martial has no authority to provide by stoppage, assignment, or 

otherwise, for the settlement of any pecuniary liability whatever, 
lI 126h CHAPTER XXV 

including any liability to a goverrunent agency, such as a unit fund. 

A sentence directing an accused to make a deposit or a contribution 

of pay or of other funds is illegal. 

(2) Forfeitwe.-A forfeiture is an appropriate punishment for 

all military personnel wkakever their rank or status. Unless a total 

forfeiture is adjudged, a sentence to forfeiture deprives the accused of 

the amount expressly stated hn the sentence and applies for the number 

of months or days expressly stated. Allowances are forfeited only 

when the sentence includes the forfeih~re of all pay and allowances; 

such a penalty will be adjudged only when the aceused is also sentenced 

to dishonorable or bad conduct discharge or to dismissal. Subject to 

the provisions of Article 57a, a forfeiture applies to pay and allowances which accrue during the enlistment, extension of enlistment, or 

other engagement or obligation of service in which the accused is serving at the time such a senknee is adjudged. Forfeiture of ac enlisted 

person's deposits or of ithe interest thereon cannot be adjudged by 

sentence of a court-martial. A forfeiture may not be applied to money 

to be paid by an employer other than the Government. A general 

court-martial is not limited as to the amount of forfeiture it may 

adjudge, but in the case of an enlisted person it map not adjudge 

a forfeiture of more than two-thirds pay per month for six months 

unless it also sentences the accused to dishonorable or bad conduct 

discharge. For the lirniik of jurisdiction of a special or a summary 

court-martial to adjudge a forfeiture, see 1266. 

In computing the maximum amount of forfeiture in dollars and 

cents (see Forms of sentences, app. 13) the basic pay (which is graduated according to cumulative years of service) of the enlisted person 

(of the reduced grade, if the sentence as ordered executed or suspended 

carries a reduction) plus sea or foreign duty pay (if no co~~finement 

is adjudged) will be taken as the basis. The term "basic pay" comprehends no element of pay other than the basic pay of the grade or 

class within grade as fixed by statute and does not include special pay 

for a special qualification such as that of a combat infantryman or 

diver, or incentive pay for the performance of hazardous duties such 

as flying, parachute jumping, or duty on board a submarine. (See 

appropriate departmental regulations as to periods which may not 

be counted in computing increase of pay for length of service.) Unless dishonorable or bad conduct discharge is adjudged, the monthly 

contribution of an enlisted person to family allowance or to basic 

allowance for quarters will be deductea prior to computing the net 

amount of pay subject to forfeiture. 

The terms "forfeiture of all pay and allowances" and "to forfeit a11 

pay and allowances." as used in 88, this chapter (XXV), and appendix 
PUNISHMENTS U 126h 

13, are construed to mean the forfeiture of all pay and allowances 

becoming due on and after the date a lawfully adjudged sentence is 

approved by the convening authority. But see 88e (2) (c) with respect to the suspension or deferment of forfeitures in certain cases. 

See, generally, as to forfeitures, applicable departmental regulations. 

(3) Fine.-Whereas a forfeiture deprives the accused of all or 

part of his pay, a fine, which is in the nature of a judgment, makes him 

pecuniarily liable in general to the United States for the amount of 

money specified in the sentence. A11 courts-martial have the power 

to adjudge fines instead of forfeitures in all cases in which the applicable article authorizes punishment as a court-martial may direct. 

However, as to enlisted persons, a fine will not be adjudged unless 

the case falls within the prodsions of Section B, 127c (Permissible 

additional punishments). In general, a court-martial has the same 

power to fine a prisoner of war that it has to fine a member of the 

armed forces. Ordinarily, a fine, rather than a forfeiture, is the 

proper monetary penalty to be adjudged against a civilian subject 

to military law. In order to enforce collection, a fine is usually accompanied by a provision in the sentence that, in the event the fine is not 

paid, the person fined shall, in addition to any period of confinement 

adjudged, be further codned until a fixed period eonsidered an equivalent punishment to the fine has expired (see app. 13, forms 21 and 

22). The total period of confinement adjudged in such a sentence shall, 

not exceed the jurisdictional limitations of the court (156, 166, 126c). 

(4) Detention of pay.-Detention of pay is a less severe form of 

punishment than a forfeiture in that the amount detained is ultimately 

returned to the accused when he is separated from the service. Detention of pay will not be adjudged by a court-martial except against 

enlisted persons. 

(5) Efectizte date of certain selatewes.-See Article 57. Whenever a sentence of a court-martial as approved includes a forfeitureof pay or allowances in addition to confinement not suspended, the 

forfeiture will apply to pay or allowances becoming due on and after 

the date such sentence is approved by the convening authority. However, a convening authority may defer the effective date of forfeitures 

in such cases by providing specifiealIy therefor in his action. See 

88e (2) (c). No forfeiture sh+ll extend to any pay or allowances accrued before the date a sentence is approved by the convening authority. 

Except as provided in the preceding subparagraph, all other 

sentences to forfeiture and sentences to fine or detention of pay beco~rle 

effective on the date the sentence is ordered executed. 
t 1261. CHAPTER XXV 

i. Suspension from rank, command, or dutg; loss of rank, promotion, numbers;or seniority.-Suspensiorm from rank includes suspension from command. It does not affect the right of an officer to 

promotion or his right to rise in files, but renders him ineligible to sit 

as a member of a court-martial, court of inquiry, or military board, 

and deprives him of privileges depending on rank, such as any priority 

dependent on rank in the selection of quaders. 

Suspension from command merely deprives the officer of authority 

to exercise military command and, consequently, his authority to give 

orders to his juniors and to perform my duty involving the exercise 

of command. It does not affect his right to promotion. 

Suspension from duty is analogous to suspension from command 

and is particularly appropriate in the case of an officer assigned to a 

purely administrative duty not involving the exercise of military 

command. 

Sentences to suspension from rank, command, or duty are authorized 

only in the case of Army or Air Force personnel. 

Sentences to loss of rank or promotion are not authorized. But see 

126d. 

Sentences to loss of numbers, lineal position, or seniority are not 

authorized in the case of Army or Air Force personnel. A11 losses 

of numbers will be numbers in the appropriate lineal list. For line 

officers it will be numbers of officers not restricted in the performance 

of duty. For officers of staff corps it will be numbers corresponding 

to line officers not restricted in the performance of duty. 

j. Confinement at hard labor.-Any person subject to trial by 

court-martial may be sentenced to confinement at hard labor. A 

sentence to confinement will not be adjudged in the case of an officer 

unless the officer is also sentenced to dismissal, nor in the case of 

a warrant officer unless the warrant o%cer is also sentenced to dishonorable discharge. Only under unusual circumstances should confinement be adjudged against an enlisted person without a sentence 

to forfeiture or fine. A sentence to codnement does not of itself 

automatically result in any fine or fdrfeiture of pay or allowances. 

The place of confinement will not be designated by the court. See, 

in this respect, 93. 

Any period of confinement included in a sentence of a court-martial 

shall begin to run from the date the sentence is adjudged by the courtmartial, but periods during which the sentence to confinement is suspended shall be excluded in computing the service of the term of confinement (Art. 573). See also 97c and Article 14 concerning the 

interruption of the execution of a sentence to confinement. 
PUNISHMENTS 1127b 

Confinement without hard labor will not be adjudged. The omission of the words L'hard labor" in any sentence of a court-martial 

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 (Art. 58b). 

k. Hard labor without confinement.-Hard labor without confinement will not be adjudged in excess of three months. But see 126c 

(2) concerning the jurisdiction of a summary court-martial to adjudge 

hard labor without confinement. It m'ay be adjudged only in the 

cases of enlisted persons. Hard labor without confinement, adjudged 

as punishment by courts-martial, shall be performed in addition to 

other duties which fall to the enlisted person; and no enlisted person 

shall be excused or relieved from any military duty for the purpose 

of performing such hard labor. ' A sentence imposing hard labor 

without confinement shall be considered satisfied when the enlisted 

person shall have performed hard labor during available time in addition to performing his military duties. Normally, the immediate 

commanding officer of the accused will designate the amount and 

character of the labor to be performed. The daily performance of 

the designated hard labor before or after routine duties are completed 

satisfies the sentence whether the particular daily assignment requires one, two, or more hours. Upon completion of the daily assignment, the accused should be permitted to take leave or liberty 

to which he properly is entitled. 

127. MAXIMUM LIMITS OF PUNISHMENTS.-a. Persons 

and sfienses.-The limits prescribed herein (127) will be applied by 

courts-martial in cases of enlisted persons and prisoners sentenced 

to punitive discharge. The mentioned limitations, though not binding upon courts sentencing officers, warrant oficers, aviation cadets, 

cadets, midshipmen, and civilians subject to military law, except as 

stated in 126d and in Section B, 127c, may be used as a guide, subject to such exceptions as may be deemed warranted for determining 

the appropriate punishment for such persons. The maximum authorized penalties will also be applied insofar as applicable in the 

cases of enlisted prisoners of war. 

b. General limitations.-The limitations herein (127) do not exclude any other applicable limitations, for example, those set forth 

in 125 and 120; in particular, it should be remembered that special 

courts-martial cannot adj~dge~confinement in escess of six months nor 

. -forfeiture of pay in excess of two-thirds pay per month for six 

months ; nor may summary courts-martial, in the case of noncommissioned or petty officers above the fourth enlisted pay grade, adjudge 
8 127c CHAPTER XXV 

confinement, hard labor without confinement, or reduction except to 

the next inferior grade. 

A court shall not, by a single sentence which does not include dishonorable or bad conduct discharge, adjudge against an accused : 

Forfeiture of pay at a rate greater than two-thirds of his pay per 

month. 

Forfeiture of pay in an amount greater than two-thirds of his 

pay for six months. 

Confinement at hard labor for a period greater than six monthshowever, this limitation shall not apply in the case of a prisoner 

whose punitive discharge has been executed, a civilian, or a prisoner 

of war. 

A court shall not, by a single sentence, adjudge against an accused : ' 

Detention of pay at a rate greater than two-thirds of his pay per 

month. 

Detention of pay in an amount greater than two-thirds of his pay 

I for three months. See 126h (4). 

In the execution of a single sentence not including dishonorable or 

bad conduct discharge, and in the execution of two or more sentences 

against the same accused, none of which includes dishonorable or bad 

conduct discharge, any forfeiture or forfeitures of pay included in 

the sentence or sentences shall be applied, together with other authorized stoppages or deductions, if any, excepting such as are made at the 

request of the accused, so as not to deprive the accused of more than 

two-thirds of his pay for any month. As to pay which is subject to 

forfeiture, see 126h (2). 

c. Maximum punishrnenfs.-The punishment stated opposite each 

offense listed in the Table of 3faximum Punishments is hereby prescribed as the maximum punishment for that offense, and for any 

lesser included offense if the latter is not listed, and for any offense 

closely related to either if not listed. If an offense not listed in the 

table is included in an offense which is listed and is also closely related 

to some other listed offense, the lesser punishment prescribed for either 

the included or closely related offense will prevail as the maximum 

limit of punishment. 

Offenses not listed in the table, and not included within an offense 

listed, or not closely related to either, remain punishable as authorized by the United States Code (see, generally, Title 18) or the Code 

of the District of Columbia, whichever prescribed punishment is the . 

lesser, or as autllorized by the custom of the service. With respect 

to other matters which properly may be coilsidered in fixing punishment, see 76a, 123, and 154a. 
PUNISHMENTS P 127c 

The maximum punishment prescribed for the offense should be restricted to those cases in wl~icli, due to aggravating circumstances, 

the greatest permissible punishment should, in the discretion of the 

court, be imposed. In this connection, see 76a (Sentence-Basis for 

determining) and 88b (Determining what sentence should be approved). 

The limitations are for each separate offense, not for each separate 

charge. In this connection, see 76a (8). For several separate and 

distinct offenses, even thou~h they be alleged under the same charge, 

the court may, in its discretion, where the circumstances warrant such 

severity, adjudge in its sentence the aggregate of the limit of punishment for each separate and distinct offense. In determining the maximum punishment for two or more separate and distinct, but like, 

offenses against property, values as found in different specifications 

cannot be aggregated, as if alleged in a single specification, for the 

purpose of increasing the maximum punishment. 

The table, which lists the maximum punishment in terms of confinement or forfeiture, or both, contains no reference to lesser forms of 

punishment, such as hard labor without confinement, restriction to 

limits, or detention of pay, which are appropriate for many minor 

offenses. Unless dishonorable or bad conduct discharge is adjudged, 

the court in its discretion may substitute at the following rates other 

punishments for those listed in the table : 

Table of Equivalent Pun-ishments 

*Navy or Coast Guard personnel only. 

- From the foregoing table it mill be seen that the following punish. 

ments are equivalents : Confinement on bread and water or diminished 

rations for one-half day, confinement at hard labor for one day, hard 

labor without confinement for 1% days, restriction to limits for two 

clays, forfeiture of pay for one day, and detention of pay for ll/z days. 

For example, if an enlisted person were convicted of an offense for 

which the maximum punishment is forfeiture of pay for 15 days, the 

court could substitute other punishments, at the above indicated rates, 

for all or part of the 15 days' forfeiture, bearing in mind the limitations set forth in this manual. For example, it could impose forfeiture 

Confinement on bread and, water or dimimshed 

- 

rations* 

Restriction to 

limits 

2 days- - - 

Conflnernent 

at hard labor 

--- 

=$foau? 

confinement 

% day -------- I day ---- 

- 

I 

-- 

1% days-- I dey's payDetention 

1% day's pay. 
11 127c CHAPTER XXV 

of 10 days' pay and for the remaining five days7 forfiiture it could 

substitute five days' conhement, or 7% days7 bard labor without 

conhement, or 10 days' restriction, or 2Y2 days' confinement on bread 

and water or diminished rations. Similarly, if the authorized punishment for an offense mere eonhement at hard labor for one month and 

forfeiture of two-thirds of one month's pay, the court (except a summary court in the case of a noncommissioned or petty officer abom the 

fourth enlisted pay grade) could, for example, by substitution adjudge hard labor without conlhement for 15 days (1% for 1), restriction to the limits for 40 days (2 for I), and forfeiture of two-thirds 

pay for one month. In makg substitutions the court must observe 

the limitations on its jurisdiction.and on particular types of punishment. Thus, if the authorized punishment for an offense were confinement at hard labor for one month and forfeiture of two-thirds pay 

for one month, a summary court-martial could not adjudge additional 

forfeitures in lieu of any part of the confinement since it has no 

jurisdiction to adjudge a forfeiture of more than two-thirds of one 

nzonth's pay. Similarly, if the authorized punishment for an offense 

were confinement at hard labor for two months and forfeiture of twothirds pay per month for two months, no court could substitute restriction to the limits for all of the confinement (that is, 2 X 60, or 120 days) 

since in no event may restriction be imposed in excess of two months 

(60 days). Since confinement and restriction are both forms of deprivation of liberty, only one of these two punishments may be imposed in 

the maximum amount in any one sentence-an apportionment must be 

made if it is desired to adjudge both forms of punishment in one and 

the same sentence (16b). If an enlisted accused were convicted of 

loaning money at a usurious rate of interest to another in the military 

service (Art. 134), for which forfeiture of two-thirds pay per month 

for three months is authorized, the court could legally sentence him to 

hard labor without confinement for 30 days, restriction to limits for 

40 days, ahd forfeiture of two-thirds pay for one month. The substitutions in such a case would be calculated as follows: Forfeiture of 

two-thirds pay per month for three months is equal to a forfeiture of 

60 days' pay ; for 20 of the days substitute (ll/z for 1) hard labor without confinement for 30 days; for 20 of the days substitute (2 for 1) 

40 days' restriction; this leaves 20 days' pay (two-thirds of one 

month's pay) which could be forfeited as punishment for the offense 

(except that a summary court, in the case of a noncommissioned or 

petty officer above the fourth enlisted pay grade, cannot adjudge confinement or hard labor). Substituted punishments are of importance 

chiefly in cases of minor offenses. By substituting additional for- 
PUNISHMENTS 8 127& 

feitures, or hard labor without confinement, the accused will be adequately punished but will not be prevented from performing his regular duties. The Table of Equivalent Punishments may be used by the 

court-but not by the convening or higher authority-in cases involving enlisted personnel only, including prisoners whose punitive discharges have not been executed. 

In computing time o? absence without leave, any one continuous 

of absence found that totals not more than 24 hours is counted 

as a day; any such period found that totals more than 24 hours and 

not more than 48 hours is counted as two days, and so on. The hours 

of departure and return on different dates are assumed to be the same 

if both are not found. 

Bad conduct discharge may be adjudged upon conviction of any 

offense for which dishonorable discharge is authorized in the table. 

In determining whether bad conduct discharge is more appropriate 

than dishonorable discharge, see 76a (6) and ('7). 

Immediately upon a declaration of war subsequent to the effective 

date of this manual, the prescribed limitations on punishment for violations of Articles 82, 85, 86, 87, 90, 113, and 115 automatically will be 

suspended and mill not apply until the formal termination of such 

war or until restored by Executive order prior to such formal 

terminati0n.l 

The headings of .the table and the descriptions of offenses therein 

are condensed for convenience of arrangement and are intended solely 

to identify the portions of this manual and the offenses to which they 

pertain (without defining any such offense). In the case of discrep- 

'By Executive Order No. 9048, 3 February 1942, the limitations upon punishments for 

violations of Articles of War 58, 59, and 86 were suspended, until further order, as to 

OfPenses committed after 3 February 1942. By Executive Order No. 9267, 9 November 

1942, the limitations upon punishments for absence without leave from command, guard, 

quarters, station, or camp in violation of Article of War 61 were suspended, until further 

order, as to offenses committed after 1 December 1942. Executive Order No. 9683, 19 January 1946, terminated the suspensions of Hmitatfona upon punishments for violations of 

Articles Of War 58, 59, 61, and 86 as to offenses committed after 19 January 1946, except 

offenses committed in occupied enemy territory. Executive Order No. 9772, 24 August 

1946, terminated the suspensions of limitations upon punishments for offenses'committed 

after 24 August 1946 in occupied enemy territory. By Executive Order No. 10149, 8 

August 1950, the limitations upon punishments for violations of Articles of War 58, 59, 

61, 64, 65, and 86 were suspended, until further order, as to-offenses committed after 8 

August 1950 by persons under the command of or within any area controlled by the Cam? 

mander in Chief, Far Eagt, or any of his successors in command. 

Limitations of punishment set forth in Section 457, Naval Courts and Boards, were suspended by a state of mar with Japan held to have existed from and after 7 : 55 A. M., Honolulu time, 7 December 1941. .See Court-Martial Order No. 1-1942, 273. Alnav 2-46, 2 

January 1946, provided, "Limitations of punishment set forth in Section 457, Naval Courts 

and Boards, shall, after 1 January 1946, be used as a guide in determining sentences." The 

quoted sentence applies to osenses committed on or after 1 January 1946. It has no appliCation to offenses committed during the time of war prior to 1 January 1946. 

Nothing contained in this manual or the order of its promulgation is to be construed as 

altering the effect of the foregoing Executive orders, court-martial order, or Alnav. 
CHAPTER XXV 

ancy between a heading or description of an offense in the table and 

any other part of this manual, such other part shall be controlling. 

The descriptions of ogenses do not purport to define either the elements of proof of (ch. XXVIII) or the form of pleading for (app. 6) 

the various offenses. 
TABLE OF MAXIMUM PUNISHMENTS 

SECTION A 

Offenses 

I Any person punishable under the code who aids, abets, counsels, commands, procures, or causes the 

commission of an offense punishable by the code shall, unlm otherrrise specEcslly prescribed, be subject 

to the maximum punishment authorized for the commission of the offense. ' Any person subject to the code who is found gdty as an accessory alte;r the fact to an offense punishable 

by t he code shall be subject to the maximum punishment authorized for wch offense, except that in no case 

shall the death penalty be imposed nor tbe comluement authorized exmd more than one-half of the maximum confinement authorized for such offense, nor shall the period of eon6nement in any case, including 

offenses for which life imprisonment may be adjudged, exceed 10 years. 

* Unless otherwise provided In this table, any person subject to the code who is found guilty of an attempt 

to commit any offense punishable by the code shall be subject to the same maximum punishment autborized for the commission of the offense attempted, except that in no case shall the death penalty be imposed 

nor the authorized period of confinement exceed M years. ' Any person subject to the code who is found guilty 01 conspiracy shshail be subject to the maximum 

Punishment authorized for the offense which is the object of the cxmspiraw, except that in no case shall the 

death penalty be imposed. 

- a 

- 

4A 

2 

77 

78 

79 

80 

81 

82 

83 

Principa1s.l 

Accessory after the fact.2 

Conviction of lesser included offense. 

(See 158 and Art. 79.) 

Attempts> 

CoIlSpka~y.' 

Soliciting or advising another: 

If the offense is not committed or 

attemptedTodesert ----..--.-.-------..--.--. To mutiny ..-.---.--...-....----.- If the offense is not committedTo wmmit an act of misbehavior 

before the enemy. 

To commit an act of sedition. ...... 

Fraudulent enlistment: 

Procured by means of false representation concerning, or failure fully to 

disclose, any detail of membership 

in, sociation with, or activities in 

connection with, any of the organizations, associations, movements, 

groups, or combinations listed in the 

enlistment documents processed 

and noted at the time of enlistment. 

be cases .. 

Fraudulent separation --.----..--.....-- 

Dishonorable discharge, 

forfeiture 

of all pny and allowanees 

Yes 

Yes ..-.. 

Yes ...-. 

Yes. -..- 

Yes ...-. 

Yes .. 

Yes --.-. 

Bad con- duct dischafge, 

lorlelture 

ofall pay and allowances 

...---.-.-....- 

.--.....-- 

..-.....-- 

.---..---- 

..--_---.. 

.. 

---.--.... 

Forfeiture 01 PRY not to ex- ceed- 

- 

5 

- 

-- ---- .---.-.. 

.-.- .--- 

-------- 

-------- 

-------- 

-------- 

Forfeiture 

of twothirds 

pay per month 

not to exceed- 

- 

2 

I. 

..--..--.. 

-..._.-_.. 

--..------ 

-_-.-.---. 

.-.-.----- 

--..-..--- 

Punishments 

Confinement at hard labs not to exceedm 

3 * 

3 

10 

10 

10 

5 

1 

5 

--- ", 

5 

f 

.-..__ 

.--_-- 

------ 

------ 

.-...- 

.. .... 

8 

----------..----.-..---- 

..---- 

.----- 

--.--- 

------ 

.----- 

-.--.- 
ll 127c CHAPTER XXV . 

TABLE OF MAXIMUM PUNISHMENTS--Continued 

SECTION A-Continued 

Offenses 

- a 

.- 

u 

4 

-- 

84 

86 

86 

87 

89 

90 

- 

Effecting an unlawful enlistment or 

appointment: 

Of a pexson having membership in, 

association with, or activities in 

connection with, any prohibited 

organization, association, movement, group, or combination 

listed in enlistment or appointment documents. 

Other cases of ...................... 

Effecting an unlawful separation.. ..... 

Desertion: 

With intent to avoid hazardous duty 

or to shirk important service. 

Other cases ofTerminated by apprehension ....... 

Terminated otherwise .............. 

Attempted desertion: 

With intent to avoid hazardous duty 

or to shirk important service. 

Other cases of.. ...................... 

Absence without leave: 

Failing to go to, or going from, the 

appointed place of duty. 

From unit, organization, or other 

place of dutyFor not more than 60 days, for 

each day or fraction of a day of 

absence. 

For more than 60 days ............ 

From guard or watch 

With intent to abandon. ..................... 

With intent to avoid maneuvers or 

field exercises. 

Missing movement of ship, aircraft, or 

unit: 

Through design .................... 

Through neglect .............................. 

Behaving with disrespect toward his 

superior officer. 

Striking, dmwing, or lifting up any 

weapon or offeriug any violence to his 

superior officer in the ~xccution 01 his 

office. 

Willlolly disobeyinga lnwful order of his 

superior officer. 

Dishonorable discharge, 

forfe~ture 

of all pay andallowanm 

- 

Yes. 

Yes 

Yes. 

Yes. 

Yes. 

Yes 

Yes. 

Yes 

Yes. 

.......................................... 

..... : 

Yes 

.......... 

Yes 

Yes.. 

Bad con- duct dischafge, 

Iorle~ture 

of all pay 

and allowances 

-- 

.............. 

--..--......... 

...-.......... 

.............. 

.............. 

............... 

.............. 

............... 

.......................... 

................................ 

................... 

Yes. 

.................... 

..................... 

Yes. 

Yes 

............... 

............. 

Punishments 

Conbement at hard labor not to exceed- 

~orfeitke 

of twothuds 

pay per month 

not to exceedY1 

C, 

.S, 

.............................. 

.............................. 

.............................. 

.............................. 

.............................. 

.............................. 

-............................. 

.............................. 

1 

.......... 

........................ 

3 

........................ 

6 

........................ 

........................ 

........................ 

.............................. 

.............................. 

Forfeiture of 

pay not to ex- ceed5 - 

........ 

2 

........ 

. -. -. . - 

- 

...... 

3 

...... 

...... 

,. 

$ -- 

6 

1 

5 

5 

3 

2 

5 

1 

.......... 

.......... 

.. 

10 

6 

Y) 

5 " 

- 

g 

1 

6 

3 

6 

6 

6 

3 

6 
PUNISHMENTS 

Offenses 

TABLE OF MAXIMUM PUATISHYnNTG-Continued 

o 

M 

.- u 

4 

-- 

91 

92 

93 

94 

96 

86 

D7 

88 

BB 

1W 

101 

oflense 

table. 

SECTION 

- ---- 

Striking or otherwise assaulting, while 

in the execution 01 his office, a: 

Warrant officer --------------------- Noncommissioned or petty officer-.. 

Willlully disobeying the Iawlul order 

of a: 

Warrant officer.. -. ------. . . -- - - - - - - Noncommissioned or petty officer-. 

Treating with contempt or being disrespectful in language or deportment, 

while in the execution of his office, a: 

Warrant officer --------....--------- 

Noncommissioned or wtty officer.. 

Violating or failing to obey any lawful 

general order or regulation.6 

Knowingly failing to obey any other' 

lawful order.6 

Being derelict in the performance of 

duties. 

Cruelty toward or oppression or maltreatment of any person subject to his 

orders. 

Mutiny, sedition, failing to report, etc. 

(See Art. 94.) 

Resisting apprehension -.--------------- 

Breaking mt -..-.--.----------------- Escaping lrom custody or wnlhement-- 

Releasing, without proper authority, a 

prisoner duly oommitted to his charge. 

BuBering a prisoner duly committed to 

his charge to escape: 

Through design --------------.----- 

Through neglect ..--.--. .--.------- 

Unlawful detention of another .--------- 

Unnecessary delay in disposing of a 

ease, or failing to enforce or comply 

with procedural rules. 

Misbehavior before the enemy. (See 

Art. 99.) 

Subordinate compelling surrender. 

(Bee Art. 100.) 

Improper use of countersign. (See Art. 

101.) 

The punishment for this offense does not 

which, although involving a failure to 

A-Continued 

Dishonorable discharge 

forfeitu;e 

of eJl pay and allowances 

Yes ----- Yes. ---- 

Yes. ---- ..------.- 

..--.----- 

...-..-... 

Yes ..... 

.--.---.-. 

.-.-...-.. 

Yes -..-- 

------.--- 

---------- 

Yes.. -. 

Yes. .... 

Yes. --.. 

.... . . - -.. . Yes.. ... 

--......-. 

apply in those 

obey a 

Bad con- duct discharge 

1orfeitu;e 

of all pay and allowances 

.-.------- 

-----.-.-- 

.._--- - -- - Yes ...-. 

Yes ..... 

----....-- 

-.....---- 

Yes ...-. 

........-- 

....------ 

Yes ..... 

Yes -.... 

- .--...... 

---....... 

.---...--- 

Yes. .-.. 

......---. 

Yes ..--- 

cases 

lawful order, 

Punishments 

Confinement at hard labor not to exceedForfeiture of twothirds 

pay per month 

not to exceedLo 

sg 

2 

---------- 

---------- 

----- ---- - ---------- 

.--------- 

3 

---------- 

---------- 

3 

---------- 

-._------- 

--.------. 

.- -_-- --.. 

...-----.. 

..-------. 

---------- 

..------.. 

.-------._ 

found guilty 

elsewhere 

6 

1 

2 

-..... 

...--- 

---... 

2 

.-.--- 

-.--_. 

1 

1 

....-. 

1 

2 

2 

1 

3 

----._ 

wherein 

is 

Forfeiture of 

pay not to ex- ceed5 

4 

-------- 

-------- 

------ - - -------- 

-------- 

-. -. - . . - -------- 

-------- 

- - - - . . -- 

.------- 

-----..- 

- - - - -. . ---'--.. 

-------. 

------.- 

------.. 

------._ 

of an 

in this 

~ 

5 

"g 

kxa 

------ 

------ 

-- -- - - 

6 

6 

3 

.----. 

6 

3 

-----. 

...... 

6 

. ..... 

....-- 

.----- 

.----- 

-.---- 

6 

the 

specifically 

------ 

.----- 

--- --- .----- 

------ 

------ 

------ 

---..- 

------ 

.----- 

...... 

--.-.. 

- - ..- - --..-- 

------ 

..---- 

.----- 

..-.-- 

accused is 

listed 
?l 127c CHAPTER XXV 

TABLE 03' MAXJ,W.UAf PUATISHMENT8-Continued 

- SECTION A-Continued 

I Punishments 

Offenses 

Conhement at hard labor not to exceedDishonorable discharge, 

forkiture 

of all pay 

Bad con. duct disohafge, 

forfeltwe 

of all pay 

gnowingly forcing a safeguard. (See 

Art. 102.) 

Captured or abandoned property, failing to secure, give notice and turn 

over, selling, or otherwise wrongfullg 

and al- and allowances lowances 

Forfeiture 

of twothirds 

pay per month 

not to 

-- 

exceeddealing in or disposing O? 

ofava~ueof~20or~ess ...... ........ IYU . I ...... I 61 ...... I ....... 

Forfcitwe of 

pay not to ex- ceedOf a value of $50 or less and more I Yes.. ... 1.. ........ 1 1 I ...... I ...... I .......... 1 ........ 

than $20. 

Of a value of more than $50 ---..... 

Looting or pillaging. (Any punishment 

other than death.) 

Aiding the enemy. (See Art. 104.) 

Misconduct as a prisoner. (Any punishment other than death.) 

Spies. (See Art. 106.) 

Signing any false record, return, redation, order, or other official document. 

Making any other false official statement: 

By a noncommissioned or petty 

officer. 

By any other enlisted person.-.--- 

Belling or otherwise disposing of military property of the United States: 

Of a value of $20 or less ............ 

Of a value of $50 or less and more 

than $20. 

Of a value 01 more than $50 ........ 

Through neglect damaging, destroyin?, 

or losing, or through neglect suffering 

to be lost, damaged, destroyed, sold, 

or wrongfully disposed of, military 

property of the United States of a 

value or damage: 

Of $20 or less ....................... 

Of $50orlessandmore than$20----- 

Of more than $50- ................. 

Willfully damaging, destroying, or 

losing, or willfully sdering to be lost, 

damaged, deslroyed, sold, or wrongfully disposed of, military property 

of the United States of a valuc or 

Ye...-.. 

Yes..... 

Yes..... 

........................ 

Yes .................... 

Yes ............... 1 

Yes ............... 5 

......................... 

......................... 

Yes ............... 1 

damage: 

Of $20 or less ....................... Yes 

Of $60 or less and more than $20 .... Yes.. 

Of more than $50- .................. 1 Yes.. ... .......... ..... ...... .......... ........ 
PUNISHMENTS 1 127c 

TABLE OF MAXIMUM PUNISHMENTS-Continued 

SECTION A-Continl~ed 

-1 I I I I I 

Punishments 

Offenses . Dishonor- Bad con- able dis- duct discharge, cha~ge, forfeiture forfeiture 

of all pay of all pay and al- and allowancas lowances 

Confinement at hard labor not to exceed- - .. 

month 

exceedForfeiture of 

pay not to ex- ceedWasting, spoiling, destroying, or damaging any property other than military property of the United States of a 

value or damage: 

Of 82Il or less-. .................... 

Of $XI or less and more than $20. -. 

Of more than $XI- -.-- .---------- - - Hazarding or suffering to be hazarded, 

negligently, any vessel of the armed 

forces. I I IIII I 

Yes 

Yes 

Yes 

Yes 

..................... 

............... 

............... 

............... 

Operating any vehicle while drunk or in 

a reckless or wanton manner: 

Resulting in personal injury ........ 

Otherwise .................................... 

Found drunk on'dutp ............................ 

 isb behavior of sentinel or'lookol~t ...... 

Duelmg ................................ 

Feigning illness. physical disablement, 

mental lapse, or derangement. 

Intentional sell-idicted infury. ........ 

Riot .................................... 

Breach of the pem 

Provoking or mproachful words or 

gestures. 

Murder. (See Art. 118.) 

Manslaughter: 

Voluntary ............................ 

Involuntary .......................... 

Rape. (See Art. 1%) 

Wrongful cnrnal knowledge of a female 

below the age of 16 years. 

Larceny of property: 

Of a value of %ZD or less. .............. 

Of a value of $50 or less and more than 

$20. 

Of B value of more than $50 ........... Wrongful appropriatio.~ of property: 

Of a value of M0 or less-. 

Of a value of War less and more than 

$zo. 

Of a value of mare than $50 ..................... 

Of any motor vehicle ................. 

Robbery ............................... 

Forgery ................................ 

Maiming ............................... 

Sodomy ................................ 

1 

5 

2 

Yes 

Yes. 

Yes 

Yes 

Yes 

Yes 

............................................... 

Yes 

Yes 

Yes 

Yes.. 

Ye$. 

Yes 

....................................... 

Ycs 

Yes 

Yes 

Yes 

Yes 

6 

............... 

Yes. 

Yes 

.............. 

............... 

............... 

............... 

............... 

.......................... 

............... 

............... 

............... 

.................... 

.............. 

................ 

.......................... 

Yes.. 

............... 

............... 

............... 

............... 

............... 

........................ .............................. 

.............................. 

.............................. 

1 

.......... 

........... 

1 

1 

1 

7 

10 

10 

3 

15 

1 

5 

......... 

2 

10 

5 

7 

5 

6 

0 

6 

3 

6 

3 

6 

6 

...... 

...... 

...... 

...... 

.............................. 

........................ 

........................ 

.............................. 

.............................. 

.............................. 

.............................. 

.............................. 

6 

3 

.............................. 

.............................. 

.............................. 

........................ 

.............................. 

.............................. 

3 

6 

........................ 

.............................. 

.............................. 

.............................. 

.............................. 

.............................. 

........ 

- - - - - - . - 

........ 

........ 
U 127c CHAPTER XXV 

TABLE OF MAXI-LfU4f PUNISHMENTS-Continued 

SECTION A-Continued 

I Punishments 

Arson: 

Aggravated .......................... 

Simple, where the property isOf a value of $50 or less ............ 

Of a value of more than $50 ........ 

Extortion .-..-. .-. - - - - - -------------- - - Assault-.- ............................. 

Assault (consummated by a battery). . 

Assault, aggravated: 

With a dangerous weapon or other 

means or force likely to produce 

death or grievous bodily harm. 

Intentionally inflicting grievous 

bodily harm, with or without a 

weapon. 

Burglary .............................. 

Housebreaking ......................... 

Perjury ........................-.-.---- 

Forging or counterfeiting a signature, or 

making a false oath in connection 

with a claim, and offenses related to 

either of these. 

Other cases: 

When the amount involved is $20 or 

less. 

When the amount involved is $50 or 

less and more than $20. 

When the amount involved is more 

than $50. 

Abusing a public animal.. ............ 

Adultery.. ..........................-- 

Assault: 

Indecent.. .......................... 

Upon a commissioned officer of the 

Air Force, Amy, Coast Guard, 

Navy, or a friendly foreign power, 

not in the execution of his office. 

Upon a warrant officer, not in the 

execution of his office. 

Upon a noncommissioned or petty 

officer, not in the execution of his 

office. 

Upon any person who, in the execution of his office, is pcrforminr air 

police, military police, shore patrol, 

or civil law enforcement duties. 

Forfeiture of 

pay not to ex- ceed- 

-- 
PUNISHMENTS 

TABLE OP MAXIMUiM PUNISHMENTS-Continued 

SECTION A-Continued 

- -- 

I Punishments I I I 

Assault-Continued 

With intent to commit voluntnrg 

mnnslaughter, robbery, sodomy, 

arson, burglary, or housebrenking. 

With intent to commit murder or 

rape. 

Assault (consummated by a battery) 

upon a chid under the age of 16 years. 

Bigamy.. ............................. 

Bribe or graft, accepting, asking, receiving, oflering, or promising. 

Check, worthless, making and uttering: 

With intent to deceive (given in 

payment of a preexisting debt). 

By failing to maintain sdcient 

funds. 

Debt, just, failing to pay, under such 

circumstances as to bring discredit 

upon the military smice. 

Disloyal statements undermining discipline and loyalty, uttering. 

Disorderly: 

In command, quarters, station, camp, 

or on board ship. 

Under such circumstanrzs as to bring 

discredit upon themilitary service. 

Drinking liquor with aprisoner- . -- - --- Dmgs, habit forming, or marihuana, 

wrongful possession or we. 

Dm: 

In command, quarters, station, or 

camp. 

Prisoner found ...................... 

Under such circumstances as to bring 

discredit upon the military service. 

Incapacitating self to perform duties 

through prior indulgence in intoxicating liquor. 

Drud and disorderly: 

Aboard ship ......................... 

In command, quarters, station, or 

camp. 

Under such circumstances as to bring 

discredit upon the military service. 

m 

M 

.- a 

4 

Offenses 

Dishonorable discharge 

forfeitde 

of nll pay and al- and allowances lowances 

Bad con- duct discharge, 

forfeiture 

of all pay 

Confinement at hard labor not to exceedForfoiture 

of twothirds 

pay per month 

not to exceedForfeiture of 

pay not to ex- ceed- 
CHAPTER XXV 

TABLE OF MAXIMUfl PUNISHMENT84cnntinoed 

SECTION A-Continued 

- a 

.- * 

7 

- 

134 

Offenses 

Falseor unauthorized military or official 

pass, permit, or discharge eertillcate, 

making, using, altering, possessing, 

selling, or otherwise disposing of. 

False swearing .......................... 

Firearm, discharging: 

Through carelessness. 

Wrongfully and willfully, under such 

circumstances as to endanger Me. 

Fleeing from the scene of an accident 

Gambling by a noncommissioned or 

petty officer with a person of bwer 

military grade. 

Homicide, negligent .............................. 

Impersonating an officer, warrant 05- 

cer, noncommissioned or petty officer, 

or agent of superior authority: 

With intent to defraud ............. 

All other cases ................................ 

Indewnt act or liberties with a child 

under the age of 16 years. 

Indecent exposure of person. 

Indecent, insulting, or obscene language, 

communicating to a bmale. 

Indecent or lewd acts with another ...... 

Loaning money, either as principal or 

agent, at a usurious or unconscionable 

rate of interest to another in the 

military service. 

Mail matter in the custody of the Post 

Office Department or in the custody 

of any other agency, or not yet dclivered or received: taking, openmg, abstracting, secreting, destroying, stealing, or obstructing. 

Mails, depositing or causing to be deposited obscene or iudeoent matter in. 

Misprision of a felony .................. 

Nuisance, committing 

Pandering .............................. 

Parole, violation of ............................... 

Perjury, statutory ...................... 

Perjury, subornation of. ............... 

Prisoner, allowing to do an unauthorized act. 

Dishonorable discharge 

forleitu;e 

of all pay and allowances 

- 

Yea. 

Yes. 

.......................................... 

Yes 

...-.... 

Yes. 

Yes 

..................................... 

Yes. 

Yes. 

Yes 

Yes 

YPS. 

............................................ 

Yes.. 

Yes 

Yea. 

Bad con- duct discharge, 

forfeiture 

of all pay 

and allowances 

- 

.............. 

...-.......... 

-.-...........- 

Yes.. 

...................................... 

Yes ..... 

.............. 

Yes 

............... 

.............. 

.............. 

...................................... 

............... 

....... :- 

.............. 

........... 1- 

Yes 

............... 

.............. 

.......................... 

Punishments 

Confinement at hard labor not to exceedForfeiture 

of twothirds 

pay per 

month 

not to 

exeeed- 

~1 

5 

g 

2 

.............................. 

.............................. 

3 

.............................. 

........................ 

3 

.............................. 

.............................. 

........................ 

.............................. 

6 

.............................. 

............................. 

3 

.............................. 

.............................. 

.............................. 

3 

.............................. 

........................ .............................. 

.............................. 

3 

- 

3 

3 

1 

......... 

1 

3 

........... 

7 

1 

6 

6 

6 

3 

6 

... 

6 

6 

Forfeiture of 

pay not to ex- ceedV1 

R 

- 

d 

- - - . - -. - 

- - - - - - - - 

- - - - . - - - 

........ 

- - - - - - . -

- - - - - - . -

~1 

5 

$gE *$ - 

3 

6 

6 

6 

3 

6 

3 

- 

...... 

...... 

...... 

...... 
PUNISHMENTS C 127c 

TABLE OF MAXIMUM PUNISHMENTS-Continued I 

SECTION A-continued 

-- 

I I. Punishments I 

Publie rccnrd, willIully and ~~lowfully altering. concealing, destroying, 

mutilating, obliterating, removing, 

or takimg and carrying away with 

intent to alter, conceal, destroy. mutilate, obliterate, rcmove, or steal. 

Quarantine, medical, beking ......... 

Refusing, wrongfully, to testify before 

a court-martial, military corn mission, 

court of inquiry, or board of officers. 

Restriction, administrative or punj tive, 

breaking. 

Sentinel or lookout: 

Offenses against, while in tha .erecution of hi dutyBehaving in an insubordinate or 

disrespectful manner tmward. 

Striking or otherwise ~ultii~. 

Offenses byLoitering or sltting down on duty.. 

Stolen property, knowingly recei~g: 

Of a value of $20 or less. ............ 

Of a value of 650 or less and mom 

than $20. 

Of a value of more than $50.. ....... 

Straggling-- ............................ 

Threat, communicating. ............... 

Unclean accouterment, arm, clothing, 

equipment, or ot,her rnilitarp prop 

erty, found with. 

Unilorm, unclean, appearing in. or not 

in prescribed uniform. or in unilorm 

worn otherwise than in lryanner prescribed. 

Unlawful entry ......................... 

Weapon, cancealed, carrying.-. ........ 

Wearing unauthorized insignla, medsI, 

dewration, or badge. 

I charge, I charge, I 

Iorielturc forlciture not to cced- 1 nrcnnd- . -.--- 1 

of all pa~ of all PRY --- and al- rand al- m 

lowances lowances f! 
fl 127c CHAPTER XXV 

SECTION B 

Permissible additional punishments.-If an accused is found 

guilty of an offense or offenses for none of which dishonorable or bad 

conduct discharge is authoriz,ed, proof of two or more previous 

convictions will authorize ba.d conduct discharge and forfeiture of all 

pay and allowances and, if the confinement otherwise authorized is less 

than three months, conhement at hard labor for three months. In 

such a case no forfeiture shall be imposed for any period in excess of 

the period of confinement so adjudged. See 756 (2) as to limitations 

concerning evidence of previous convictions which may be considered; 

see also 126c (1) concerning the limitations on the power of special 

courts-martial to adjudge cohement and forfeitures. 

If an accused is found guilty of two or more offenses for none of 

which dishonorable or bad conduct discharge is authorized, the fact 

that the authorized confinement without substitution for such offenses 

is six months or more will, in addition, authorize bad conduct discharge 

and forfeiture of all pay and allowances. But see 126~ (1). 

A fine may be adjudged against any enlisted person, in lieu of forfeitures, provided a punitive discharge is also adjudged. A fine 

should not ordinarily be adjudged against a member of the armed 

forces unless the accused was unjustly enriched by means of an offense 

of which he is convicted. However, a fine may always be imposed upon 

any member of the armed forces as punishment for contempt (Art. 48). 

If an enlisted person of other than the lowest enlisted grade is convicted by a court-martial the court may, in its discretion, adjudge 

reduction to an inferior grade (but see 126c (2) concerning the limitations on summary courts-martial) in addition to the punishments 

otherwise authorized. Reprimand or admonition ]nay be adjudged in 

any case. 
Chapter XXVI 

NON-JUI)ICLAL PUNISHMENT 

AUTHORITY-POLICIES GENERALLY APPLICABLE-EFFECT OF ERRORS-PUNISHMENTS-RIGHT TO DEMAND TRIAGPROCEDUREAPPEALS-MISCELLANEOUS 

128. AUTHORITY.-a. Who may impose non-judicial punishment.-Under the authority of Article 15, any commanding officer 

may, for minor offenses, without the intervention of a court-martial, 

jmpose disciplinary punishments upon officers, warrant oficers, and 

other military personnel of his command (Art. 15a). This authority 

of a commanding officer cannot be delegated, but communications with 

respect thereto may be signed or transmitted by him personally or as 

provided for official communications in general. 

The Secretary of a Department may, by regulation, place limitations 

on the categories of commanding officers authorized to exercise such 

powers (Art. 156). Unless otherwise prescribed by such departmental 

regulation, the commanding officer of any command of an armed force 

may exercise power under Article 15. 

In the Army and the Air Force, power under Article 15 may be 

exercised by commanding officers only, not by 05cers in charge. 

A11 officer in charge of any unit of the Navy or the Coast Guard who 

is within a category authorized by the Secretary of the Department 

concerned to exercise such powers may, for minor offenses, impose on 

enlisted persons assigned to the unit of which he is in charge, such of 

the punishments authorized to be imposed by a commanding o5cer as 

the Secretary of the Department concerned may by regulations specifically prescribe, as provided in Articles 15a and 6 (Art. 15c). The 

Army and the Air Force have no "officers in charge" as that term is used 

in ths chapter. 

Officers in charge of Navy units are empowered to impose any of 

the disciplinary punishments authorized in 1316 (2) and (3). 

6. Minor offenses.-Whether an offense may be considered "minor" 

depends upon its nature, the time and place of its commission, and 

the person committing it. Generally speaking the term includes misconduct not involving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary 

court-martial. An offense for which the punitive article authorizes 

the death penalty or for which confinement for one year or more is 

authorized is not a minor offense. Offenses such as larceny, forgery, 

maiming, and the like involve moral turpitude and are not to be 
ll 130 CHAPTER XXVl 

treated as minor. Escape from confinement, willful disobedience 

of a noncommissioned officer or petty officer, and protracted absence 

witlldut leave are offenses which are more serious than the average 

offense tried by summary courts-martial and should not ordinarily 

be treated as minor. 

c. Nonpunitive measures.-Article 15 and the provisions of this 

chapter do not apply to, include, or limit the use of those nonpunitive 

measures that a commanding officer or officer in charge is authorized 

and expected to use to further the efficiency of his command or unit, 

such as administrative admonitions, reprimands, exhortations, disapprovals, criticisms, censures, reproof<'and regulces, written or oral, 

not intendgd or imposed as punishment for a-mil-fense. Article 

15 does not deprive a commanding officer or an officer in charge of the 

power he had prior to the enactment of that article to make use of 

admonition and reprimand, not as n penalty but as a purely corrective 

measure, more analogous to instruction than to punishment, in the 

strict line of his duty to create and maintain efficiency. 

129. POLICIES GENERALLY APPLICABLE-A commanding officer or officer in charge should resort to his power under Article 

15 in every case in which punishment 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. Soperior commanders should restrain any tendency of subordinate commanders to 

resort &necessarily to court-martial jurisdiction for the puizislment 

of offenders. 

Although a superior commander has authority to impose disciplinary punishment upon any military subordinate of his command, it is 

customary for such superior commander to refer any breach of discipline on the part of an enlisted person who is a member of a subordinate unit to the attention of the immediate commanding officer 

of the offender. Conversely, while any immediate commanding officer has authority to impose certain disciplinary punishments upon 

officers and warrant officers of his command, it is generally considered 

better practice to refer breaches of discipline on the part of such officers and warrant officers to the attention of the superior commanding 

officer who is authorized to exercise summary court-martial jurisdiction. If the officer to whom information concerning a breach of discipline is forwarded as conteillplated in this subparagraph lacks jurisdiction to impose the most appropriate punishment (see Arts. 15a (1) 

(c) , 15a (2) (d) ) , he should forward the matter to a superior competent authority. 

130. EFFECT OF ERRORS.-Any failure to comply with the 

regulations of this chapter will not invalidate a punishment imposed 
NON-JUDICIAL PUNISHMENT 8 131b 

under Article 15, except to the extent that may be required by a clear 

and affirmative sl~owing of injury to a substantial right of the person 

on .whom the punishment was imposed, which right was neither expressly nor impliedly waived. 

131. PUNISHMENTS.-a. Authority to limit punishments.- 

The Secretary of a Department may, by regulations, place limitations 

on the powers granted by Article 15 with respect to the kind and 

amount of punishment authorized. See Article 156. Unless otherwise prescribed by such departmental regulations the kinds and 

amounts of punishment authorized by Article 15a may be imposed 

upon the personnel of any armed force as authorized in this paragraph 

(131). . 

6. Authorized punishments.-In addition to or in lieu of admonition or reprimand, one of the following disciplinary punishments may 

be imposed upon military personnel under Article 15 : 

(1) Upon ofleers and warrant officers- 

(a) Withholding of privileges for a period not to exceed two consecutive weeks; or 

(6) Restriction to certain specified limits, with or without suspension from duty, for a period not to exceed two consecutive 

weeks ; or 

(c) If imposed by an officer exercising general court-martial 

jurisdiction, forfeiture of not to exceed one-half pay per month 

for a period not exceeding one month (Art. 15a (1) ) . (2) Upon nmcmmi.rsioned officers and petty officers- 

(a) Either of the punishments prescribed in 131b (1) (a) and 

(8) ; or 

(6) Extra duties for a period not to exceed two consecutive weeks, 

and not to exceed two hours per day, holidays included; provided, 

that no such punishment which tends to degrade the grade of the 

person on whom the punishment is imposed may be imposed upon 

noncommissioned o5cers or petty officers; or 

(c) Reduction to the next inferior grade, if the grade from 

which demoted is, under pertinent departmental regulations, within 

the promotion authority of the commanding officer imposing the 

punishment or within the promotion authority of any commanding officer subordinate to the one who imposes the punishment. . .See Article 15a (2). 

/ In the Army, commanding officers below the rank of major are 

not authorized to impose a one grade reduction upon noncommissioned officers as punishment under Article 15. See 129. 

(3) Upon edhted persons ather than, noncommissioned officers 

and petty ofitws531 

921786°-51-16 
U 133a CHAPTER XXVl 

(a) Either of the punishments prescribed in 131b (1) (a) and 

(8) ; or 

(b) Extra duties for a period not to exceed two consecutive weeks, 

and not to exceed two hours per day, holidays included; or 

(G) Reduction to the next inferior grade, if the grade from which 

demoted is, under pertinent departmental regulations, within the 

promotion authority of the commanding officer imposing the punishment or within the promotion authority of any commanding 

officer subordinate to the one who imposes the punishment; or 

(d) If imposed upon a person attached to or embarked in a vessel, 

confinement for a period not to exceed seven consecutive days; or 

(e) If imposed upon a person attached to or embarked in a vessel, 

confinement on bread and water or diminished rations for a period 

not to exceed three consecutive days (Art. 150: (2) ). 

G. Execution of punishment.-Except as otl~erwise prescribed, the 

commanding officer of the accused is charged with the execution of 

punishment imposed pursuant to Article 15. Punishment will be 

strictly enforced. 

132. RIGHT TO DEMAND TRIAL.-The Secretary of a Department may, by regulations, place limitations on the powers granted by 

Article 1'5 upon the applicability of that article to an accused who 

demands trial by court-martial (Art. 158). 

Pursuant to the authority of Article 156, the following departmental regulations with respect to the applicability of Article 15 to persons who demand trial by court-martial are announced by the several 

Secretaries : 

Amy and Air Force.-No disciplinary pnnishment under the provisions of Article 15 may be imposed upon any member of the Army 

or of the Air Force 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 require preferring, transmitting, or forwarding of charges, but punishment may 

not be imposed under Article 15 while the demand is in effect. 

Navy and Coast Guard.-No member of the Navy or the Coast 

Guard may demand trial by court-martial in lieu of punishment 

under the provisions of Article 15. 

133. PROCEDURE.-a. Army and Air Force.-The commanding officer, after ascertaining to his satisfaction by such investigation 

as he deems necessary that an offense cognizable by him under Article 

15 has been committed by a member of his command, will notify such 
- NON-JUDICIAL PUNISHMENT 8 133b 

member of the nature of the offense as clearly and concisely as may be 

possible, and will inform him that he proposes to impose punishment 

Article 15 as to the offense unless trial by court-martial is 

demanded. He will also inform the accused that he may submit such 

matters as he desires either in mitigation, extenuation, or defense. 

In appropriate cases he will inform the accused that he is not required 

to make any statement regarding the offense of which he is accused or 

suspected and that any statement made by him may be used as evidence 

against him in a trial by court-martial. The notification and information will be by written communication through proper channels in 

the case of an officer or warrant officer and may be by written communication in any case. If the notification is in writing, the accused 

will be directed to ackmowledge receipt of the communication by indorsement through propernchannels and to include in the indorsement 

any demand for trial he wishes to make and any matter in mitigation, 

extenuation, or defense. See appendix 3 for the suggested form of 

such correspondence. If the notification and information is not in 

writing the accused will be given a reasonable time to make up his mind. 

With respect to each offense as to which no demand for trial is made, 

the commanding officer may proceed to impose punishment. 

The accused will be notified of the punishment imposed as soon as 

practicable and at the same time will be informed of his right to appeal. 

See 134. If the original communication was in writing, the notification of the punishment imposed and any reprimand or admonition 

which may be included in such punishment will be by indorsement on 

the communication carrying the original notification, and the accused 

mill be directed to acknowledge receipt by similar indorsement and 

include in his indorsement the date of such receipt and any appeal he 

may desire to make. If the notification of the punishment is not in 

writing, the immediate commanding officer of the accused will be 

informed of the matter and given the necessary data for the record 

of punishment. See 135. 

6. Navy and Coast Guard.-Ordinarily, the commanding officer 

will inquire at the mast into the facts as to any minor offense allegedly 

committed by a member of his command. See 32 and 33a. There 

the accused will be informed of the nature of the offense alleged and 

will be given the warning set forth in Article 31. The same warning 

will be given to any witnesses called during the investigation. After 

giving to both the accused and the accuser (if available) an impartial 

hearing including any matter in mitigation, extenuation, or defense 

which the accused may have desired to submit, the commanding officer 

may impose punishment under Article 15 when necessary. At that 
ll 134 CHAPTER XXVl 

time he shall inform the accused of his right to appeal from the punishment so imposed. See 134. 

The finding of 'facts made by a court of inquiry or a board of 

investigation wherein the accused was named a party may also 

constitute the grounds for imposing punishment under Article 15 on 

a member of his command. Under such a circumstance the accused 

will be brought before the mast and informed of the punishment the 

commanding, o5cer is imposing and of the accused's right to appeal 

therefrom. Forfeiture of pay imposed as disciplinary punishment 

shall be confirmed in writing. Notice of such forfeiture shall be 

given to the disbursing officer as directed by departmental regulations. 

A report of the facts established at the mast or by a court of inquiry 

or board of investigation shall aoc'ompany any reference of a breach 

of discipline to a superior competent authority when such reference 

is made in accordance with the policy set forth in 129. If such 

superior competent authority is satisfied from the facts submitted 

to him that an offense cognizable by him under Article 15 has been 

committed, he may impose punishment upon the accdsed under that 

article. The accused shall be notified as soon as practicable of this 

punishment together with the fact of his right to appeal therefrom. 

Such notification shall be through proper channels and may be by 

'written communication. If the notification is in writing, the accused 

will be directed to acknowledge receipt of the communication by 

indorsement through proper channels. 

Admonitions and reprimands imposed as punishments under 

Article 15 shall be by written communications through proper channels 

in the case of an officer or warrant officer and may be by written 

communication in any case. All such letters of censure addressed 

to an officer or a warrant officer shall be in the form prescribed by 

pertinent regulations. 

134. APPEALS.-A person punished under the authority of Article 

15 who deems his punishment unjust or disproportionate to the 

offense may, through the proper channel, appeal to the next superior. 

The appeal shall be promptly forwarded and decided, but the person 

punished may in the meantime be required to undergo the punishment 

adjudged (Art. 15d). An appeal not made within a reasonable time 

may be rejected by the next superior authority. 

An appeal will be in writing through proper channels (see 133 

as to appeals by indorsement) and mill include 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 with the appeal a copy of the record (135) 

in the case. In passing upon the appeal the superior will ordinarily 
NON-JUDICIAL PUNISHMENT l 135~ 

hear no witnesses. When justice requires such action, he will modify 

the punishment or set it aside, but will not increase it, and will in 

no case award a different kind of punishment. After having 

considered an appeal, he will return the papers through channels to 

the appellant, with a statement of the disposition of the case and 

with a direction to return the papers to the immediate commanding 

officer of the appellant for file with the record of the case. 

135. MISCELLANEOUS.-a. Suspension, remission, and restoration.-The officer who imposed the punishment, his successor in 

command, and superior authority shall have power to suspend, set 

aside, or remit any part or amount of thc punishment and restore 

all rights, privileges, and property affected (Art. 15d). Application 

for suspension, setting aside, remission, or restoration and any action 

taken under this authority will be in writing and subject to the 

regulations as to appeals (134) as far as applicable. 

Although the power to remit the unexecuted portion of n, 

may be exercised liberally, the power to set aside 

punishments and to restore rights, privileges, and property affected 

by the executed portion of a punishment should be exercised only when 

the authority considering the case believes that the punishment has 

resulted in a clear injusticeas for example when there is a reasonable 

doubt of the accused's guilt of the offense for which he was punished. 

6. Records of punishment.-As to each offense for which punishment is imposed under Article 15, the immediate commanding officer 

of the person on whom such punishment was imposed will cause a 

record to be made and filed in his office or other place, showing the 

offense, with date and place of commission ; the punishment, with the 

authority that imposed it and the date the accused received the notice 

of the imposition of the punishment ; the decision of higher authority 

on any appeal ; any suspension, mitigation, remission, or setting aside 

of the punishment; and any remarks or additional data desired. See 

appendix 3 for the form of record. Where punishment is accomplished by written communication and indorsements, the written correspondence will constitute the record. 

In addition to the record of punisllment herein prescribed, such 

additional records will be kept, and disposition thereof made, as may 

be prescribed by departmental regulations. 

c. Zncidental matters.-With reference to interposing punishment imposed under Article 15 in bar of triaI, see 68g and Article 15e. 

With reference to showing punishment under Article 15 in extenuation, 

see 75c (4) and Article 15e. 
Chapter XX VIi 

RULES OF EVIDENCE 

136. SYNOPSIS OF CHAPTER.-In this spops,is the referi 

on the left are to paragraphs ; those on the right are to pages. 

Par. 

137. General------------------------------------------------------ 

138. Presumptions; direct and circumstantial evidence; real evidence; 

testimonial knowledge; opinion evidence; character evidence; 

evidence of other offenses or acts of misconduct of the accused-- 

a. Presumptions-------------------------------------------- 

b. Direct and circumstantial evid'ence-- --------- ------- - ------ 

c. Real evidence ------------- 

d. Testimonial knowledge ------------------------ ------- ----- 

e. Opinion evidence ----------- ------------------------------ 

f. Character evidence-character of the accused; d others- - - - - - 

(I) Proof of character --:-----------------

. , 

(2) Character of the accused- --------.----. .------- --- 

(3) Character of persons other than the accused- ----------- 

g. Evidence of other offenses or acts of misconduct of the accused- - 

139. Hearsay rule -------------------------------------- -------.--- 

a. General rule -------- ----------------- .------- - .---- - --- 

b. Illustrations ---------------------------------------------- 

c. Exceptions------------------------------------.---------- 

140. Confessions and admissions; acts and statements of conspirators and 

accomplices------------------.-------------------------.-- 

a, Confessions and admissions--- - --------- -------- ------- - -- - 

b. Acts and statements of conspirators and accomplices_------ - - - 

141. Statements made through interpreters --------- -------- ---------- 

142. Dying declarations; spontaneous exclamations; fresh complaint; 

statements of motive, intent, or state of mind or body-- ----_ _ _ - 

a. Dying declarations -------- - -- -- -------- - --------------- - - 

b. Spontaneous exclamations- ------ -------- --------- --------- 

. c. Fresh complaint ......................... --------.------- - 

d. Statements of motive, intent, or state of mind or body-------- 

143. Documentary evidence-proving contents of a mriting; authentica- . . tion of writmgs------------------------------------------- 

a. Proving contents of a writing -_--__. ._------.. -------------- 

(I) General rule ----_.---------- - --------- .------------- 

(2) Exceptions___-----.--------.----------------------- 

b. Authentication of writing;_ _ ------ -- .. -------. . .------. ----- 

(1) General-------------------------------------------- 

(2) Official records- _ - --- --------..--------- ------------- (a) General------..-------------:---.------------- 

(b) Military records -._--------------------

(c) United States records. _- ----------------------- 

(d) State records- -------------------------------- 

(e) Foreign records ................................ 

(f) Miscellaneous --------------------------------- 

Page 

23 8 
RULES OF EVIDENCE V 136 

Par. 

144. Official writings; official records; business entries; limitations as to 

the admissibility of official records and business entries; maps 

and photographs------------------------------------------ 

a. Official writings .......................................... 

b. Officialrecords------_---__----__-----__---____----_---__- 

c. Business entries- - - -- - - - -- - - --. - - -- --- - - -: - - - - - -- -- - - - - - - - 

d. Limitations as to the admissibility of official records and business entries_---_------------------------------------- 

e. Mapsand photographs--------.------------.-------------- 

145. Depositions; former testimony ----_. - .-__---- ___----_-------..--- 

a. Depositions --__----__--------.-----_-,......---------------- 

b. Former testimony_- - _----.. --_----__--- -._----_----------- 

146. Memoranda; affidavits ---__---_-----------..----------

a. Memoranda---_------------_----__--____-------..------_- 

b. Affidavits--____----__----------------..-------------------- 

147. Judicial notice; foreign law _----_ __-----_ _ - -- ---------_- 

a. Judicial notice- - _---_--__ - -- -----. . - ---- ---- - - --. - - - ----- 

b. Foreign law---__----_----_------..----------------------- 

148. Competency of witnesses -----. .----__-..__----_---.._----..------ 

a. General------------------------------------------------- 

b. Children-__------------------------i---------.----------- 

c. Mental infirmity- - _ __-_------- _. .--------- -. -_----------- 

d. Conviction of crime -----_----__-- ------------ ------------- 

e. Interest or bias ---------------- ..-----------------..-------- 

149. Examination of witnesses-- - ------- --------___- __-----_------- 

b. Cross-examination; redirect and recross-examination; examination by the court or a member ......................... 

(I) Cross-examination .................................. 

(2) Redirect and recross-examination- - ---- ---_-- -- -_ - - - -- 

(3) Examination by the court or a member -----_---------- c. Leading questions; ambiguous and misleading questions; other 

objectionable questions ------- -_---------- -. ---- -- ----- 

(1) Leading questions ---------_ -------------- ---- ------- 

(a) General rule -------_ - .._-_-- --__-_ _ _ _--- -..----- (b) Exceptions-------_---_---___--____--_-__----_ 

(2) Ambiguous and misleading questions-. _ _ _ - - _ - -: - - - - :- - 

(3) Other objectionable questions - .__---__------ 

150. Degrading and incriminating questions-. - --_ _ - -. _ _. - - __ _- -- _-_ _ - 

a. Compulsory self-degradation.. - _ - - - -- - - - -. . - -. - - - - -1 - - - - - - - - 

b. Compulsory self-incrimination- - _-----___ .._._---____-___

151. Privileged and nonprivileged communications _--_ _ _ -- _ _-- ---_ -- - - - 

a. General--------_----_----------------__----------------- 

b. Certain privileged communications ----_ - - -------------- ----- 

(1) State secrets and police secret,~ ....................... 

(2) Communications between husband and wife, client and 

attorney, and penitent and clergyman- - - - - - - - - - . - - 

(3) Confidential and secret evidence -----_---. --- -_----- 

c. Certain nonprivileged communications - - - - - - - - - - - - - - - - - - - - - - (1) Communications by wire or radio --------------------- 

Page 
!I 137 CHAPTER XXVll 

Par. 

151. Privileged and nonprivileged communications-Continued 

c. Certain nonprivileged communications-Continued 

(2) Communications to medical officers and civilian physiclans-.---------------------------------------- 

152. Certain illegally obtained evidence - - - - - - - - _ - - - - - - - - - - _ - - - - - - - - - - 

153. Credibility of witnesses; impeachment of witnesses--- -- -_ _ - -- -- -- - 

a. Credibility of witnesses -----__----------------------------- 

b. Impeachment of witnesses- -- _ ,_ -------_ ---------- ------- 

(1) General-------------------------------------------- 

(2) Various grounds ------- .................... --------- 

(a) General lack of veracity ----___ _--i ------- - --- -- 

(b) Conviction of crime ----------- - ----------- -- --- 

(c) Inconsistent statements - - - - - _ - _ - - - - - - _ - - - - - - - - - 

(d) Prejudice and bias -------------__-------------- 

(3) Effect of impeaching evidence ........................ 

154. Miscellaneous matters-intent; stipulations; offer of proof; waiver . . of objectlons~-------------------------------------------- 

a. Intent------_-------------------------------------------- 

(1) General----------__-------------------------------- 

(2) Drunkenness---------------------------.---------.- 

(3) Ignorance of fact- - - --- ---- -- -_ _- -- ------ - - ---- - - - - - 

(4) Ignorance of Ian ----__-------- -_----------_---------- 

1). Stipulations ------ - _-- ------ -- ----- --- -- - ----- -- - - -- ---- -- - 

(1) As to facts- - - _ -- -- -L. ------- --. . - - - - ---. - ..- - - - -. -. 

(2) As to testimony snd documentary evidence ------------ 

c. Offer ofproof--------------------------------------------- 

d. Waiver of objections-- - - _ - - - -. - - - - - - - - - -. - - - - - - - - - .. - - - - -. - 

Page 

137. GENERAL-The rules stated in this chapter are applicable 

in cases before courts-martial, including summary courts-martial. So 

far as not otherwise prescribed in this manual, the rules of evidence 

generally recognized in the trial of criminal cases in the United States 

district courts or, when not inconsistent with such rules, at common law 

will be applied by courts-martial. 

On interlocutory matters relating to the propriety of proceeding 

with the trial, as when a continuance is requested, or to the availability of witnesses (see 1456; Art. 49d), the court may in its discretion 

relax the rules of evidence to the extent of receiving affidavits, certificates of military and civil officers, and other writing of similar apparent authenticity and reliability, such as a certificate of a physician 

as to the illness of a witness, unless on objection to a particular writing 

it is made to appear that the relaxation might injuriously affect the 

substantial rights of the accused or the interests of the Government. 

Evidence to be admissible (competent) must primarily be material 

and relevant. Evidence is not material when the fact which it tends 

to prove is not part of any issue in the case. Evidence is not relevant 

when, though the fact which it is intended to prove thereby is ma- 
RULES OF EVIDENCE 

terial, the evidence itself is too remote or far-fetched to have any 

probative value for that purpose. If evidence is held immaterial or 

irrelevant to the issue of guilt or innocence but is received in extenuation, it must be received solely in connection with the measure of punishment in the event of conviction. 

Evidence, apparently irrelevant, may be admitted provisionally 

upon a statement of the party offering it that other facts later to be 

paved will show its relevancy, but such evidence should afterward 

be excluded if its relevancy is not ultimately shown. However, it is 

generally more desirable to require the party offering the evidence 

first to prove the facts showing its relevancy. For that purpose, he 

may be permitted temporarily to withdraw a witness or witnesses and 

to recall one or more witnesses who have been examined. 

In the exercise of a sound discretion the court may limit the number 

of witnesses called by either side to testify to the same matter if, upon 

an offer of proof (1546) or otherwise, it appears that the testimony 

of any excluded witness would be merely cumulative. This rule 

especially applies to character witnesses. 

138. PRESUMPTIONS; DIRECT AND CIRCUMSTANTIAL 

EVIDENCE; REAL EVIDENCE ; TESTIMONIAL KNOWLEDGE ; OPINION EVIDENCE ; CHARACTER EVIDENCE ; 

EVIDENCE OF OTHER OFFENSES OR ACTS OF MISCONDUCT OF THE ACCUSED-a. Presumptions.-With certain 

exceptions, the word "presumption" as used in this manual means no 

more than "justifiable inference" and the word "presume" means no 

more than "justifiably infer." In this sense, a presumption is nothing 

more than a well recognized example of the use of circumstantial evidence (see 138b), and the weight or effect of such a presumption 

should be measured only in terms of its logical value. The weight to 

be given to a presumption of this kind mill depend upon all the cir- . cumstances attending the proved facts which give rise to the inference 

to be drawn from such facts. The fact that evidence is introduced to 

show the nonexistence of a fact which might be inferred from proof 

of other facts, or to show the nonexistence of such other facts, does not, 

if the evidence can reasonably be disbelieved, necessarily destroy the 

logical value of the inference, but such evidence must be weighed 

against the inference. In making and weighing presumptions, and 

in considering evidence introduced in rebuttal thereof, members of 

courts must apply their common sense and their general knowledge 

of human nature and the ordinary affairs of life. 

Some examples of those presumptions which are nothing more than 

justifiable inferences are : 
P 1380 CHAPTER XXVll 

A sane person may be presumed to have intended the natural and 

probable consequences of acts shown to have been intentionally 

committed by him. 

When it is shown that a person was acting as a public officer, it 

may be presumed that he was legally in office and that he performed 

his duties properly. 

A condition shown to have existed at one time may be presumed 

to have continued. Thus it may be presumed that the residence 

of a person remains unchanged; for instance, it may be presumed 

that at the time of trial a aeponent continued to reside at the place 

where he resided at the time his deposition was taken. Also, the 

circumstances of a particular case may give rise to a presumption 

that a condition shown to have existed at one time existed for some 

prior period of time. For example, proof that immediately after 

a collision the lights on a vehicle were not burning, although in 

working order at that time, would support a presumption that the 

lights had not been turned on at the time of the collision. 

Proof that a letter correctly addressed and properly stamped or 

franked was deposited in the mail raises a presumption of delivery 

to the addressee, and a similar presumption arises in regard to 

telegrams reg,ularly filed with a telegraph company for transmission. 

Identity of name raises a presumption of identity of person, The 

strength of this presumption mill depend upon how common the 

name is and upon other circumstances. 

Proof that a person was in possession of recently stolen property 

or a part of it raises a presumption that he stole it, and, if it is 

shown that the property was stolen from a certain place at a certain 

time and under certain circumstances, that he stole it from such 

place at such time and under such circumstances. 

It may be presumed that one who has assumed the custody of 

the property of another has stolen such property if he does not or 

cannot account for or deliver it at the time an accounting or 

delivery is required. 

When it is shown that as a result of his own act a person did not 

have sufficient funds in the bank available to meet payment upon 

presentment in due course of a check drawn against the bank by 

him, it may be presumed that at the fime he uttered the check, and 

thereafter, he did not intend to have sufficient funds in the bank 

available to meet payment of the check upon its presentment in 

due course. 

As indicated above, there are some presumptions which are exceptions to the general proposition that presumptions are merely 

240 
RULES OF EVIDENCE 1 138d 

justifiable inferences. Among these exceptions are those presumptions which relate to facts which courts are bound to presume in the 

absence of proof to the contrary. Example of such presumptions are: 

An accused person is presumed to be innocent until his guilt is proved 

beyond a reasonable doubt; and an accused is presumed to have been 

sane at the time of the offense charged, and at the time of trial, until 

a reasonable doubt of his sanity at the time in question appears from 

the evidence. See 148 as to the presumption of competency of witnesses. 

6. Direct and circumstantial evidence.-Evidence which tends 

directly to prove or disprove a fact in issue is called direct evidence. 

Evidence which tends directly to prove or disprove not a fact in 

issue, but a fact or circumstance from which, either alone or in 

connection with other facts, a court may, according to the common 

experience of mankind, reasonably infer the existence or nonexistence 

of another fact which is in issue, is called indirect or circumstantial 

evidence. For example, on a charge of larceny of a purse, testimony 

of a witness that he saw the accused take the purse from the overcoat 

of the owner is direct evidence that the accused took the purse, and 

testimony of a witness that he found the purse hidden in the locker 

of the accused is circumstantial evidence that the accused took it. 

Circumstantial evidence is not resorted to as a secondary or inferior 

kind of evidence or only when there is an absence of direct evidence. 

It is admissible even when there is direct evidence. There is no 

general rule for contrasting the weight of circumstantial and direct 

evidence. The assertion of a trustworthy eye-witness may be more 

convincing than the contrary inferences that appear probable from 

circumstances. Conversely, one or more circumstances may be more 

convincing than a plausible witness. See also 74a (3) (Reasonable 

doubt) as to weighing circumstantial evidence. 

c. Real evidence.-Physical objects, such as clothing, jewelry, 

meapons, and marks or wounds on a person's body, may be received 

(or exhibited) in evidence if they are relevant to an issue in the case. 

Since it is ordinarily either impossible or impracticable to attach them 

to the record of trid, such exhibits should be clearly and accurately 

described by testimony or other means (photographs, for example) so 

that they may be considered properly upon appellate review. 

d. Testimonial knowledge.-Ordinarily, a primary qnalification 

in a witness is that he should speak only of what he has learned through 

his senses. For instance, a sentry might testify that while on a sentry 

post at night he heard two sl~ots and saw two persons running in the 

distance; but he should not proceed further and state that the shots 

killed a man and that one of the persons running was the accused if 
11 138e CHAPTER XXVll 

his information as to the effect of the shots an~d the identity of the 

persons running away is based om rumor and gossip heard the following day. 

A witness may testify as to his own age, inclndiig the date of his 

birth. 

e. Opinion testimong.-It is a general rule that a witness must state 

facts and not his opinions or conclusions. However, if an impression 

upon the mind of a witness caused by his personal observation of 

certain facts is of a kind commonly experienced and is such that it 

cannot adequately be conveyed to the court by a mere recitation of 

the facts, he may state the impression, when relevant, even though it 

amounts to an opinion. Examples of such impressions are the speed 

of an automobile, whether a voice heard was that of a man, woman, or 

child, and whether or not a person was drunk. As to the expression 

of opinion with respect to general mental condition, see 1220. See 

also 138f (1) as to opinion evidence concerning character and 1436 

(1) as to opinion evidence concerning handwriting. That a witness 

is not able to testify with positive or absolute certainty about a fact 

which he has personally observed, or concerning which he is otherwise qualified to testify, goes only to the weight and not to the admissibility of whatever testimony he may be able to give with respect 

to that fact. 

An expert witness-that is, one who is skilled in some art, trade, 

profession or science or who has knowledge and experience in relation 

to matters which are not generally within the knowledge of men of 

common education and experience-may express an opinion on a state 

of facts which is within his specialty and which is involved in the 

inquiry. Prior to being permitted to express his opinion, it should 

be shown that he is an expert in the specialty. However, proof of such 

qualification may be waived, either expressly or by failure to object 

to the reception in evidence of testimony of an expert nature. 

Expert testimony may be adduced in several mays. An expert witness may be asked to state his relevant opinion, when based on his 

personal observation or on an examination or study conducted by him, 

without first specifying hypothetically in the question the data upon 

which the opinion is to be based. On direct or cross-examination he 

may be required to specify the data upon which his opinion is based, 

but if in the course of relating the data he refers to matters which, if 

themselves regarded as evidence in the case, would be inadmissible and 

might improperly influence the court, as when a psychiatrist testifies 

that his opinion as to the accused's mental responsibility was based in 

part on the.past criminal record of the accused, the law officer (or the 

president of a special court-martial) should instruct the court in open 
RULES OF EVIDENCE ll138f 

session that such matters are to be considered only with respect to the 

&ght to be given to the expert opinion. An expert witness may also 

be asked to express an opinion upon a hypothetical question (a question 

supposing a certain state of facts to exist) if the question is based 

on facts in evidence at the time the question is asked, or, if the court 

so permits in the exercise of a sound discretion, on facts which are later 

to be received in evidence. If evidence of such facts is not later introduced, the opinion based on them should be excluded. 

An admissible opinion may be regarded as evidence of the matter to 

which the opinion relates. 

f. Character euidence-Character of the accused; Of others.- 

(1) Proof of character.-Whenever the character of a person is admissible in a case, the opinion of a witness as to that person's character 

may be received in evidence if it is first shown that the witness has such 

acquaintance or relationship with the person in question as to qualify 

him to form a reliable opinion in this respect. Another mode of 

proving character is by adducing evidence of reputation for the kind 

of character involved. See also 146b. By "reputation" is meant the 

repute in which a person is generally held in the community in which 

he lives or pursues his business or profession. Testimony concerning 

the reputation of an individual in the community in which he lives or 

pursues his business or profession must come from a person whose 

knowledge of such reputation was gained from having himself been 

a member of the community in question. Thus, such testimony by one 

who has merely visited the community of an individual for the purpose 

of investigating his character is inadmissible. In the military service 

bbcomrnunity" includes an organization, post, camp, ship, or station. 

(2) Character of the accused.-The general rule is that evidence 

that the accused has a bad moral character may not be introduced for 

the purpose of raising an inference of guilt. 

In order to show the probability of his innocence, the accused may 

introduce evidence of his own good character, including evidence of 

his military record and standing and evidence of his wenera1 character 

-. 

as a moral well-conducted person and law-abiding citizen. However, 

he may not introduce evidence as ta some specific trait ,of ,character 

unless proof of that trait would have a reasonable tendency to show 

that it was unlikely'that, he committed the particular offense charged. 

For example, evidence of good character as to the peaceableness would 

be admissible in a prosecution for any offense involving violence, but 

it would be inadmissible in a prosecution for a non-violent theft. 

After the accused introduces evidence as to his good character, the 

prosecution may, in rebuttal, introduce evidence as to his bad character. However, the character evidence in rebuttal which may prop- 
CHAPTER XXVll 

erly be received will be limited by the scope of the character evidence 

introduced by the accused. Thus, when in a prosecution for larceny, 

the accused has confined his proof of good character to evidence of his 

good reputation for honesty, the prosecution may not show that the 

accused has a bad character as to general morality and conduct but 

will be limi$ed, with respect to the introduction of character evidence 

in rebuttal, to proof of his bad character as to honesty; but if the 

accused has introduced evidence of his general good reputation as a 

moral and law-abiding person, the prosecution may show not only 

that the accused has a bad moral character generally but also that he 

has a bad character as to honesty. 

If the accused takes the stand as a witness, his credibility may be 

attacked as in the case of other witnesses. For this purpose, the 

prosecution may show that the accused has a bad character as to truth 

and veracity. If the prosecution does introduce such evidence, the 

accused may show in rebuttal that his character as to truth and 

veracity is good. See 1536 (2) (a). - 

(3) Character of persons other than the accused.-When an issue 

is raised as to whether the accused was acting with adequate provocation in taking the life of a person who purportedly attacked him (see 

198a, Voluntary manslaughter) or was acting in self-defense or in 

defense of another (see 197, Murder, and 207a, Assault), it may be 

shown that the alleged victim of the homicide or assault had a violent 

character, or that he had a peaceable character. This evidence is 

admissible because of its relevancy to the inquiry as to whether 

the alleged victim was the aggressor. It may also be shown in such 

a case that the accused was aware of the violent or peaceable character 

of the alleged victim, or that the accused entertained a reasonable 

belief with respect to such character, for such evidence would have 

some bearing upon the question as to the reasonableness and extent 

of the apprehension of danger on the part of the accused. 

See 1536 (2) (a) (General lack of veracity) and 1536 (2) (6) 

(Conviction of crime) as to the admissibility of evidence of the character of witnesses and alleged victims of sexual offenses. 

g. Evidence of other offenses or acts of misconduct of the accused.-The general rule is that evidence that the accused has committed other offenses or acts of misconduct is not admissible as tending 

to prove his guilt, for ordinarily such evidence would be useful only 

for the purpose of raising an inference that the accused has a disposition to do acts of the kind committed or criminal acts in general and, 

if the disposition thus inferred was to be made the basis for an inference that he did the act charged, the rule forbidding the drawing of 

an inference of guilt from evidence of the bad moral character of 
RULES OF EVIDENCE f 138g 

the accused would apply. However, if evidence of other offenses 

or acts of misconduct of the accused has substantial value as tending 

to prove something other than a fact to.be inferred from the disposition of the accused, the reason for excluding the evidence is not applicable. Consequently, evidence of other offenses or acts of misconduct 

of the accused is admissible in the following circumstances: 

(1) When it tends to identify the accused as the perpetrator 

of the offense charged. 

Example: Two adjoining buildings are burglarized at about the 

same time on the same night and in a similar manner. 

It is permissible to show upon the trial of an accused 

for burglarizing one of the buildings that he was involved in,the burglary of the other, for such evidence 

has a reasonable tendency to establish that he was involved in the burglary charged. 

Example: The accused is charged' with burglary. Evidence is 

admissible that the burglar left a pistol at the scene 

of the burglary and that the pistol had recently been 

stolen from X by the accused. 

Example: X was induced to turn over a large sum of money by 

a peculiarly ingenious fraudulent scheme to a person 

whom he identifies as the accused. Evidence that the 

accused obtained money from Y by the same scheme is 

admissible. 

(2) 'When it tends to prove a plan or design of the accused. 

Example: The accused is charged with having obtained money 

from Z by going through a marriage ceremony with 

her, securing her funds on a representation that he 

would invest them for her, and then absconding. Evidence that he pursued the same course with W, X, and 

Y is admissible. 

(3) When it tends to prove guilty knowledge or intent, if 

knowledge or intent is an element of the offense charged. - 

Example: The accused is charged with receiving stolen goods 

knowing them to have been stolen. Evidence that he 

had received stolen goods under similar circumstances 

on several previous occasions is admissible. 

Example: The accused is charged with knowhgly passing a 

counterfeit coin. Evidence that the accused had on 

another recent occasion passed a counterfeit coin is 

admissible as tending to establish that on the instant 

occasion he knew the coin to be counterfeit. 

245 
1[ 1389 CHAPTER XXVBl 

Example: The accused is charged with larseny of property be7 

longing to X. Evidence that he unlawfully sold the 

/ property is admissible as tending to prove that he intended permanently to deprive X of the use and benefit 

of the property. 

But: On a charge of assaulting a person and intentionally 

ihflicting grievous bodily harm, a former assault on 

a third person six months earlier and under entirely 

different circumstances would not be admissible, for 

it mould have no bearing on the intent in the case 

charged. 

(4) When it tends to prove motive. 

Example: The accused is charged with.attempting to desert the 

service. The fact that tlie accused had assaulted and 

beaten another person and was under arrest awaiting 

trial for that offense at the time of the alleged attempt 

would be admissible as evidence of a motive to attempt 

to desert. 

Example: The accused is charged with falsification of his accolmts. Evidence that he had stolen some of the goods 

to be accounted for is admissible if offered to show 

that he had a motive to falsify the accounts for the 

purpose of concealing the theft. 

But : 011 a charge of falsification of accounts, evidence of 

falsification in a totally distinct transaction would be 

inadmissible, for that evidence does not bear upon the 

involvement of the accused in the offense charged but 

bears solely upon his general moral character. 

(5) When it tends to refute a claim, express or implicit, made by 

the accused that his participation in the offense charged was the 

result of accident or mistake. 

Example: The accused is charged with an offense involving an 

'acc~lsation that he administered poison to X. The 

accused, expressly or by implication, defends on the 

ground that he administered the poison to X as a result 

of accident or mistake. Evidence that the accused had 

poisoned other persons is admissible if the circumstances of the other acts tend to show that the act 

charged was not the result of accident or mistake. 

If the accused takes the stand as a witness, his credibility may be 

attacked as in the case of other witnesses. For this purpose, it may 

be shown that he has been convicted of a crime involving moral turpitude or otherwise affecting his credibility. See 158h (2) (6). 

246 
RULES OF EVIDENCE ll 139b 

139. HEARSAY RULE.-a. General rule.-A statement which is 

offered in evidence to prove the truth of the matters therein stated, 

but which is not made by the author when a witness before the court 

at the particular trial in which it is so offered, is heresay. This is 

so whether the statement consists of words, oral or written, of symbols used as a substitute for'words, or of signs or other conduct 

as the equivalent of a statement. Hearsay may not be recited 

or otherwise introduced in evidence, and it does not become competent evidence because received by the court without objection. By 

this rule is meant simply that a fact cannot be proved by showing 

that somebody stated it was a fact. The basis of the rule is the fundamental principle, which is subject to certain well-established exceptions, that in a criminal prosecution the testimony of the witnesses 

shall be taken before the court, so that at the time they give the 

testimony offered in evidence they will be sworn and subject to crossexamination, the scrutiny of the court, and confrontation by the 

ficcused. 

The fact that a given statement was made may itself be relevant. In 

such a case the making of the statement may be shown by any competent evidence, not for the purpose of proving the truth of what was 

stated but for the purpose of proving the fact that it was stated. 

b. Illustrations.-Lieutenant' A conducted the investigation of 

charges against the accused. The testimony of Lieutenant A at the 

trial that persons other than the accused testified to certain facts 

at the investigation is inadmissible to prove such facts since the , 

testimony of Lieutenant A is hearsay if it is offered for such a purpose. However, the testimony of any person present at the investigation that he heard the investigating officer warn the accused that he 

was not required to make any statement and that any statement he 

did make might be used against him is admissible for the purpose 

of showing that the warning was in fact given. 

A is being tried for assaulting B. In extenuation of a possible 

~entence, the defense presents the testimony of C that just before the 

assault C heard B call A a liar. The testimony of C is admissible, for 

it is offered to show the provocation caused by B calling A a liar and 

not, of course, to prove the truth of B's statement. , A is being tried for the rape of B. C is able to testify that at an 

identification parade I3 indicated (verbally or otherwise) that A was 

her attacker. The testimony of C is not admissible to prove tha>t it 

mas A who raped B, for if it were admitted for that purpose it would 

be hearsay. See, howe~er, the last subparagraph of 153a. 

A member of an armed force is being tried for disobedience of a 

certain order given him orally by Lieutenant C. A witness is able to 

testify that he heard Lieutenant C give the order to the accused. Such 

921786'-51-17 247 
testimony, including testimony of the witness as to the terms of the 

order, is not hearsay. . An accused is being tried for the larceny of clothes from a locker. 

A is able to testify that B told A that he, B, saw the accused leave the 

quarter3 in which the locker was located with a bundle resembling 

clothes about the same time the clothes were stolen. Such testimony 

from A would not be admissible to prove the facts stated by B: 

' B himself should be called as a witness. 

The fact that the statement was made to an officer in the course of 

an official investigation does not make it admissible as an exception 

to the hearsay rule. For instance, if in the above example B had made 

. his statement to Lieutenant C in the course of an official investigation 

by Lieutenant C, the testimony of Lieutenant C as to what B told him 

officially is nevertheless hearsay if it is offered to prove the truth of 

the matters stated by B. 

B is being tried for wrongfully selling clothing. Policeman A is 

able to testify that while on duty as a policeman he saw the accused 

go into a shop with a bundle under his arm, that A entered the shop 

and the accused ran away and A was unable to catch him, and that 

the next day A asked the proprietor of the shop what the accused was 

doing there, and the proprietor replied that the accused sold him some 

clothes issued by the Government, and that he paid the accused $2.50 

for them. The testimony of the policeman as to the reply of the 

proprietor is hearsay if it is offered to prove the facts stated by the 

proprietor. The fact that the policeman was acting in the line of his 

duty at the time the proprietor made the statement would not render 

the evidence admissible to prove the truth of, the statement. 

Unless covered by an exception, official statements made by an 

officer-as, for instance, by the commanding officer of a company, 

regiment, squadron, or ship, or by a staff officer, in an indorsement 

or other communication-are not excepted from the general rule of 

exclusion by reason of the official character of the communication or 

the rank or position of the officer making it. Nor is such a statement 

so excepted from the hearsay rule because it is among papers referred 

to the trial counsel with the charges. 

c. Exceptions.4ome of the exceptions to the hearsay rule applicable in court-martial trials are stated in 140 through 146. 

140. CONFESSIONS AND ADMISSIONS; ACTS AND 

STATEMENTS OF CONSPIRATORS AND ACCOMPLICES.- 

a. Confessions and admissions.--See Article 31. A confession is 

an acknowled,ment of guilt, whereas an admission is a self-incriminatory statement falling short of an acknowledglnerit of guilt. To be 

admissible, a confession or admission of the accused must be voluntary. 
RULES OF EVIDENCE U 140a 

A rnnfession or admission which was obtained through the use of 

unlawful influence, or unlawful inducement is not voluntary. 

No hard and fast rules for determining whether a confession or 

admission was voluntary are here prescribed. Some instances of 

coercion, unlawful influence, and unlawful inducement in obtaining 

a confession or admission are : 

Infliction of bodily harm, including prolonged questioning accompanied by deprivation of the necessities of life, such as food, 

sleep, or adequate clothing. 

Threats of bodily harm. 

Imposition of confinement, or deprivation of privileges or necessities, because a statement mas not made by the accused, or threats 

of the same if a statement is not made by him. 

Promises of immunity or clemency with respect to an offense 

allegedly committed by the accused. 

Promises of substantial reward or benefit, or threats of substantial 

disadvantage, likely to induce a confession or admission from the 

particular accused. 

During an o5cial investigation (formal or informal) in which 

the accused is a person accused or suspected of the offense, obtaining 

the statement by interrogation or request without giving a preliminary warning of the right against self-incrimination-except 

when the accused was aware of that right and the statement was not 

obtained in violation of Article 316. 

Obtaining the statement in violation of Article 31. 

A confession or admission of the accused is not rendered inadmissible by a promise or threat which was not an effective cause of obtaining the statement. Therefore, a promise or threat which, because 

of intervening circumstances, had ceased to operate upon the mind 

of the accused at the time he made the statement in question will 

not affect the admissibility of the statement, and, ordinarily, a statement of the accused need not be excluded because it happened to have 

been made after a promise of advantage or threat of disadvantage 

which was of a trivial or insubstantial nature in the light of the kuown 

consequences of making the statement. 

The fact that a confession or admission, otherwise admissible, was 

made to an investigator during an investigation of the offense does 

not make the confession or admission inadmissible. 

The admissibility of a confession of the accused must be established 

by an affirmative showing that it was voluntary, unless the defense 

expressly consents to the omission of suoh a showing, but an admission 

of the accused may be introduced without such preliminary proof if 

there is no indication that it was involuntary. If it appears that the 

249 
U 140a CHAPTER XXVll 

confession or admission was not obtaimd from the accused but was 

made by him spontaneously (without urging, interrogation, or request, for example), the statement may be regarded as voluntary. If 

it does not so appear and affirmative evidence that the confession or 

admission was voluntary is required, the statement may not be received. 

in evidence unless it is shown that the making of the statement was not 

induced by a threat, promise, or use of duress amounting to coercion, 

unlawful influence, or unlawful inducement. -Also, in case the confession or admission was obtained by interrogation or request during 

an official investigation (formal or informal) in which the accused 

was a person accused or suspected of the offense, the statement may not 

be received in evidence, if affirmative evidence that it was voluntary 

is required, unless it is shown that through preliminary warning of 

the right against self-incrimination, or-if the statement was not 

obtained in violation of Article 316-for some other reason, the accused was aware of his right not to make the staternent and understood that it might be used as evidence against him. A showing of the 

voluntary nature of a confession or admission of the accused may 

consist of evidence of an oral or written declaration of the accused 

(itself shown to be voluntary if there is a contrary indication) in 

which he stated, in substance, that although he had been advised that 

he did not have to make the confession or admission, and that it might 

be used as evidence against him, he nevertheless made it freely, without being threatened with punishment or promised a reward. 

The accused has the right to testify concerning the involuntary 

nature of his confession or admission without subjecting himself to 

cross-examination upon other issues in the case or upon the truth or 

falsity of the confession or admission. See 1498 (1) ( Cross-examination). If he desires to exercise it, he should be accorded this right 

before the court rules upon the admissibility of his incriminatory 

statement. If he so requests, he should also be given an opportunity 

before such a ruling is made to present other evidence with a view 

to showing that the statement was involuntary and to c~oss-examine 

any witness who has testified as to its voluntary nature. 

The ruling of the law officer (or of the special court-martial) that 

a particular confession or admission may be received in evidence is 

not conclusive of the voluntary nature of the confession or admission. 

Such a ruling merely places the confession or admission before the 

court, that is, the ruling is final only on the question of admissibility. 

Each member of the court, in his deliberation upon the findings of guilt 

or innocence, may come to his own conclusion as to the voluntary 

nature of the confession or admission and accept or reject it accordingly. He may also consider any evidence adduced as to the volun- 
RULES pF EVIDENCE R 140a 

tary or involuntary nature of the confession or admission as affecting 

the weight to be given thereto. 

Although a confessian or admission may be inadmissible because 

it was not voluntarily ni&de, nevertheless, the circumstance- that it 

furnished information which led to the discovery of pertinent facts 

will not be a reason for excluding evidence of such pertinent facts. 

For example, the fact that an accused charged with larceny made an 

illvoluntary and therefore inadmissible statement to the effect that 

he stole the missing articles and hid them in his footlocker would not 

require the exclusion of evidence that the articles were discovered in 

his footlocker, even though the discovery was made solely because 

of the information contained in the statement of the accused. 

Mere silence on the part of an accused when questioned as to his 

supposed offense is not to be treated as a confession. However, if the 

accused is not in arrest or custody or under investigation, there are 

circumstances under which his failure to utter a denial of ah accusation or obsei-vation that he had participated in an offense may be 

regarded as incriminating evidence which is admissible, as when a 

friend of the accused, in discussing the disappearance of a watch, 

says to the aecused, "I saw you steal that watch last night," and the 

accused silent. In such a case it would be only reasonable to 

expect the accused, if he were innocent, to exclaim to his friend that 

he had not stolen the watch. Before such incriminating evidence can 

be considered against the accused, it must be corroborated by other 

evidence that the offense had probably been committed by someone. 

If only part of a confession or admission (or supposed confession 

or admission) is shown, the defense by cross-examination or otherwise 

may show the remainder of the statement. 

A voluntary oral confession or admission of the accused may be 

proved by the testimony of anyone who heard him make it, even 

though it was reduced to writing and the writing is not accounted for. 

An accused cannot legally be convicted upon his uncorroborated 

confession or admission. A court may not consider the confession 

or admission of an accused as evidence against him unless there is in 

the record other evidence, either direct or circumstantial, that the 

offense charged had probably been committed by someone. Other 

confessions or admissions of the accused are not such corroborative 

evidence. Usually the corroborative evidence is introduced before 

evidence of the confession or admission; but the court may in its 

discretion admit the confession or admission in evidence upon the 

condition that it will be stricken and disregarded in the event that 

the above requirement as to corroboration is not eventually met. The 

corroborating evidence need not be sufficient of itself to convince be- 
ll 140b (CHAPTER. XXV11 

yond a reasonable doubt that the offense charged has been. committed, and it need not tend to connect the accused with the offense. For 

example, if unlawful homicide is charged, evidence of the death of the 

person alleged to have been killed, coupled with evidence of circumstances indicating the probability that he was unlawfully killed, will 

satisfy the rule and authorize consideration of the confession or 

admission if it is otherwise admissible. In a case of alleged larceny 

or in a case of alleged unlawful sale, evidence that the property in 

question was missing under circumstances indicating in the first case 

that it was probably stolen, and in the second case that it was probably unlawfully sold, would be a compliance with the rule. The rule 

requiring corrdboration does not apply to a confession or admission 

made by the accused before the court by which he is being tried, nor 

does it apply to statements made prior to or in pursuance of the act. 

A confession or admission not made 'as testimony in the trial is 

admissible for the purpose of proving the matters stated in the confession or admission only when it was made by an accused, and it is 

then admissible for that purpose only with respect to the particular 

accused who made it. This limitation does not apply, however, if the 

statement,is admissible to prove the matters stated therein without 

regard to the fact that it is a confession or admission, as when in the 

course of his testimony at a former trial of the accused an accomplice 

makes a confession damaging to the accused and the former testimony 

is admissible under the provisions of 145b. 

In a prosecution for an offense in which the making of a false statement is an element (for example, perjury or making a false official 

statement), the fact that the accused had not been warned of his right 

against self-incrimination before he made the statement is not a 

ground for excluding evidence that the statement was made by him, 

even thongh, under the circumstances, such a preliminary warning may 

have been required by Article 316 or by some other provision of law. 

6. Acts and statements of conspirators and accomplices.-A 

statement made by one conspirator during the conspiracy and in pursuance of it is admissible in evidence against his co-conspirators as 

tending to prove the truth of the matter stated. It is not admissible 

merely because it was made while the conspiracy was existing; it must, 

to be admissible under this rule, have been made in pursuance of the 

conspiracy. When evidence of such a statement is offered, it is a 

preliminary question for the court whether the conspiracy existed and 

whether the proffered statement was made in pursuance of it. However, the court may, in the exercise of its discretion, ndnlit the statement without preliminary proof of these matters, Beepillg in mind that 

the statement must ultimately be excludqd from consideration if it is 
RULES OF EVIDENCE R 141 

afterwards shown to be admissible as coming within the rule under 

discussion or to be otherwiseadmissible. When the existence of a conspiracy is in issue, either on the merits or as a foundation for the 

admissibility of evidence, evidence of any act or other conduct of each 

of the alleged conspirators tending to prove the conspiracy, including 

of statements and other verbal conduct offered for a purpose 

other than as tending to prove the truth of the matters stated, is 

admissible. 

It is immaterial that the offense charged is the doing of an act rather 

than a conspiracy to do the act. For example, if X is charged with 

having murdered A, evidence that X, Y, and Z conspired to murder 

A and that Z did the killing is admissible. If the conspiracy is shown 

to have existed, any statement of Y or of Z made in pursuance of the 

purpose to kill A is admissible in evidence against X. 

The agreement constituting the conspiracy may be, and usually is, 

proved by circumstantial evidence. It is scarcely ever possible to prove 

a formal or express agreement. The agreement constituting the conspiracy may be a tacit one. Evidence of the conduct, including the 

statements, of an accomplice of the accused or of any person acting in 

concert with him is, for the purpose of determining its admissibility, 

treated as if it were evidence of the conduct of a co-conspirator. 

men two or more accused are tried at the same time, evidence of a 

statement made by one of them which would be admissible against him 

if he were tried alone but would not be admissible against another of 

the accused if he were being tried alone may be received in evidence, 

but in such event the law officer (or the president of a special courtmartial) should instruct the court in open session that the statement 

can be considered as evidence only against the accused who made it. 

See also 153b (2) (c) as to the instruction which should be given in 

the case of inconsistent statements of an accomplice. 

In this connection it is to be remembered that evidence of the conviction of an accomplice of the accused of the offense charged against the 

accused cannot be received against the accused as tending to prove that 

the offense charged was committed or that the accused participated 

in it. 

141. STATEMENTS MADE THROUGH 1NTERPRETERS.- 

As a general rule, a statement made through an interpreter may be 

proved only by the testimony of the interpreter or by other evidence of 

the statement itself, and may not be proved by evidence of the interpreter's translation. However, as an exception to this general rule, 

such a statement may be proved by evidence of the interpreter's translation if the interpreter was acting as the agent of the person who 

made the statement and such person is t,he accused, or is a co-conspira- 
f 142a CHAPTER XXVll 

tor or accomplice of the accused and made the statement in pursuance 

of the common venture, or is a witness and proof of the statement 

would tend to impeach his credibility. Evidence of the translation 

may be furnished by the testimony of any person who heard the statement being interpreted, or by a writing which contains the translation 

and which is admissible because acknowledged by the person vho made 

the statement or for some other reason. If the person who made the 

statement could have rejected the services of the individual who acted 

as interpreter, or in any manner agreed to his employment or to the 

accuracy of the translation, it may be considered that the interpreter 

was the agent of such person. 

When otherwise admissible, testimony given through a duly morn 

interpreter at the trial at which it is offered may properly be received 

in evidence. If given at another trial, testimony through an interpreter may be proved by the record of the trial or by other evidence 

of the interpretation only when such evidence is admissible under the 

above-mentioned agency exception to the general rule or when, in accordance with the provisions of 145b, the testimony is competent as former testimony and the interpreter, as well as the witness at the former 

trial, is not reasonably available as a witness. Subject to the limitations prescribed in Article 49, a deposition taken through a duly sworn 

interpreter may be rend in evidence to the same effect that it could be if 

the deponent had testified without the aid of an interpreter. See 145a. 

142. DYING DECLARATIONS; SPONTANEOUS EXCLAMATIONS; FRESH COMPLAINT; STATEMENTS OF MOTIVE, INTENT, OR STATE OF MIND OR BODY.-a. Dying 

declarations.-In trials for homicide (murder, manslaughter, negligent homicide) the dying declaration of the alleged victim concerning the circumstances of the act which induced his dying condition, 

including the identity of the person or persons who caused the injury, 

is admissible in evidence to prove such circumstances. The reason for 

the rule is that the dying statement of the victim would be unavailable 

otherwise and was based presumably on a moral obligation to tell the 

truth. The declaration must have been made while the victim was in 

extremity and under a sense of impending death, although it is not 

necessary to show that the victim asserted that he was under this impression if that fact is otherwise established. There is no requirement 

that death immediately follow the declaration, but if it mas made while 

the victim had a hope of recovery it is not admissible under this exception to the hearsay rule even though he died shortly thereafter. If 

not obtained by duress or under circumstances indicating that the declarant may have been misled, n dying declaration is admissible even 

though it was made in answer to leading questions or upon urgent 
RULES OF EVIDENCE U 142b 

, solicitation. The declaration may be by spoken words or intelligible 

or it may be in writing. A declaration which was made by a person who would not have been competent as a witness may not be received in evidence under this exception to the hearsay rule, nor may 

a dying declaration or part thereof be received in evidence even though 

the declarant wo~lld have been competent as a witness, if for any reason 

ir; would have been inadmissible as testimony given on the witness stand 

by the declarant. 

Dying declarations are admissible both in favor of and against the 

accused. Such declarations should be received in evidence wit11 caution since$ they are often made under circumstances of mental and 

physical debility and are not subject to the usual tests of veracity. 

6. Spontaneous exclamations.-An utterance concerning the circumstances of a startling event made by a person while he was in such 

a condition of excitement, shock, or surprise, caused by his participatlon in or observation of the event, as to warrant a reasonable inference that he made the utterance as a spontaneous and instinctive 

outcome of the event, and not as a result of deliberation or design, 

is admissible as an exception to the hearsay rule to prove the truth 

- of the matters stated. Such a spontaneous exclamation may be proved 

by any competent evidence, and the testimony of a person who heard 

the utterance being made, but who was not present at the occurrence 

which gave rise to it, is competent for this purpose. In a prosecution 

for assault by stabbing, for example, the testimony of a person who 

did not see the attack, but who came upon the alleged victim thereafter, that such victim, while visibly in agony as a result of the wounds 

received, cried out "John Smith stabbed me!" is admissible to prove 

the exclamation of the victim, and the exclamation, thus shown to be 

spontaneous, is admissible as tending to prove that the stabbing was 

done-by a man named John Smith. 

A spontaneous exclamation is admissible even though the person 

who made it is not dead or otherwise unavailable as a witness in the 

case, and even though, because of infancy or mental infirmity, for 

example, he is or wonld have been incompetent as a witness. However, 

a spontaneous exclamation may not be received in evidence if, und& 

rules other than those concerning the competency of witnesses, the 

utterance would have been inadmissible as testimony given on the 

witness stand by the person who made it, as when it appears that the 

utterance could not have been or was not in fact based upon the 

personal observation of its author, or when the person who made the 

utterance was the spouse of the person against whom it is to be used 

and the privilege prohibiting the use of one spouse as a witness against 

the other is applicable and has not been waived (see 148e). It is not 

255 
11 142d CHAPTER XXVll 

essential to the admissibility of a spontaneous exclamation that the 

ovent which called it forth be the act charged. 

Spontaneous exclamations are sometimes called res gestae, but that 

term is often used with respect to other kinds of admissible utterances 

whether or not their admissibility depends upon an exception to the 

hearsay rule. For instance, the term has been applied to statements 

which are received in evidence merely to prove the fact that they were 

inade (see examples in 1396). The term res gestae cannot properly 

be used to describe any particular rule of evidence. 

c. Fresh complaint.-In prosecutions for sexual offenses, such as 

rape, carnal knowledge, sodomy, attempts to commit such offenses, 

assault with intent to commit rape or sodomy, and indecent assaults, 

evidence that the alleged victim of such an offense made complaint 

thereof within a short time thereafter is admissible. This evidence 

is to be restricted to proof that the complaint (including the identification of the offender) was made, a description of the details of the 

offense given during the course of making the complaint being inadmissible under this rule. Evidence of fresh complaint, as such, is received solely for the purpose of corroborating the testimony of the 

victim and not for the purpose of showing directly the truth of the 

matters stated in the complaint. However, the complaint, as well as a 

description of the details of the offense related during the course of 

making the complaint, may be received in evidence to prove directly 

the truth of the matters stated if admissible under the spontaneous 

exclamation exception to the hearsay rule (1426). 

d. Statements of motive, intent, or state of mind or body.-If a 

statement inade under circumstances not indicative of insincerity discloses a relevant and then existing motive, intent, or state of mind or 

body of the person who made the statement, evidence of the statement 

is admissible for the purpose of proving the motive, intent, or state 

of mind or body so disclosed. However, evidence of a statement of a 

person other than the accused may not be received under this rule 

when the statement would amount to an accusation that the accused 

committed the act charged or that the act charged had been committed, 

&en though the statement would incidentally disclose a relevant mo- , 

tive, intent, or state of mind or body of the person who made the statement. For example, in a case in which A is charged with having 

murdered B by poisoning him, and A claims that the poison was intentionally administered by B himself, the absence of a suicidal frame 

of mind on the part of B may not be shown by evidence that shortly 

before his illness B stated, "1'111 afraid A is putting poisoil in my food," 

or, "I'm afraid soilleone is putting poison in my food." Had B's 
RULES OF EVIDENCE 1 143a 

statenlent been, "I intend to buy a farm when I retire Gext year,'' that 

would have been admissible to show that B had not intended - to take his own life. 

The admissibility of evidence of a statement disclosing motive, 

intent, or state of mind or body constitutes an exception to the hearsay 

rule only when the disclosure depends upon the statement being 

accepted as true. If the disclosure results from the mere fact that 

the statement was made, as when the mental condition of a person 

is indieatled by his statement that he is the Emperor Napoleon, the 

admissibility of evidence of the statement does not constitute an 

to the hearsay rule. Whatever the theory of aclmissibility, 

a statement of motive, intent, or state of mind or body may be proved 

by the testimony of anyone who heard it being made or by other 

competent evidence. 

It should be noted that the above rule (that relating to the admissibility of evidence of statements of motive, intelli, or state of mind 

or body) does not authorize proof of a person's motive, intent, or state 

of mind or body by evidence of a disclosure thereof made in another 

person's statement. Thus, in a homicide case, evidence of a statement 

of the victim to the effect that he was going to remain at home on the 

night of the homicide because the accused intended to visit him is not 

admissible to show the intention of the accused to visit the victim and 

thus raise an inference that the accused kept the appointment. However, if a statement made by one person would tend to supply or 

produce, rather than disclose, a relevant motive, intent, or state of 

mind or body on the part of another, evidence that the statement was 

made may be received to show its probable effect on the other (see the 

illustration in the second paragraph of 1396). 

Evidence of a person's statement as to his memory or belief of a 

fact, offered as tending to prove the fact remembered or believed, is 

not admissible under the rule pertaining to evidence of statements of 

motive, intent, or state of mind or body. 

143. DOCUMENTARY EVIDENCEPROVING CONTENTS 

OF A WRITING; AUTHENTICATION OF WRITINGS.-a. 

Proving contents of a writing.-(1) General mcle.-A writing is the 

best evidence of its own contents, and the original thereof must be 

introduced to prove its contents. When this rule, known as the best 

evidence rule, applies, the proper method of proving the contents of 

a writing is to present evidence a~~thenticating (14%) the original 

of the document and then to introduce the original in evidence. However, a carbon copy of a document, as complete as the ribbon copy 

in all essential respects, including relevant signatures, if any, or an 
8 1430 CHAPTER XXVll 

identical copy made by photographic (see 144e) or other duplicating 

process, is considered to be a duplicate original and to be admissible 

equally with the original. An objection to the introduction of secondary evidence (testimony, or a copy not considered a duplicate original) 

as proof of the contents of a writing is waived by a failure to object., 

on the ground of its secondary nature, to the reception of the seeondary evidence. Such a waiver, however, adds nothing to the weight 

to be given to, or the evidentiary nature of, the particular writing so 

received. Thus, if the original of a particular document would have 

been inadmissible even if no objection had been made to its reception 

in evidence (for instance, a document which is offered to prove the 

truth of the matters stated therein but which is not within any of the 

exceptions to the hearsay rule), it would be error to admit testimony 

relating to its contents or a copy thereof simply because no objection 

was made on the ground of the best evidence rule. 

(2) Exwptiom.-If it is shown that an admissible writing has 

been lost or destroyed, or that for some other reason it cannot be 

produced, or (if a party other than the accused desires to introduce 

its contents) that it is in the possession of the accused, the contents 

may be proved by an authenticated copy or by the testimony of a 

witness who has seen the writing. 

When the originals consist of admissible writings which are so 

numerous or bulky that they cannot conveniently be examined by the 

court, and the fact to be proved is the general result of the whole 

collection, and that result is capable of being ascertained by calculation, as, for instance, if the fact to be proved is the balance shown by 

account books, the calculation may bamade by some competent person 

and the result of the calculation testified to by him. In such cases it 

must first be shown to the court that the writing would be admissible 

but are so numerous or bulky that they cannot conveniently- be examined by the court; that the fact to be proved is the general result 

of the whole collection; that the result is capable of being asmrtained 

by calculation ; that the witness is a person skilled in such matters and 

capable of making the calculation; that he has examined the whole 

collection and has made the calculation; and that the opposite party 

has had access to the books and papers from which the calculation 

was made. Opportunity will be afforded the opposite party to crossexamine the witness upon the books and papers in question, and to 

have such of them (or properly authenticated copies thereof) as are 

necessary for this purpose produced in court. 

In the case of an official record required by law, regulation, or 

custom to be kept on file in a public office, a duly authenticated copy 
RULES OF EVIDENCE 1 14301 

is admissible to the extent that the original would be, without first 

provin,p that the original has been lost or destroyed and without 

otl~erwl~e accounting for the original. The term "public office" includes a military office, even though only military personnel, or 

certain military personnel, have access thereto. Only an exact copy of 

the official record is admissible uilcler this exception to the best evidence rule although it may consist merely of an extract of- those 

prtions material to the case. The copy may be made by photographic 

process. A certified r6sum6 of the text of an offlcial record is generally inadmissible. However, if the head of an executive or miIitar7 department or independent governmental agency, or his deputy 

for the purpose, certifies that it would be detrimental to the public 

interest to divulge the source of official knowledge of a certain fact 

or event or to divulge the text of a record thereof, a certificate by 

him, or by his deputy, setting forth a rhsum6 of an official record of 

such fact or event kept under the authority of the department or 

agency concerned is prima facie evidence of the fact or event as set 

forth in the r6sd. 

A certificate by the chief custodian of the personnel records of 

the armed force concerned, or by one of his deputies or assistants, 

that a duly qualified fingerprint expert on duty as such in his office 

has compared certain attached fingerprints with tlle fingerprints 

on file of a person described by name, military status, and service 

number, and that the attached fingerprints and the fingerprints with 

which they were compared have been found to be those of one and 

the same person, is admissible to establish, prima facie, the identity 

and military status of the person whose fingerprints are attached. A 

similar certificate executed by the custodian, or by one of his deputies 

or assistants, of the fingerprint records of any department, bureau, 

or agency of the United States shall be equally admissible. The att<aclied fingerprints (those which had been forwarded for the purpose of comparison) may be identified as those of a particular individual by the testimony of the person who took them or by someone 

who was present at the time they were taken. 

A duly authenticated certificate or statement signed by a custodian of official records, or by his deputy or assistant, that after 

diligent search no record or entry of a specified tenor is found to exist 

in the records of his office is admissible as evidence that the records 

of his office contain no such record or entry. It is also proper to 

prove that certain official records contain no record or entry of a purported fact or event by the testimony of the custodian of the offioial 

records in question, or by the testimony of his deputy or assistant. If 
CHAPTER XXVll 

a purported fact or event is of a kind required by law, regulation, or 

custom to be recorded, proof that there is no official record thereof 

may be received as evidence that the fact did not exist or that the event 

did not occur. 

b. Authentication of writings.-(1) General.-A writing that is 

not authenticated may not properly be received in evidence, but proof 

of authenticity can be waived by a failure to object, on the ground of 

lack of such proof, to the admissibility of the writing. A writing 

inay be authenticated by any competent proof that it is genuineis in fact what it purports to be. It may be authenticated by a certificate or other written statement only when such certificate or statement is admissible as an exception- to the hearsay rule. See (2) in 

this subparagraph (O5cial records), 145a (Depositions), and 147b 

(Foreign law). 

In proving the genuineness of letters the rule is that the arrival 

by mail of a reply purporting to be from the addressee of a prior 

letter duly addressed and mailed is sufficient evidence of the genuineness of the reply to justify its introduction into evidence. A similar 

rule prevails as to telegrams purporting to be from the addressee of a 

prior telegraph or telephone message. Such a reply, however, is not 

to be considered as evidence of the genuinei~ess of the letter or other 

message to which the reply was purportedly made. 

Whenever the genuineness of the handwriting of any person may 

besinvolved, as when it is desired to introduce into evidence against 

the accused a pay voucher or check purportedly signed by him or an 

admissible photostatic copy thereof, any admitted or proved (by 

evidence raising a reasonable inference of genuineness) handwriting 

of such person shall be competent evidence as a basis for comparison 

by witness& or by the court to prove or disprove the genuineness of 

the handwriting in question. When there is a question as to who 

wrote or signed a particular document, the opinion of any person 

acquainted with the handwriting of the supposed writer to the effect 

that the document was or was not written or signed by him is admissible in evidence. A person is deemed to be acquainted with 

the handwriting of another person when he had, at any time, seen 

that person write, or when he has received documents purporting to 

have been written by that person in answer to documents written by 

, himself, or under his authority, and addressed to that person, or when 

in the ordinary course of business documents purporting to have been 

written by such person have been actually submitted to him. If a 

party does not contest the general authenticity of a proffered document, a failure by such party to object on the ground that the genu- 
RULES OF EVIDENCE fl 143b 

jneness of a particular signature appearing thereon has not been 

shown may be regarded as a-waiver by him of that objection. 

If a part of a .writing appears to have been altered after the 

execution of the writing, neither that part nor any part dependent 

for its admissibility upon the altered part may be received in evidence 

over objection, for a purpose other than to prove the act of altering 

the writing, unless the alteration is satisfactorily explained. 

Before the conrt rules upon an objection to the reception in evidence of a document, the opposing party, upon request, should be 

niven an opportunity to support the objection by presenting evidence D 

by cross-examining any witness who has testified concerning the 

document. 

(2) Ofiqicial records.-(a) Gene~aZ.-As in the case of other writings, an official record, or copy thereof, must be properly authenti- 

&d, although proof of autl~enticity can be waived. Official records 

are geizerally proved by duly authenticated copies tbereol. Originals 

,nay be authenticated in the same manner as copies, except that if an 

sttesting certificate is used it shoulcl indicate that the dociment is an 

original. In the case of a copy of an official record, an ('attesting certificate" is a eertificate or statement signed by the custodian of the 

record, or by his deputy or assistant, indicating that the paper in 

question is a true copy of the original and that the signer is acting 

ill an official capacity as the kee~er of the original, or as his dgputy or 

assistant. An "autl~enticating certificate" is a signed certificate or 

statement indicating that the signer of the attesting certificate is the 

official he purports to be, or that the attesting certificate is in proper 

form, or containing words of like import. 

A custodian of an official record is a person who has custody 

thereof by authority of law, regulation, or custom, that is, a person in 

whose office the record is oficially on file. An attestation in the form 

of an attesting certificate, when duly authenticated, is prima facie 

sufficient to show such official custody in the keeper. Some attesting 

certificates may be authenticated by taking judicial notice of the 

. signature thereto (see 147a). Others require authentication by seal, 

accompanying certificate, or other proof of genuineness, according to 

whatever procedure is adequate to authenticate the official record 

attested. 

(6) Militmy records.-A copy of an official record of the Department of Defense, of any department, agency, bureau, branch, force, 

coffimand, or unit thereunder, and of the Coast Guard and its subordinate commands or units, may be authenticated by the seal, inked 

stamp, or other identification mark of such department, agency, bu- 
CHAPTER XXVll 

reau, branch, force, command, or unit, or by an attesting certificate. 

Thus, "il true (extract,) copy of the original on file [in the office of the 

Adjutant General (First Infantry Division) (First Air Division)] 

[in the office of the Commanding Officer, (USS) (USCG-) 

.................... ] : /s/ John Smith, [Maj, Ass't Adjutant Geaaa1, (First Infantry Division) (First Air Division) 1 [LCDR, (U. S. 

Navy) (U. S. Coast Guard), Executive Officer, (USS) (USCG-) 

.................... ] ," would be, prima facie, a sufficient authentication of a copy of an official record on file-in the office mentioned in 

the attesting certificate. 

(G) United States record.s.-A copy of an official record of the 

United States, of its Territories and possessions and their political 

subdivisions, and of the District of Columbia, may be authenticated 

by : 

Any indication under the great seal of the United States, or the 

seal of the Territory or possession in which the record is kept, or 

the seal of the District of Columbia in the case of records kept 

under its authority, that the document is a true copy ; 

Any authentication provided for by any lam of the United States, 

including rules of criminal procedure for the United States district courts made pursuant thereto, or by any law of the Territory 

or possession or political subdivision thereof in which the record 

is ke*, or of the District of Coldmbia in the case of records kept 

under its authority; 

An attesting certificate, under the seal of a court of record existing by authority of a law of the United States and located in the 

district, Territory, or possession in which the record is kept, or 

existing by authority of the Territory or possession or political 

subdivision thereof in which the i-ecord is kept, or of the District of 

Columbia in the case of records kept under its authority; 

An attesting certificate, under the seal of the department, bureau, 

agency, office, or court in which the record is kept, or under the 

seal of a public officer or office having a seal of office and having 

supervision over the department, bureau, agency, or office in which 

the record is kept, or by an attesting certificate witho6t further 

authentication in the case of records kept under the authority of 

ally governmental agency of the United States; 

An attesting certificate, accompanied by an authenticating certificate signed by and under the seal of any public officer having 

a seal of office and having duties by authority of the United States 

in the district, Territory, or possession in which the record is kept, 

or having duties in, and by authority of, the Territory or possession I 
RULES OF EVIDENCE 11 143b 

or political subdivision thereof in which the record is kept, or 

having duties in, and by authority of, the District of Columbia 

in the case of records kept under its authority. 

(d) State records.-h copy of an official record of any State of 

the United States, including its political subdivisions, may be authenticated by : 

Any indication, under the state seal of such State, that the document is a true copy; 

Any authentication provided for by the law of such State or of 

the political subdivision thereof in which the record is kept, or by 

any law of the United States, including rules of criminal procedure 

for the United States district courts made pursuant thereto; 

An attesting certificate, under the seal of a court of record existing by authority of such State or of the political subdivision thereof 

in which the record is kept; 

An attesting certificate, accompanied by an authenticating cer- , 

tificate signed by and under the seal of any public officer having a 

seal of office and having duties in, and by authority of, such State 

or the political subdivision thereof in which the record is kept. 

(e) Foreign records.-A copy of an official record of any foreign 

country or political subdivision thereof may be authenticated by: 

Any indication, under the great seal of such foreign country, that 

the document is a true copy ; 

' 

Any authentication provided for by the law of such foreign country or of the political subdivision thereof in which the record is 

kept, or by any law of the United States, including rules of criminal procedure for the United States district courts made pursuant 

thereto ; 

An attesting certificate, accompanied by an authenticating certificake signed by a secretary of embassy or legation, consul general, 

consul, vice consul, or consular agent, or by any officer in the foreign 

service of the United States, stationed in the foreign country in 

which the record is lrept, under the seal of his office; 

An attesting certificate, under the seal of a public officer or office 

of the foreign country or political subdivision thereof in which the 

record is kept, or accompanied by an authenticating certificate 

signed by such an officer, which attesting certificate under seal or 

authenticating certificate is accompanied by a certificate or statement signed by a secretary of embassy or legation, consul general, 

consul, vice consul, or consular agent, or by any officer in the foreign service of the United States, stationed in the foreign country 

in which the record is kept, under the seal of his office, indicating 
1 143b CHAPTER XXVll 

that the foreign seal or authenticating certificate is genuine, or containing words of like import. 

A copy of an official record of any foreign country or political 

subdivision thereof in which armed forces of the United States are 

stationed or through which they are passing or which is occupied 

by armed forces of the United States or any ally thereof may 

be authenticated by an attesting certificate accompanied by an authenticating certificate signed by the commander of the armed force 

concerned, or his deputy for the purpose. If stlch authenticating 

commander, or his deputy, is not an officer of the armed forces of the 

United States, his authenticating certificate shall be accompanied by a 

certificate or statement signed by a commissioned o5cer of the armed 

forces of the United States indicating that the signer of the authenticating certificats is who and what he purports to be. 

(f) Miscellaneous.-Copies of foreign, and other, official records 

and their attesting and authenticating certificates or. statements, if 

written in a language other than English, should be translated 

through the testimony of one having knowledge of the language concerned. However, any translation accompanying and made a part of 

any attesting or authenticating certificate or statement may be received in evidence subject to objection by counsel. 

In addition to the methods of authentication set forth in the above 

provisions of 14371 (2), an official record or a copy thereof may be 

authenticated by the testinlony of any person, based on his personal 

lmowledge, to the effect that the proffered document is a par'ticular 

official record, or that the document is a true and exact copy of such 

official record, as the case may be. Also, if an attesting or authenticating certificate is authenticated by competent testimony it need not 

be authenticated by seal or an accompanying certificate as might otherwise be required by the above provisions of 1436 (2). An attesting 

or authenticating certificate which is authenticated by competent testimony and signed by a proper person may be considered a sufficient 

prima facie authentication of the official record, or copy thereof, to 

which the certificate relates. 

A certificate or statement signed by a custodian of official records, 

or by his deputy or assistant, that after diligent search no record or 

entry of a specified tenor is found to exist in the records of his office 

can be authenticated in the same manner as a certificate attesting a 

copy of an official record kept in the office concerned. A certificate 

by the head of an executive OP military department or independent 

governmental agency, or by his deputy, setting forth a r6sum6 of an 

official record the source or text of which should not be disclosed can 

be similarly authenticated. 
RULES OF EVIDENCE fi 144b 

144. OFFICIAL WRITINGS; OFFICIAL RECORDS; BUSINESS .ENTRIES; LIMITATIONS AS TO THE ADMISSIBILITY OF OFFICIAL RECORDS AND BUSINESS ENTRIES; 

MAPS AND PHOTOGRAPHS.-a. Oficial writings.-It is to be 

borne in mind that the mere fact that a document is an official 

\~ritii~g or report does not in itself make it admissible in evidence 

for the purpose of proving the truth of the matters therein stated. 

An official writing may be admitted in evidence for this purpose only 

when it comes within one of the recognized exceptions to the hearsay 

rule. 

6. Official records.-An official statement in writing, whether in a 

regular series of records or a report, made as a record of a certain 

fact or event is admissible as evidence of the fact or event if made by 

an officer or other person in the performance of an official duty, imposed upon him by law, regulation, or custom, to record such fact 

or event and to know, or to ascertain through appropriate and trustworthy channels of information, the truth of the matter recorded. 

It may be presumed, prima facie : 

That a person who had such a duty performed it properly. 

That a foreign or domestic record which reflects a fact or event 

required to be recorded by law, regulation, or custom was made 

by a person so required to make it; provided that the record is 

authenticated as an original or copy, in accordance with the rules 

set forth in 143b (2), by an attesting certificate, itself duly authenticated, or by a seal or identification mark alone, when permissible, or is otherwise shown by competent evidence to be officially on 

fde in a public office. 

That foreign or domestic records which are thus authenticated 

or shown to be officially on file in a public office and which reflect 

facts or events of a kind generally recorded by public officials of 

, civilized states and nations, such as births, deaths, and marriages, 

were made by persons who had an official duty by law, regulation, ,' 

or custom to record such facts or events and to know, or to ascertain 

through appropriate and trustworthy channels of information, the 

truth thereof. 

See 213a as to the meaning of 'Lcustom.'' 

Examples of military records containing entries which may be 

admissible under this exception to the hearsay rule are enlistment 

papers, physicnl examination papers, outline-figure and fingerprint 

cards, morning reports, guard reports, service records, logs, unit personnel diaries, and individual equigrnent records. 
U 144d CHAPTER XXVII 

If admissible under this exception, an official record is not subject 

to objection on the ground that it was compiled from notes or memoranda or from other official records. 

c. Business entries.-Any writing or record, whether in the form 

of an entry in a book or otherwise, made as a memorandum or record 

of any act, transaction, occurrence, or event shall be admissible as 

evidence of the act, transaction, occurrence, or event if made in the 

regular course of any business and if it was the regular course of such 

business to make such memorandum or record at the time of the act, 

transaction, occurrence, or event, or within a reasonable time thereafter. All other circumstances of making of the writing or record, 

including lack of personal knowledge by the entrant or maker, may be 

shown to affect its weight, but such circumstances shall not affect its 

admissibility. The term "business," as used in this paragraph, includes business, profession, occupation, and calling of every kind. 

A business entry is properly autlienticated by proof that it came 

from the custody of and had been made by or deposited in an office 

\vhose business it was to record the act, transaction, occurrence, or 

event set forth in the entry. It is not necessary that a business entry 

be authenticated by the person who made it or that an authenticating 

witness have personal knowledge that the entry was correct. If not 

themselves made as business entries, copies and written compilations 

of business entries are generally subject to objection on the ground 

that they are secondary evidence (143a). See 145a as to the use of 

copies-of business entries ih depositions. 

An entry made in the usual course of business which satisfies the 

requirements of this exception to the hearsay rule is admissible even 

though such entry as not made or kept pursuant to any lam or regulation. Thus tally sheets used by a depot warehouse as a conveilient 

business method of keeping account of military stores passing through 

it are admissible although no regulation, directive, or order required 

that such tally sheets be made or kept. 

d. Limitations as to the admissibility of official records and 

business entries.-Official records are admissible in evidence only 

insofar as they relate to a "fact or event," and the admissibility of 

business entries is limited to a memorandum or record of "any act, 

transaction, occurrence, or event7? appearing therein. Records or 

entries of "opinion" are not admissible under either exception to the 

hearsay rule. The word "event7? may be considered to include the 

words L'act," "transaction," and "occnrrence," and to be included 

within the meaning of the word "fact." Properly speaking, a statement of opinion cannot be considered a statement of fact, for an opin- 
RULES OF EVIDENCE il 144d 

ion is an impression upon the mind brought about by an accumulation 

of facts, whereas a fact is a phenomenon or event by which the human 

senses are directly activated withont the intervention of conscious 

mental deliberation. Nevertheless, it is often difficult as a practical 

matter to draw the line between what is opinion and what is fact, and n 

some assertions based on trained observation which, strictly speaking, 

might be considered statements of opinion so closely approximate 

&atements of fact as to permit the law to p15qce them in the latter category rather than in the former and to admit a record of them in evidence without appreciable risk of doing an injustice because of lack 

of opportunity to cross-examine. Thus, if otherwise competent as 

official records or business entries, entries in a physician's report setting forth a diagnosis of an illness of a kind which can readily be 

diagnosed by the medical profession, and in an autopsy report setting 

forth the opinion of the patliologist as to the physical cause of death 

(as when he concludes that death was caused by a certain disease, 

by a certain poison, or by a gunshot wound), are admissible in evidence 

to prove the illness and the physical cause of death, respectively. On 

the other hand, entries in a report of a board of medical o5cers 

(psychiatrists) as to the mental condition of a certain individual are 

not adnlissible to prove such mental condition, for a diagnosis of a 

mental condition involves opinion to such a degree as to require that 

those making such a diagnosis be subject to cross-examination. See 

1226. 

In the case of an official record, the recording official must not only 

have had a duty to make an entry as to a certain fact or event but 

must, in addition, have had a d~~ty to know or ascertain the truth 

of the matter set forth in the record. There exists a somewhat correlative rule in the case of bnsiness entries. It is not sufficient 

that a particular entry was made in the regular course of conduct 

which had some relationship to bnsiness if it was not made in the 

regular course of a business. "Regular course" of business must find 

meaning in the inherent nature of the business in question and in 

the methods systematically employed for the conduct of the business 

as a business. Because of these limitations, and the opinion limitation, 

a pathologist's entry in an autopsy report as to whether the death 

was caused by homicide, accident, or suicide (as distinguished from 

his entry as to the physical cause of death-for instance, that the death 

' resulted from a gunshot wound) is not admissible to prove such cause 

of death under either the official record or the business entry exception 

to the hearsay rule. The above mentioned limitations apply in such 

a case because a law or regulation requiring the pathologist to make 
11. ,144e CHAPTER XXVll 

an entry as to his finding in this respect would not fix upon him the 

duty of ascertaining the truth of circumstances snrrounding the occurrence of death reported to him by others but not observed by 

him during the course of his examination, and it is obvious that it 

is not the regular course of the business of a pathologist to make such 3 

an entry based on that kind of data; and if the entry was based not 

on reported matters but on an examination of the body by the pathologist the opinion thus expressed by him would be of a kind which 

should be open to the test of cross-examination. 

Neither the official record nor the business entry exception to the 

hearsay rule renders admissible in evidence writings or records made 

principally with a view to prosecution, or other discip1ina.r~ or legal 

action, as a record of, or during the course of an investigation into, 

alleged unlawful or improper conduct. Thus neither the report of 

an investigating officer nor an accompanying summary of the testimony of a witness on u preliminary investigation of a charge is competent evidence of the truth af the facts therein stated. See, however, 

140a (Confessions and admissions) and 153b (2) (c) (Inconsistent 

statements). On the other hand, since it is not the function of a 

pathologist performing an autopsy to determine that the death was 

caused by any particular person or even that the death was the result 

of unlawful conduct, his entry in the autopsy report as to the identification of the individual upon whose body the autopsy was performed, 

as to the physical facts found to exist with respect to the corpse and 

as to the physical cause of death do not come within this Liifiitation, 

and such entries may be admissible under either the official record 

or business entry exception to the hearsay rule. Official record entries 

in morning reports, logs, unit personnel diaries, and service records 

as to absence without leave, and in the above records and i11 guard 

reports as to escape from confinement, are not inadmissible because 

of this limitation, for such entries are made in a routine manner principally for the purpose of reflecting day to day events which affect 

the strength in personnel of the reporting organization or which indicate the military proficiency of the individual reported upon. The 

admissibility of depositions and of records of trial (see 145 concerning their use as evidence) is not affected by this limitation. 

A news account of an incident is not admissible to prove the incident under either of these exceptions to the hearsay rule, for with 

respect to these exceptions a news account is not a record or 

memorandum. 

e. Maps and photographs.-Maps, photographs, X-rays, slcetches, 

and silnilar projections of localities, objects, persons, and other matters 
RULES OF EVIDENCE S '1450 

are admissible when verified by any person, whether or not he made 

or took them, who is personally acquainted with the locality, object, 

person, or other thing thereby represented or pictured and is able from 

his,own personal knowledge or observation to state that they actually 

the appearance of the subject matter in question. Such 

documents are also admissible when they come within either the official 

record or business entry exception to the hearsay rule. 

Fingerprints are admissible when they come within either the o5cial 

record or the business entry exception to the hearsay rule or are in 

any manner properly verified, but evidence concerning the comparison 

of fingerprints must ei~lanate from persons skilled in comparing 

fingerprints. 

145. DEPOSITIONS ; FORMER TESTIMONY.-a. Depositions.-See Article 49. For procedure in taking depositions see 117. 

Any case referred to a special court-martial for trial under 15a (1) is 

a case "not capital" within the meaning of Article 49. Under the provisions of Article 49f, a case in which the death penalty is authorized 

by law but is not mandatory for an offense of the kind charged is not 

capital whenever the convening authority shall have directed that the 

case be treated as not capital. Upon a rehearing or new trial thereof 

a case in which the death penalty is authorized by law but is not mandatory for an offense of the kind charged is not capital within the 

meaning of Article 49 if the sentence adjudged upon the original 

hearing or trid was other than death. Although an offense is punishable by death under the article denouncing it, such offense is not legally 

so punishable, and therefore is not capital, if the applicable limit of 

punishment prescribed by the President under Article 56 is less than 

death. In a trial upon several specifications, the proceedings as to 

each constitute a separate "case." 

Testimony taken by deposition may be introduced by the defense 

in capital cases if otIlerwise admissible. If the defense calls for testimony to be taken by deposition in a capital case, the deponent may be 

cross-examined by written interrogatories, or otherwise, as fully as 

a deponent in a case not capital. With the express consent of the 

defense made or presented in open court, but not otherwise, the court 

may admit competent deposition testimony not for the defense in a 

capital case. When otherwise admissible, deposition testimoily not for 

the defense may be admitted without the consent of the defense in a 

case not capital tried with a capital case if such testimony is not material to the capital case, or (when it is material to the capital case) if 

the cases do not involve the same criminal transaction and the law 
11 145a CHAPTER XXVll 

officer instructs the court in open session that such testimony is not to 

be considered as material to the capital case. 

If only a part of a deposition is offered in evidence by a party, the 

other party (including the prosecution in a capital case) may require 

him to offer all of it which is relevant to the part offered. If the party 

at whose instance a deposition has been taken decides not to offer it or 

offers only a part of it: the other party may offer the deposition or the 

parts not offered, except that, in a capital case, the prosecution mag 

not thus offer a deposition or parts thereof without the express consent 

of the defense made or presented in open court. 

A deposition will ordinarily be read to the court by the side on 

whose behalf it is being offered. At the reading, objections may be 

made to the introduction of the evidence which it contains in the 

same way that they would be made if the evidence was offered in the 

usual manner. Unless the ground of an objection is one which might 

have been obviated or removed if presented at the time interrogatories 

mere submitted to the opposite party or to the court or at the time 

the deposition was taken, a failure to object at that time to the competency of the deponent, or to questions contained in written interrogatories or otherwise propounded, or to the admissibility of evidence 

contained in the deposition, shall not be considered a waiver of the 

objection. It may be shown that an objection actually was made even 

though the objection is not noted in the body of the deposition, but in 

the absence of such a showing it may be assumed that no objections 

were made other than those noted. In case the court shall have ruled 

on an objection at the time interrogatories were submitted to it for 

acceptance, it shall again pass upon the objection at the time the 

deposition is read, if then requested to do so, without regard to its 

previous ruling. 

The same rules as to the competency of witnesses and the admissibility of evidence apply to the introduction of evidence taken by deposition that apply to the introduction of other evidence before the court, 

except that a wider latitude than usual should be allowed as to leading 

questions put to a deponent upon written interrogatories. Also, whenever a business entry is properly authenticated by the testimony of a 

witness taken on deposition, a copy of the business entry, identified 

as such by the witness, may be substituted for the original. Such copy 

(marked by the person taking the deposition in such a manner as to 

indicate that it is the copy identified by the witness) mill accompany 

and be part of the deposition and shall be admissible in evidence 

equally with the original. A failure to object to the introduction 

of a deposition on the ground that it was not taken on reasonable 
RULES OF EVIDENCE I 145b 

notice or before a proper officer, or on the ground that it does not 

appear that the deponent is unavailable as a witness, may be regarded 

as a waiver of that objection. After being read to the court, a depo- 

&ion will be properly marked as an exhibit with a view to incorporation in the record. 

The limitations upon the use of deposition testimony mentioned 

and in Article 49 do not apply with respect to statements of 

deponents which are admissible under some rule of evidence other 

than that authorizing the introduction of depositions. Any such 

statement, for example, a voluntary confession or admission of the 

accused made while a deponent, or an inconsistent statement of a 

witness similarly made, may be proved by the deposition in which 

it appears (if that document is properly receivable as an official record 

of the statement or otherwise as a writing) or by other competent 

evidence. 

6. Former testimony.-When at any trial by court-martial i11- 

cluding a rehearing or new trial, it appears that a witness who has 

testified in either a civil or military court at a former trial of the 

accused in which the issues were substantially the same (except a 

former trial shown by the objecting party to be void because of lack 

of jurisdiction) is dead, insane, too ill or infirm to attend the trial, 

beyond the reach of process, more than one hundred miles from the 

place where the trial is held, or cannot be found, his testimony in 

the former trial, if properly proved, may be received by the court if 

otherwise admissible, except that the prosecution may not introduce 

such former testimony of a witness unless the accused was confronted 

with the witness and afforded the right of cross-examination at the 

former trial and unless, in a capital case, the witness is dead, insane, 

or beyond the reach of process. Cases considered "not capital" in 

145a are also considered "not capital" with respect to the admissibility 

of former testimony. A failure to object to the intrpduction of testimony given at a former trial of the accused on the ground that the 

issues in the former trial were not substantially the same, or on the 

ground that the aceused was not confronted with the witness and 

afforded the right of cross-examination at the former trial, or on the 

ground that it does not appear that the witness is now unavailable, 

may be considered a waiver of that objection. 

The testimony of a witness who has testified at a former trial may 

be proved by the official or other admissible record of the former 

trial, by an admissible copy of so much of such record as contains the 

testimony, by an official or otherwise admissible stenographic or 

mechanical report of the testimony, or by a person who heard the wit- 
V 1460 CHAPTER XXVll 

ness give the testimony and who renlekbers all of it, or the substance 

of all of it, that is relevant to the topic in question. See 141 as to 

proving former testimony given through an interpreter. 

If otherwise admissible, a deposition taken for use or used at a 

former trial by court-martial is admissible in a subsequent trial of 

the same person on the same issues. 

The limitations upon the use of former testimony noted above30 

not apply with respect to statements made at a former trial, or at any 

trial, which are admissible under some rule of evidence other than 

that authorizing the introduction of former testimony. Any such 

statement, for instance, a voluntary confession or admission of the 

accused or an inconsistent statement of a witness, may be proved by an 

admissible record or report of the trial at which it was made or by 

other competent evidence. 

As to the use of a record of the proceedings of a court of inquiry, 

see Article 50. The effect of the words "not capital and not extending 

to the dismissal of an officer'' as used in Article 50 is that if the prosecution uses the record of a court of inquiry to prove part of the allegations in a specification, neither death nor dismissal may be adjudged 

as a result of a conviction under that specification, but other lawful 

punishment may be. The introduction of the record of a court of 

inquiry by the defense shall not affect the punishment which may be 

adjudged. A person's "oral testinlony cannot be obtained" in the 

sense of Article 50 if the person is dead, insane, too ill or infirm to 

attend the trial, beyond the reach of process, or cannot be found. 

146. MEMORANDA ; AFFIDAVITS.-a. Memoranda.-Memoranda may be used to supply facts once known'but now forgotten, 

or to refresh the memory. IvIemoranda are therefore of two sorts. 

First, if the witness does not actually remember the facts or events 

but relies on the memorandum exclusively, as in the case of a witness 

using an old diary, then the witness must be able to state that the 

memorandum accurately represented his knowledge at the time of its 

making. It is not necessary that he should himself have made the 

memorandum if he can state from his present memory that at a time 

when his recollection was fresh as to the facts or events recorded he 

read the memorandum and found it to be correct, or must have done 

so. If the certainty of the witness that a particular memorandum 

represents his past recollection rests upon his normal habit or course 

of business in making or perusing memoranda similar to the memorandum in question, this may be considered a sufficient foundation for 

the use of the memorandum. Second, if the witness can actually remember the facts or events and merely needs the memorandum to re- 
RULES OF EVIDENCE !I 1476 

fresh his memory or a part of it, then the above limitation as to the 

connection of the witness with the memorandum do not apply. Thus 

a witness may have his memory refreshed by showing him, while he is 

011 the stand, a newspaper account of an incident in which he was 

involved. However, the court should see to it that no attempt is 

made to use a meinorandum to impose a false memory on the witness 

under the guise of refreshing it. 

A memorandum of the fist sort is admissible. If the memorandum is of the second sort the witness will testify without the 

nlemorandum itself being admitted in evidence. 

The memorandum used must, on demand, be shown to the opponent 

for purposes of inspection and cross-examination. 

b. Affidavits.-The general rule is that affidavits are not admissible 

as evidence of the truth of the matters therein stated, for they are 

hearsay assertions. However, the defense, if it so desires, may introduce affidavits or other written stateinents as to the character of 

the accused and as to matters in extendation of a possible sentence. 

See also the exception in the second paragraph of 137. 

147. JUDICIAL NOTICE ; FOREIGN LAW.-a. Judicial 

notice.-Certain kinds of facts need not be proved by the formal presentation of evidence, for the court is authorized to recognize their existence without such proof. This recognization is termed judicial notice. 

The principal matters of which a court may take judicial notice 

are as follows : 

The ordinary divisions of time into gears, months, weeks, and 

other periods; general facts and laws of nature, including their 

ordinary operations and effects; and general facts of history. 

The political organization and the chief o5cials of the Government of the United States, of its Territories and possessions, of the 

District of Columbia and of the several States of the United States ; 

and the signatures and duties of persons attesting oicial documents, or copies thereof, kept under the authority of any governmental agency of the United States. 

The treaties of the United States, and executive agreements between the United States and any State of the United States or between the United States and any foreign,country; and current 

political or de facto conditions of mar and peace. 

The organic and public laws, including regulations having the 

force of law, the seals of courts of record, and the seals of public 

offices and officers of the United States, of its Territories and possessions and their political subdivisions, of the District of Columbia, 

and of the several States of the United States and their political 
n 147a CHAPTER XXVII 

subdivisions; and military custom in an armed force of the United 

States. 

The public lams, or regulations having the force of law, in effect 

in any country or territory ar political subdivision thereof occupied 

by armed forces of the United States; the law of nations, including 

the law of war ; the common law. 

The great seals or seals of state of the United States, its Territories and possessions, the District of Columbia, the several States 

of the United States, and foreign countries; the seals of notaries 

public, foreign and dopestic. 

The organization of the Department of Defense, of the departments, agencies, bureaus, branches, forces, commands, and units 

thereunder, and of the Coast Guard and its subordinate commands 

and units; and, with respect to any of the foregoing, their location, 

their seals, inked stamps, OP other identification marks, and the 

regulations and official publications pertaining thereto or issued 

thereby, including gener'al orders, bulletins, circulars, price 

lists, and court-martial orders. 

The signatures of tllc Judge Advocates General and their deputies 

and assistants, and of the chief custodians of the personnel records 

of the various armed forces and their deputies and assistants; 

the signatures of the custodians of fingerprint records of any department, bureau, or agency of the United States, and the signatures 

of their deputies and assistants; the signature of any person authorized to administer oaths by Article 136 or by any of the provisions of law referred to in chapter XXII, when affixed to a 

deposition or any sworn document to indicate the execution of such 

authority; the signatures of persons authenticating records of the 

proceedings of military courts and commissions of the armed forces 

, of the United States ; the signatures and duties of persons attesting 

official documents, or copies thereof, of the Department of Defense, 

of any department, agency, bureau, branch, force, command, or 

unit thereunder, or of the Coast Guard or any of its subordinate 

commands or units ; the signatures and duties of officers of the armed 

forces of the United States authenticating foreign official records, or 

copies thereof, pursuant to the authority contained in 14% (2) (e). 

The principle of judicial notice does not prohibit the court from 

receiving additional evidence of a fact of which it is authorized to 

take judicial notice, and, if not satisfied of the fact of which it is 

asked to take judicial notice, it may resort to any authentic source of 

information. For example, if the terms of a circular of the Depart- 
RULES OF EVIDENCE B 147b 

- lnent of the Army, Navy, or Air Force are material, the court may 

send for a copy of the circular. 

It is customary for the side desiring the court to take judicial notice 

of a given fact to ask the court to do so, at the same time presenting 

any available authentic source of information on the subject. For 

instance, when counsel asks the court to take judicial notice of the 

law of a State of the United States pertaining to a certain matter, he 

&ould furnish the court with an official publication of that State, such 

as a statute book or book of reports, or, if an official publication is not 

available, with a reliable textbook or other writing setting forth such 

law. If the court, in taking judicial notice, makes use of a document, 

the court should state for the recorcl what matters it has thus judicially 

noticed, and (unless the document is a statute of the United States, 

an executive order of the President of the United States, or an official 

publication of the Department of Defense, the Department of the 

Army, Navy, or Air Force, or the Headquarters of the Marine Corps 

or Coast Guard) tahe document, or pertinent extracts therefrom, should 

be included in the record of trial as an exhibit. 

6. Foreign law.-With the exception of the law in effect in a country or territory occupied by armed forces of the United States, a 

court-martial cannot take judicial notice of foreign law or foreign 

regulations having the force of law. Such law must be proved like 

any other fact. There axe several mays of doing this. First, the 

laws of a foreign country, or political subdivision thereof, may be 

proved by the testimony of a person who is familiar with them through 

education or experience. Such a person may testify as to the content 

and construction of the foreign law in question or as to the correctness 

or genuineness of a text or official publication setting forth such law. 

Insofar as his testimony may relate merely to the content of a foreign 

Jaw as set forth in the published statutes or regulations of the foreign 

country concerned (as distinguished from his testimony concerning 

the construction of any such law already'properly in evidence or obncerning customary law), it is subject to objection based on the best 

evidence rule. See 143a. If such an objection is made, the statute 

or regulation in question should be proved by an official publication 

thereof. Second, foreign laws may be prcjved by official publications 

in which they are set forth, such as statute books, books of reports, 

journals or gazettes published by the foreign country concerned, or 

pamphlets or circulars published by a military department or any 

governmental agency of the United States. Official publications of a 

military department or any governmental agency of the United States 

setting forth foreign law are not subject to objection on the ground 
!I 148a CHAPTER XXVM 

of the best evidence rule. Third, treatises, textbooks, or commentaries, written by professionally qualified persons, may be received as 

evidence of foreign lam to the same extent as par01 testimony. 

Official legal publications are considered to be official records and 

may be authenticated (and proved by duly authenticated copies) in 

the same manner as may other official records (1436 (2) ) . However, 

it may be presumed, prima facie, that publications containing evidence of foreign law which purport to be official publications or texts 

writtep by professionally qualified parsons, and which are obtained 

from a public library or other public office, are what they purport 

to be. This presumption applies whether or not the public library 

or other public office from which such a publication is obtained is 

located in the country the law pf which is sought to be proved. A 

certificate or statement signed by a public officer, or by his deputy or 

assistant, to the effect that the publication was obtained from his office 

will be prima facie sufficient to establish that fact. Such a certificate 

or statement can be authenticated in the same manner as an attesting 

certificate and as though the publication of foreign law was an official 

record kept in the public office from which the publication was obtained. See 1436 (2). A failure to object, on the ground that it 

has not been properly authenticated, to a proffered publication containing evidence of foreign law may be considered a waiver of that 

objection. 

A document containing evidence of foreign low which is in a language other than English may be translated in the same manner as 

a copy of a foreign official record may be. See 143b (2) (f). In any 

case in which a foreign law is proved by a document which is to be 

returned to the custodian thereof at the conclusion of the trial, pertinent extracts therefrom, or a proved or admitted translation of such 

document or extracts, mag be included in the record of trial as an 

eshibit in lieu of the original. 

148. COMPETENCY OF WITNESSES.-a. General.-The general competency, mental and moral, of a witness of fourteen or more 

years of age is always presumed. If the party alleging the contrary 

does not prove to the court a specific ground of incapacity, the witness 

should be allowed to testify. 

Any known objection to the competency of a witness should be made 

before he is sworn. If his inuompetency should later appear, however, a valid objection should be sustailzed or the court of its own 

motion should refuse to hear him further and order that any testimony that he may have given be disregarded. 
I RULES OF EVIDENCE 

I 6. Children.-The competei~rcy of children as witnesses is not dependent upon their age, but upon their apparent sense and their understanding of the difference between truth and falsehood and of the 

moral importance of telling the truth. Such sense and understandiw may appear upon such preliminary questioning of the child as 

the court deems necessary, or from the appearance of the child and 

the testimony that he gives in the case. I11 this connection, the court 

should bear in mind that the competency as a witness of a person below 

the age of fourteen cannot be presumed. 

c. Mental infirmity.-Although a witness may be suffering from 

mental infirmity, he is nevertheless competent to testify if he understand~ the moral importance of telling the truth and has the mental 

capacity to observe, recollect, and describe correctly the facts under 

investigation. 

d. Conviction of crime.-Conviction of an offense does not disqualify a witness but certain convictions may be shown to diminish his 

credibility. See 1536 (2) (6). 

e. Interest or bias.-Interest or bias does not disqualify a witness. 

For instance, the fact that a person owes a party money or has property 

interests with or against the party does not disqualify him from 

testifying for or against such party. A person who is an avowed 

friend or enemy of the accused, or who is an enemy national, is not 

thereby disqualified from testifying for or against the accused. 

Husband and wife are competent witnesses in favor of each other. 

Altho~gh husband and wife are also competent witnesses against each 

other, the general rule is that both are entitled to a privilege prohibiting the use of one of them as a witness (sworn or unsworn) 

against the other. This privilege does not exist, however, when the 

husband or wife is the individual or one of the individuals injured 

by the offense with which the other spouse is charged, as in a prosecution for an assault upon one spouse by the other, for bigamy, polygamy, 

unlawful cohabitation, abandonment of wife or children or failure 

to support them, for using or transporting the wife for "white slave" 

or other immoral purposes, or for forgery by one spouse of the signature of the other to a writing when the writing would, if genuine, 

apparently operate to the prejudice of sue: other. When the privilege 

does exist, it may be waived by the consent, express or implied, of both 

spouses to the use of one of them as a witness against the other. If 

one spouse testifies in favor of the other, the privilege may not be 

asserted upon cross-examination of the spouse who has so testified, 

provided such cross-examinaftion is limited to the issues concerning 

which such spouse has testifled on direct examination and to the ques- 
ll 149a CHAPTER )(XVII 

tion of his or her credibility. See 15171 (2) as to the privilege relating 

to communications between husband and wife. 

The accused is at his o.wn request, but not otherwise, a competent 

witness. His failure to make such a request shall not create any presumption or inference against him. If he takes the stand as a witness, 

he is, in general, subject to the same rules of evidence that apply with 

respect to other witnesses. As to cross-examination of the accused, 

see 1496 (1). 

One of two or more accomplices or conspirators is competent to 

testify whether he is charged g'ointly or separately or not at all, and 

whether he is tried jointly or in common or separat~ly, and whether 

he is called for the prosecution or for the defense, except that he may 

assert his privilege not to incriminate himself when that privilege is 

applicable and has not been waived, and, if he is an accused at the same 

trial, he cannot be called as a witness except upon his own request. 

See in this connection 1506 (Compulsory self-incrimination). See 

also 1496 (1) as to the extent to which the privilege of self-incrimination is waived by an accused when he testifies. 

The fact that an accomplice testifies for the proseEution does not 

make him afterwards immune to trial except to the extent that immunity may have been promised him by an authority competent to ' 

order his trial by general court-martial. The fact that a witness has 

obtained a promise of immunity without which he may not have been 

willing to testify does not disqualify him as a witness. 

149. EXAMINATION OF WITNESSES.-a. General.-As to 

oaths of witnesses, see 114. When a witness is recalled to the witness 

stand, he wilI not be sworn again, but should be reminded that he has 

been sworn in the case and is still under oath. A failure so to remind 

him, however, does not affect the validity of the trial and will not be 

a ground for rejecting his testimony. 

Subject to the discretion of the court, a witness before completing 

his testimony is not ordinarily permitted to be present in court during 

the introduction of other evidence or during the opening statements. 

The fact that a witness was so present may be commented upon in 

argument by either pady, in relation to the weight to be given to 

the testimony of the witness. 

Witnesses are usually examined in the following.order : Witnesses 

for the prosecution, witnesses for the defense, witnesses for the prosecution in rebuttal, witnesses for the defense in rebuttal, witnesses for 

the court. The order of examining each witness is usually direct 

examination, cross-examination, redirect examination, recross-examination, and examination by the court. However, the court may permit 
RULES OF EVIDENCE U 149b 

the recall of witnesses, including an accused, at any stage of the proceedings; it may permit material testimony to be introduced by either 

party out of its regular order and place ; and nlay permit a case once 

closed by either or both sides to be reopened for the introduction of 

testimony previously omitted. 

The court should not excuse a witness until satisfied that neither 

party has ally fnrther questions to ask him. 

Refusal by a. witness to answer a proper question is a military 

offense or an offense under Article 47, according to whether the witness 

is subject to the code. 

It is never necessary for a party to ask questions through the court 

or to ask that the court adopt a question. 

A witness should be required to limit his answers to the question 

asked. He cannot, however, be required to answer categorically by a 

Simple "yes" or "no" unless it is clear that such an answer will be a 

complete response to the question. A witness may always be permitted at some time before completing his testimony to explain any of 

his testimony. 

The reason for any objection will ordinarily be stated. 

With reference to questioning witnesses through an interpreter see 

506. 

6. Cross-examination; redirect and recross-examination; examination by the court or a member.-(1) Cross-examination.-Crossexamination of a witness is a matter of right. It should, in general, 

he limited to the issues concerning which the witness has testified on 

direct examination and to the question of his credibility. Counsel 

often cannot know in advance what pertinent facts may be brought 

uut on crosi-examination and for that reason it is to some extent 

exploratory. ReasonabIe latitude should be given the cross-examiner, 

even though lie is unable to state to the court what facts his crossexamination is intended to develop. Leading questions may be used 

freely on cross-examination. 

The extent of cross-examination with respect to a legitimate subject of inquiry is witl~in the sound discretion of the court. No obligation is imposed upon the court to protect a witness, whatevsr his 

rank, office, or station in life, from being discredited upon crossexamination, so long as the interrogaflon falls short of an attempted 

invasion of his right not to incriminate himself, properly invoked. 

The witness should, however, be protected from questions which go 

beyond the bounds of proper cross-examination merely to harass, 

annoy, or humiIiate him. On the question of his credibility and 

within the limits imposed by the privilege against self-incrimination 
R 149b CHAPTER XXVll 

a witness may be cross-examined as to any matter touching upon his 

worthiness of belief, including (unless the court in its discretion 

decides that the relationship of the particular matter to the credibility 

of the witness is too remote) his relation to the parties and to the 

subject matter of the case, his interest, motives, and inclinations, his 

may of life, affiliations, associations, acts of misconduct, habits, and 

prejudices, his means of obtaining a correct and certain knowledge of 

the facts about which he testifies and the manner in which he has 

used those means, his powers of discernment, memory and description, and his physical defects, idfirmities, and mental idiosyncrasies. 

He may be asked in a proper case whether he has expressed animosity 

toward the accused, or wl~ether, on a specified occasion, he made a 

statement materially different from that embraced in his testimony. 

See generally, 153b (Impeachment of witnesses). 

An accused person who voluntarily testifies as a witness becomes 

subject to cross-examination upon the issues concerning which he has 

testified and upon the question of his credibility. So far as the latitude 

of the cross-examination is discretionary with the court, a greater 

latitude may be allowed in his cross-examination than in that of other 

witnesses. When the accused voluntarily testifies about an offense for 

which he is being tried, as when he voluntarily testifiescin denial or 

explanation of such an offense, he thereby, with respect to cross-examination concerning that offense, waives the privilege against selfincrimination, and any matter relevant to the issue of his guilt or innocence of such offense is properly the subject of cross-examination. 

When an accused is on trial for a number of offenses and on direct 

examination has testified about only one or some of them, he may not 

be cross-examined with respect to the offense or offenses about which 

he has not testified. If the accused testifies on direct examination only 

as to matters not bearing upon the issue of his guilt or innocence of 

any offense for which he is being tried, he may not be cross-examined 

on the issue of his guilt or innocence. Thus, if an accused testifies 

on direct examination only as to the involuntary nature of his confession or admission, he may not be asked on cross-examination to state 

whether his confession or admission was true or false, for such a question would go to the issue of his guilt or innocence, concerning which 

he has not testified. 

(2) Redireet and recross-examination.-Ordinarily , the redirect 

examination deals with matters brought out in the cross-examination, 

but new matters may be developed. The recross-examination should 

be confined to the issues brought out on the redirect examination. 

(5) Examination by the court or a member.-The court (includ- 
RULES OF EVIDENCE 9 149c 

'ing the law officer) and its members may ask a witness any questions 

that either side might properly ask the witness. If new matter, not 

properly the subject of cross-examination of the witness on his previous testimony, is elicited by questions of the court or its members, both 

prties will be permitted to cross-examine the witness upon the new 

matter. 

In questioning an accused the court and its members must confine 

themselves to questions which would be permissible on cross-examination of the accused by the prosecution. 

Questions by the court or its members and evidence elicited 

thereby are subject to objection on proper grounds by either side and 

by the law officer and members of the court. 

c. Leading questions; ambiguous and misleading questions; 

other objectionable questions.-(1) Leadifig questions.- (a) General rule-Leading questions are questions which either suggest the 

answer it is desired the witness shall make or which, embodying a 

material fact, are susceptible of being answered by a simple yes or no. 

A leading question, except on cross-examination, should ,be excluded 

upon proper objection. For example, if a knife is introduced into 

evidence a witness should not be asked on direct examination whether 

it is the knife with which he saw the accused stab A. He should be 

asked first whether he recognizes the knife, and if he answers that he 

does, then he may be asked where he saw it and what was done with it. 

A question may be leading even though it includes the prefatory 

phrase, "Did you or did you 

(b) Exceptfons.-To abridge the proceedings, the witness may 

be led at once to points upon which he is to testify. The general rule 

is therefore not applicable to that part of the examination of a witness which is purely introductory. For example, in a desertion case 

the policeman who supposedly apprehended the accused may be asked 

whether he saw the accused at a time and place mentioned in the 

question. 

When a witness appears to be hostile to the party calling him, 

or is manifestly unwilling to give evidence, the court may, in its 

discretion, permit the party calling him to use leading questions. 

In this connection, see 15371 (Impeachment of witnesses). 

When it appears that a witness has made an erroneous statement 

through a mere slip of the tongue, his attention may be directed to 

the matter by a leading question in order to afford him an opportunity 

to correct the statement if he so desires. 

When, from the nature of the case, the mind of the witness cannot 

be directed to the subject of the inquiry without a particular specifi- 
CHAPTER XXVll 

cation of it, a leading question may be asked for that purpose. Thus, 

if a witness testifies that he heard the accused make a certain statement 

on a certain occasion in the hearing of certain other persons and such 

persons are called to contradict the witness, each of them may be asked 

whether he heard the accused make the statement on that occasion. 

In other cases the court, in its discretion, may allow liberal departures from the rule, as when a witness is obviously embarrassed and 

timid through fear of strange surroundings or for other reasons, or 

when the witness, because of his age or mental infirmity, is laboring 

under obvious difficulties in directing his mind toward the subject 

matter of the inquiry. However, the court must always be careful, in 

departing from the rule, not to allow a witness an opportunity to 

shape his testimony as he thinks the questioner desires. The court 

must also be careful, in departing from the rule, not to allow a witness 

an opportunity to shape his testimony to conform to the testimony of 

other witnesses from suggestions he may gather during the 

examination. 

A witness who does not recollect, or is not certain about, a particular matter concerning which he is called upon to testify may be * 

permitted, on his direct or other examination, to refresh his present 

recollection (and then to testify therefrom) or to state that certain 

data represent his past recollection as to such matter. In order that 

he may properly refresh his present recollection or testify concerning 

his past recollection, data or events having a tendency to aid him in 

this respect may be brought to his attention and he may be questioned 

as to the effect of such data or events on his memory. See 146a 

(Memoranda). 

(2) Am.6igwus and misleading questions.-A question which is 

a.mbiguous or misleading should never be permitted either on direct 

or cross-examination. Such a question is unfair to the witness, who 

may thereby be led into making an unintentional misstatement. 

Moreover his answer may give a wrong impression to the court. Included in ambiguous or misleading questions are those embodying two 

or more separate elements or questions. Thus the question "Did you 

see the accused leave the quarters with a bundle under his arm 1" really 

contains four questions. Under certain circumstances the affirmative 

or negative answer of the witness might be intended to apply to only 

one of the four questions involved and might be understood by the 

court to apply to all of them. Also included ar.e questions which 

assume a fact to which the witness has not previously testified. Thus 

the question "When you saw the accused was anyone with him?" 

would be improper unless the witness has previously testified that he 

had seen the accused. 
RULES OF EVIDENCE T -15Ob 

(3) Other objectionable questions.-Questions should not be 

for the purpose of suggesting matters known not to exist or that 

the rules of evidence clearly make inadmissible. See also 150 (Demading and incriminating questions). 

a 150. DEGRADING AND INCRIMINATING QUESTIONS.-a. 

Compulsory self-degradation.-Under Article 31c no person may be 

to make i statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue 

and may tend to degrade him. The privilege against compulsory selfdegradation applies only to matters not material to the issue, whereas 

the privilege against compulsory self-incrimination covers all matters whatsoever. Whenever a witness refuses to answer a question 

on the ground that the answer thereto would not be material to the 

issue and might tend to degrade him, the court shall determine 

whether the question does or does not call for an answer material to 

the issue, and, if the court rules that it does or that the answer could 

not tend to degrade the witness, the witness may be required to answer the question. A question calls for an answer material to the 

issue when the answer might be expected to have some bearing upon 

any subject of inquiry legitimately before the court, including the 

credibility of witnesses. . 6. Compulsory self-incrimination.-The fifth amendment to the 

Constitution of the United States provides that in a criminal case 

no person shall be compelled "to be a witness against himself." The 

principle embodied in this provision applies to trials by courtsmartial. It is not limited to the person on trial but extends to any 

person who may be called as a witness. Also, Article 31a provides 

that no person subject to the code shall compel any person to incriminate himself or to answer any question the answer to which may tend 

to incriminate him. 

If the.witness states that the answer to a question might tend to 

incriminate him, he will not be required to answer the question unless 

it clearly appears to the court that no answer he might make to the 

question could have that effect or unless the witness has waived the 

privilege against self-incrimination. 

Although an answer to a question apparently would incriminate or 

tend to incriminate a witness, he may be required to answer if, because of grant of immunity, former trial, the running of the statute 

of limitations, or some other reason, he can successfully object to 

being tried for the offense as to which the privilege is asserted. 

The privilege of a witness to refuse to respond to a question the 

aIlswer to whicli may tend to incriminate him is a personal one which 
t l5lb CHAPTER WII 

the witness may exercise or waive as he may see fit. Such a question 

is not subject to objection by counsel or by the court, although the 

court should advise an apparently uninformed witness of his right 

to decline to make any answer which might tend to incriminate him. 

A witness who answers a question without having asserted the privilege and thereby admits a self-incriminating fact may be required to 

make a full disclosure, however self-incriminating, of the matter to 

which that fact relates, for to this extent he has waived the privilege 

by making the answer. See also with respect to waiving this 

privilege, 1496 (1) (Cross-examination of an accused). 

The prohibition against compelling a person to give evidence 

against himself relates only to the use of compulsion in obtaining 

from him a verbal or other communication in which he expresses his 

knowledge of a matter and does not forbid compelling him to exhibit 

his body or other physical characteristics as evidence when such evidence is material. Consequently, it is not a violation of the prohibition to order a person (including an accused) to expose his body for 

examination by the court or by a physician who will later testify as 

to the result of his examination. Upon refusal to obey the order, 

the person's clothing may be removed by force. Also, the prohibition 

is not violated by requiring a person (including an accused) to try 

on clothing or shoes, to place his feet in tracks, to make a sample of 

his handwriting, to utter words for the purpose of voice identification, 

or to submit to having fingerprints or a sample of his blood taken. 

151. PRIVILEGED AND NONPRIVILEGED COMMUNICATIONS.-a. General.-A privileged communication is a communication made as an incident of a confidential relation which it 

is the public policy to protect. Since public policy is involved, 

the court, of its own motion, should refuse to receive evidence of such 

a communication unless it appears that the privilege has been waived 

by the person or government entitled to the benefit of it, or unless the 

evidence emanates from a person or source not bound by the privilege. 

6. Certain privileged communications.-(1) fitate secrets and police secrets.-Communications made by informants to public officers 

engaged in the discovery of crime are privileged. The deliberations 

of courts and of grand or petit juries are privileged, but the results 

of their deliberations are not privileged. Diplomatic correspondence 

is privileged and, in general, so are all oral and written official communications the disclosure of which would, in the opinion of the head 

of the executive or military department or independent governmental 

agency concerned, be detrimental to the public interest. 
RULES OF EVIDENCE 151b 

The privilege that extends to communications made by informants 

to public officers engaged in the discovery of crime may be waived by 

appropriate governmental authorities. This privilege does not warrant the exclusion from evidence of statements of informants which 

are inconsistent with, or might otherwise be used to impeach, their 

testimony as witnesses. See 1536 (Impeachment of witnesses). 

(2) C'ommwnications between husband and wife, cZient and attorney, and penitent and clergyman.-Among the communications to 

which a privilege attaches are certain communications between husband and wife, client and attorney, and penitent and clergyman. 

Confidential communications between husband and wife, made while 

they were husband and wife and not living in separation under a 

judicial decree, are privileged. See also 148e (Interest or bias). 

Communications between a client and his attorney (or the agent of 

the attorney) are privileged when made while the relation of client 

and attorney existed and in connection with the matter for which 

the attorney was engaged, unless such commnnications clearly contemplate the commission of a crime-for instance, perjury or subornation of perjury. Military or civilian counsel detailed, assigned, ' 

or otherwise engaged to defend or represent an accused before a courtmartial or upon review of its p~oceedings, or during the course of an 

investigation of a charge, are attorneys, and the accused is a client, 

with respect to the client and attorney privilege. Also privileged are 

communications between a person subject to military law and a chaplain, priest, or clergyman of any denomination made in the relationship of penitent and chaplain, priest, or clergyman, either as a formal 

act of religion or concerning a matter of conscience. The person entitled to the benefit of the privilege pertaining to confidential communications between husband and wife is the spouse who made the 

communication; the person entitled to the benefit of the client and 

attorney privilege is the client ; and the person entitled to the benefit 

of the penitent and clergyman privilege is the penitent. 

The general rule is that the court should neither require nor permit any such privileged communication to be disclosed unless the 

person who is entitled to the benefit of the privilege consents to the 

disclosure of the communication or otherwise waives the privilege. 

To this general rule there are several exceptions, among them being 

the following : 

The privilege pertaining to confidential communications between 

husband and wife will not prevent the court from allowing or 

requiring such a communication to be disclosed at the request of a 

spouse who is an accused, even though he or she is the person to 
q 15lb CHAPTER XXVll 

whom the communication was made and the spouse who made it 

objects to its disclosure. 

The purpose of the privilege extended to communications between 

husband and wife, client and attorney, and penitent and clergyman, 

which grows out of a recognition of the public advantage that 

accrues from encouraging free comnlunication in such circumstances, is not disregarded by allowing or requiring an outside party 

who overhears or sees such a privileged communication, whether by 

accident or design, to testify concerning it, nor is the purpose of 

the privilege disregarded by the reception in evidence of a writing 

containing such a communication which was obtained by an outside 

party either by accident or design. But see 152. However, this 

exception to the general rule does not apply if the outside party 

who overheard or saw the privileged communication, or who obtained the writing containing it, did so, in the case of a communication between husband and wife, with the connivance of the spouse 

to whom the communication was made, or, in the case of a communication between client and attorney, with the connivance of the 

attorney, or, in the case of a communication between penitent and 

clergyman, with the connivance of the clergyman. With respect 

to disclosing or conniving to disclose communications which are 

subject to the client and attorney privilege, the attorney's agent, 

such as his interpreter, clerk, stenographer, or other associate, is 

not an outside party and occnpies the same position as does his 

principal. Also, with respect to disclosing or conniving to disclose 

communications which are subjedt to the-penitent and clergyman 

privilege, the clergyman's agent, such as his interpreter or assistant, 

is not an outside party and occupies the same position as does his 

principal. 

(3) ~o.nfid&tiaZ and secret evidence.-The Inspectors General of 

the various armed forces, and their assistants, are confidential agents 

of the Secretaries of the military or executive departments concerned, 

or of the military commander on whose staff they may be serving. 

Their investigations are privileged unless a different procedure is 

prescribed by the authority ordering the investigation. Reports of 

such investigations and their accompanying testimony and exhibits 

are likewise privileged, and there is no authority of law or practice 

requiring that copies thereof be furnished to any person other than 

the authority ordering the investigation or superior authority. However, when application is made to the authority ordering the investigation for permission to use in a trial by court-martial certain 

testimony, or an exhibit, accompanying a report of investigation, 
RULES OF EVIDENCE 8 152- 

which testimony or exhibit has become material in the trial (to show 

an inconsistent statement of a witness, for example), he should ordinarily approve such application unless the testimony or exhibit requested contains a state secret or unless in the exercise of a sound 

discretion he is of the opinion that it would be contrary to public 

policy to divulge the information desired. 

In certain cases, it may become necessary to introduce evidence of 

a highly confidential or secret nature, as when an accused is on trial 

for having unlawfully communicated information of such a nature 

to persons not entitled thereto. In a case of this type, the court should 

take adequate precautions to insure that no greater dissemination of 

such evidence occurs than the necessities of the trial require. The 

courtroom should be cleared of spectators while such evidence is being 

received or commented upon, and all persons whose duties require 

them to remain should be warned that they are not to communicate 

such confidential or secret information. But see 33f as to cases which, 

because of the security risks involved, should not be brought to trial. 

c. Certain nonprivileged communications.- (I) 0onvmu.llications 

by wire or radio.-Communications are not privileged because transmitted by wire or radio, and the information concerning them that 

comes to the knowledge of operators, either military or civilian, of 

any such means of transmission is likewise not privileged by reason 

of the means of transmission used. Wire or radio operators, military 

and civilian, may be ordered or subpoenaed to testify before a courtmartial as to wire or radio comniunications, and telegrams and radiogams may be brought before a court-martial by the usual process. 

But see 1516 and 152. 

(2) Oommzunicutiom to medicuZ oficers und civilian phy& 

piam.-It is the duty of medical officers to attend sick members of 

the armed forces, to make periodical physical examinations as required 

by regulations and to examiile persons for enlistment, and medical 

officers may be specially directed to observe, examine, or attend a 

rnenlber of the armed forces. Such observation, examination, or 

attendance would be official and the information thereby acquired 

mould be official. Although the ethics of the medical profession 

forbid medical officers and civilian physicians to disclose without 

authority information acquired when acting in a professional capacity, no privilege attaches to such information or to statements made 

to them by patients. 

152. CERTAIN ILLEGALLY OBTAINED EVIDENCE.-Evidence is inadmissible against the accused if it was obtained as a result 

of a11 unlawful search of his property col~dncted or instigated by 
1152 CHAPTER XXVll 

persons acting under authority of the United States, or if it; was 

obtained under such circumstances that the provisions of Section 605 

of the Conlmunications Act of 1934 (48 Stat. 1103; 47 U. S. C. 605), 

pertaining to the unauthorized divulgence of communications by wire 

or radio, would prohibit its use against the accused mere he being 

tried in a United States district court. All evidence obtained through 

jnformation supplied by such illegally obtained evidence is likewise 

inadmissible. For example, evidence obtained by a lawful search 

is inadmissible if that search was conducted because of information 

derived from a preceding unlawful search of the End mentioned 

above. Military courts have no authority to order a return to the 

s,ccu?ed of illegally seized property, or to impound such property for 

the purpose of suppressing its possible use as evidence, or to entertain a motion for the return or impounding of property alleged to 

have been illegally seized. Consequently, an objection to the use 

of evidence on the ground that it was illegally obtained, or on the 

ground that it was obtained through information supplied by illegally obtained evidence, is properly made at the time the prosecution 

attempts to introduce the evidence. Before the court rules upon 

such an objection, the accused should be given an opportunity to show 

the circumstances under which the evidence was obtained. 

The following searches are among those which are lawful: 

A search conducted in accordance with the authority granted by 

a lawful search warrant. 

A search of an individual's person, of the clothing he is wearing, 

and of the property in his immediate possession or control, conducted as an incident of lawfully apprehending him. 

A search under circumstances demanding immediate action to 

prevent the removal or disposal of property believed on reasonable 

grounds to be criminal goods. 

A search made with the freely given consent of the owner in 

possession of the property searched. 

A search of property which is owned or controlled by the United 

States and is under the control of an armed force, or of property I 

which is located within a military installation or in a foreign 

country or in occupied territory and is owned, used, or occupied by 

persons subject to military law or to the law of war, which search 

has been authorized by a commanding officer (including an officer 

in charge) having jurisdiction over the place where the property 

is situated or, if the property is in a foreign couiltry or in occupied territory, over personnel subject to military law or to the law 

of war ili the place where the property is situated. The comma~ld- 
RULES OF EVIDENCE U 1530 

ing officer may delegate the general authority to order searches to 

persons of his command. This example of authorized searches is 

not intended to preclude the legality of searches made by military 

personnel in the areis outlined above when made in accordance 

L with military custom. 

153. CREDIBILITY OF WITNESSES; IMPEACHMENT OF 

WITNESSES.-a. Credibility of witnesses.-The credibility of a 

witness is his worthiness of belief, and may be determined by the 

acuteness of his powers of observation, the accuracy and retentiveness 

of his memory, his general manner in giving evidence, his relation 

to the matter in issue, his appearance and deportment, his friendships and prejudices, and his character as to truth and veracity, by 

comparison of his testimony with other statements made by him and 

with the testimony of others, and by other evidence bearing upon his 

veracity. See in this connection 149b (1) (Cross-examination). 

The court may ordinarily draw its own conclusions as to the credibility of a witness and attach such weight to his evidence as his 

credibility may warrant. However, there are cases in which the court 

would be justified in attaching no weight at all to the testimony of 

a witness, or in which the court would not be warranted in accepting 

certain testimony as sufficient to establish the guilt of an accused. 

For example, a conviction cannot be sustained solely on the self-contradictory testimony of a particular witness, even though motive to 

commit the offense is shown, if the contradiction is not adequately 

explained by the witness in his testimony. Also a conviction cannot 

be based upon the uncorroborated testimony of an alleged victim 

in a trial for a sexual offense, or upon the uncorroborated testimony 

of a purported accomplice in any case, if such testimony is self-contradictory, uncertain, or improbable. The uncorroborated testimony 

of an accomplice, even though apparently credible, is of doubtful 

integrity and is to be considered with great caution. 

In general, a person gains no corroboration merely because he repeats 

a statement a number of times. Hence, a witness ordinarily may not 

be corroborated by showing that he made statements consistent with 

his testimony. But this is only a general rule, and there are some 

situations in which such statements, having a real evidential value, 

are admissible. If the testimony of a witness has been attacked on 

the ground that it was due to an influence created by a matter which 

came into existence after the happening of the event to which such 

testimony relates, evidence of his statements or conduct, consistent 

with his testimony, made or occurring before the creation of that 

Muence should ordinarily be received. For example, if a witlea 
CHAPTER XXVll 

is impeached on the ground of bias due to a quarrel with the accused, 

the fact that before the date of the quarrel he made an assertion 

similar to his present testimony tends to show that his present testimony is not due to bias. If his impeachment is sought on the ground 

of collusion or corruption, consistent statements made prior to the 

.imputed or admitted collusion or corruption may have such evidential 

value as to make them admissible, and if his testimony is attacked 

on the ground that he made an inconsistent statement or on the ground 

that such testimony was a fabrication of recent date, evidence that 

he had made a consistent statement before there was a motive to misrepresent, and before any imputed or admitted inconsistent statement, 

may be received. 

If a witness testifies as to the identity of the accused as the person 

who committed, or did not commit, the offense in question, such testimony may be corroborated, even though the credibility of the witness 

has not been directly attacked, by showing that the witness made a 

similar identification with respect to the accused on a previous occasion. In such a case the identifying witness himself and any person 

who has observed the previous identification niay testify concerning 

it. See as to corroboration of the victim in sexual oflenses, 142c 

(Fresh complaint). See also 1396 (Illustrations of hearsay rule). 

6. Impeachment of witnesses.-(I) General.-See 149b (1) (Crossexamination). Impeachment signifies the process of attempting to 

diminish credibility. The credibility of any witness, including a11 

accused who has become a witness, may be attacked. 

The general rule is that a party is not permitted to impeach his 

own witness; that is, deliberately to attempt to discredit him. Inconsistencies which incidentally develop between witnesses for the 

same side are not such prohibited impeachments. The general rule 

is subject to a few exceptions. If a party is compelled to call a witness whom the law or the circumstances of the case make indispensable, or if a witness proves unexpectedly hostile to the party calling 

him, the party is permitted to impeach the witness. In the latter 

case it must first appear that the party calling the witness has been 

surprised by hostile evidence given by the witness. If surprise is the 

only reason for permitting a party to impeach his own witness, the. 

party may directly attack the credibility of the witness only by proof 

of inconsistent statements and may not, for instance, show that the 

witness has a bad character as to truth and veracity or that the witness 

has been convicted of crime. The surprise which will allow a party 

to impeach his own witness must be actual, not feigned, surprise. The 

party must have had an honest belief that the witness would testify 
RULES OF EVIDENCE !I 153b 

as expected. The fact tliat he was advised by a person other than the 

that the witness would testify in a certain manner is no basis 

for a claim of surprise when the witness fails to do so. However, in 

this respect, the party may rely upon statements purportedly made by 

the witness in the course of an oficial investigation as set forth in a 

summary of the expected testimony of the witness or in other 

documents. 

Witnesses for the court are not witnesses for the prosecution or 

defense and may be impeached by either side. 

(2) Various grounds.-(a) General lack of veracity.-For the 

purpose of impeachment it may be shown that a. witness has a bad 

&aracter as to truth and veracity. After impeaching evidence of 

this kind is received, or after it is shown that the witness has been 

convicted of a crime affecting his credibility or, in a proper case, thnt 

the witness has an unchaste character (see below, Conviction of crime), 

proof that the witness has a good character as to truth and veracity 

may be introduced in rebuttal. A witness who gives competent testimony concerning the character (or reputation) of the person in question as to truth an3 veracity may be asked whether he would believe 

the person on oath. See 138f (1) as to ways of proving character. 

(6) Conviction of crime.-A witness may be impeached by showing that he has been convicted by a civil or military court of a crime 

which involves moral turpitude or is such as otherwise to affect his 

credibility. Proof of snch conviction may be made by the original 

or an admissible copy of the record thereof, or by an admissible copy 

of the order promulgating the result of trial. Before introduciqg 

such proof, the witness may first be questioned with reference to the 

conviction sought to be shown. If the witness admits the conviction, 

other proof is unnecessary. The limitations upon the introduction 

of evidence of previous convictions set forth in 756 (2) do not apply 

to impeachment proceedings. 

It is generally not permissible to impeach a witness upon the 

ground that he has committed a crime affecting his credibility by 

addncing-by means other than cross-examination of the witnessevidence not amounting to proof of conviction of the crime. However, 

in a prosecution for rape, or for any other sexual offense in which 

lack of consent is an element, any evidence, otherwise competent, 

tending to show the unchaste character of the alleged victim is admissible on the issue of the probability of her having consented to the 

act charged (whether or not she has testified as a witness) and on 

the qnestion of her credibility, without proof of conviction of any 

crime involved. For this purpose, evidence of her lewd repute, habits, 
(1 153b CHAPTER XXVll * 

ways of life, or associations, and of her specific acts of illicit sexual 

intercourse or other~lascivious acts with the accused or others, is material. Evidence of this kind is generally admissible whether the 

circumstances to which it refers existed before or after the commission 

of the alleged offense, but the court may refuse to receive such evidence if in the exercise of a sound discretion it determines that the 

evidence mould be so remote with respect to the matter intended to 

be shomn thereby as to be irrelevant. Thus upon cross-examination 

of the victim in a rape case, it would be proper for the court to exclude 

a question calling for her testimony as to whether, within an un-. 

specified period of time before the alleged rape, she had participated 

in illicit sexual intercourse. On the other hand, it would be improper 

to prohibit an attempt, upon her cross-examination or otherwise, to 

show that she was engaged in the business of prostitution at or about 

the time of the alleged rape. For the purpose of impeaching the 

credibility of the alleged victim, evidence that the victim has an unchaste character is admissible, under the above conditions, in a prosecution for any sexual offense, such *as carnal knowledge, even though 

consent is not an *element of the offense. EvidenEe that the alleged 

victim of a sexual offense has a good character as to chastity is admissible for the purpose of showing the probability of lack of consent, 

when lack of consent is material, or to rebut the implications arising 

from contrary evidence. 

For the purpose of impeachment it may be shown by cross-examination or otherwise that the witness is in custody and that his testirnpny was affected by fear or favor growing out of his detention. 

' (G) 1ncon.si~tent statement$.-A witness may be impeached by 

showing by any competent evidence that he made a statement (or 

engaged in other conduct) inconsistent with his testimony, but a 

foundation must first be laid before introducing evidence of an inconsistent statement. The foundation for the introduction of evidence of the making of an inconsistent oral statement is laid by asking 

the witness if he made the inconsistent statement, at the same time 

directing his attention to the time and place of the statement and 

the person or persons to whom it was made. This procedure may 

also be nsed in the case of an inconsistent written statement, and, if 

it is used, the writing need not be shown to the witness. If the witness admits making the inconsistent statement, no other proof that 

he made it is admissible. If he denies making the statement, or testifies that he does not remember whetl~er he made it or not, or refuses 

to testify as to whether he made it, evidence that he .did make the 

statement may be introduced. When the inconsistent statement is 
RULES OF EVIDENCE II 153b 

contained in a writing apparently signed or written by the witness, 

a sufficient foundation may be laid by showing the writing to the 

and asking him whether the signature is his or whether he 

was the author of the written statement. If he admits that the signature is his or that he was the author, the writing then becomes admissible in evidence. If he does not make any such admission but either 

of these facts is otherwise proved, the writing will then becomb 

admissible in evidence. 

An oral inconsistent statement of a witness may be proved by 

the testimony of anyone who heard him make it, even though the statement was reduced to writing and the writing is unaccounted for. See 

141 as to proving an inconsistent statement made through an 

interpreter. 

It is to be borne in mind that proof that a witness made an inconsistent statement is generally admissible only for the purpose of 

impeaching him. Proof of an inconsistent statement of a witness is 

not admissible to establish the truth of the matters asserted in the 

statement ~znless such proof may properly be received as evidence of 

a voluntary confession or admission of the witness (in case he is the 

accused) or of some statement of the witness which is otherwise admissible as an exception to the hearsay rule, or unless the witness 

testifies that his inconsistent statement is true, not merely that he made 

it, and thus adopts the statement as part of his testimony. When 

proof of an inconsistent statement of a witness is admitted in evidence 

merely for the purpose of impeachment, the law officer (or the president of a special court-martial) should instruct the court in open 

session that snch proof is to be eonsidered for that purpose only and 

not for the purpose of establishing the truth of the matters asserted 

in the statement. 

The fact that the inconsistent statement was made in the course of 

an investigation or at another trial does not cause proof of the making 

of the statement to be inadmissible for the purpose of impeachment. 

However, an accused who has testified as a witness may not be crossexamined upon, or impeached by proof of, any statement which was 

obtained from him in violation of Article 31 or through the use of 

coercion, unlawful influence, or unlawful inducement. But see the 

last paragraph of 140a. 

A witness has a right to explain any apparently inconsistent 

statement made by him and may, if excused from the stand, be recalled 

for that purpose. 

When a witness refuses to testify as to a certain fact (as when he 

relies on his right not to incriminate himself), or when a witness who 
11 1540 CHAPTER XXVll 

gives no material testmony properly subject to impeachment testifies 

that he has no recollection as to such fact, ilt cannot be shown that 

at some other time he made a statement as to the fact in question. The 

reason for this rule is that proof of such a statement either would not 

-impeach the testimony of the witness at all or would improperly impeach his testimony. However, when he does not refuse to testify 

but simply claims a failure of memory, the statement may be used 

in an attempt to refresh his present recollecti~on or to establish his 

past recollection. See 146a (Memoranda.) and 149c (1) (6) 

-(Exceptions). 

(d) Prejudice and bias.-Prejudice, bins, friendship, former 

quarrels, relationship, and other matters sho~ing a motive to misrepresent may be shown to diminish the credibility of the witness, 

-either by the testimony of other witnesses or by cross-examination of 

the witness himself. 

(3) E'ffect of impeachi.~zg evidence.-Whether the credibility of 

the witness has been successfully impeached is ordinarily a question 

to be decided by each member of the court during his deliberation as 

to his vote upon the matter (if properly determined by vote) with 

respect to which the testimony of the witness was offered. Consequently, the law officer of a general court-martial, or the president of 

a special court-martial (or the majority of the members thereof), 

should not sustain a motion to strike from the record, or to disregard 

otherwise, the admissible testimony of a particular witness simply because impeaching evidence with respect to such witness or his testimony has been introduced. 

154. MISCELLANEOUS MATTERS - INTENT; STIPULATIONS; OFFER OF PROOF; WAIVER OF OBJECTIONS.- 

a. Intent.-(1) General.-In certain offenses, such as burglary, larceny, and certain kinds of desertion, a specific lntent is necessary. In 

the kind of murder denounced by Article 118 (1) a premeditated design to kill must be proved. A specific intent, or a premeditated design to kill, may be established either by darect evidence, as, for 

example, words proved to have been used by the offender, or by 

circumstantial evidence, as by inference from th~ act itself. 

Other illustrations and details as to evidence of specific intent, 

or of general criminal intent, in the more usual cases are included in 

chapter XXVIII (Punitive Articles). 

(2) D.nvnl%enness.-A temporary loss of reason which accompanies and is part of a drunken spree and which is not the result of 

delirium tremens or some other mental defect, disease, or derangement 

is-not insanity in the legal sense. It is a general rule of law that 
RULES OF EVIDENCE II 154a 

voluntary drunkenness not amounting to legal insanity, whether 

caused by liquor or drugs, is not an excuse for crime committed while 

in that condition; but such drunkenness may be considered as affecting 

mental capacity to entertain a specific intent, or to premeditate a 

design to kill, when either matter is a necessary element of the offense. 

Evidence of drunkenness should be carefully scrutinized, as 

ds~~nkenness is easily simulated or may have been resorted t.o for the 

purpose of stimulating the nerves to the point of committing the act. 

In court-martial practice, evidence of drunkenness of the accused 

may be admitted on the question of the measure of punishment to be 

umrarded in the event of conviction, even though, in the particular case, 

the intent of the accused is not an issue. 

As to proof of drunkenness, see 138e (Opinion evidence) and 191 

(Drunk on duty). 

(3) Ignorance of fact.-Unless otherwise provided (expressly or 

by implication) by the law denouncing the offense in question, ignorance or mistake of fact will exempt a person from criminal responsibility if it is an honest ignorance or mistake and not the result of 

carelessness or fault on his part. Examples appear in chapter 

XXVIII (Punitive Articles). 

(4) Ignorance of Jaw.-As a general rule, ignorance of law, or of 

regulations or directives of a general nature having the force of law, 

is not an excuse for a criminal act. However, if a special state of mind 

on the part of the accused, such as a specific intent, constitutes an 

essential element of the offense charged, an honest and reasonable mistake of law, including an honest and reasonable mistake as to the legal 

effect of known facts, may be shown for the purpose of indicating the 

absence of such a state of mind. Also, before a person can properly 

be held responsible for a violation of any regulation or directive of 

any command inferior to the Department of the Army, Navy, or Air 

Force, or the Headquarters of the Marine Corps or Coast Guard, or 

inferior to the headquarters of a Territorial, theater, or similar area 

command (with respect to personnel stationed or having duties within 

such area), it must appear that lie knew of the regulation or directive, 

either actually or constructively. Constructive knowledge may be 

found to have existed when the regulation or directive was of so notori011s a nature, or was so conspicuously posted or distributed, that the 

particular accused ought to have known of its existence. 

The general mle that ignorance of law is not an excuse may be 

partially relaxed by courts-martial in trials for purely military offenses of persons recently enlisted. For example, a recently enlisted 

member of an armed force might be permitted to show that certain 
n 154~ CHAPTER XXVII 

articles of the code had never been read to him as required by Article 

137 of the code. Although such evidence would not amount to a defense, it could be regarded by the court as an extenuating circumstance. 

6. Stipulations.-(1) As to facts.-The parties may make a written 

or oral stipulation as to the existence or nonexistence of any fact. A 

stipulation need not be accepted by the court and should not be accepted if any doubt exists as to the accused's understanding of what is 

involved. If an accused has pleaded not guilty and the plea still 

stands, the court should not accept a stipulation which practically 

amounts to a confession. A stipulation of a fact which if true would 

operate as a complete defense to an offense charged should not be 

accepted by the court. In a capital or other important case a stipulation should be closely scrutinized before acceptance. The court is not 

bound by a stipulation even if received. For instance, other evidence 

before the court may convince the court that the stipulated fact is not 

true. The court may permit a stipulation to be withdrawn. If so 

withdrawn, it is not effective for any purpose. 

(2) As to testimony and docu/mentary evidence.-The parties may 

stipulate that if a certain person were present in court as a witness 

he would give certain testimony under oath. See in this connection 

58f (Stipulations which warrant denial of a continuance). Such a 

stipulation does not admit the truth of the indicated testimony, nor 

does it add anything to the weight or the evidentary nature of the 

testimony. Stipulated testimony may be attacked or contradicted or 

explained in the same way as though the witness had actually so testified in person. The principles as to acceptance and withdrawal of 

stipulations as to facts apply here, but the court may be more liberal 

in accepting stipulations as to testimony. 

Subject to the above observations as to stipulations of testimony, 

stipulations may be made as to the contents of a document. 

c. Offer of proof.-Whenever the court refuses to hear certain 

testimony offered in behalf of the accused, or to receive certain evidence of any kind offered in his behalf, the defense counsel may 

make a concise statement setting forth the substance of the expected 

testimony or other excluded evidence. The statement and any documentary evidence referred to therein will be included in the record of 

trial for the purpose of aiding reviewing and appellate authorities in 

arriving at their determination as to whether the action of the court in 

excluding the evidence in question was proper. No such statement 

shall be considered by the court as proof of the matters therein contained. See also 57g. 
RULES OF EVIDENCE fl 154d 

d. Waiver of objections,-The prosecution or the defense may in 

open court either orally or in writing waive an objection to the admissibility of offered evidence. Such a waiver adds nothing to the 

weight of the evidence nor to the credibility of its source. The court 

jn its discretion may refuse to accept, and may permit the withdrawal 

of, any such waiver. There is no prescribed form for making a waiver. 

Thus, if it clearly appears that the defense or prosecution understood 

its right to object, any clear indication on its part that it did not desire 

to assert that right may be regarded as a waiver of the objection. 

However, a waiver of an objection does not operate as a consent if 

consent is required, and a mere failure to object does not amount to a 

waiver except as otl~erwise stated or indicated in this inanual. 
Chapter XXVIII 

PUNITIVE ARTICLES 

155. SYNOPSIS OF CHAPTER.-In this synopsis the references 

on the left are to paragraphs; those on the right are to pages. 

Par. 

156. Article 77-------------.---------------------.-------.--.-

. . Principals--------------.----------------------------------- 

157. Article 

Accessory after the fact __---_-. _ ___.. - -------. . --- -..- . -. .- -- 

158. Article 79 

Lesser included offenses __.-- -----.. -- --------. - - .- -. - -. -. . . .. -- 

159. Article 

Attempts ---.------------------------------..-

...- 

160. Article 81 ----- ------------------ ---- - --- --- --. . ..---. . - . . --- 

Conspiracy 

161. Article 82 

Solicitation-- - - - - - - - - - -. . . - - - - - - -. . - - - - - - - -. . . . - - .. - . - . . -. -- 

162. Article 83--------------------------------------..---------.-- 

Fraudulent enlist,ment, appointment, or separation.. - - - __ - - _ .. . -- 

163. Article 84----------------------------------------------.----- 

Effecting unlawful enlistment, appointment, or separation___. _ - - - 

164. Article 85----.----.-------------.-.-----------.----------.--- 

a. Desertion 

b. Attempting to desert .-. .. .--. . .-------- ------------- 

165. Article 86 ----------------. . -. . . . . . .. ----- 

Absence without leave-.. _ _ -. ._ __ .. . .... .. . . -----.. -- - --. --- - - - -- - 

166. Article 87 ---..---.---------. . . . - .-------. --. 

Missing movement ---- - --. . . . . - - - - . . . .--- -.. . -. -- - -- - -- - 

167. Article 88- - - - - -- - - - - - - - - - - - - -. . - -. - - - -. -. .. - - - -. .. . . - - - - - .. . . - - - 

Contempt towards officials- - - - _-____ - - - - - -. .---. ---- - - - - - --- 

168. Article 89 .- -

Disrespect towards a superior officer ____ _. - _ __ _-- - - - - - - - - .. - -. . - 

169. Article 90- - - - - - - - - - - - - - - - - - - - -. -. - - - - - - - - -. - -. . - - - - - - -. ... . . 

a. Striking or assaulting superior officer ----- _-___. . _. .- -. 

b. Disobeying superior officer ------ -- .. -L - ------ - .. .. -. ----- --. - .. 

170. Article 91_-..--..-----------.---------..-------------------

a. General discussion; insubordinate conduct toward noncommissioned officer- ------------ - ----------- - --- --- --- --- - - 

b. Assaulting a warrant officer, noncommissioned officer, or petty 

oficer------------------------------------------------- 

e. Disobeying a warrant officer, noncommissioned officer, or petty 

officer------------------------------------------------- 

d. Treating with contempt or being disrespectful in language or 

deportment toward a warrant officer, noncommissioned officer, 

or petty officer .- 

Page 

302 

302 

303 

303 

303 

303 

304 

304 

305 

305 

307 

307 

308 

308 

310 

310 

310 

310 

315 

315 

3 15 

3 17 

317 

3 18 

318 

319 

319 

320 

320 

321 

322 
PUNITIVE ARTICLES 

par. 

171. Article 92 -------. . -- -. .--_ _._. .- __.-_ .__---____- 

a. Violation or failure to obey a lawful general order or regulation- - b. Failure to obey other lawful order .......................... 

c. Dereliction in the performance of duties ..................... 

172. Article 

Cruelty and maltrcntment- - - -- -. _ -__- -- _- -- --_--- -_ -- __ - - _-_ 

,173. Article 94---------------.--------.---------------2----------- 

a. . . b. 

c. Failure to prevent or suppress a mutiny or sedition__ - _ _--_--_ 

d. Failure to report a mutiny or sedit,ion--- - _. .__-_-_- _-_---_-- 

e. Attempted mutiny -------_..--_-__.___._--_-_---._..-_----_. 

174. Article 95 ...................... -.-------.-.-------.-------- 

a. Resisting apprehension--- - _ - - -- ---- - - .-- - - ------ ---------- 

b. Breachof arrest------------------------------------------ 

C. Escape from confinement-- - ---_ ---_ -- __-------- -_ ------ - _ _ 

d. Escape from custody ------------- ......................... 

175. Article 96--------------------------------------.--.---------- 

a. Releasing a prisoner without proper authority ----_ -__-------- 

b. Suffering a prisoner to escape through neglect--- _ .. ._----_--_ - 

c. Suffering a prisoner to escape through design--- - - ___---_ --- -- 

176. Article 97 ....................................... 

Unlawful detention of another- -- --. - _ - - - _ --- _ __ - . _ _ _ --__ - - _ - _ 

177. Article 98---------------------------------------.-------.---- 

a. Unnecessary delay in disposing of case- - .. . _ _ _ _- -_--_ -_ __ _ 

b. Knouringly and intentionally failing to enforce or comply with 

the provisionsofthe code-------------------------------- 

178. 

a Running away before the enemy --------_ -_ --_----- - _-. _-- 

b. Shamefully abandoning, surrendering, or delivering up- - - .. .. _ - - 

c. Endangering the safety of a command, unit, place, or military 

property through disobedience, neglect, or intentional misconduet------------------------------------------------ 

d. Casting away arms or ammunition ----_. - __.----__-_-__---

e. Cowardly conduct ------- -- _ ---- _ - - _ .. _ _ -- - - _ _ - - _ - _- -- -- - - - 

f. Quitting place of duty to plunder or pillage ----.. -- -------- _ -- 

g. Causing false alarms -------------------------. - - ---------- 

h. Willfully failing to do utmost to encounter, engage, capture, or 

destroy enemy troops, combatants, vessels, aircraft, or any 

otherthing--------------__------------------------------- 

i. Not affording all practicable relief and assistance - - - - - _ _ - - - - _ - - 

179. Article 100--------------_-----------------------..----------- 

a. Subordinate compelling or attempting to compel commander to 

surrender or abandon place, property, or command ----------- b. Striking the colors or flag -----_- -------- - - _ ------------- - -- 

180. Article 101----------_---------------------------------------

a. Disclosing the parole or countersign to one not entitled to 

receiveit---------------------------------,------------- 

b. Giving a parole or countersign different from that authorized- - 181. Article 102 -----------_---.---------------------------

., :. . Forcing a safeguard- - - - -. -- _ _ - - - - - - - - - - - - - - - - _ - - - - - - --_--A - - 

Page 

323 

323 

324 

324 

325 

325 

325 

325 

326 

326 

326 

327 

327 

327 

327 

328 

328 

329 

329 

329 

330 

330 

330 

33 1 

331 
CHAPTER XXVlll 

Par. 

182. Article 103-_------------------.------------------------------ 

a. Failing to secure captured enemy property ---- - - _ - - _ - - - - - - - - - b. Failing ta report and turn over captured or abandoned propertyc. Dealing in captured or abandoned property ---__ ____ ______ __ _ 

d. Engaging in looting or pillaging- - -. -__ _ ____--- -- _- --_---__ _ 183. Article 104---._-_---------_----------------------------------- 

a. Aiding or attempting to aid the enemy-_ ____------- _ - -- ---__ 

6. Harboring or protecting the enemy - - - - _ - - - - - _ - _ - - - - - - - - - - - - 

c. Giving intelligence to the enemy- - - - __ __ ___--------. ----- - 

d. Communicating, corresponding, or holding intercourse with the 

enemy..----------------.------------------------------ 

184. Article 105------.----------------------..---------------

a. Acting without authority to the detriment of another for the 

purpose of securing favorable treatment- _ --- - -- - - -- - - --_ - - 

b. Maltreating prisoners while in a position of authority _ _ _ _ _ - _ _ . 

185. Article 106----__--------------------------------------------- 

Spies_----------------------------------------------------- 

186. Article 107------------------------------------------------.-- 

False official statements ------------- .. - --------_-_--- -___-_ _ - 

187. Article 108---.----------------------------------------------- 

a. Selling or otherwise disposing of military property- --------_-- 

b. Willfully or through neglect damaging, destroying, or losing 

Page 

336 

336 

337 

337 . 338 

338 

338 

339 

339 

military property - - - - - - - - - - - - - - - - - - - - - - - - - _- - - - - - - - - - - - - - c. Suffering tbe loss, damage, destruction, saIe, or wrongful 

disposition of military property, ---------- --- -- - ---- - -- - --- 

188. Article 109--------------------------------------------------- 

a. Wasting or spoiling property other Ohan military property of 

the United States--------------------------------------- 

b. Willfully an,d wrongfully destroying or damaging other than 

military property of the United States .................... 

189. Article 110-----------------------------------------------

Improper hazarding of vessel- - - - - - - - - - - - - - - --- _- -- _- - - _ - _ _ _ - - 

190. Article lll--------------------------------------------------- 

Drunken or reckless driving-- -- --- -- -- - ---- --- -- - - - - - - - - - - - - - 

191. Article 112-------__---------------_--------------------------- 

Drunk on duty------------------------------------------_-- 

192. Article 113--------_---------------:----L-------.---------.---- 

Misbehavior of sentinel or lookout- - ------- -- -- -__'_- - _ - - -__ --- 

193. Article 114----------2---------------------------------------- 

a. Fighting a duel ............................................. 

b. Promoting, being concerned in or conniving at fighting a duel, 

or failing to report knowledge of a challenge -------------- - 

194. Article 

Malingering-----_-----------------------------------u----

195. Article 116_---_---------------.-------------------------

a. Riot ----------- -- _- ------ - -. --- - - ------ ------ -- --------- 

.b. Breach ofthe peace--------_--__--------llllllllllllll---

196. Article 117--------------------------------------------------- 

Provoking speeches or gestures--- -----_--- --- - ------ ------ --- 197. Article 118--------------------------------------------------- 

Murder--..--------------------------------------------..----- 
PUNITIVE ARTICLES 

Par. 

198. Article 119 --------- ------------ -. - - --------- -- -------- - --- --- a. Voluntary manslaughter_-- - - - _ __------___ ---_ ----_---_ --- 

b. Involuntary manslaughter- _-_. _---------- -- - - - -------- ---- 

199. Article 120 --------------------- .............................. 

a. Rape -------------------...----------------

b. Carnal knowledge-_-_-___.-_-______--______--_____--__--- 

200. Article 121-----_------------------------------.-------.------ 

a. Larceny----_---_--------------------------------.------- 

b. Wrongful appropriation -_-- -- ----- --- - - - - - - ------ - - - --- --- 

201. Article 122-------.---------------------------.--------------- 

Robbery-----_--------------------------------------------- 

202. Article 123-- - -- - - ------------. ------: - --. - ------ --. - .----- 

Forgery---------------------------------------------------- 

203. Article 124---_-_----------------------------.-------.-------- . . Maiming------------------------------____------____----_-- 

204. Article 125-----_--------------------------------------------- 

Sodomy---------------------------------------------------- 

205. Article 126__--_-------------------------------- ,___--- 

a. Aggravated arson-__. _ - _ _---_-_--- -----_____ - - - __- ___- - --- 

b. SimpIe arson.. _--_------------- --___-------__. _ _ --_---_-- 

206. Article 127--------------------------------------------~------ 

Extortion---_..-------------------------------------------- 

207. Article 128------------------------.-------------------~------ 

a. Assault-------------------------------------------------- 

b. Aggravated assault- _-_-_--- ---- - --_ -- --_-__ _ _ - ---__ ------ 

208. Article 129-_-_--.-------------------------------------,------ 

Burglary----------------------.-----------____------------- 

209. Article 130____--.-----_-------------------------------------- 

Housebreaking-----_-----------.---------------------------- 

210. Article 131___-__..------------------------------------------- 

Perjury-----------------------.-----_---------~-------.---- 

211. Article 132---___..------------------------------------------- 

a. Making a falpe or fraudulent claim- - - -- -- _ - - _ _ --- - - _ _ _ _ __ -- 

b. Presenting for approval or payment a false or fraudulent claim- - 

c. Making or using a false writing or other paper in connection with 

claims------------------------------------------------- 

d. False oath in connection with claims ----- ------------ _------- 

e. Forgery of signature in connection with claims -------------- 

f, Delivering less than amount called for by receipt ---_-------- 

g. Making or delivering receipt without having full knowledge 

thatitistrue---------------__----------------r------- 

212. Article 

Conduct unbecoming an officer and a gentleman ----- ----------- , 213. Article 134----_---------------/------------------------------- 

a. Disorders and neglects to the prejudice of good order and discipline in the armed forces .............................. 

b. Conduct of a nature to bring discredit upon the armed forces-- 

c. Crimes and offenses not capital ---------------------------- d. Various types of offenses under Article 134 ------------------ 

Page 

353 

353 

354 

355 

3 55 

3 56 

356 

356 

362 

363 

363 

364 

364 

366 

366 

367 

367 

367 

367 

368 

369 

369 

369 

369 

371 

373 

373 

374 

374 

375 

375 

377 

377 

377 
11 156 CHAPTER XXVlll 

156. ARTICLE 77-PRINCIPALS 

Discussion-To constitute one an aider and abettor under this 

article, and hence liable as a principal, mere presence at the scene 

is not enough; there must be an intent to aid or encourage the persons 

who conmit the crime. The aider and abettor must share the criminal intent or purpose of the perpetrator. If there is a concert of 

purpose to do a given criminal act, and such act is done by one of 

the parties, all probable results that could be expected from the act 

are chargeable to all parties concerned; but in order to make one 

liable as a principal in such a case, the offense committed must be 

one embraced by the common venture or an offense likely to result 

as a natural or probable consequence of the offense directly intended. 

An accused, without intent to kill and without active participation in 

a homicide, is a principal guilty of a murder committed by those with 

whom he voluntarily associated himself in the execution of an unlawful design so desperate that it ordinarily involves a hazard to life. 

Moreover, an accused who plans a burglary which is actually carried 

out by his associates is a principal in the burglarly, and, if his associates shoot and kill the home owner in the course of the burglary, the 

planner is a principal in the murder as well. 

While merely witnessing a crime without intervention does not 

make a person a party to its commission, if he had a duty to interfere 

and his noninterference was designed by him to operate and did 

operate as an encouragement to or protection of the perpetrator, he 

is a principal. Thus a sentinel or a guard charged with the duty of 

preventing the removal of go\-ernment property who stands passively 

by while such property is taken in or from his presence by persoils 

Imown to him to be thieves: is guilty of larceily of such property, for 

he is duty bound to prevent offenses against the property he is protecting, and his inaction in the presence of the perpetrators constitutes 

assent to, and concurrence in, the larceny. 

One who counsels, commands, or procures another to cormnit an 

offense snbsequently perpetrated in consequence of such counsel, command, or procuring is a principal whether he is present or absent at 

the commission of the offense. If such offense is effected, although 

by different means from those counseled, commanded, or procured, 

as for instance if A hires B to poison C and instead of poisoning 

him, B sIloots C, A is nevertheless guilty of the homicide. Likewise, 

one who canses an act to be done which if directly performed by him 

mould be punishable by the code is a principal. When the act is 

done, such principals are also chargeable with all results that could 
L" 

PUNITIVE ARTICLES U 158 

have been expected to flow as a probable consequence from the act 

commanded, procured, or caused to be done. 

The person who executes the con~mand of a principal may himself 

be innocent of any offense, as when a soldier at the command of a 

superior shoots a man who appears to the soldier to be one of the 

enemy, but who is known to the superior to be a friend. 

For the proper manner of charging a person liable as a principal 

under this article, see appendix 6. 

Proof.-See essential elements under the particular offense alleged. 

157. ARTICLE 78-ACCESSORY AFTER THE FACT 

Discussion.-Any person subject to the code who knows that an 

offense punishable by the code has been committed and who thereafter 

receives, comforts, or assists the offender in order to hinder or prevent 

his apprehension, trial, or punishment is an accessory after the fact. 

Thus a person becomes an accessory after the fact to the escape of a 

prisoner if, knowing that a prisoner has escaped from confinement, he 

thereafter voluntarily provides such prisoner with transportation, 

clothing, money, or other necessaries to enable the prisoner to avoid 

his pursuers. 

The assistance given a principal by an accessory after the fact is 

not limited to assistance designed to effect the personal escape or 

concealment of the principal, but includes those acts which are performed to conceal the commission of the offense by the principal. Thus 

a person is an accessory after the fact if, knowing that a crime has been 

committed, he assists and aids in concealing or suppressing evidence 

thereof. However, mere failure to report a known offense will not 

constitute one an accessory after the fact. 

Proof.-(a) That an offense punishable by the code was committed; (6) that the accused received, comforted, or assisted the 

offender for the purpose of hindering or preventing his apprehension, 

trial, or punishment; and (c) that the accused knew, actually or constructively, that the person so received, comforted, or assisted was the 

offender. 

It is not necessary to prove the conviction or arrest of a principal in 

order to prove that the offense, as to which the accused is allegedly an 

accessory after the fact, has been committed. Furthermore, evidence 

of conviction of the principal {such as a record thereof) cannot be 

used to establish against an alleged accessory the essential fact that 

the offense has been committed by the principal. 

158. ARTICLE 79-LESSER INCLUDED OFFENSES 

Discussion.-If the evidence adduced during a trial fails to provo 

an offense charged but does prove the commission of an offense neces- 
U 159 CHAPTER XXVlll 

sarily included in that charged, the accused may be found guilty of 

such included offense. An accused may also be found guilty of an 

attempt to commit the offense charged or of an attempt to commit an 

offense necessarily included in that which was charged. 

An offense found is necessarily includedin an offense charged if 

all of the elements of the offense found are necessary elements of the 

offense charged. An offense is not included within an offense charged 

if it requires proof of any element not required in proving the offense 

charged or if it involves acts of which the accused was not apprised 

upon his arraignment. A familiar instance of an included offense 

is a finding of guilty of absence without leave under a charge of desertion. But one charged with desertion may not be found guilty of 

breaking arrest as an included offense thereunder because proof of 

arrest, a necessary element in proving breach of arrest, is not an element of the proof of desertion. 

If the evidence fails to prove an offense charged but does prove the 

commission of an offense included in that charged, the court may by 

its findings except appropriate words and figures of the specification, 

and, if necessary, substitute others, finding the accused not guilty of 

the excepted matter but guilty of the substituted matter. For 

example, when a specification alleging burglary in violation of Article 

129 is in the usual form and the proof at the trial shows that the act 

was not done in the nighttime, the accused may be found not guilty of 

burglary, but guilty of housebreaking. Such a finding may be worded 

as follows: 

Of the Specification: Guilty, except the words "in the nighttime, burglariously break and enter," substituting therefor the words "unlawfully 

enter,'' of the excepted words, not guilty, 

of the substituted words, guilty. 

Of the Charge: Not guilty, but guilty of a violation of 

Article 130. 

When an included offense is found, the finding as to the charge 

should state a violation of the specific article violated and not a violation of Article 79. For a discussion of "Attempts," see 159. 

159. ARTICLE 80-ATTEMPTS 

Discussion.-An attempt to commit an offense is an aEt or acts 

done with the specific intent to commit the particular offense which, 

except for the interference of some cause preventing the carrying out 

of the intent, apparently would result in the actual commission of the 

offense. 
PUNITIVE ARTICLES 1' 160 

To constitute a< attempt there must be a specific intent to commit 

the particular offense accompanied by an overt act which directly tends 

to accomplish the inl lawful purpose. The overt act must be more than ' 

mere preparation to commit the offense. Preparation consists in devising or arranging the means or measures necegsary for the commission of the offense. The overt act required goes beyond preparatory 

steps and is a direct movement towards the commission of the offense. 

However, the overt act need not be the last proximate act to the consummation of the offense attempted to be perpetrated. For example, 

a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson to apply 

a burning match to a haystack, even though the match may be immediately put out by the rain, blown out by the wind, or otherwise 

extinguished. 

It is not an &tempt when every act intended by the accused could 

be completed without committing an offense, even though the accused 

may at the time believe he is committing an offense. But an accused 

may be guilty of an attempt, even though the crime turns out to be impossible of commission because of an outside intervening circumstance 

or because the accused miscalculated his opportunity to commit the offense intended. For example, if A without justification or excuse, 

levels a gun at B with intent to kill B, and pulls the trigger, A is guilty 

of attempt to murder, even though, unknown to A, the gun is defective 

and will not fire. A pickpocket who puts his hand in the pocket of 

another with intent to steal his purse is guilty of an attempt to steal, 

even though the pocket is empty. 

Soliciting another to commit an offense does not constitute an attempt. 

An accused may be convicted of an attempt to commit an offense 

although it appears on the trial that the offense was consummated. 

See 158 (Lesser included offenses). 

An attempt to coqnit an offense should be charged under this article 

unless such attempt is specifically denounced by some other article, 

when it shall then be charged under that article. See Articles 85, 94, 

100,104,128. 

Proof.-(a) That the accused did a certain act; (6) that the act was 

done with specific intent to commit a certain offense; and (c) that the 

act amounted to more than mere preparation and apparently tended to 

effect the commission of the intended offense. 

160. ARTICLE 81-CONSPIRACY 

Discussion.-To constitute the offense of conspiracy under the code, 

there must be a chbination of two or more persons who have agreed 
P 160 CHAPTER XXVlll 

to accomplish, by concerted action, an unlawful puipose or some purpose not in itself unlawful by unlawful means and, the doing of some 

act by one or more of the conspirators to effect the object of that 

agreement. 

The agreement in a conspiracy need not be in any particular form 

nor manifested in any formal words. It is sufficient if the minds of 

the parties arrive at a common understanding to accomplisl~ the object 

of the conspiracy, and this may be shown by the conduct of the parties. 

The agreement need not state the means by which the conspiracy is to 

be accomplished or what part each conspirator is to play. 

The overt act of a conspiracy must be an independent act by one or 

more of the conspirators following the agreement and done to carry 

into effect the object of that agreement. This overt act need not be 

in itself criminal, but it must be a manifestation that the conspiracy 

is being executed. Thus a telephone call by 'a conspirator to the intended victim of a conspiracy to rob, inviting the intended victim to 

the scene of the intended crime, would constitute the overt. act necessary to complete the offense of conspiracy. An overt act by one conspirator becomes the act of all without any new agreement specifically 

directed to that act and each conspirator is equally guilty although 

he does not participate in, nor have knowledge of, all of the details 

of the execution of the conspiracy. 

A person may be guilty of conspiracy although incapable himself 

of committing the intended offense. For example, a bedridden conspirator may knowingly furnish the automobile to be used in a robbery, or a guard may conspire with prisoners to effect their escape 

from confinement. 

A conspiracy to commit an offense is a different and distinct offense 

from the offense which is the object of the conspiracy, and both the 

conspiracy and the consummated offense which was its object may 

be charged and tried. Nevertheless, the commission of the intended 

offense may also constitute the overt act which is an element of the 

conspiracy to commit that offense. 

One or all of the parties to a conspiracy may, before the performance of an overt act to effect the object of the conspiracy, abandon 

the design and withdraw from the conspiracy, but there must be some 

affirmative act of withdrawal. However, after the formation of the 

conspiracy, the withdrawal of one or more conspirators neither creates 

a new conspiracy nor changes the status of the remaining members. 

It is not a defense that the means adopted by the conspirators to 

achieve their object, if apparently adapted to that end, were actually 
D 

PUNITIVE ARTICLES 

capable of success, nor that the conspirators were not physically 

able to accomplish their intended object. 

Title 18 U. S. C. denounces conspiracies to commit certain specific 

offenses which do not require an overt act. Such conspiracies should 

be charged under Article 134. 

Proof.-(a) That the accused and one or more persons named or 

described entered into an agreement; (6) that the object of the agreement was to conimit an offense under the code; and (c) that one or 

more of the persons named or described performed an act to effect 

the object of the conspiracy, as alleged. 

161. ARTICLE 82-SOLICITATION 

Discussion.-A solicitation in violation of this article is complete 

=hen a solicitation is made or advice is given with the wrongful 

intent to influence another or others to commit any of the four offenses 

named in the article. It is not necessary that the person or persons 

solicited or advised act upon such solicitation or advice. If after the 

solicitation or advice the offense of desertion or mutiny is attempted 

.or committed or the offense of misbehavior before the enemy or sedition is committed, the accused shall be punished with the punishment 

povided for the commission of the offense solicited or advised. If 

the offense of desertion or mutiny is not attempted or committed, 

or if the offense of misbehavior before the enemy or sedition is not 

committed, the accused shall be punished as a court-martial may 

direct. 

Solicitation may be accomplished by other means than by word of 

mouth or by writing. Any act or conduct which reasonably may be 

construed as a serious request or advice to commit one of the offenses 

named in the article may constitute solicitation. It is not necessary 

that the accused act alone in the solicitation or in the advising; he 

may act through other persons in committing this offense. 

Solicitation to commit offenses other than violations of the articles 

enumerated in this article may be charged as violations of Article 134. 

Proof.-(a) That the accused solicited or advised a certain person 

or persons to commit the offense, as alleged. 

If the offense solicited or advised was attempted or committed, there 

shall be added an additional element of proof: (b) That the offense 

solicited or advised was (committed) (attempted) as the proximate 

result of the solicitation or advice. 

As to proof of the commission or attempted commission of the 

offense solicited or advised, see 157 (Proof). 
U 162 CHAPTER XXVlll 

162. ARTICLE 83--FRAUDULENT E N L I S TM E N T, APPOINTMENT, OR SEPARATION 

Discussion.-A fraudulent enlistment, appointment, or separation 

is one procured by means of either a knowingly false representation 

in regard to any of the qualifications or disqualifications prescribed 

by law, regulation, or orders for the specific enlistment, appointment, 

or separation, or a deliberate concealment in regard to any such disqualscation. The term enlistment includes induction or any other 

means of entry into service in an armed force. 

The misrepresentation or concealment may be with regard to matters which, if truthfully stated or revealed, would induce an inquiry 

by the recruiting, appointing, or separating officer concerning the 

qualifications or disqualifications for enlistment, appointment, or 

separation, such as answers to questions as to previous service, previous applications for enlistment or appointment, or dependents. 

An essential element of the offense of fraudulent enlistment or 

appointment is that the accused shall have received pay or allowances 

thereunder. Accordingly, s member of the armed forces who enlists 

or accepts an appointment without being regularly separated from a 

prior enlistment or appointment should be charged under this article 

only if he has received pay or allowances under the fraudulent enlistment or appointment. Acceptance of food, clothing, shelter, or 

transportation from the government, constitutes receipt of allowances. 

However, whatever is furnished the accused while in custody, confinement, arrest, or other restraint pending trial for fraudulent enlistment or appointment is not considered an allowance. 

A person who procures himself to be enlisted, appointed, or separated by means of several misrepresentations and concealments as to 

his qualifications for the one enlistment, appointment, or separation 

so procured, commits but one offense under Article 83. 

After apprehension, an accused who is charged with having fraudulently obtained his separation from an armed force shall be subject 

to this code while in the custody of the armed forces for trial upon 

the fraudulent separation. See Article 36. As to offenses committed 

prior to a fraudulent separation, see 11. 

Proof.-(a) The enlistment, appointment, or separation of the accused in or from an armed force; (b) that the accused knowingly 

misrepresented or deliberately concealed a certain material fact or 

facts regarding his qualifications for enlistment, appointment, or 

separation; (c) that his enlistment, appointment, or separation was 

procured by such knowingly false representation or deliberate concealment; and, in a case of fraudulent enlistment or appointment, 
PUNITIVE ARTICLES ,U 162 

(d) that under that enlistment or appointment the accused received 

either pay or allowances, or both, as alleged. 

The receipt of pay or allowallces should be proved by direct evidence if such evidence is reasonably available, but may be proved by 

evidence, such as by showing that the accused was on 

duty under the enlistment or appointment a sufficient time to warrant 

the inference that he had been fed or sheltered, or both. 

If concealment of a discharge of any type is alleged, the final indorsement on the service record is competent evidence of the fact, type, 

and date of discharge. 

To prove that the accused enlisted or accepted appointments at 

various times under different names, his identity as the person so 

enlisted may be proved, prima facie, by photostatic copies of the 

various enlistment or appointment and identification records with 

the certificate of the chief custodian of the personnel records of the 

appropriate armed force, or one of his assistants, that the hgerprint 

records accompanying the various enlistment or appointment records 

have been compared by a duly qualified fingerprint expert on duty 

as such in his office and that the fingerprints are those of one and the 

same person. A similar certificate executed by the custodian, or by 

one of his assistants, of the fingerprint records of any department, 

bureau, or agency of the United States shall be equally admissible. 

See 143a (Proving contents of a writing-Exceptions). 

If an accused is being held under suspected fraudulent enlistment 

or appointment at a place where he is unknown, his fingerprints 

should be taken and forwarded to the chief custodian of the personnel 

records of the armed force concerned for identScation and comparison. If it appears from records of the appropriate armed force 

t,hat the individual previously had been enlisted or appointed and 

was not regularly separated, the appropriate chief custodian of personnel records or one of his assis>ants will so certify, and the certificate, with the testimony of the person who took the fingerprints (or 

of someone present when they were taken), may be used to establish 

a prima facie case of fraudulent enlistment or appointment. Obviously, fingerprints are not the only method of identification. A 

witness may be available who has known the accused in his several 

enlistments or appointments-and can identify him. So also signatures on the enlistment or appointment records, tattoo marks and scars 

on the body, peculiarities, and deformities may be used to establish 

identity. 

If the period of the prior enlistment has elapsed, the fact that there 

was no discharge from his fo~er enlistment may be proved, prima 
CHAPTER XXVlll 

, facie, by the certificate of the chief custodian of the personnel records 

of the armed force concerned, or one of his assistants, that the files 

and records of his office contain no record of the discharge of the accused from that enlistment. 

163. ARTICLE 8kEFFECTPNG UNLAWFUL E N L I S T - 

MENT, APPOINTMENT, OR SEPARATION 

Discussion.-The accused must how or have reasonable cause to 

believe that the enlistment, appointment, or separation effected by hirn 

was of an individual whose enlistment, appointment, or separation 

mas prohibited by law, regulation, or order. The term enlistment 

includes induction or any other means of entry into the service of an 

armed force. 

It must be proved that the enlistment, appointment, or separation 

when effected was prohibited by law, regulation, or order and that the 

accused knew that the individual wliose enlistment, appointment, or 

separation he effected was ineligible for such enlistment, appointment, 

or separation. 

Proof.-(a) That the accused effected the enlistment, appointment, 

or separation of the person named, as alleged; (6) that the person 

was ineligible for such enlistment, appointment, or separation because 

it was prohibited by law, regulation, or order ; and (c) that the accused 

knew or was charged with knowledge of such facts at the time of 

the enlistment, appointment, or separation. 

164. ARTICLE 85DESERTION 

a. DESERTION 

Discussion-Under Article 85a a member of the armed forces of 

the United States commits desertion when he: 

Without proper authority goes or remains absent from his place 

of service, organization, or place of duty with intent to remain 

away therefrom permanently; or 

Quits his unit or organization or place of duty with intent to 

avoid hazardous duty or to shirk important service ; or I 

Without being regularly separated from one of the armed forces, 

enlists or accepts an appointment in the same or another oue of 

the armed forces without fully disclosing the fact that he has not 

been so regularly separated, or enters any foreign armed service 

except when authorized by the United States. 1 

Under Article 856, any officer of the armed forces ml10, having 

tendered his resignation and prior to he notice of the acceptance of 

the same, quits his post or proper duties without leave, and with intent 

to remain away therefrom permanently, is guilty of desertion. 
I 

PUNITIVE ARTICLES 

A prisoner whose disnlissal or dishonorable or bad conduct discharge 

has been executed, although he may be subject to military law under 

Article 2 (7), is not a "member of the armed forces of the United 

states" within the meaning of Article 85. 

(1) Absence without proper authority with intent to remain away 

permanentZy.-B~th the absepce without authority and the intent to 

remain away permanently are essential elements of the offense. The 

offense is complete when the person absents himself without authority 

from his place of service, his organization, or his place of duty with 

the intent to remain away therefrom permanently. It is not necessary that the person absent himself entirely from military jurisdiction and control, and the fact that such an intent is coupled with a 

purpose to report for duty elsewhere, or to enlist or accept an appointment in the same or another armed force, does not constitute a defense. 

A prompt repentance and return, while material in extenuation, is no 

defense; and a purpose to return, provided a particular but uncertain 

event happens in the future, may be considered an intent to remain 

away permanently. Unless, however, an intent to remain away permanently from his place of duty or service, or from his organization, 

exists at the inception of, or at some time during, the absence, the 

person cannot be a deserter guilty of desertion in violation of Article 

85a (I), whether his purpose is to stay away a definite or an indefinite 

length of time. If a person while in desertion enlists or accepts an 

appointment in the same or another armed force and deserts while 

serving under that enlistment or appointment, he is amenable to trial 

for both desertions. 

(2) Quitting unit, organization, or pZace of duty witit intent $0 

avoid haaardous duty or to shirk impo~tant sewice.-The "hazardous 

duty" or "important service" may include such service as duty in a 

combat or other dangerous area; embarkation for foreign duty or 

duty beyond the continental limjts of the United States or for sea 

duty; movement to a port of embarkation for that purpose; entrainment for duty on the border or coast in time of war or threatened 

invasion or other disturbances; strike or riot duty; or employment in 

aid of the civil power in, for example, protecting property, or quelling or preventing disorder in times of great public disaster. Such 

services as drill, target practice, maneuvers, and practice marches will 

not ordinarily be regarded as included. 

(3) En,Zisting or accepting an appointment in the same or another 

armed force, or entering a foreign awned service.-The term enlistment includes induction or other means of entry into the service of 

an armed force. If, without being regularly separated from one of 
:a 

!J 164a CHAPTER XXVlll 

the armed forces, a person enlists or accepts an appointment in the 

same or another armed form, his presence in the military service under such an enlistment or appointment is not in itself a return to 

military control with respect to his former enlistment or appointment, 

although a return may be effected through his voluntary disclosure 

of the facts or through the discovery of the facts without his aid. 

When such a deserter is codned by his commanding officer as a result 

of information received from the headquarters of the armed force 

concerned, his desertion should be regarded as terminated by 

apprehension. 

A member of an armed force who, while in a status of being 

absent without proper authority, enlists or accepts an appointment 

in the same or another armed force, or enters a foreign armed service, 

inay be guilty of committing desertion by being absent without authority with intent to remain away .permanently, the intent being 

evidenced by his act of enlisting, accepting the appointment, or entering the foreign armed service. In such a case the desertion may be 

alleged as having occurred on the date the accused absented himself 

without authority. 

Proof.--Desertion by ahence with intent to remain away pemnanentZy.-(u) That without proper authority the accused absented 

himself from his place of service, organization, or place of duty; 

(b) that he intended, at the time of absenting himself or at some 

time during his absence, to remain away permanently from his place 

of service, organization, or place of duty; and (c) that his desertion 

was of a duration and was terminated, as alleged. 

Desertion by quitting unit, organization, or place of duty with 

intent to avoid hazardous duty or to shirk important service.-(a) 

That the accused quit his unit, organization, or place of duty ; (b) that 

he did so with intent to avoid hazardous duty or to shirk important 

service; and (c) that his desertion was of a duration, as alleged. 

Desertion by enZisting or accepting appointment in the same or 

another armed force, or by entering a foreign armed service.-(a) 

That the accused was a member of an armed force and had not been 

regularly separated therefrom; (b) that while in such a status he 

enlisted or accepted an appointment in the same or another one of the 

armed forces without fully disclosing the fact that he had not been 

so regularly separated, or entered a foreign armed service not being 

authorized to do so by the United States; and (c) that his desertion 

was of a duration and was terminated, as alleged. 

Desertion by quitting post or duties prior to notification of acceptance of resignutiorn.-(a) That the accused was an officer of an armed 
PUNITIVE ARTICLES 1 1640 

force and had tendered his resignation; (6) that prior to due notice 

of the acceptance of his resignation, he quit his post or proper duties 

leave; (c) that he dld so with intent to remain away permanently from his post or proper duties; and (d) that his desertion was 

of a duration and was terminated, as alleged. 

Absence without proper authority (Absence without leave).-Absence without leave is usually p~oved, prima facie, by entries in the 

morning report in the case of the Army and Air Force and by entries in 

the service record or unit personnel diary in the case of the Navy, 

Marine Corps, and Coast Guard. But these entries, even though they . refer to an accused as a "deserter," are not complete evidence of desertion ; they are evidence only of the absence without proper authority 

and attendant facts and circumstances required to be recorded (see 

~Plb), and it is still necessary to prove the other elements of the offense 

of desertion. Having once been shown to exist, the condition of absence without proper authority with respect to an enlistment or appointment may be presumed to have continued, in the absence of proof 

to the contrary,until the return of the accused to military control under 

that enlistment or appointment. When, without being regularly separated, a member of an armed force enlists or accepts an appointment 

in the same or another armed force without fully disclosing the fact 

that he has not been so regularly separated, or attempts either such act 

while in a duty status or while on pass, liberty, or leave, he by that act 

abandons his status of duty, pass, liberty, or leave, and from that moment becomes absent without leave with respect to the former enlistment or appointment. Similarly, a member of the armed forces absent 

on a short pass or liberty from his organization who is found on board 

a ship at sea, without authority, bound for a distant port, may be regarded as having abandoned any authority he might have for his absence and to be absent without proper authority, although he may not 

have gone beyond the area fixed in the pass and the pass may not 

have expired. 

Intent in desertion by absence with intent to remain away permanently.-If the condition of absence without proper authority is much 

prolonged and there is no satisfactory explanation of it, the court will 

be justified in inferring from that alone an intent to remain absent 

permanently. However, a plea of guilty of absence without leave to 

a charge of desertion is not in itself a sufficient basis for a conviction 

of desertion. No inference of an intent to remain absent permanently 

arises from any admission involved in the plea, and to warrant a conviction of desertion by absence with intent to remain away permanently 

evidence of a prolonged absence or of other circumstances must be 
1- 

P 1640 CHAPTER XXVlll 

introduced from which the intent to desert can be inferred. The inference may be drawn from evidence proving that the accused attempted to dispose of his uniform or other militaiy property ; that he 

purchased a ticket for a distant point or was arrested or surrendered at 

a considerable distance from his station; that while absent he was in 

the neighborhood of military posts or stations and did not surrender 

t,o the military authorities; that he was dissatisfied in his company or 

on his ship or with the military service; that he had made remarks 

indicating an intention to desert the service; that he was under charges 

. or had escaped from confinement at the time he absented himself; or 

that just previous to absenting himself he stole money, civilian clothes, 

or other property that would assist him in getting away. On the other 

hand, evidence of previous excellent and long service, that none of the 

property of the accused was missing from his locker, that he was under 

the influence of intoxicating liquor or drugs when he absented himself 

and that he continued for some timk under their influence, and similar 

evidence may be regarded as a basis for a contrary inference. Although the accused may testify that he intended to return, such testimony is not compelling, as the court may believe or reject the testimony 

of any witness in whole or in part. The fact that a person intends to 

report or actually reports at another station does not prevent a conviction for desertion, as that fact in connection with other circumstances may tend to establish his intention not to return to his proper 

place of duty. However, a person absent without leave from his 

place of service and without funds may report to another station for 

t,ransportation back to his original place of duty, which circumstance 

would tend to negative the existence of an intent to desert. No general 

rule can be laid down as to the effect to be given to an intention to 

report or an actual reporting at another station. 

Intent in desertion by quitting unit, organization, or place of duty 

with intent to avoid hazardous duty or to shirk important service.- 

In proving a specification alleging that the accused quit his unit or 

organization or place of duty with the intent to avoid hazardous duty 

or with the intent to shirk important service, there should be evidence 

of facts raising a reasonable inference that the accused knew with 

reasonable certainty that he would be required for such hazardous 

duty or important service. For example, it might be shown; (a) 

That the accused was personally warned of the imminence of the duty 

or the service; or (6) that his organization, as a whole, was so warned 

at a formation at which the roll was called and the accused was present; or (c) that the period of his absence was of such duration and 

under such circumstances that the accused must have had reasonable 
cause to know that he would miss a certain hazardous duty or important service. 

b. ATTEMPTING TO DESERT 

Discussion.-An attempt to desert is an overt act beyond mere 

toward accomplishing a purpose to desert. Once the attempt is made the fact that the person desists, either of his own accord 

or otherwise, does not cancel the offense. The offense of attempting 

to desert is complete, for example, if the person, intending to desert, 

hides himself in an empty freight car on a military reservation, intending to effect his escape by being taken away in the car. Entering the 

car with the intent to desert is the overt act. See the discussion of 

desertion. For a more detailed discussion of attempts, see 159. 

Proof.-(a) That the accused made the attempt by doing an overt 

act or acts; and (6) that the attempt was made with the intent to 

desert. See the comments under proof of desertion. 

165. ARTICLE 86ABSENCE WITHOUT LEAVE 

Discussion.-See 164a. This article is designed to cover every case 

not elsewhere provided for in which any member of the armed forces 

is through his own fault not at the place where he is required to be at 

a prescribed time. Specific intent is not an element of this offense 

and proof of the unautliorized absence alone is sufficient to establish 

a prima facie case. Specific intent is, however, a necessary element 

of the proof of certain matters in aggravation when alleged in connection with absence without leave. Thus, if it is alleged that an 

unauthorized absence was with intent to avoid maneuvers or field 

exercises, it must be proved that the accused absented himself without 

.authority for the purpose of avoiding maneuvers or field exercises. 

See 154a (1) and 154a (4). The first part of this article-relating to 

the properly appointed place of duty-applies whether the place is 

appointed as a rendezvous for several or for one only. A place of duty 

is not appointed within the meaning of this article unless the accused 

has actual or constructive knowledge of the order purporting to ap 

point such place of duty. Thus it applies in the case of a member of 

the armed forces failing to report for kitchen police or as a messman, 

and the second part of the article applies to leaving such duty after 

reporting. 

A member of the armed forces turned over to the civil authorities 

upon request under Article 14 is not absent without leave while held 

by them under such delivery. So, also, when a member of the armed 

forces, being absent with leave, or absent without leave, is held, tried, 

and acquitted by civil authorities, his status as absent with leave, 

or absent without leave, is not thereby changed, however long he 
.Y 

CHAPTER XXVllI 

may be held. If a member of the armed forces is convicted by the 

civil authorities, the fact that he was arrested, held, and tried does 

not excuse any unauthorized absence. The status of absence without 

leave is not changed by an inability to return through sickness, lack 

of transportation facilities, or other disabilities. But the fact that 

all or part of a period of unauthorized absence was in a sense enforced or involuntary should be given due weight when considering 

the type of court to which the case should be referred, or, in the 

event of conviction, the punishment to be imposed. Where, however, 

a man on authorized leave is unable to return at the expiration thereof 

through no fault of his own, he has not committed the offense of 

absence without leave, there being an excuse for the absence in such 

a case. 

A prisoner whose dismissal, dishonorable, or bad conduct discharge 

has been executed is no longer a member of the armed forces within 

the meaning of Article 86. Accordingly, such a prisoner may not be 

charged with absence without leave under Article 86 but should, if 

the facts warrant, be charged with escape from confinement under 

Article 95, or an offense under Article 134. Until actual execution 

of the dishonorable or bad conduct discharge the prisoner is subject 

to Article 86, even though the dishonorable or bad conduct discharge 

may have been ordered executed. 

Proof.-If the accused fails to go to or goes from his appointed 

place of duty.-(a) That a certain authority appointed a certain 

time and place for a certain duty by the accused, as alleged; and (6) 

that, without proper authority, the accused failed to go to the appointed place of duty at the time prescribed, or, having so reported, 

went from that place. 

If the accused is chrged with absenting himself without proper 

leave.-(a) That the accused absented himself for a certain period 

from his unit, organization, or other place of duty at which he was 

required to be, as alleged; and (6) that such absence was without 

proper authority from anyone competent to give him leave. 

If the accused is charged with a6senting himseZf without proper 

leave from his guard, watch, or duty section with intent to abandon 

the same.-(a) That the accused absented himself from his guard, 

watch, or duty section, as alleged; (6) that the absence of the accused 

was without proper authority; and (c) facts and circumstances indicating that the accused intended to. abandon his guard, watch, or 

duty section. 

If the accused is charged with a6senting himself without proper 

a;zlthority with intent to avoid maneuvers or fkZd exercises.-(a) 
PUNITIVE ARTICLES 

That the accused absented himself for a eel-taiii period from his unit, 

organization, or place of duty at which he was required to be; (b) 

that the absence of the accused was without proper authority; (c) 

that the accused knew or had good cause to know that such absence 

would occur during a part of a period of maneuvers or field exercises ; 

and (d) facts and circumstances indicating that the accused intended 

to avoid all or part of a period of maneuvers or field exercises. 

In connection with proof of absence without leave, see 143 (Documentary Evidence) and 164u (Discussion of absence without leave 

as an element of desertion). 

166. ARTICLE 87-MISSING MOVEMENT 

Discussion.-Article 87 denounces "Missing Movement" as the offense committed by any person subject to the code who through neglect 

or design misses the movement of a ship, aircraft, or unit with which 

he is required to move in the course of duty. 

The word "movement" as used in Article 87 does not include practice marches which are to be of short duration with a return to the 

point of departure contemplated, nor does it include minor changes 

in location of ships, aircraft, or units, as when a ship is shifted from 

one berth to another in the same shipyard or harbor or when a unit is 

moved from one barracks to another on the same post. 

"Through neglect" means the omission by a person to take such 

measures as are appropriate under the circumstances to assure that he 

will be present with his ship, aircraft, or unit at the time of a scheduled movement, or his doing of some act ~ithout giving attention to 

its probable consequences in connection with the prospective movement, 

such as a departure from the vicinity of the prospective movement to 

such a distance as would make it likely that he could not retnrn in 

time for the movement. 

In order to be guilty of the offense, the accused must know, or have 

cause to know, of the prospective movement which he is alleged to 

have missed. Knowledge of the exact hour or even of the exact date 

of the scheduled movement is not required. It is sufficient if the 

approximate date is known to the accused. However, there must 

always be a causal connection between the conduct of the accused and 

the missing of the scheduled movement. Knowledge of the scheduled 

movement may be proved by remarks made by the accused to others or 

by testimony that the accused was informed, directly or indirectly, of 

the prospective movement. For example, proof that the accused was 

notified of the prospective movement may consist of evidence that he 

was present at a roll call, muster, or other formation at which the 

information was given orally. Proof of general knowledge in the 
8 167 CHAPTER XXVIII 

accused's organization of the prospective movement of the ship, aircraft, or unit would justify the assumption by a court of the necessary 

knowledge on the part of the accused. 

That the accused actually missed the movement may be proved by 

documentary evidence, as by a proper entry in a log or a morning 

report. This fact may also be proved by the testimony of personnel 

of the ship, aircraft, or unit (or by other evidence) that the movement 

occurred at a certain time, together with evidence that the accused 

was physically elsewhere at that time. 

Proof.-(a) That the accused actually missed the movement of a 

ship, aircraft, or unit with which he was required in the course of 

duty to move; and (6) that he missed the movement of the ship, aircraft, or unit through neglect or design. 

167. ARTICLE 88-CONTEMPT TOWARDS OFFICIALS 

Discussion.-Article 88 denounces the use by any officer of the 

armed forces of contemptuous words against the President, VicePresident, Congress, Secretary of Defense, or a Secretary of a Department, a Governor, or a legislature of any State, Territory, or other 

possession of the United States in which such officer is on duty or 

present. 

This article covers both (1) words which are contemptuous in 

themselves, such as abusive epithets, denunciatory or contemptuous 

expressions, or intemperate or malevolent comments upon official or 

personal acts, and (2) words which are contemptuous because of the 

connection in which they are used and the surrounding circumstances. 

The official or groups against whom the words are used must be 

occupying one of the offices or be one of the groups named in Article 

88 at the time of the offense. 'LCongress" does not include a member 

as an individual; "legislature" does not include its members individually; nor does "governor" include a %eutenant governor.'' However, 

it is immaterial whether the words are used against the official in his 

official or private capacity. 

The language must be contemptuous and must, by an act of the 

accused, come to the knowledge of a person other than the accused. 

Adverse criticism of one of the officials or groups named in the article, 

in the course of a political discussion, even though emphatically 

expressed, if not personally contemptuous, may not be charged as a 

violation of the article. Similarly, expressions of opinion made in 

a purely private conversation should- not ordinarily be made the 

basis for a court-martial charge. However, giving broad circulation 

to a written publication containing contemptuous words of the kind 

made punishable by this article, or the utterance of such contemptuous 
PUNITIVE ARTICLES I168 

words in the presence of military inferiors, would constitute an 

aggravation of the offense. 

Truth or falsity of the statements may be immaterial, since the gist 

of the offense is the contemptous character of the language and the 

malice with which it is used. 

Proof.-(a) That the ac'cused used certain contemptuous words 

against the President, or one of the other authorities mentioned in the 

article, as alleged; and (6) if the words are not in themselves contemptuous, that they were used under certain circumstances or in a 

certain connection giving them the character of contemptuous words, 

as alleged. 

168. ARTICLE 89-DISRESPECT TOWARDS A SUPERIOR 

OFFICER 

Discussion.--The disrespectful behavior contemplated by this 

article is such as detracts from the respect due to the authority and 

person of a superior officer. It may consist of acts or language, however expressed, and it is immaterial whether they refer to the superior 

as an officer or as a private individual. 

It is not essential that the disrespectful behavior be in the presence 

of the superior, but in general it is considered objectionable to hold 

one accountable under this article for what was said or done by him 

in a purely private conversation. 

It is not necessary that the "superior officer7' be in the execution 

of his office at the time of the disrespectful behavior. As defined by 

Article 1 (6), a "superior officer" is an officer who is superior in rank 

or command. l17ith respect to a person who is a member of one armed 

force, an officer of another armed force a110 is duly placed in the chain 

of command over such person is, within the meaning of Article 89, 

"his superior officer" ; but an officer of another armed force would not 

be "his superior officer7' merely because of higher rank. The officer 

toward whom the disrespectful behavior is directed need not, however, 

be in the chain of command over the accused if both are members of 

the same armed force and such officer is superior in rank (but not inferior in command) to the accused. Under certain circumstances a 

superior officer may not be senior in rank; for instance, a line officer, 

though inferior in rank, may be the commanding oEcer, and thus the 

superior, of a staff officer in the organization such as a medical officer. 

Disrespect by words may be conveyed by opprobrious epithets or 

other contemptuous or denunciatory language. Disrespect by acts 

may be exhibited in a variety of modes-as neglecting the customary 

salute, by a marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness in the presence of the superior 

officer. 

319 
11 1690 CHAPTER XXVlll 

If the accused did not how that the person against whom the acts 

or words were directed was his superior officer, such lack of knowledge 

is a defense. 

Proof.-(a) That the aecusd did or omitted to do certain acts or 

used certain language to or concerning a certain officer, as alleged; 

(b) that the behavior involved in such acts, omissions, or words was 

under certain circumstances, or in a certain connection, or with a 

certain meaning, as alleged ; and (c) that the officer toward whom the 

acts, omissions, or words mere directed was the superior officer of the 

accused. 

169. ARTICLE 9GASSAULTING OR WILLFULLY DISOBEYING OFFICER 

a. STRIKING OR ASSAULTING SUPERIOR OFFICER 

Discussion.-By "superior officer" is meant not only the commanding officer of the accused, whatever may be the relative rank of the 

two, but any other commissioned officer of rank or command superior 

to that of the accused. The phrase 'Lhis superior officer" in Article 90 

his the same meaning as it does in Article 89. See 168. That the 

accused did not know the officer to be his superior is available as a 

defense. 

The word "strikes" means an intentional blow with anything by 

which a blow can be given. 

The phrase "draws or lifts up any weapon against'' covers any 

simple assault committed in the manner stated. The drawing of any 

weapon in an aggressive manner or the raising or brandishing of the 

same in a threatening manner in the presence of the superior, and at 

him, is the sort of act contemplated. The raising in a threatening 

manner of a firearm, whether or not loaded, or of a club, or of any 

implement or thing by which a serious blow could be given, is within 

the description ''lifts up." 

The phrase "offers any violence against him" comprises any form of 

battery or of mere assault not embraced in the preceding more specific 

terms "strikes" and "draws or lifts up." If not executed, the violence 

must be physically attempted or menaced. A mere threatening in 

words is not an offering of violence in the sense of this article. 

An officer is in the execution of his office when engaged in any act 

or service required or authorized to be done by him by statute, regulation, the order of a superior, or military usage. In general, any 

striking or use of violence against any superior officer by a person 

subject to military law, over whom it is the duty of that superior 

officer to maintain discipline at the time, would be striking or using 

violence against him in the execution of his office. The commandin& 

320 
PUNITIVE ARTICLES V 169b 

05cer on board a ship or the commanding officer of a unit in the field 

is generally considered to be on duty at all times. See 191. 

A discharged prisoner or other civilian subject to military law (see 

Art. 2) and under the command of an officer is subject to the provisions 

of this article. 

In a prosecution for striking or assaulting a superior officer in violation of this article, an accused may establish a defense by proof that 

the striking or other act of violence was done in legitimate selfdefense or in the discharge of some duty such as is enjoined by 

Article 94. 

Proof.-(a) That the accused struck a certain oEcer, or drew or 

lifted up a weapon against him, or offered violence against him, as 

alleged; (b) that the officer was the superior officer of -the accused 

at the time; and (G) that the superior officer was in the execution of 

his office at the time. 

b. DISOBEYING SUPERIOR OFFICER 

Discussion.-The willful disobedience contemplated is such as 

shows an intentional defiance of authority, as when an enlisted person 

is given a lawful command by an officer to do or cease doing a particular thing at once and refuses or deliberately omits to do what is ordered. 

A neglect to comply wit11 an order through heedlessness, remissness, 

or forgetfulness is an offense chargeable under Article 92. If the 

order to a person is to be executed in the future, a statement by him 

to the effect that he intends to disobey it is not an offense under Article 

90, although carrying out that intention may be. See 168 as to the . 

meaning of the phrase L'his superior officer." 

The order must relate to military duty and be one which the superior officer is authorized under the circumstances to give the accused. 

Disobedience of an order which has for its sole object the attainment 

of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may 

commit, is not punishable under this article. 

A person cannot be convicted under this article if the order was 

illegal; but an order requiring the performance of a military duty 

or act is presumed to be lawful and is disobeyed at the peril of the 

subordinate. Acts involved in the disobedience of an illegal order 

might under some circumstances be charged as insubordination under 

Article 134. 

That obedience to a command involved a violation of the religious 

scruples of the accused is not a defense. 

The order must be directed to the subordinate personally. Failure 

to comply with the general or standing orders of a command, or with 
CHAPTER XXVlll 

the regulations of an armed force, is not an offense under this article, 

but under Article 92; a nonperformance by a subordinate of any mere 

routine duty is a violation of Article 92 or Article 134, as the case 

may be, and not of this article. 

As long as it is understandable, the form of an order is immaterial, 

as is the method by which it is transmitted to the accused, but the 

communication must amount to an order, and the accused must know 

that it is from his superior officer, that is, a commissioned officer who 

is authorized to give the order whether he is superior in rank to the 

accused or not. 

Proof.-(a) That the accused received a certain command from 

a certain officer, as alleged; (b) that such officer was the superior officer 

of the accused; and (c) that the accused willfully disobeyed the 

command. 

A command of a superior officer is presumed to be a lawful command. 

170. ARTICLE 91-1 NSU B 0 R DIN ATE CONDUCT TO- - 

WARDS NONCOMMISSIONED OFFICER 

a. GENERAL DISCUSSION 

Article 91 has the same general objects with respect to warrant officers, noncommissioned officers, and petty officers as Articles 89 and 

90 have with respect to commissioned officers, namely, to insure 

obedience to their lawful orders, and to protect them from violence, 

insult, or disrespect. The offenses denounced by this article are those 

committed by a subordinate in his relations to one senior to him. For 

example, a warrant officer would not be guilty under Article 91 for 

disobeying the order of a noncommissioned officer or a petty ogcer, 

but, if a warrant officer were to fail to obey the lawful order of an 

armed force policeman of lower ,prade in the execution of his duty, 

such warrant officer would be guilty of an offense under Article 92. 

An assault by a prisoner whose separation from the service has been 

accomplished, or by any other civilian subject to military law, upon 

a warrant officer, a noncommissioned officer, or petty officer should 

be charged under Article 134. 

That the accused did not lrnow that the person assaulted was his 

superior is a defense to a violation of this article. Such lack of 

knowledge is not a defense, however, as to an included offense which 

does not depend upon seniority. 

The terms "willfully disobeys," "lawful," and "in the execution of 

his office" are used in the same sense as in Article 90; and the term 

"order" is used in the same sense as LLc~mmand" in Article 90. 

b. ASSAULTING A WARRANT OFFICER, NONCOMMISSIONED OFFICER, OR PETTY OFFICER 

Discussion.--See 170a. For the definition of assault, see 207a. 
PUNITIVE ARTICLES U 1710 

, Proof.-(a) That the accused enlisted person or warrant officer 

struck or assaulted a certain warrant officer, noncommissioned officer, 

or petty officer as alleged; and (b) that such violence was done while 

the warrant officer, noncommissioned officer, or petty officer was in 

the execution of his office. 

c. DISOBEYING A WARRANT OFFICER, NONCOMMISSIONED OBFICER, OR PETTY OFFICER 

Discussion.-See discussion under 170~. The article does not include an acting noncommissioned officer or acting petty officer, nor 

does it include a military policeman or member of the shore patrol 

who is not in fact a warrant officer, noncommissioned officer, or petty 

officer. 

Proof.-(a) That the accused enlisted person or warrant officer 

received a certain order from a certain trarrant officer, noncommissioned officer, or petty officer, as alleged; and (b) that the accused 

willfully disobeyed the order. 

An order from a werr:nt officer, noncommissioned officer, or petty 

officer in the execution of his office is presumed to be a lawful order. 

(I. TREATING WITH CONTEMPT OR BEING DISRESPECTFUL IN 

LANGUAGE OR DEPORTMENT TOWARD A WARRANT OFFICER, NONCOMMISSIONED OFFICER, OR PETTY OFFICER 

Discussion.-The word "toward" read in connection with the 

phrase "while such officer is in the execution of his office" limits the 

application of this part of the article to behavior and language within 

the sight or hearing of the warrant oficer, noncommissioned officer, 

or petty officer concerned. 

Proof.-(a) That the accused did or omitted to do acts, or used 

language, under certain circumstances, or in a manner, or with an intended meaning, as alleged; (6) that such behavior or language was 

used toward and within the sight or hearing of a certain warrant of-. 

ficer, noncommissioned officer, dr petty officer; and (c) that the war- , rant officer, noncommissioned officer, or petty o5cer was in the 

execution of his office at the time. 

171. ARTICLE 92-FAILURE TO OBEY ORDER OR REGULATION . 

a. VIOLATION OR FAILURE TO OBEY A LAWFUL GENERAL ORDEIL 

OR REGULATION 

Discussion.-A general order or regulation is lawful if it is not 

contrary to or forbidden by the Constitution, tlze provisions of an act 

of Congress or tlze lawful order of a superior. A general order or 

regulation is one which is promulgated by the authority of a Secre- . 

tary of a Department and which applies generally to an armed force, 

or one promulgated by a commander which applies generally to his 

command. See 154s (4) (Ignorance of law) as to the necessity of 

323 
proving actual or constructive knowledge of general orders or 

regulations in certain cases. 

Proof.-(a) That there was a certain general order or regulation; 

and (6) that the accused violated or failed to obey the order or 

regulation. 

A general order or regulation is presumed to be lawful. 

b. FAILURE TO OBEY OTHER LAWFUL ORDER 

Discussion.-This section contemplates all other lawful orders 

which may be issued by a member of the armed forces, violations of 

which are not chargeable under Article 90 or Article 91. In 

order to be guilty of this offense, a person must have had a duty to 

obey the order and must have had knowledge of the order. Such 

knowledge may be actual or constructive.' Knowledge is "actual" 

when it is conveyed directly to the accused. It is "constructive" when 

it is shown that the order was so published that the accused would in 

the ordinary course of events, or by the exerc$e of ordinary care, have 

secured knowledge of the order. Disobedience of the lawful order of 

one not a vuperior is chargeable under this article, provided the accused had a duty to obey sLch order. Exampies of orders which a 

person might have a duty to obey, even though issued by one not a 

superior, are lawful orders of a sentinel or of members of the armed 

forces police. 

Proof.-(a) That a certain lawful order was issued by a member 

of the armed forces; (6) that the accused had knowledge of the order; 

(c) that it was the duty of the accused to obey the order; and (d) 

that the accused failed to obey the order. 

The particular order, or specific portion thereof, the accused is 

charged with having violated should be set forth in the specification 

in order that the accused may be fully apprised of the offense he is 

alleged to have committed. 

c. DERELICTION IN THE PERFORXANCE OF DUTIES 

Discussion.-A duty may be imposed by regulation, lawful order, 

or custom of the service. A person is derelict in the performance of 

his duties when he willfully or negligently fails to perform them, or 

when he performs them in a culpably inefficient manner. When the 

failure is with full knowledge of the duty and an intention not to 

perform it, the omission is willful. When the nonperformance is the 

result of a lack of ordinary care, the omission is negligent. Culpable 

inefficiency is inefficiency for which there is no reasonable or just 

excuse. Thus, if it appears that the accused had the ability and 

opportunity to perform his dnties efficiently, but performed them inefficiently nevertheless, he may be found guilty of this offense. However, an accused may not be charged under this article, or punished 
PUNITIVE ARTICLES 1 173a 

otherwise, if his failure in the performance of his duties is caused by 

ineptitude rather than by willfulness, negligence, or culpable inefficiency. For example, a recruit who has earnestly applied himself 

during rifle training and throughout record firing may not be punished because he fails to qualify with the weapon; nor may a sergeant 

who, however inefficient, has made an honest effort to maintain direction, be punished for becoming lost with his squad on a maneuver ; nor 

nlay an artillery battery commander who has zealously applied himself to the instruction of his battery in firing be punished because his 

battery fails to achieve a satisfactory score in a firing test. 

Proof.-(a) That the accused had certain prescribed duties; and 

(6) that he was derelict in the performance of those duties. 

172. ARTICLE 91CRUELTY AND MALTREATMENT 

Discussion.-Article 93 provides for the punishment of any person 

subject to the code \vho is guilty of cruelty toward, or oppression or 

maltreatment of, any person subject to his orders. 

"Any person subject to his orders" means not only those persons 

under the direct or immediate command of the accused, but extends to 

all persons who by reason of some duty are required to obey the lawful 

orders of the accused, whether he is in the direct cl~ain of command 

over such person or not. 

The cruelty, oppression, or maltreatment must be real, although not 

necessarily physical. To assault and to subject to improper punishment are exanlples of this offense. 

The imposition of necessary or proper duties and the exaction of 

their performance will not constitute this offense even though such 

duties are arduous or hazardous or both. 

Proof.-(a) That a certain person was subject to the orders of the 

accused; and (6) that the accused was cruel toward, or oppressed, 

or maltreated such person, as alleged. 

173. ARTICLE 94--MUTINY AND SEDITION 

a. MUTINY 

Discussion.-Except when the mutiny is committed by creating 

violence or disturbance, mutiny imports collective insubordination 

which necessarily includes some combination of two or more persons 

in resisting lawful military authority. Such concert of insubordination need not be preconceived nor is it necessary that the act of insubordination be active or violent. It may consist simply in a persistent 

and concerted refusal or omission to obey orders, or to do duty, with an 

insubordinate intent, that is, with an intent to usurp or override lawful miIitary authority. The intent may be declared in words, inferred 

from acts done, or inferred from surrounding circumstances. 
0 173d CHAPTER XXVlll 

Proof.-(~) That the accused created violence or a dist~zrbance, or 

that he refused, in concert with another person or persons, to obey 

orders or otherwise do his duty; and (b) that he did so with intent 

to usurp or override lawful military authority. 

b. SEDITION 

Discussion.-Sedition is the creating, in concert with another or 

others, of revolt, violence, or other disturbance against lawful civil 

authority, with intent to cause the overthrow or destruction of such 

authority. It differs from mutiny in that it implies a resistance to 

civil power, as distinguished from military power. 

Proof.-(a) That in concert with another person or persons the 

accused created revolt, violence or disturhnce against lawful civil 

authority; and (6) that he did so with intent to cause the overthrow 

or destruction of such authority. 

c. FAILURE TO PREmNT OR SUPPRESS A MUTINY OR SEDITION 

Discussion.-This section of the article requires that persons subject to the code do their 'cutmost" to prevent and suppress acts of 

mutiny or sedition being committed in their presence. The word 

L'utmost'' imports taking those measures to prevent or suppress a mutiny or sedition whieh may properly be called for by the circumstances 

of the situation, having in mind the rank and responsibilities or 

the employment of the individual concerned. men extreme measures are necessary under the circumstances, the use of a dangerous 

weapon and the taking of life are required; but the use of more force 

than is reasonably necessary is an offense. See 198 (Manslaughter). 

Proof.-(a) The commission of an offense of mutiny or sedition 

in the presence of the accused; and (b) acts or omissions of the accused which constitute a failure to do his utmost to prevent and suppress the mutiny or sedition. 

d. FAILURE TO REPORT A MUTINY OR SEDITION 

Discmsion.-A failure to take "all reasonable means" to inform 

includes a failure to take the most expeditious means available. 

When the circumstances known to the accused are such as would 

have caused a reasonable man in the same or similar circumstances 

to believe that a mutiny or sedition was taking place, these circumstances will be sufficient to charge the accused with such "reason to 

believe" as will render him culpable under this article. A failure to 

report an impending mutiny or sedition is not an offense in violati011 

of Article 94, but it may be an offense in violation of Article 134. 

Proof.-(a) That an offense of mutiny or sedition occurred; (6) 

that the accused knew or had reason to believe that the offense was 

taking place; and (c) that he failed to take all reasonable means to 

inform his superior or commanding officer of the offense. 

326 
PUNITIVE ARTICLES . U 174b 

e. ATTEMPTED MUTINY 

Discussion.-See 159 (Attempts). An individual may harbor an 

intent to mutiny and may commit some overt act tending to accomplish 

that purpose and so be guilty of an attempted mutiny, whether or not 

a mutiny actually followed. 

Proof.-(a) A specific intent on the part of the accused to mutiny; 

, and (b) an act or acts of the accused which proximately tended to 

accomplish the mutiny. 

174. ARTICLE 9"ARREST AND CONFINEMENT 

a. RESISTING APPREHENSION 

Discussion.-Resisting apprehension consists of an active resistance 

to the restraint attempted to be imposed by the person apprehending. 

Such resistance, may be accomplished by flight or by assaulting or 

striking the person attempting to apprehend. Mere words of remonstrance, argument or abuse, and attempts to escape from custody after 

tho apprehension is complete, mill not constitute the offense of resisting apprehension although they may constitute other offenses. 

A person cannot be convicted of a violation of this article if the 

attempted apprehension was in fact illegal. If the accused had no 

reason to believe that the person attempting to apprehend him was 

empowered to do so, such fact may be interposed as a defense. See 

Articles 7 and 8 as to the authority of certain persons to apprehend. 

Proof.-(a) That one lawfully authorized to do so attempted to 

apprehend the accused; and (6) that the accused resisted the apprehension, as alleged. 

b. BREACH OF ARREST 

Discussion.-Arrest officially imposed is presumed to be legal. The 

distinction between arrest and custody or confinement lies in the 

difference between the kinds of restraint imposed. In arrest the 

restraint is moral restraint imposed by orders fixing the limits of 

arrest (18a; 20a). Custody and confinement import some physical 

restraint (18a ; 20~). 

The offense of breach of arrest is committed when the person in 

arrest infringes the limits set by orders, a6d the intention or motive 

that actuated him is immaterial to the issue of guilt, although proof 

of inadvertence or bona fide mistake is admissible in extenuation. 

, Innocence of the offense with respect to which an arrest or codnement may have been imposed is not a. defense. A person cannot be 

convicted of a violation of this article if the arrest, custody, or confinement was in fact illegal. However, the circumstances of a breach 

I of an illegal restraint may subject the person breaking such restraint 

to a prosecution under some other article. For example, if a prisoner 

in making an escape assaults a sentinel, the fact that the confinement 
CHAPTER MVlll 

was illegal would not be a defense to a prosecution fo'r the assault. 

It is immate~ial whether the breach of arrest or escape from codnement took place before or after trial, acquittal, or sentence. A violation of a restraint on liberty other than arrest, custody or confinement, as an administrative restriction imposed in the interests of 

training, discipline, or medical quarantine, or the restraint imposed 

in lieu of arrest (20b) on a prisoner paroled to work within certain 

limits, should be charged under Article 134. For autho'rity to release 

from arrest, see 22. 

Proof.-(a) That the accused was duly placed in arrest; and (6) 

that before he was set at liberty by proper authority he transgressed 

the limits of his arrest. 

q. ESCAPE FROM CONFINEMENT 

Discussion.-See 174b. Confinement officially imposed is presumed 

to be legal. h escape may be either with or without farce or artjdice, 

and either with or without the consent of the custodian. Any completed casting off of the restraint of. confinement, before being set 

at liberty by proper authority, is an escape from codnement, and 

lack of effectiveness of the physical restraint imposed is immaterial 

to the issue of guilt. An escape is not complete until the prisoner 

has, momentarily, at least, freed himself from the restraint of his 

confinement; so, if the movement toward escape is opposed, or before 

it is completed an immediate pursuit follows, there will be no escape 

until opposition is overcome or pursuit is shaken off. In cases in 

which the escape is not completed the offense should be charged as 

an attempt under Article 80. 

Proof .- (a) That the accused was duly placed in confinement ; and 

(b) that he freed himself from the restraint of his confinement before 

he had been set at liberty by proper authority. 

d. ESCAPE FROM CUSTODY 

Discussion.-See 174b. Custody officially imposed is presumed to 

be legal. Custody is that restraint of free locomotion which is imposed by lawful apprehension. The restraint may be corporeal and , 

forcible or, once there has been a submission to apprehension or a 

forcible taking into custody, it may consist of control exercised in 

the presence of the prisoner by official acts or orders. 

Proof.-(a) That the accused was duly apprehended by one lawfully authorized to do so; and (b) that he freed himself from custody 

before he had been set at liberty by proper authority. 
PUNITIVE ARTICLES P 175b 

175. ARTICLE 96--RELEASING PRISONER W I T H 0 U T 

PROPER AUTHORITY 

a. RELEASING A PRISONER WITHOUT PROPER AUTHORITY 

Discussion.-The words "any prisoner" include a civilian or military prisoner. 

While a provost marshal, commander of a guard, or master-at-arms 

must receive a prisoner properly committed by any officer, the power 

of the committing officer ceases as soon as he has committed the prisoner, and he is not, as such committing officer, a "proper authority" 

to order a release. Nornlally, the lowest authority competent to order 

release is the commanding officer of the cohinand of which the prison, 

stockade, brig, retraining command, or guard holding the prisoner, is 

a part. See 22. 

An o5cer may receive in his charge a prisoner not committed in strict 

compliance with the terms of Article lla or other law, and a prisoner 

having been so received has been "duly committed." 

The release of a prisoner is a removal of restraint by the custodian 

rather than by the prisoner. Circumstances which justify charges 

against the custodian for release of a prisoner without proper authority 

will not justify charges against the prisoner for escape from confinement. However, the offense of escape from confinement and that of 

suffering a prisoner to escape through neglect, or through design, may 

arise out of the same occurrence. 

Proof.-(a) That a certain prisoner was duly committed to the 

charge of the accused ; and (6) that the accused released him without 

proper authority. 

b. SUFFERING A PRISONER TO ESCAPE THROUGH NEGLECT 

Discussion.-See 175a. The word "neglect" is here used in the 

same sense as the word "negligence." 

Negligence is a relative term. It is defined in law as the absence 

of due care. The legal standard of care is that which would have 

heen taken by a reasonably prudent man in the same or similar circumstances. This test applies the standard required of persons acting 

in the capacity in which the accused was acting. Thus, if the accused 

is an officer, the test mill be, "How would a reasonably prudent officer 

have acted?" If the circumstances would have indicated to a reasonably prudent officer that a very high order of care was required 

to prevent escape, then the accused must be held to a very high order 

of care. 

A prisoner cannot be said to have escaped until he has overcome the 

opposition that restrained him and shaken off immediate pursuit. 

If he escapes, the fact that he returns, is taken in a fresh pursuit, 
(1 176 CHAPTER XXVlll 

is killed, or dies b not a defense to a charge of having suffered him 

to escape through neglect. 

Proof.-(a) That a certain prisoner mas duly committed to the 

charge of the accused; (6) that the prisoner escaped; (c) that the 

accused did not take such care to prevent escape as a reasonably prudent person, acting in the capacity in which the accused was acting, 

would have taken in the same or similar circumstances; and (d) that 

the escape was the proximate result of the neglect of the accused. 

c. SUFFERING A PRISONER TO ESQUE THROUGH DESIGN 

Discussion.--See 1'7% and 6. In law, a wrongful act is designed 

when it is intended or mhen'it results from conduct so shockingly and 

grossly devoid of care as to leave room for no reasonable inference 

hut that the escape was contemplated as a probable result of the 

course of conduct followed. 

It sometimes happens that a prisoner has been permitted larger 

limits than should have been allowed, and an escape is consummated 

without hindrance. It does not follow that such an escape is necessarily to be considered as designed. The conduct of the responsible 

custodian is to be examined in the light of all the circumstances of 

the case, the gravity of the crime with which the prisoner is charged, 

the probability of his return, and the intention and motives of the 

custodian. , 

Proof.-(a) That a certain prisoner was duly committed to the 

charge of the accused; (6) a design of the accused to suffer the escape 

of that prisoner ; and (c) that the prisoner escaped as a result of the 

carrying out of the design of the accused. 

176. ARTICLE 97-UNLAWFUL DETENTION OF ANOTHER 

Discussion.-Any person subject to the code who, except as provided by law, apprehends, arrests, or confines any person is guilty 

of unlawful detention under Article 97. 

Any unlawful restraint of another's freedom of locomotion will 

result in a violation of this article. Th'e offense may be committed 

by one who, being duly authorized to apprehend, arrest, or confine 

others, exercises such authority unlawfully, or by one not so authorized who effects the restraint of another unlawfully The restraint 

may be in a guardhouse or a brig, in a house, or in a public street. 

There need be no actual force exercised in imposing the apprehension, 

arrest, or confinement. The apprehension, arrest, or confinement 

nlust be against the will of the person restrained. 

A reasonable belief by the person imposing it, that the restraint 

mas lawful, is a defense. 

For persons authorized to apprehend, arrest, or confine, see 19 and 

21. 
PUNITIVE ARTICLES f 178a 

' 'Proof.-(a) That the accused apprehended, arrested, or confined a 

certain person, as alleged; and (6) that the accused was not authorized 

by law to do so. 

177. A R T I C L E 9&NONCOMPLIANCE WITH PROCEDURAL RULES 

a. UNNECESSARY DELAY IN DISPOSING OF CASE 

Discussion.-The purpose of this section of Article 98 is to insure 

expedition in the disposition of cases of persons accused of offenses 

under the code by providing for the punishment of those responsible 

for unnecessary delay in the disposition of such cases. A person 

can be responsible for a delay in the disposition of a case only when 

his duties require him to act with respect thereto. 

Proof.-(a) That the accused was charged with certain duties in 

connection with the disposition of a case of a person accused of an 

offense under the code; (b) that delay occurred in the performance of 

the duties of the accused regarding the disposition of the case; and 

(c) facts and circumstances showing that the delay was unnecessary 

and that the accused was responsible therefor. 

b. KNOWINGLY AND INTENTIONAL. FAILING TO ENFORCE OR 

COMPLY WITH*PROVISIONS O F T H E CODE 

Discussion-This section of the article is not to be construed as 

applying to cases of bona fide error of law or procedure made before, 

during, or after a trial. It is designed to punish deliberate and intentional failure to enforce or comply with the provisions of the code 

regulating the proceedings before, during, and after trial. See 

particularly Articles 31 and 37. 

Proof.-(a) That the accused knowingly and intentionally failed 

to enforce or comply with a certain provision of the code regulating 

some proceeding before, during, or after a trial, as alleged; and (b) 

that the accused had the duty of enforcing or complying with such 

provision of the code. 

178. ARTICLE 99-MISBEHAVIOR BEFORE THE ENEMY a. RUNNING AWAY BEFORE THE Eh4MY 

Discussion.-"The enemy" includes not merely the organized 

forces of the enemy in time of war, but also imports any hostile body 

that our forces may be opposing, such as a rebellious mob or a band 

of renegades. Whether a person is "before the enemy" is not a question of definite distance, but is one of tactical relation. For example, 

a member of an antiaircraft gun crew charged with opposing anticipated attack from the air, or a member of a unit about to move into 

combat may be before the enemy although miles from the enemy lines. 

On the other hand, an organization some distance from the front or 

immediate area of combat which is not a part of a tactical operation 
:f 178d CHAPTER XXVlll 

then going on or in immediate prospect is not "before or in the 

presence of the enemy" within the meaning of this article. 

Proof.-(a) That the accused was before or in the presense of an 

enemy; and (b) that he misbehaved himself by running away. 

b. SHBRIEFULLY AB&\7DONING, SURRENDERING, OR DELIVERING 

UP 

Discussion.-This provision concerns primarily commanders 

chargeable with responsibility for defending a command, unit, place, 

ship, or military prope~ty. Abandonment by a subordinate would 

ordinarily be charged as running away. 

The words "deliver up'' are synonymous with c'surrender." 

Surrender or abandonment of a command, unit, place, ship, or 

military property by a person charged with its defense can be justified only by the utmost necessity or extremity. Surrender or abandonment without such absolute necessity is shameful within the meaning 

of this article. 

Proof.-(a) That the accused mas charged by orders or by circurnstances with the duty to defend a certain command, unit, place, ,or 

ship, or certain military property; (6) that without justification he 

abandoned it or surrendered it; and (c) that this act occurred while 

the accused was before or in the presence of the enemy. 

c. ENDANGERING THE SAFETY OF A COMMAND, UNIT, PLACE, OR 

MILITARY PROPERTY THROUGH DISOBEDIENCE, NEGLECT, OR INTENTIONAL nlISCONDUCT 

Discussion.-Carelessness or negligence, or other conduct below the 

standard reasonably expected of the individual under the circumstances, constitutes "neglect" as used in the article. Intentional mis- 

-conduct implies a wrongful intention and not a mere error in judgment. Under this clause may be charged any act of insubordination, 

neglect, or intentional misconduct committed by an officer or enlisted 

person before or in the presence of the enemy which endangers the 

safety of any command, unit, place, or military property which it is 

his duty to defend. 

Proof.-(a) That it mas the duty of the accused to defend a certain command, unit, ship, or place, or certain military property; (6) 

that he committed certain disobedience, neglect, or intentional misconduct, as alleged; (c) that thereby he endangered the safety of the 

command, unit, place, ship, or military property; and (d) that this 

act occurred while the accused mas before or in the presence of the 

enemy. 

d. CASTING AWAY ARMS OR AMMUNITION 

Proof.-(a) That the accused was before or in the presence of the 

.enemy; and (6) that he cast away certain arms or ammunition, as 

specified. . . 
I 

PUNITIVE ARTICLES U 1781 

e. COWARDLY CONDUCT 

Discussion.-Cowardice is misbehavior through fear. Fear is 

a natural feeling of apprehension when going into battle and the 

mere display of such apprehension would not constitute the offense, 

but the refusal or abandonment of a performance of duty before or in 

the presence of the enemy as a result of fear does constitute the offense. 

Proof.-(a) That the accused committed an act of cowardice, as 

alleged; and (b) that this act occurred while the accused was before 

or in the presence of the enemy. 

f. QUITTING PLACE OF DUTY TO PLUNDER OR PILLAGB 

Discussion.-The essence of this offense is quitting the place of duty 

with intent to plunder or pillage. The mere quitting with that purpose is sufficient, even though the plunder or pillage may not be consummated. 

"Place of duty'' includes any place of duty, whether permanent or 

temporary, fixed or mobile. The words "plunder or pillage" are construed as meaning to seize or appropriate public or private property 

unlawfully. 

Proof.-(a) That the accused while before or in the presence of 

the enemy quit his place of duty; and (6) that his intention in so quitting was to seize or appropriate public or private property unlawfully. 

g. CAUSING FALSE ALARMS 

Discussion.-This clause covers any spreading of false or disturbing rumors or reports, as well as the false giving of established alarm 

, signals. 

Proof.-(a) That an alarm was caused in a certain command, unit, 

or place under control of .the armed forces; (6) conduct of the accused 

which caused the alarm; (e) that the alarm was caused without any 

reasonable or sufficient justification or excuse; and (d) that this act 

occurred while the accused was before or in the presence of the enemy. 

h. WILLFULLY FAILIhrG TO DO UTMOST TO ENCOUNTER, ENQAGB, 

CAPlrURE, OR DESTROY ENEMY TROOPS, COMBATANTS, VESSELS, 

AIRCRAFT, OR ANY OTHER THING 

Proof.-(a) That the accused mas serving before or in the presence 

of the enemy; (6) that he had a duty to encounter, engage, capture, or 

destroy certain enemy troops, combatants, vessels, aircraft, or a certain other thing, as alleged; and (c) that he willfulIy failed to do his 

utmost to perform that duty. 

i. NOT AFFORDING ALL PRACTICABLX RELIEF AND ASSISTANCE 

Discussion.-This offense is limited to a failure to afford relief and 

assistance to forces "engaged in battle?' When this condition does 

not exist, this offense ca~ot becommitted. "$U practicable relief 

and assistance" is interpreted to mean all relief and assistance which 

should be afforded within the limitations imposed upon one by reason 
kg 

ll 179b 8 CHAPTER XXVlll 

of his own specific task or mission. If that task or mission might not 

brook delay or deviation in order to afford relief and assistance to 

others, no offense is committed by failing to afford such relief and 

assistance. 

Proof.-(a) That certain troops, combatants, vessels, or aircraft 

of the armed forces belonging to the United States or their allies were 

engaged in battle and required relief and assistance; (6) that the 

accused was in a position and able to render relief and assistance to 

such troops, combatants, vessels, or aircraft; (c) that the accused 

failed to afford all practicable relief and assistance, as alleged; and 

(d) that, at the time, the accused was before or in the presence of the 

enemy. 

179. ARTICLE 100-SUBORDINATE COMPELLING SURRENDER 

a. SUBORDINATE COMPELLING OR ATTEMPTING TO COMPEL COMMANDER TO SURRENDER OR BBANDON PLACE, PROPERTY, OR 

COMMAND 

Discussion.-In order to constitute an -offense under this article, 

the surrender or abandonment must be compelled or attempted to be 

compelled by acts rather than words. 

The offenses here contemplated are similar to a mutiny or attempted mutiny designed to bring about the surrender or abandonment. Unlike some cases of mutiny, however, concert of action is 

not an essential element of the offenses under this article. The 

offense of compelling the giving up or abandonment is not complete 

until the place, military property or command is abandoned or given 

up to the enemy. The offense of attempting to compel a surrender 

or abandonment does not require actual abandonment or surrender, 

but there must be some act done with this purpose in view, even 

though it may fall short of an actual accomplishment of the purpose. 

The words "to give it up to an enemy" are synonymous with 

"surrender." 

Proof.-(a) That a certain commander was in command of a certain place, vessel, aircraft, or other military property or of a body 

of members of the armed forces; and (6) acts of the accused compelling the commander to give it up to the enemy or to abandon it, or 

done with the intent or purpose of compelling such commander to 

give it up to the enemy or to abandon it. 

b. STRIKING THE COLORS OR FLAG 

Discussion.-To "strilre the colors or flag" is to haul down the colors 

or flag in the face of the enemy or to make any other offer of surrender. 

It is a tradit,ional wording for an act of surrender. The offense is 

committ,ed by any one subject to the code, who assumes to himself the 
PUNITIVE ARTICLES U 1800 

to surrender a military force or position when he is not 

to do so either by competent authority or by the necessities 

of battle. If continued battle has become fruitless and it is impossible to communicate with higher authority, these facts will constitute 

proper authority to surrender. The offense may be committed 

wherever there is sufficient contact with the enemy to give the opportunity of malting an offer of surrender and it is not necessary that 

an engagement with the enemy be in progress. 

Proof.-(a) That there was an offer of surrender to an enemy, as 

alleged ; (b) that the accused made or mas responsible for the offer ; 

and (G) that the accused did not have proper authority to make the 

offer. 

It is unnecessary to prove that the offer was received by the enemy 

or that it was rejected or accepted. The sending of an emissary 

charged with making the offer of surrender is an act sufficient to 

prove the offer, even though the emissary does not reach the enemy. 

180. ARTICLE 101TMPROPER USE OF COUNTERSIGN 

a. DISCLOSING THE PAROLE OR COUNTERSIGN TO ONE NOT . ENTITLED TO RECEIVE 1T 

Discussion.-&4 countersign is a word given from the principal 

headquarters of a command to aid guards and sentinels in their 

scrutiny of persons who apply to pass the lines. It consists of a secret 

challenge and a password. A parole is a word used as a check on the 

countersign; it is imparted only to those who are entitled to inspect 

guards and to commanders of guards. 

The class of persons entitled to receive the countersign will expand 

and contract under the varying circumstances of mar. Who these 

persons are will be determined largely, in any particular case, by tha 

general or special orders under which the accused was acting. It is 

no defense under the terms of this article that the accused did not 

know that the person to whom he communicated the countersign or 

parole was not entitled to receive it. Before imparting such a word 

a person subject to military law must determine at his peril that the 

person to whom he presumes to make known the word is a person 

authorized to receive it. 

The intent or motive that actuated the accused is fmrnaterial to the 

issue of guilt, as would also be the circumstance that the imparting 

mas negligent or inadvertent. It is likewise immaterial whether the 

accused had hiinself received the password in the regular course of 

duty or whether he obtained it in some other way. 

Proof.-(a) That the amused disclosed the parole or countersign 

'to a certain person, known or unknown; and (6) that such person was 

not entitled to receive it. 
U 182a CHAPTER XXVlll 

b. GIVING A PAROLE OR COUNTERSIGN DIFFERENT FROM THAT 

AUTHORIZED 

Proof.-(a) That the accused knew he was authorized and required 

to give a certain parole or countersign; and (6) that he gave to a 

person entitled to receive and use such parole or countersign a different parole or countersign. 

181. ARTICLE 102-FORCING A SAFEGUARD 

Discussion.-A safeguard is a detachment, guard, or detail posted 

by a commander for the protection of persons, places, or property of 

the enemy, or of a neutral affected by the relationship of belligerent 

forces in their prosecution of war or during circumstances amounting 

to a state of belligerency. The term also includes a written order left 

by a commander with an enemy subject or posted upon enemy property 

for the protection of the individual or property concerned. The effect of a safeguard is to pledge the honor of the nation that the person 

or property shall be respected by the national armed forces. 

Provided that the accused was or should have been aware of the 

existence of the safeguard, any trespass on the protection of the safeguard will constitute an offense under the article, whether the safeguard was imposed in time of war or in circumstances amounting to a 

state of belligerency short of a formal state of war. 

A safeguard is not a device adopted by a belligerent to protect its 

own property or nationals or to insure order within its own forces, even 

though those forces be in a theatre of combat operations, and the posting of guards or of off -limits signs does not establish a safeguard unless the protection thereby afforded is in furtherance of an undertaking by a commander to protect enemy or neutral persons or property. 

Proof.-(a) That a safeguard had been issued or posted for the 

protection of a certain person or persons, place or property, as alleged; 

and (6) that, with knowledge of the safeguard, or under circumstances 

that charged him with notice thereof, the accused performed acts in 

violation of its protection, as alleged. 

182. ARTICLE 103-CAPTURED OR ABANDONED PROPERTY a. FAILING TO SECUREl CAPTURED ENEMY PROPERTY 

Discussion.-Immediately upon its capture from the enemy 

property becomes the property of the United States. Neither the individual who takes it nor any other person has any private right in 

such property. On the contrary, every person subject to military law 

has an immediate duty to take such steps as are within his powers and 

functions to secure such property to the service of the United States 

and to protect it from destruction or loss. 
PUNITIVE ARTICLES r 182~ 

The failure to secure captured public property which is punishable 

by this article consists of a failure to take the steps a reasonably 

prudent man, acting in the capacity in which the accused was acting, 

would have taken in the same or similar circumstances to secure the 

property in question to the service of the United States. 

Proof.-(a) That certain public property was taken from the 

enemy; and (6) acts or omissions of the accused evidencing a failure 

by him to perform the responsibilities of a reasonably prudent man 

acting in his capacity to secure such property for the service of the 

United States. 

The provisions of the article which are discussed in the following 

subparagraphs are broader than those discussed in a in that they pertain to private property as well as to public property. 

b. FAILING TO REPORT AND TURN OVER CAPTURED OR ABANDONEDPROPERTY 

Discussion.-Reports of receipt of captured or abandoned property 

are to be made direct or through such channels as are required by current regulations or orders or the customs of the service. cLProper authority" is any authority competent to order disposition of the 

property in question. 

Proof.-(a) That certain captured or abandoned public or private 

property came into the possession, custody, or control of the accused ; 

and (6) acts or omissions of the accused evidencing his failure to 

report to proper authority the receipt thereof, and his failure to turn 

it over as required. 

c. DEALIYG IN CAPTURED OR ABANDONED PROPERTY 

Discussion.-All persons subject to the code are forbidden to buy, 

sell, trade, or in any way deal in or dispose of captured or abandoned 

property whereby they receive or expect some profit, benefit, or other 

advantage to themselves or anyone directly or indirectly connected 

with them. The code prohibits receipt as well as disposition by barter, 

gift, pledge, lease, or loan. It forbids the destruction or abandonment 

of the property. The expectation of profit need not be founded on 

any specific understanding; it is enough if the prohibited act be done 

for the purpose or in the hope of benefit or advantage, pecuniary or 

otherwise. 

Proof.-(a) That the accused bought, sold, traded or otherwise 

dealt in or disposed of certain public or private captured or abandoned 

property; and (b) that by so doing the accused received or expected 

some profit, benefit, or advantage to himself or to a certain person or 

persons connected in a certain manner with himself, as alleged. 
9 1838 CHAPTER XXYlIl 

d. ENGAGING IN LOOTING OR PILLAGING 

, Discussion.-The words "looting or pillagingyy mean unlawfully 

seizing or appropriating property which is located in enemy or occupied (friendly or enemy) territory and is either left behind or is owned 

by, or in the custody of, the enemy or occupied state, its inhabitants, 

or persons who are under its protection or who, immediately before 

the place where ithe act occurred had been occupied, were under the 

protection of the enemy or occupied state. The unauthorized removal 

or appropriation of any part of the equipment of a seized or captured 

vessel or the unlawful seizure or appropriation of property owned by 

or in the custody of the officers, crew, or passengers on board a seizecl 

or captured vessel, constitutes the offense of looting or pillaging wherever the vessel may be located at the time of the offense. 

Proof.-(a) That the accused unlawfully seized or appropriated 

certain property; (6) that the property was located in enemy or 

occupied territory, or that it was on board a seized or captured vessel; 

and (c) that the property mas left behind--or that it was owned by, 

or in the custody of, the enemy or occupied state or a person having 

a certain status with respect to the enemy or occupied state, or that 

it was part of the equipment of a seized or captured vessel, or mas 

owned by, or in the custody of the officers, crew, or passengers on 

board a seized or captured vessel, as alleged. 

183. ARTICLE 104-AIDING THE ENEMY 

This article denounces offenses by all persons whether or not otherwise subject to n~ilitary lam. The trial of offenders may be by courtmartial or by military commission. 

a. AIDING OR ATTEMPTING TO AID THE ENEMY 

Discussion.-"Ene~ny" imports citizens as me11 as members of military organizations and does not restrict itself to the enemy government or its armed forces. All the citizens of one belligerent are 

enemies of the government and of all the citizens of the other. 

It is not a violation of this article, however, to furnish to prisoners 

of war subsistence, quarters, and other comforts or aid to which they 

are lawfully entitled. 

To aid the enemy as used in this srticle is equivalent to furnishing 

it with the arms, ammunition, supplies, money, or other things as 

denounced in the article. It is immaterial whether the articles furnished are needed by the enemy or whether the transaction is a 

donation or sale. 

Proof.-That. the accused either directly or indirectly aided or 

attempted to aid the enemy with certain arms, ammunition, supplies, 

money, or other thing, as alleged. 
PUNITIVE ARTICLES 1 183d 

b. HARBORING OR PHOTECTING TITE ENEMY 

Discussion.-See 183a. An enemy is harbored or protected when, 

proper authority, he is shielded, either physically or by use 

any artifice, aid, or representation, from any injury or misfortune 

which in the chance of war may befall him. It must appear that the 

offense is knowingly committed, but circumstances sufficient to put a 

reasonable man on notice will be sufficient to charge the accused with 

notice. 

Proof.-(a) That the accused, without proper authority, harbored 

or protected a certain person; (6) that the person so protected was 

an enemy; and (c) that the accused had notice or was chargeable 

with notice of that fact. 

c. GIVING INTELLIGENCE TO THE ENEMP 

Discussion.-See 183a. This is a particular case of corresponding 

with the enemy, rendered more heinous by the fact that the communication contains intelligence that may be useful to the enemy for 

any of the many reasons that make information valuable to belligerents. As in the preceding case, knowledge must be proved, and it is 

immaterial to the issue of guilt whether the intelligence was conveyed 

by direct or indirect means. The word 'Lintelligence" imports that 

the information conveyed is true or implies the truth, at least in part. 

Proof.-(a) That the accused, without proper authority, knowingly conveyed to the enemy certain information, as alleged; and 

(b) that the information was true or implied the truth, at least in part. 

d. COMMUNICATING, CORRESPONDING, OR HOLDING INTERCOURSE 

WITH THE ENEMY 

Discussion.-Communication, correspondence, or holding intercourse with the enemy does not necessarily import a mutual exchange 

of communication. The law requires absolute ponintercourse, and any 

unauthorized communication, no matter what may be its tenor or 

intent, is here denounced. The prohibition lies against any method 

of intercourse or communication whatsoever, and the offense is complete the moment the communication issues from the accused, whether 

it reaches its destination or not. The words "directly or indirectly" 

apply to this offense. It is essential to prove that the offense was 

knowingly committed. 

Citizens of neutral powers resident in or visiting invaded or occupied territory can claim no immunity from tha customary laws of 

war relating to communication with the enemy. 

Proof.-(a) That the accused, without proper authority, communicated, corresponded, or held intercourse with a certain person; 

(b) that such person was an enemy; and (6) that the accused had 

notice or was chargeable with notice of this fact. 
II 184b CHAPTER XXVlll 

184. ARTICLE 10LMISCONDUCT AS PRISONER 

a. ACTING WITHOUT AUTHORITY TO THE DETRIMENT OF 

ANOTHER FOR THE: PURPOSE OF SECURING FAVORABLE 

TREATMENT 

Discussion.-This offense covers all unauthorized conduct by a 

prisoner of war in the hands of the enemy which tends to ameliorate 

his condition to the det~iment of other prisoners. Such acts may be 

the reporting of plans of escape being prepared by others or the reporting of secret food caches, equipment, or arms. The acts must be 

related to the captors, and tend to have the probable effect of bestowing upon the accused some favor with, or advantage from, the captors. 

The act of the accused must be contrary to law, custom, or regulation. 

Escape from the enemy is regarded as authorized by custom. An 

escape, therefore, which results in closer confinement or other measures against fellow prisoners still in the hands of the enemy, is not 

an offense under this article. The act of the accused must be to the 

detriment of his fellow prisoners either by way of closer confinement, reduced rations, physical punishment, or other harm. 

Proof.-(a) That without proper authority the accused acted in a 

manner contrary to lam, custom, or regidation, as alleged; (6) that 

the act was committed while the accused was in the hands of the 

enemy in time of war; (c) that the purpose of the act was to secure 

favorable treatment of the accused by his captors; and (d) that other 

prisoners held by the enemy suffered some detriment as the proximate result of the accused's act, as alleged. 

6. MALTREATING PRISONERS WHILE IN A POSITION OF AUTHORITY 

Discussion.-The source of the authority is not material. It may 

arise from the military rank of the accused, through designation by 

the captor authorities,*or from voluntary election or selection by 

other prisoners for their self-government. 

The maltreatment must be real, although not necessarily physical, 

and it must be without justifiable cause. Abuse of an inferior by 

inflammatory and derogatory' words may, through mental anguish, 

constitute this offense. To assault, to strike, to subject to improper 

punishment, or to deprive of benefits would constitute a maltreatment 

if done without justifiable cause. 

Proof.-(a) That the accused maltreated a prisoner held by the 

enemy, as alleged; (6) that the act occurred while the accused was 

in the hands of the enemy in time of war; (c) that the accused held a 

position of authority over the person maltreated; and (d) that the 

act was without justifiable cause. 
PUNITIVE ARTICLES 8 186 

185. ARTICLE 106-SPIES 

Discussion.-The words "any person who in time of war" bring 

within the jurisdiction of courts-martial and military commissions 

all persons of whatever nationality or status who commit the offense 

of lurking or acting as a spy in or about any place, vessel, or aircraft, 

within the control or jurisdiction of any of the armed forces of the 

United States, or in or about any shipyard, any manufacturing or 

industrial plant, or any other place or institution engaged in work 

in aid of the prosecution of the war by the United States, or elsewhere. 

The principal characteristic of this offense is a clandestine dissimulation of the true object sought, which object is an endeavor to 

obtain information with the intention of co~nmunicating it to the 

hostile party. Thus members of a military organization not wearing 

disguise, dispatch drivers, whether members of a military organization or civilians, and persons in ships or aircraft who carry out their 

missions openly and who have penetrated hostile Lines are not to be 

considered spies, for the reason that, while they may have resorted to 

concealment, they have practiced no dissimulation. 

It is necessary to prove an intent to communicate information to the 

hostile party. This intent will very readily be inferred on proof of a 

deceptive insinuation of the accused among our forces, but this inference nlay be overcome by very clear evidence that the person had 

come within the lines for a comparatively innocent purpose, as to visit 

his family or to reach his own lines by assuming a disguise. 

It is not essential that the accused obtain the information sought or 

that he communicate it. The offense is complete with the lurking or 

dissimulation with intent to accomplish these objects. 

A spy who, after rejoining the armed force to which he belongs, is 

subsequently captured by the enemy" incurs no responsibility for his 

previous :acts of espionage. 

A person living in occupied territory who, without dissimulation, 

merely reports what he sees or what he hears through agents to the 

enemy may be charged under Article 104 with giving intelligence to 

or communicating with the enemy, but he may not be charged under 

this article with being a spy. 

Pr~of.~(a) That the amused was found at a certain place within 

our zone of operations, acting clandestinely or under false pretenses ; 

and (6) that he was obtaining, or endeavoring to obtain, information 

mith intent to communicate it to the enemy. 

186. ARTICLE 107-FALSE OFFICIAL STATEMENTS 

Discussion.-Official documents and official statements include all 

documents and statements made in the line of duty. 
CHAPTER XXVlll 

The false representation must. be made officially with the intent to 

deceive, and it must be one which the accused does not believe to be 

true. The relative rank of the person intended to be deceived is 

immaterial if that person was authorized in the execution of his office 

to require the statement or document from the accused. The expectation of material gain is not one of the essential elements of the offense. 

Proof.-(a) That the accused signed a certain official document or 

made a certain official statement, as alleged; (6) that the document 

or statement was false in certain particulars, as alleged; (c) that the 

accused knew it to be false at the time of signing or making it; and 

(d) that such false document or statement was made with the intent 

to deceive. 

187. ARTICLE 108-MILITARY PROPERTY OF UNITED 

STATES-LOSS, DAMAGE, DESTRUCTION, OR WRONGFUL 

DPSPOSITIQN 

a. SELLING OR OTHERWISE DISPOSING OF MILITARY PROPERTY 

Discussion.-Article 108 applies to the act of any person subject to 

the code, and it is immaterial whether the property sold, disposed of, 

destroyed, lost, or damaged had been issued at all or whether the 

property was issued to someone other than the accused. 

Proof.-(a) That the accused sold or otherwise disposed of certain 

property, as alleged; (6) that the sale or disposition was without 

proper authority; (c) that the property was military property of the 

United States; and (d) the value of the property, as alleged. 

For a discussion of proof of value, see 200a (Proof). 

b. WILLFULLY OR THROUGH NEGLECT DAMAGING, DESTROYING, 

OR LOSING MILITARY PROPERTY 

Discussion.-See 187a. A willful damage, destruction, or loss is 

one that is intentionally occasioned. Loss, destruction, or damage is 

occasioned through neglect when it is the result of a want of such 

attention to the nature or foreseeable consequences of an act or omission as was appropriate under the circumstances. 

If it is shown by either direct or circumstantial evidence that the 

property was issued to the accused, it may be presumed that the damage, destruction, or loss shown, unless satisfactorily explained, was 

due to the neglept of the accused. The rule of this subparagraph 

applies only to items of individual issue. 

Proof.-(a) That, without proper authority, the accused damaged or destroyed certain property in a certain way, or lost it, as 

alleged; (71) that the property mas military property of the united 

States; (c) that the damage, destruction, or loss was willfully caused 

by the accused in a certain manner, as alleged; or that the daniage, 

destruction, or loss was the result of neglect on the part of the ac- 
PUNITIVE ARTICLES ll 187c 

cused; and (d) the value of the property destroyed or lost, or the 

amount of damage, as alleged. 

For a discussion of proof of value, see 200a (Proof). 

c. SUFFERING THE LOSS, DAMAGE, DESTRUCTION, SALE, OR 

WRONGFUL DISPOSITION OF MILITARY PROPERTY 

Discussion.-See 18'7a. The loss, damage, destruction, sale, or disposition may be said to be willfully sujTered by one who, knowing 

the act to be imminent or actually going on, takes no steps to prevent 

it, as by a sentinel who, seeing a small and readily extinguishable fire 

in a stack of hay on his post, allows the hay to burn, or a member of 

the boat crew, who seeing a small boat tied alongside, allows the boat 

to be damaged or lost by chafing or striking. A sufferiilg through 

neglect implies an omission to take such measures as mere appropriate 

under the circumstances to prevent a loss, damage, destruction, sale, 

or wrongful disposition. 

The willful or neglectful sufferance specified by the article may consist in a deliberate violation or positive disregard of some specific 

injunction of lam, regulations, or orders; or it may be evidenced by 

such circumstances as a reckless or unwal~ankd personal use of the 

property, causing or allowing it to remain exposed to the weather, 

insecurely housed, or not guarded; permitting it to be consumed, 

masted, or injured by other persons; or by loaning it to a person, 

known to be irresponsible, by whom it is damaged. 

Proof.-(a) That certain military property of the United States 

was lost, damaged, destroyed, sold, or wrongfully disposed of in the 

manner alleged; (6) that such loss, damage, destruction, sale, or disposition was suffered by the accused without proper authority, through 

a. certain omission of duty on his part; (c) that such omission was 

willful or negligent as alleged; and (d) the value of the property 

lost, destroyed, sold, or wrongfully disposed of, or the amount of 

damage, as alleged. 

Although there may be no direct evidence that the property in 

question was military property of the United States, still circumstantial evidence such as evidence that the property was of a type and 

kind issued for use in, or furnished and intended for, the military 

service of the United Stat&, might, together with other proved circumstances, warrant the court in inferring that it was such military 

property. 

In the case of loss, destruction, sale, or wrongful disposition, the 

value of the property controls the limit of punishment which may be 

adjudged therefor, but in the case of damage, the amount of damage 

instead of the value of the property damaged is controlling. As a 

general rule, the amount of damage is the estimated or actual cost 
U 188b CHAPTER XXVlll 

of repair by the governmental agency normally employed in such 

work, or the cost of replacement, as shown by government price lists 

or otherwise, whichever is the lesser. For a further discussion of 

proof of value, see 200a (Proof). 

188. ARTICLE 109PROPERTY OTHER THAN MILITARY 

PROPERTY OF UNITED STATES-WASTE, SPOIL, OR 

DESTRUCTION 

a. WASTING OR SPOILmG PROPERTY OTHER THAN MILITARY 

PROPERTY OF THE UNITED STATES 

Discussion.-The terms 'cn?astes" and "spoils" as used in this article 

refer to such wrongful acts of voluntary destruction of or permanent 

damage to real property as burning down buildings, burning piers, 

tearing down fences, or cutting down trees. This destruction is punishable whether done willfully, that is intentionally, or recklessly, 

that is through a disregard for the probably destructive results of 

some voluntary act. 

Proof.-(a) That the accused willfully or recklessly wasted or 

spoiled certain property in the manner alleged; and (6) the value of 

the property masted or spoiled, as alleged. 

For a discussion of proof of value, see 200a (Proof). 

5. WILLFULLY AND WRONGFULLY DESTROYING OR DAMAGING 

OTHER THAN MILITARY PROPERTY OF THE UNITED STATES 

Discussion.-To be destroyed, the property need not be completely 

demolished or annihilated, but need be only sufficiently injured to be 

useless for the purpose for mhicl~ it was intended. Damage consists 

of any physical injury to the property. The article denounces destruction or damage to property through willful and wrongful misconduct, but a reckless disregard of property rights may be of such 

a high degree as to carry an implication of willfulness. 

In the case of destruction, the value of the property destroyed controls the limit of punishment which may be adjudged therefor, but 

in the case of damage, the amount thereof instead of the value of the 

property damaged is so controlling. As a general rule, the amount 

of damage is the estimated or actual cost of repair by artisans employed in such work who are available to.the community wherein the 

owner resides, or the replacement cost, whichever is the lesser. 

Proof.-(a) That the accused destroyed or damaged certain property, as alleged; (b) that such destruction or damage was willful and 

wrongful, and (c) the value of the property destroyed or the amount 

of damage done, as alleged. 

For a discussion of proof of value, see 200a (Proof). 
PUNITIVE ARTICLES (1 190 

189. ARTICLE 110-IMPROPER HAZARDING OF VESSEL 

Discussion.-As used in this article, ccwillfully" means intentionally 

and "wrongfully" means contrary to law, regulation, lawful order, or 

. custom. "Negligence" under this article means the failure to exercise 

the care, prudence, or attention to duties, which the interests of the 

Government require to be exercised by a prudent and reasonable person under the circumstances. Such negligence may consist of the 

omission to do something the prudent and reasonable person would 

have done, or the doing of something he mould not have done under 

the circumstances. The words "to suffer" mean to allow or to permit, 

and a ship is willfully suffered to be hazarded by one who, although 

not in direct control of the vessel, knows a danger to be imminent but 

takes no steps to prevent it, as by a plotting officer of a ship under way 

who fails to report to the officer of the deck a radar target which he 

observes to be on a collision course with, and dangerously close to, his 

own ship. A suffering through neglect implies an omission to take 

such measures as mere appropriate under the circumstailces to prevent 

a foreseeable danger. "Hazardy' means to put in danger of loss or injury; actual damage to, or loss of, a vessel of the armed forces by collision, stranding, running upon a shoal or a rock, or by any other cause, 

is conclusive evidence that such vessel was hazarded although not of 

the fact of culpability on the part of any particular person. 

"Strandecl" means run aground so that the vessel is fast for a time. 

If a vessel 'ctouches and goes,)' she is not stranded; if she "touches and 

sticks," she is. A shoal is a sand, mud, or gravel bank or bar that 

makes the water shallow. 

No person is relieved of culpability who fa& to perform duties such 

as are imposed upon him by the general responsibilities of his grade or 

rank, or by the customs of the service for the safety and protection of 

vessels of the armed forces, simply because such duties are not specifically enumerated in a 1-egulation or an order. However, a mere error 

in judgment such as a reasonably able person'might have committed 

under the same circumstances, will not constitute an offense under 

this article. 

Proof.-(a) That a vessel of the armed for.ces was hazarded in a 

certain manner, as alleged; and (6) that the ,accused, by certain acts 

or omissions, as alleged, willfully and wrongfully, or negligently, 

caused or suffered such vessel to be so hazarded. 

190. ARTICLE 111DRUNKEN OR RECKLESS DRIVING 

Discussion.-Article 111 defines the offense of drunken or reckless 

driving as operating any vehicle while drunk, or in a reckless or wanton manner. 
Operating a vehicle includes mot only driving or guiding it while in 

motion, either in person or Lhrough the agency of another, but also 

the setting of its motive power in action or the manipulation of its 

controls so as to cause the particular vehicle to move. The term 

L'vehicle" is not restricted to motor driven or passenger carrying 

vehicles nor does it describe only types of land transportation. 

As to the meaning of ''drunk," see 191. 

The operation of a vehicb is Lcreckless" when it exhibits a culpable 

disregard of foreseeable consequences to others from the act or oniission involved. Recklessness is not determined solely by reason of the 

happening of an injury, or the invasion of the rights of another, nor 

by proof alone of excessive speed or erratic operation, but all such 

factors may be admissible and relevant as bearing upon the ultimate 

question : Whether, under all the circumstances, the accused's manner 

of operation of the vehicle mas of that heedless nature which made it 

actually or imminently dangerous to the occupants, or to the rights or 

safety of others. It is driving with such a high degree of negligence 

that if death were caused, the accused would have committed involuntary manslaughter, at least. 

"Wanton" includes "reckless," but in describing the operation of a 

vehicle, may, in a proper case, connote willfulness, or a disregard of 

probable consequences, and thus describe a more aggravated offense 

(see 197f). 

While the same course of conduct may constitute both drunken 

and reckless driving, the article prbscribes these as separate offenses, 

and both offenses may be charged. However, as recklessness is a relative matter, evidence of all the surrounding circumstances which made 

the operation dangerous, whether alleged or not, may be competent. 

Thus, on a charge of reckless driving, evidence of drunkenness might 

be admissible as establishing one aspect of the recklessness, and evidence that the vehicle exceeded a safe speed, at a relevant prior point 

and time, as corroborating other evidence of the specific recklessness 

charged. Similarly, on a charge of drunken driving, relevant evidence of recklessness might have probative value as corroborating 

other proof of drunkenness. 

The condition of the surface on which the vehicle is operated, the 

time of day or night, the traffic, and the condition of the vehicle are 

often matters of prime importance in the proof of an offense charged 

under this article, and where they are of importance, may properly 

be alleged. 

Proof.-(a) That the accused mas operating a certain vehicle, as 

alleged; and (6) that he was drunk while operating the vehicle; or, 

that he operated it in a reckless or wanton manner, as alleged. 

346 
PUNITIVE ARTICLES 11 192 

191. ARTICLE 112-DRUNK ON DUTY 

Discussion.-Article 112 sets forth the offense of being found drunk 

on duty. The term L'd~ty" as used in this article means military duty, 

but it is important to note that every duty which an officer or enlisted 

person may legally be required by superior authority to execute is 

necessarily a military duty. 

Whether the drunkenness was caused by liquor or drugs is immaterial ; and any intoxication which is sufficient sensibly to impair the 

rational and full exercise of the mental and physical faculties is 

drunlienness within the meaning of t,he article. 

It is necessary that accused be found drunk while actually on the 

duty alleged, and the fact that he became drunk before going on duty, 

although material in extenuation, does not affect the question of his 

guilt. If, however, he does not undertake the responsibility or enter 

upon the duty at all, his conduct does not fall within the terms of 

this article, nor does that of a person who absents himself from his 

duty and is found drunk while so absent. Included within the article 

is drunkenness while on duty of an anticipatory nature such as that 

of an aircraft crew ordered to stand by for flight duty, or of an 

enlisted person ordered to stand by for guard duty. 

Within the meaning of this article, when in the actual exercise of 

command, the commanding officer of a post, or of a command, or of 

a detachment in the field is constantly on duty. Also, within the 

meaning of this article, the commanding officer on board a ship is 

constantly on duty. In the case of other officers or enlisted persons 

the term "on duty" relates to duties of routine or detail, in garrison, 

at a station, or in the field, and does not relate to those periods when, 

no duty being required of them by orders or regulations, officers and 

men occupy the status of leisure known as "off duty" or "on liberty.'' 

In a region of active hostilities, the circumstances are often such 

that all members of a command may properly be wnsidered as being 

continuously on duty within the meaning of this article. So also, an 

officer of the day and members of the guard, or of the watch, are on 

duty during their entire tour within the meaning of this article. 

Proof.-(a) That the accused mas on a certain duty, as alleged; . 

and (6) that he was found drunk while on that duty. 

192. ARTICLE 113-MISBEHAVIOR OF SENTINEL OR 

LOOKOUT 

Discussion-This article defines three kinds of misbehavior committed by sentinels or lookouts : Being found drunk or sleeping upon 

post, or leaving it before being regularly relieved. As to the meaning 

of "drunk," see 191. 
8 193b CHAPTER XXVlll 

A post is not limited by an imaginary line, but includes, according 

to orders or circumstances, such surrounding area as may be necessary 

for the proper performance of the duties for which the sentinel or 

lookout was posted. The sentinel or lookout who goes anywhere 

within that area for the discharge of his duties does not leave his post, 

but if found drunk or sleeping within the area may be convicted of a 

violation of this article. The offense of leaving post is not committed 

when a sentinel or lookout goes an immaterial distance from the point, _ 

station, area, or object which was prescribed as his post, unless he 

goes such a distance that his ability fully to perform the duty for 

which he was posted is impaired. 

A sentinel or lookout is on post within the meaning of this article 

not only when he is at a post physically defined, as is ordinarily the 

case in garrison or aboard ship, but also, for example, when he may 

be stationed in observation against the approach of an enemy, or detailed to use any equipment designed to locate friend, foe, or possible 

danger, or at a designated place to maintain internal discipline, or to 

guard stores, or to guard prisoners while in confinement or at work. 

This article does not include an officer or enlisted person of the 

guard, or of a ship's watch, not posted or performing the duties of a 

sentinel or lookout, nor does it include a person whose duties as a 

watchman or attendant, do not require that he be constantly alert. 

The fact that the sentinel or lookout is not posted in the regular way 

is not a defense. It is sufficient, for example, if he has taken his post 

in accordance with proper instruction, whether or not formally given. 

Proof.-(a) That the accused was posted or on post as a sentinel 

or lookout, as alleged ; and (6) that he was found drunk while on his 

post, or was found sleeping while on his post, or that he left his post 

before being regularly relieved. 

193. ARTICLE1 Il&DUELING 

a. FIGHTING A DUEL 

Discussion.-A dud is a combat between two persons for private 

reasons fought with deadly weapons by prior agreement. 

Proof.-(a) That the accused fought another person for private ' 

reasons with deadly weapons; and (6) that the combat was by prior 

agreement. 

6. PROMOTING, BEING CONCERNED IN, OR CONNIVING AT FIGHTING A DUEL, OR FAILING TO REPORT KNOWLEDGE OF A CHALLENGg 

Discussion.-Urging or taunting another to challenge or to accept 

a challenge to duel, acting as a second or as carrier of a challenge or 

acceptance, or otherwise furthering or contributing toward the fighting of a duel are examples of promoting a duel. Anyone who has 

reason to believe steps are being or have been taken toward arranging 

348 
PUNITIVE ARTICLES (1 195a 

or fighting a duel and who fails to notify appropriate authorities and 

to take other reasonable preventive action thereby connives at the 

fighting of a duel. Knowledge creates an obligation to act; the failure 

so to do constitutes a crime. 

Proof.-That the accused promoted, was concerned in, or connived 

at the fighting of a duel by taunting another to challenge, acting as 

a second, failing to bring knowledge possessed by him of an intended 

duel to the attention of the authorities, or otherwise, as alleged. 

194. ARTICLE 115-MALINGERING 

Discussion.-Malingering is defined in this article as feigning illness, physical disablement, mental lapse or derangement, or intentionally inflicting self--injury, for the purpose of avoiding work, duty, 

or service. 

The essence of this offense is the design to avoid performance of 

any work, duty, or service which may properly or normally be expected 

of one in the military service. Whether to avoid all duty, or only a 

particular job, it is the purpose to shirk mhich characterizes the 

offense. Hence, the nature or permanency of a self-inflicted injury 

is not material on the question of guilt, nor is the seriousness of a 

physical or mental disability which is a sham. Evidence of the extent 

of the self-inflicted injury or feigned disability may, however, be 

relevant as a factor indicating the presence or absence of the purpose. 

A qualified medical expert may testify concerning his opinion as 

to whether a purported illness of the accused mas feigned (see 138e), 

and such an opinion may be regarded as evidence upon that question. 

Proof.-(a) That the accused mas assigned to, or was aware of his 

prospective assignment to, or availability for, the performance of 

work, duty, or service, as alleged ; (6) that the accused feigned illness, 

pliysical disablement, mental lapse or derangement, or intentionally 

inflicted injury upon himself, as alleged; and (c) facts and circumstances showing that his purpose in doing so was to avoid the work, 

duty, or service alleged. 

195. ARTICLE 11fkRIOT OR BREACH OF PEACE 

a. RIOT 

Discussion.-The term "riot" denotes a breach of the peace committed by three or more persons in furtherance of a common purpose 

to execute some enterprise by concerted action against any who may 

cppose them. As to breach of the peace, see 1956. 

Without such a common purpose to be effected by concerted action, 

the acts of a tumultuous assembly of three or more persons, even though 

all commit breaches of the peace, do not constitute a riot. For 

example, in the case of an assemblage of persons engaged in dis- 
CHAPTER XXVlll 

charging cannon crackers in violation of law, it was-held that each 

person was intent on discharging his own cannon crackers and that 

there was no intent among the persons so assembled mutually to assist 

each other. 

It is not necessary that the common purpose be determined prior to 

assembly; it is sufficient if the assemblage actually begins to execute in 

B tumultuous manner a common purpose formed after it assembled. 

Proof.-(a) That the accused was a member of an assemblage of 

three or more persons; (b) that he caused or participated in a certain 

breach of the peace committed by the assemblage, as alleged (195b) ; 

(G) facts and circumstances showing that the breach of the peace was 

committed in furtherance of a common purpose to execute an enterprise 

by concerted action against all opposition. 

b. BREACH OF THE PEACE 

a Discussion.-In military law, a "breach of the peace" is an unlawful disturbance of the peace by an outward demonstration of a riole~lt 

or turbulent nature. 

Not every type of disorder or misconduct is a breach of the peace. 

For example, a soldier appearing in an unclean uniform in a public 

place might commit an offense in violation of Article 134, but this 

act would not ordinarily tend to a disturbance of the peace. The 

acts or conduct contemplated by this article are those which disturb 

the public tranquility or impinge upon the peace and good order to 

which the community is entitled. The words 'Lcommunity" and "public" include within their meaning a military organization, post, camp, 

ship, or station. 

Engaging in an affray, unlawful discharge of firearms in a public 

street, and the use of vile or abusive words to another in a public 

place are a few instances of the type of conduct which may constitute 

a breach of the peace. The fact that opprobrious words are true, 

or used under provocation, is not a defense, nor is tumultuous conduct 

excusable because incited by others. As to self-defense, see 197c, 

207a. 

Proof.-(a) That the accused caused or participated in a cerLain 

act of a violent or turbulent nature, as alleged; and (6) facts and 

circumstances surrounding the incident which show that the peace 

was thereby unlawfully disturbed. 

196. ARTICLE 11'7-PROVOKING SPEECHES OR GESTURES 

Discussion.-This article makes punishable the use of provoking 

or reproachful words or gestures towards another person subject 

the code. 
I PUNITIVE ARTICLES ll197c 

As used in this article, L'provokingy' and reproachful^' describe 

those words or gestures which are used in the presence of the person 

to whom they are directed and which tend to induce breaches of 

the pkace. As thus used they do not comprehend reprimands, censures, reproofs and the like which may properly be administered in 

the interests of training, efficiency, or discipline in the armed forces. 

Proof.-That the accused wrongfully used certain provoking or 

reproachful words or gestures towards another person subject to 

the code, as alleged. 

197. ARTICLE 11%-MURDER 

Discussion.-a. General.-The killing of a human being is unlawful when done without justification or excnse. The determination 

of whether an unlawful killing constitutes muyder or a lesser offense 

(see 198) depends upon the circumstances under which it occurred. 

The offense is committed at the place of the act or o~nission although 

the victim may have &ed elsewhere. W~ether death occurs at the 

time of the accused's act or omission, or at some time thereafter, it 

must have followed f rom an injury received by the victim which resulted from such act or omission. 

6. Justi$cation.-S homicide committed in the proper performance of a legal duty is justifiable. Thus executing a person pursuant 

to a legal sentence of death, killing in suppression of a mutiny or riot, 

killing to prevent the escape of a prisoner if no other reasonably apparent means are adequate, killing an enemy in battle, and killing 

to prevent the commission of an offense attempted by force or surprise 

such as burglary, robbery, or aggravated arson, are cases of justifiable homicide. 

The general rule is that tlie acts of a subordinate, done in good faith 

in compliance with his supposed duty or orders, are justifiable. This 

justification does not exist, however, when those acts are manifestly 

beyond the scope of his authority, or the order is such that a man of 

ordinary sense and understanding mould know it to be illegal, or the 

subordinate willfully or through negligence does acts endangering the 

lives of innocent parties in the discharge of his duty to prevent escape 

or effect an arrest. 

c. Excuse.-A homicide which is the result of an accident or misadventure in doing a lawful act in a lawful manner, or which is done 

in self-defense, is excusable. Thus, if a lawful operation, performed 

wit11 due care alld skill, causes the death of a patient, the homicide 

is excusable. To excuse a person for a killing on the ground of selfdefense, he must have believed on reasonable grounds that killing was 

necessary to save his life or the lives of those whom he might lawfully 
1 197f CHAPTER XXVlll 

protect, or to prevent great bodily harm to himself or them. The 

danger must be believed on reasonable grounds b be imminent, and 

no necessity will exisf until the person, if not in his own house or at a 

place where he has a duty to remain, has retreated as far as he &ely 

can. To avail himself of the right of self-defense, the person doing 

the killing must not ham been the aggressor or intentionally provoked 

the altercation; but if after provoking a fight he withdraws in good 

faith and his adversamy follows and renews the fight, the latter becomes the aggressor. 

d. Premeditation.-A murder is not premeditated unless the 

thought of taking Life was consciously conceived and the act or omission by which it mas taken was intended. Premeditated murder is 

murder committed aft~r the formation of a specific intent to kill 

someone and considel-ation of the act intended. It is not necessary 

that the intention to kill shall have been entertained for any particular 

or considerable length af time. When a fixed purpose to kill has been 

deliberately formed, it is immaterial how soon afterwards it is put 

into execution. Evidence that a participant in a quarrel, who mas 

surprised by a police~nan hailing him unexpectedly, turned and shot 

ihe policeman, has been held not to show premeditation. On the other 

Ilaad, premeditation could be inferred if the accused shot a policeman 

as part of a plan to escape arrest. 

e. Intent to kill OY inflict peat bodily ha~m.-An unlawful killing 

without premeditation is also murder when the person had either an 

intent to kill or an illtent to inflict great bodily harm. Great bodily 

harm refers to serious injuries; it does not include minor injuries 

such as a black eye or a bloody nose (see 2076). A person is presumed to have intended the natural and probable consequences of 

an act purposely done by him. Hence, if a person does an intentional 

act likely to result in death or great Ecclily injury, he may be presumed to have intended death or great bodily harm. The intent need 

not be directed toward the person killed nor must it exist for any 

particular time before commission of the act, or have previously 

existed at all. It is sufficient that it existed at the time of the act or 

omission (except if death be inflicted in the heat of a sudden passion 

caused by adequate provocation-see 19Sa). For example, a person 

perpetrating housebreaking who struck and killed the householder 

attempting to block his flight would be guilty of murder even if he 

did not see the householder until the moment before swinging his 

weapon at him. 

f. Act inherently dangerous with wanton disregard of hwnzan 

life.-Engaging in an act inherently dangerous to others, without any 
. 

PUNITIVE ARTICLES 

intent to cause the death of, or great bodily harm to, any particular 

person, or even with a wish that death may not be caused, may also 

constitute murder if the performance of the act shows a wanton disregard of human life. Such disregard is characterized by a heedlessness of the probable consequences of the act or omission, an indifference that death or great bodily harm may ensue. Examples might be 

throwing a live grenade toward another in jest, or flying an aircraft 

very low over a crowd to make it scatter. 

g. Commission of certain offenses.-A homicide committed during 

the perpetration or attempted perpetration of burglary, sodomy, rape, 

robbery, or aggravated arson also constitutes murder, and it is immaterial that the slaying may be unintentional or even accidental. 

Experience has shown that the commission or attempted commission 

of these offenses is likely to result in homicide. The law recognizes 

this probability, and when an unlawful killing occurs as a consequence 

of the perpetration or attempted perpetration of one of these offenses, 

the killing is murder. The perpetration or attempted perpetration of 

t,he burglary, sodomy, rape, robbery, or aggravated arson, as the case 

may be, should be charged in a separate specification. 

Proof.-(a) That the victim named or described is dead; (b) that 

his death resulted from the act or omission of the accused, as alleged; and (c) facts and circumstances showing that the accused had 

a premeditated design to kill ; or intended to kill or inflict great bodily 

harm ; or was engaged in an act inherently dangerous to others, evincing a wanton disregard of human life; or mas engaged in the per- ' 

petration or attempted perpetration of burglary, sodomy, rape, , robbery, or aggravated arson. 

Among the offenses which may be included in a particular charge 

of murder are manslaughter, negligent homicide in violation of Article 134, assault with intent to murcler, and certain forms of assault. 

198. ARTICLE 119MANSLAUGHTER 

a. VOLUNTARY MANSLAUGHTER 

Discussion.-An unlawful killing, altl~ough done with an intent to 

kill or inflict great bodily harm (see 19781, is not murder but voluntary manslaughter if committed in the heat of sudden passion caused 

by adequate provocation. The law recognizes the fact that a man may 

be provoked to such an extent that in the heat of sudden passion 

caused'by such provocation, although not in necessary defense of life 

nor to prevent bodily harm (see 197c,207a), he may strike a fatal blow 

before he has had time to control himself. While the law does not 

excuse the homicide because of the provocation, it does not hold him 

guilty of murder. 
ll 198b CHAPTER XXVIII 

The l3rovocation must be snch as the law deems adequate to excite 

uncontrollable passion in the mind of a reasonable man, and the act 

of killing must be committed under and because of the passion. The 

provocation must not be sought or induced as an excuse for killing or 

doing harm. If, judged by the standard of a reasonable man, sufficient cooling time elapses between the provocation and the killing, it 

is murder, even if the passion of the particular accused persists. 

Instances of adequate provocation are : Assault and battery inflicting great or grievous bodily harm, an unlawful imprisonment, and 

the sight by a husband or wife of an act of adultery committed by his 

or her spouse. If the person so assaulted or imprisoned, or the husband or wife so situated, at once kills the.offender or offenders in the 

heat of sudden passion caused by their act, voluntary manslaughter 

only has been committed. Insulting or abusive ~ords or gestures, a 

slight blow with the hand or fist, and trespass or other injury to 

property are not, standing alone, considered adeq~~ate provocation. 

Among the offenses which may be included in a particular charge 

of voluntary manslaughter are involuntary manslaughter, negligent 

homicide in violation of Article 134, assault with intent to commit 

voluntary manslaughter, aggravated assault, assault and battery, and 

assault. 

71. INVOLUNTARY IvIANSLAUGHTER 

Discussion.-Involnntary manslaughter is an unlawful homicide 

(see 197a) committed without an intent to kill or inflict great bodily 

harm ; it is an unlawful killing by culpable negligence, or while perpetrating or attempting to perpetrate an offense other than burglary, 

sodomy, rape, robbery, or aggravated arson, directly affecting the 

person. 

Culpable negligence is a degree of carelessness greater than simple 

negligence. It is a negligent act or o~l~ission accompanied by a culpable disregard for the foreseeable consequences to others of such act 

or omission. Thus the basis of a charge of involuntary manslaughter 

may be a negligent act or omission which, when viewed in the light of 

human experience, might foreseeably result in the death of another, 

even though death would not, necessarily, be a natural and probable 

consequence of such act or omission. 

Instances of culpable negligence are : Negligently conducting target 

practice so that the bullets go in the direction of an inhabited house 

within range; pointing a pistol in fun at another and pulling the trigger, believing, but without taking reasonable precautions to ascertain, 

that it would not be dangerous ; carelessly leaving poisons or dangerous drugs where they may endanger life. 
PUNITIVE ARTICLES U 199a 

I 

When there is no legal duty to act there can, of course, be no neglect. 

Thus when a stranger makes no effort to save a drowning man, or a 

person allows a mendicant to freeze or starve to death, no crime is 

committed. 

By an offense directly affecting the person is meant one affecting 

some particular person as distinguished from an offense affecting society in general. Among offenses directly affecting the person are 

the various types of assault, battery, false imprisonment, voluntary 

engagement in an affray, the use of more force than is reasonably 

necessary in the suppression of a mutiny or riot, and maiming. 

Among the offenses which may be included within a particular 

charge of involuntary manslaughter are negligent homicide in violation of Article 134, assault and battery, and assault. 

Proof.-(a) That the victim named or described is dead ; (6) that 

his death resulted from the act or omissio~l of the accused, as alleged; 

and (c) facts and circumstances showing that the homicide amounted 

in law to the degree of manslaughter alleged. 

1 199. ARTICLE 120-RAPE AND CARNAL KNOWLEDGE 

a. RAPE 

Discklssion.-This article defines rape as the commission of an act 

of sexual intercourse by a person with a female not his wife, by force 

and without her consent. It may be committed on a female of any 

age. Force and want of consent are indispensable to the offense, but 

the force involved in the act of penetration will sate if there is no 

consent. Any penetration, however slight, is sufficient to complete 

the offense (Art. 120c). 

Mere verbal protestations and a pretense of resistance are not sufficient to show want of consent, and if a woman fails to take such 

measures to frustrate the execution of a man's design as she is able 

to take and are called for by the circumstances, the inference may be 

drawn that she did in fact consent. All the surrounding circumstances are to be considered in determining whether a woman gave her 

consent, or whether she failed or ceased to resist ody because of a 

reasonable fear of death or grievous bodily harm. 

It has been said of this offense, "It is true that rape is a most detestable crime . . . ; but it must be remembered that it is an accusation easy 

to be made, hard to be proved, but harder to be defended by the party 

accused, though innocent." 

If there be actual consent, although obtained by fraud, the act is 

not rape, but if to the accused's knowledge the woman is of unsound 

mind or unconscious to an extent rendering her incapable of giving 

consent, the act is rape. Likewise, the acquiescence of a female child 
P 200a CHAPTER XXVI'11 

of such tender years that she is incapable of understanding the nature 

of the act, is not consent. A woman$ prior lack of chastity is not 

a defense, but see 1536 (2) (6) as to the admissibility of evidence of 

her unchaste character. 

Among the offenses which may be included in a particular charge 

of rape are assault with intent to commit rape, assault and batt.eqr, 

and assault. 

Proof.-(a) That tz& accused had sexual intercourse with a certain 

female not his wife; anmd (6) that the act was done by force and 

without her consent. 

b. CARNAL KNOWLEDGE 

Discussion.-Carnal knowledge is dmefined as the conlmission of an 

act of sexual intercourse under circum;stances not amounting to rape, 

by a person with a fema.le not his wife who has not attained the age 

of 16 years. As in rape, any penetration is sufEcient to complete the 

offense (Art. 120c). 

It is no defense that the accused is ignorant or misinformed as to 

the true age of the female? or that she mas of prior unchaste character; 

it is the fact of the girl's age and not his knowledge or belief which 

fixes his criminal responsibility. Evidence of such matters should, 

however, be considered UI determining an appropriate sentence. 

An accused does not violate this article by committing an act of 

sexual intercourse with a female of 16 years or over. However, if 

the statute of a jurisdiction denounces sexual intercourse with a 

female under a certain age greater than 16 years, the violation of 

such a statute within the territorial linlits of the jurisdiction by a 

person subject to the code may constitute conduct bringing discredit 

upon the armed forces in violation of Article 134. 

Proof.-(a) That the accused had sexual intercourse with a certain female not his wife; and (6) that she had not attained the age 

' of 16 years. 

200. ARTICLE 121-LARCENY AND WRONGFUL APPROPRIATION 

a. LARCENY 

Discussion.-(1) General.-Under the provisions of Article 121, 

a person is guilty of larceny if he wrongfully takes, obtains, or withholds, by any means whatever, from the possession of the true owner 

or of any other person any money, personal property, or article of 

value of any kind, with intent permanently to deprive or defraud 

another person of the use and benefit of property or to appropriate 

the same to his own use or the use of any person other than the true 

owner. A wrongful taking with intent permanently to deprive includes the common law offense of larceny; a wrongful obtaining with 
1 

PUNITIVE ARTICLES 

intent permanently to defraud includes the offense formerly known 

as obtaining by false pretense; and a wrongful withholding with 

intent permanently to appropriate includes the offense formerly 

known as embezzlement. Any of the various acts denounced as larceny 

by Article 121 may be charged and proved under a specification 

alleging that the accused stole the property in qnestion. 

Property which is taken, obtained, or withheld by severing it from 

real estate is within the class of property which may be the subject 

of larceny. Also within this class of property are writings mhich 

represent value, such as commercial paper. 

(2) Tding, obtaining, or withholding.-There must be a taking, 

obtaining, or withholding of the property by the thief. For instance, 

' there is no taking if the property is connected to a building by a chain 

and the property has not been disconnected from the building; and 

property is not "obtained" by merely acquiring title thereto without 

exercising some possessory control over it. As a general rule, however, any movement of the property or any exercise of dominion over it by any means is sufficient if accompanied by the 

requisite intent. Thus, if a person entices another's horse into 

his own stable without touching the animal, or procures a railroad company to deliver to him another's trunk by changing 

the check on it, or obtains the delivery of another's goods to 

a person or place designated by hh, or has the funds of another 

transferred to his own bank account, he is guilty of larceny if other 

elements of the offense are present. A person may "obtain" the 

property of another by acquiring possession without title, and one 

who already has possession of the property of another may "obtain" 

it by thereafter acquiring title thereto. A withholding may arise 

either as a result of a failure to return, account for or deliver property 

to its owner when a return, accounting, or delivery is due or as a 

result of devoting property to a use not authorized by its owner, and 

this is so even though the owner had made no demand for the property and even though initially the property had come lawfully into 

the hands of the person thus withholding it. The taking, obtaining, 

or withholding must be of specific property. h debtor does not withhold specific property from the possession of his creditor by failing 

or refusing to pay a debt, for, prior to payment, the relationship of 

debtor and creditor does not give the creditor a possessory right in 

any specific money or other property of the debtor. 

(3) Owmership of the property.-Article 121 requires that the 

taking, obtaining, or withholding be from the possession of the true 

owner or of any other person. Care, custody, management, and con- 
CHAPTER XXVlll 

trol are among the legal definitions of possession. The term "true 

owner7' refers to the person who, at the time of the taking, obtaining, 

or withholding,, had the superior right to possession of the property 

in the light of all conflicting interests therein which are involved 

in the particular case. For instance, an estate is the true owner of 

its property as against a trustee of the estate charged with larceny 

of such property, and an organization is the true owner of its funds 

as against the custodian of the funds charged with larceny thereof. 

By the phrase "any other person" is meant any person (even a person who himself had stolen the property) who is an owner of the 

property by virtue of his possession or right to possession thereof 

and who is other than the one who takes, obtains, or withholds the 

property. With respect to the matter of pleading a violation of this 

article, the ownership of the property may be alleged to have been in 

any person other than the aee~zsed who, at the time of the theft, was 

a general owner or a special owner thereof. A general owner of 

property is a person who has title to it, whether or not he has possession of it; whereas a special owner, such as a borrower or hirer, is 

one who does not have title but who does have possession, or the right 

to possession, of the property. The word "person," as used in referring to one from whose possession property has been taken, obtained, or withheld, and to any owner of property, includes (ill 

addition to a natural person) a government, a corporation, an association, an organization, and an estah. Such a peyson need not be a 

legal entity. 

(4) W~ongfulness of the taking, obtaining, or .withholding.-The 

taking, obtaining, or withholding of the property must be wrongful. 

As a general rule, a taking or withholding of property from the possession of another is wrongful if done without the consent of the other, 

and an obtaining of property from the possession of another is wrongful if the obtaining is by false pretense. However, such an act is 

not wrongful if it is authorized by law or apparently lawful superior 

orders, nor, subject to the following observations as to larceny by 

an owner, will it result in a violation of Article 121 if done by a person 

entitled to the possession of the property as against (or eclually with) 

the one from whose possession the property has been taEen, obtained, 

or withheld. An owner of property who takes or withholds it from 

the possession of another without the consent of the other, or who 

obtains it from the possession of another by false pretense, does so 

wrongfully, and may be guilty of larceny, if the other has a superior 

right to possession of the property, such as a lien, or if the act is 

done with intent to charge the other with the value of the property. 
PUNITIVE ARTICLES 11 200a 

A person who takes, obtains, or withholds property as the agent of 

another has the same rights and liabilities as does his principal, bnt 

he may not be charged with a guilty knowledge or intent of the principal to which he was not a pa1-Q. 

(5) Puke pretense.-With respect to obtaining property by false 

pretense, the false pretense may be made by means of any act, word, 

symbol, or token. The pretense must be in fact false when made and 

when the property is obtained, and it must be knowingly false in 

the sense that it is made withont an honest belief in its truth. A false 

pretense is a false representation of past or existing fact. In addition to other kinds of facts, the fact falsely represented by a person 

may be his power or authority to effect a certain result, his opinion, 

or his intention. Consequently, one aha represents that he presently 

intends to perform a certain act in the future, but who at the time 

of his representation does not honestly intend to perform the act, 

makes a false representation of an existing fact-his intentionand thus a false pretense. For example, a person makes such a false 

pretense by uttering a check made by him if at the time of the uttering he did not honestly intend to have sufficient funds in the bank 

available to meet payment of the check upon its presentment for payment in due course. 

Although the pretense need not be the sole cause inducing the 

owner to part with his property, it is necessary that it be an effective 

(and intentional) cause of the obtaining. A false representation 

made after the property was obtained, such as giving a check, without intending that it shall be honored, in purported payment of a 

debt incurred in a past purchas'e of property and not thereby obtaining any money, personal property, or article of value, will not result 

in the commission of an off ensa denounced by Article 121. 

A larceny is committed when a person obtains the property of 

another by false pretense and with intent to steal, even though the 

owner neither intended nor was requested to part with title to the 

property. Thus a person who gets possession of the watch of another 

by pretending that he is goirug to use it for a short time and then 

return it, but who really intends to sell it, is guilty of larceny. 

(6) In tent.-The o flense of larceny requires that the taking, 

obtaining, or withholding by the thief be accompanied by an intent 

permanently to deprive or defraud another of the use and benefit of 

property or permanently to appropriate the property to his own use 

or the use of any person other than the true owner. These intents are 

collectively called an intent to steal. Although s person has acquired 

possession of property by a taking or obtaining wkich was not wrong- 
CHAPTER XXVlll 

ful, or which was without the concurrence of an intent to steal, he 

nevertheless call commit a larceny of the property if after the taking 

or obtaining he forms an intent to steal it and wrongfully withholds it 

with that intent. For example, if a person obtains the vehicle of 

another by hiring it and thereafter decides to keep the vehicle permanently, and pursuant to that decision either fails to return it at the 

appointed time or uses it for a purpose not authorized by the terms of 

the hiring, he has committed larceny, even though at the time he obtained the vehicle he fully intenidea to return it after using it according to the agreement of hire. The existence of an intent to steal must, 

in most cases, he inferred from the circumstances. Thus, if a person 

secretly takes property, hides itp and denies that he knows anything 

about it, an intent to steal may well- be inferred; but if he takes it 

openly, and returns it, this would tend to negative such an intent. 

Proof of a subsequent sale of the property shows an intent to steal, 

and, therefore, evidence of such a sale may be introduced to support a 

charge of larceny. An intent to steal is implicit in a wrongful and 

intentional dealing with the property of another in a manner likely 

to cause him to suffer a permanent loss thereof. Consequently, a person may be guilty of larceny even though he intends to return the 

property ultimately, if the execution of that intent depends on a future 

condition or contingency which is not likely to happen within a reasonably limited and definite period of time. Thus one may be found 

guilty of larceny who conceals the property of another with intent to 

retain it until a reward is offered for it, or who pawns the property 

of another without authority, intending to redeem it at an uncertain 

future date and then return it. 

Although ordinarily the taking, obtaining, or withholding need 

not be for the benefit of the thief himself, a person who divests another 

of property intending only to restore it to the possession of the true 

owner, as when he takes stolen property from a thief with that intent, 

does not commit larceny or wrongful appropriation. Also, a person 

who takes, obtains, or withholds the property of another, believing 

honestly and reasonably, although mistakenly, that he or the person 

for whom he is acting has a legal right to acquire or retain the property, is not guilty of an offense in violation of Article 121. 

An intention to pay for the property stolen or otlzerwise to replace 

it with an equivalent is not a defense, even though such an intention 

~xisted at the time of the theft, and, once a larceny is committed, a 

return of the property or payment for it is no defense. 

(7) MisceZZaneous.-A taking or withholding of lost property 

by the finder is larceny if accompanied by an intent to steal and if rc 
PUNITIVE ARTICLES ll200a 

clue to the identity of the general or special owner, or through which 

such identity may be traced, is furnished by the character, location, or 

marking of the property, or by other circumstances. 

When a larceny of several articles is committed at substantially 

the same time aid place, it is a single larceny even though the articles 

belong to different persons. Thus, if a thief steals a suitcase containing the property of several individuals or goes into a room and takes 

property belonging to va&ous persons, there is but one larceny, which 

should be alleged in but one specification. 

Proof .- (a) That the accused wrongfully took, obtained, or withheld from the possession of the true owner or of any other person 

the property described in the specification; (6) that such property 

belonged to a certain person named or described; (c) that such property was of the value alleged, or of some value; and (d) the facts and 

circumstances of the case, showing that the taking, obtaining, or 

withholding by the accused mas with intent permanently to deprive 

or defraud another person of the use and benefit of property or to 

appropriate the same to his own use or the use of any person other 

than the true owner. 

Items of government issue which were serviceable government property at the time they were stolen are deemed to have values equivalent 

to the prices therefor as listed in official publications or, if not so 

listed, as otherwise officially recognized. As a general rule, the value 

of other stolen property is to be determined by its legitimate market 

value at the time and place of the theft. If such property, because of 

its character or the place where it was stolen, had no legitimate market 

value at the time and place of the theft or if that value cannot readily 

be ascertained, its value may be determined by its legitimate market 

value in the United States, as of the time of the theft, or by its replacement cost at that time, whichever is the lesser. Market value 

may be established by proof of the recent purchase price paid for the 

article upon the legitimate market involved; or by testimony or other 

admissible evidence emanating from any person who is familiar 

through training or experience with the market value in question; or 

by the testimony of a person who has ascertained the price of similar 

artiicles by adequate inquiry in the market involved. The owner of 

the property may testify as to its market value if he is familiar with 

its quality and condition, the circumstance that he is not otherwise ! 

qualified to express an opinion on the question of the market value of 

the property, if such be the case, going only to the weight to be given 

to his testimony and not to the admissibility thereof. When the 

character of the property clearly appears in evidence, as when, for 
U 200b CHAPTER XXVlll 

instance, it is exhibited to the court, the court, from its own experience, may infer that it has some value. If as a matter of common 

knowledge the property is obviously of a value substantially in excess 

of $50, as in the case of an automobile in good condition or a large 

collection of precious stones, the court may find a value of more than 

$50. Writings representing value may be considered to have the 

value which they represented (even though contingently) at the time 

of the theft. 

If an owner of property (or someone acting in his behalf) steals 

it from a person who has a superior, but limited, interest in the property, such as a lien, and the theft is committed without intending to 

charge such person with the value of the property, the value for 

punishment purposes shall be that of the limited interest. 

b. WRONGFUL APPROPRIATION 

Discussion.-See generally 200a. Article 121 defines the offense 

of wrongful appropriation in the same way that larceny is defined, 

except that the wrongful taking, obtaining, or withholding need be 

with intent to deprive, defraud, or appropriate only temporarily. A 

charge of wrongful appropriation is necessarily included in a charge 

of larceny. 

Instances of the dense of mrongful appropriation are : Taking the 

automobile of another without permission or lawful authority, with 

intent to drive it a short distance and then return it or cause it to be 

returned to the owner; obtaining a service weapon by falsely pretending to be about to go on guard duty, the weapon being thus obtained with intent to use it on a hunting trip and thereafter effect its 

return; and, while driving a government vehicle on a mission to deliver supplies, withholding the vehicle from the government service 

by deviating from the assigned route without authority, with intent 

to visit a friend in a nearby town and thereafter restore the vehicle 

to its lawful use. 

An inadvertent exercise of control over the property of another will 

not result in a wrongful appropriation. For example, a person is 

not guilty of this offense who fails to return a borrowed boat at the 

time agreed upon because he inadvertently lost his direction and went 

aground on a sand bar. 

Proof.-(a) That the accused wrongfully took, obtained, or withheld from the possession of the true owner or of any other person the 

property described in the specification; (6) that such property belonged to a certain person named or described; (c) that such property 

was of the value alleged, or of some value; and (d) the facts and 

circumstances of the case showing that the taking, obtaining, or with362 
,PUNITIVE ARTICLES 11 201 

bolding by the ,accused was with intent temporarily to deprive or 

defraud another person of the use and benefit of property or to appropriate the same to his own use or the use of any person other than the 

true owner. 

201. ARTICLE 122-ROBBERY 

Discussion.-Article 132 defines robbery as taking with intent to 

steal anything of value from the person or in the presence of another, 

gainst his will, by means of force or violence or fear of immediate 

or future injury to his person or property or the person or property 

of a relative or member of his family or of anyone in his company at 

the time of the robbery. 

The particular thing must be taken from the person of another or 

in his presence, but to be in his presence it is not necessary that he 

be within any certain distance of his property. If persons enter a 

house and force the owner by threats to disclose the hiding place of 

valuables in an adjoining room, and, leaving the owner tied, go into 

such room and steal the valuables, they have committed robbery. 

When a robbery is committed by force or violence, there must be 

actual force or violence to the person, preceding or accompanying the 

taking against his mill, and it is immaterial that there is no fear engendered in the victim. The amount of force used is immaterial; it 

is enough to constitute robbery if the force overcomes the actual re- - sistance of the person robbed, or puts him in such a position that he 

makes no resistance, or suffices to overcome the resistance offered by 

a chain or other fastening by which the article is attached to the person. 

1 If an article is merely snatched from the hand of another or a pocket 

is picked by stealth and no other force is used, and the owner is not put 

in fear, the offense is not robbery. But if resistance is overcome in 

snatching the article, there is sufficient violence, as when the earring 

of a woman is torn from her ear or a hair ornament entangled in her 

hair is snatched away. There is sufficient violence when a person's 

attention is diverted by his being jostled by a confederate of a pickpocket, who is thus enabled to steal the person's watch, even though 

the person had no knowledge of the act; or when a man is knocked 

insensible and his pockets rifled; or when an o5cer steals property 

from the person of a prisoner in his charge after handcufhg him on 

the pretext of preventing his escape. 

When a robbery is committed by putting the victim in fear, there 

need be no actual force or violence, but there must be demonstrations 

of force or menaces by which the victim is placed in such fear that 

he is warranted in making no resistance. The fear must be a reasonably well-founded apprehension of present or future injury, and the 
11 202 CHAPTER XXVIII 

taking must occur while the apprel~ension exists. The injury alpprehended may be death or bodily injury to the person himself OT to 

the person of a relative or member of his family ar of anyone in his 

company at the time; or it may be the destruction of his habitation or 

other injury to his property or that of a relative or member of bis 

family or of anyone in his company at the time, of sdcient gravity 

to warrant his giving up the property demanded by the assailant. 

Robbery includes "takiug with intent to steal"; hence, a larceny brg 

taking is an integral part of a charge of robbery and must be pro~ed 

at the trial. See 200a(4). When the evidence falls short of pro~ing 

the force or fear or other facts necessary to robbery but does proTe 

a larceny by taking, the accused, by proper exceptions and substitutions, may be found guilty of larceny. 

Proof.-(a) The larceny of the property (see Proof under 200a, 

but proof of specific value may be omitted) ; (b) that such larceny 

was from the person or in the presence of the person alleged to have 

been robbed; and (c) that the taking was against his will, by force 

and violence, or by putting in fear, as alleged. 

202. ARTICLE 12LFORGERY 

Discussion.-Article 123 defines forgery as the false making or 

altering with intent to defraud of any signature to, or any pal% a£, 

any writing which mould, if genuine, apparently impose a legal 

liability on another or change his legal right or liability to his prejudice; or the uttering, offering, issuing, or transferring, with intent 

to defraud, of such a writing known by the offender to be so made or 

altered. 

While forgery may be committed either by falsely making a wriking or by knowingly uttering a falsely made writing, there are certain elements common to both aspects of forgery. These are (a) a 

writing falsely made or altered, (b) an apparent capability of the 

writing as falsely made or altered to impose a legal liability on another, or change his legal right or liability to his prejudice, and (G) 

an intent to defraud. 

As regards the false makiy or altering of a writing, L'false" refers 

not to the contents of the wrltlng or to the facts stated therein but to 

t,he making or altering of it, Hence, forgery is not committed by the 

genuine making of a false instrument for the purpose of defrauding 

another. For example, a check bearing the signature of the maker, 

although drawn on a bank in which the maker has no money or credit, 

and even with intent to defraud the payee or the bank, is not a forgery, 

for the instrument, though false, is not falsely made. Likewise, if a 

person makes a false signature of another to an instrument, but adds 
PUNITIVE ARTICLES v 202 

the word "by" with his own signature thus indicating authority to 

sign, the offense is not for!ery even if no such authority exists. False 

recitds of fact in a genulne document do not constitute the writing 

a forgery, as, for example, an aircraft flight report which is "padded" 

by the one preparing it. 

Signing the name of another to an instrument witlyout authority 

and with intent to defraud is forgery as the signature is falsely made. 

The distinction is that in this case, the falsely made signature purports to be the act of one other than the signer. Likewise, a forgery 

may be committed by a person signing his own name to an instrument. 

For example, when a clleck payable to the order of a certain person 

comes into the hands of another of the same name, he commits forgery 

if, knowing the check to be another's, he indorses it with his own name 

intending to defraud. Forgery may also be committed by signing a 

fictitious name, as when a person makes a check payable to hinlself and 

signs it with a fictitious name as drawer. 

Some of the instruments most frequently the subject of forgery are 

checks, orders for delivery of money or goods, railroad tickets, military orders directing travel, and receipts. A writing falsely made 

includes an instrument that may be in part or entirely printed, ellgraved, written with a pencil, or made by photography or other 

device. A writing may be falsely '<madev by materially altering an 

existing writing, by filling in a paper signed in blank, or by signing 

an instrument already written. 

As regards the apparent legal efficacy of the writing falsely made 

or altered, the writing must on its face appear to impose a legal 

liability on another, for example, a check or note, or to change a legal 

right or liability to the prejudice of another, as a receipt. The false 

making, with intent to defraud, of an instrument affirmatively invalid on its face is not forgery because it has no legal efficacy. However, the false making of another's signature on an instrument, with 

intent to defraud, is forgery even if there be no resemblance to the 

genuine signature, and the name is misspelled. It is not forgery to 

make falsely or alter with intent to defraud a writing which does not, 

operate to impose a legal liability on another or change a legal right 

or liability to Iris prejudice, as, for example, would ordinarily be the 

case where a mere letter of introduction was involved. 

In order to constitute forgery by altering a writing, the alteration 

must affect a material change in the legal tenor of the writing. Thus 

an alteration whereby ally obligation is apparently increased, diminished, or discharged is material. Examples of material alterations in 

the case of a note are changing the date, amount, or place of payment. 
11 203 CHAPTER XXVlll 

As regards the intent to defraud, it need not be directed toward 

anyone in particular nor be for the advantage of the offender. It is 

immaterial whether anyone is actually defrauded, or that no further 

step be made toward carrying out the intent to defraud than the 

fadse making or altering of a writing. 

Proof.-(a) That a certain signature or writing was falsely made 

or altered, as alleged ; (b3 that the signature or writing was of a nature 

which would, if genuine, apparently impose a legal liability on 

another or change his legal right or liability to his prejudice; (c) 

that it was the accused who so falsely made or altered such signature 

or writing; or uttered, offered, issued, or transferred it, knowing it 

to have been so made or altered; and (d) facts and circumstances 

showing the intent of the accused thereby to defraud. 

In proving forgery, the instrument itself should be produced, if 

available. That the signature to a written instrument was falsely 

irlade may be proved by the testimony of the person whose signature 

was forged, showing that he had not signed the document himself, 

and that he had not authorized the accused to do so for him. If 

the name of a fictitious person is used as, for example, the purported 

drawer of a check, evidence of falsity may include evidence that the 

purported drawer of the check has no account in the bank upon which 

the check was drawn. 

203. ARTICLE 13nMAIMING 

Discussion.-Maiming is defined in Article 124 as inflicting upon 

the person of another, with intent to injure, disfigure, or disable, an 

injury which seriously disfigures his person by any mutilation thereof, 

or destroys or disables any member or organ of his body, or seriously 

dimiilishes his physical vigor by the injury of any member or organ. 

For example, it is maiming to put out a man's eye, to cut off his hand, 

foot, or finger, or to knock out his front teeth, as these injuries destroy 

or disable those members or organs; likewise, it is maiming to cut 

off an ear or to scar a face with acid, as these injuries seriously disfigure the person; it is also maiming to injure an internal organ so 

'as to seriously diminish the physical vigor of a person. 

A disfigurement need not mutilate any entire member to come 

within the article, nor be of any particular type, but must be such 

as to impair perceptibly and materially the victim's comeliness. The 

disfigurement, diminishment of vigor, or destruction or disablement 

of any member or organ must be a serious injury, one of a substantially permanent nature. The offense is complete if such an injury 

is inflicted, however, even though there is a possibility that the victim 
PUNITIVE ARTICLES 8 205a 

may eventually recover the use of the member or organ, or that the 

disfigurement may be cured by surgery. 

The means of inflicting the injury are immaterial to proof of the 

offense although they may be important as bearing upon the question 

of intent. Infliction of the type of injuries specified in this article 

upon the person of another is presumptive evidence of an intent to 

injure, disfignre, or disable such other. If the injury be done under 

which would justify or excuse homicide the offense is 

not committed (1976, c). 

Among the offenses which may be included in a particular charge of 

maiming are aggravated assault, assault and battery, and assault. 

Proof.-(a) That the accused inflicted upon a certain person the 

injury alleged; (6) that the injury seriously disfigured his person, or 

destroyed or disabled an organ or member, or seriously diminished 

his physical vigor by the injury to an organ or member; (c) facts and 

circumstances showing that the accused had an intent to injure, disfigure, or disable the person. 

284. ARTICLE 125-SODOMY 

Discussion.-This article defines sodomy as engaging in unnatural 

carnal copulation, either with another person of the same or opposite 

sex, or with an animal. Any penetration, however slight, is sufficient 

to complete the offense and emission is not necessary. 

It is unnatural carnal copulation for a person to take into his or 

her mouth or anus the sexual organ of another person or of an animal ; 

or to place his or her sexual organ in the mouth or anus of another 

person or of an animal; or to have carnal copulation in any opening of 

the body, except the sexual parts, with another person ; or to have carnal copulation in any opening of the body of an animal. 

Proof.-That the accused engaged in unnatural carnal copulation 

with a certain other person or with an animal, as alleged. 

205. ARTICLE 'IX~-ARSON 

a. AGGRAVATED ARSON 

Discussion.-Aggravated arson is defined by this article as the willful and malicious burning or setting on fire of an inhabited dwelling, 

or of any other structure, movable or immovable, wherein to the knowledge of the offender there is at the time a h~unan being. 

In aggravated arson, danger to human life is the essential element; 

in simple arson, it is injury to the property of another. In either 

case, it is immaterial that no one is, in fact, injured. A person may 

be guilty of aggravated arson even against his own dwelling, whether 

as owner or tenant. It must be shovn bhat the accused set the fire 

willfully and maliciously, that is, not rne~el~ by negligence or accident. 
, <. 

CHAPTER XXVlll 

An inhabited dwelling includes the outbuildings that form part of 

the cluster of buildings used as a residence. A shop or store is not 

an inhabited dwelling unless occupied as such, nor is a house that has 

never been occupied or which has been temporarily abandoned. The 

actual presence of a human-being in an inhabited dwelling at the time 

of burning is not, however, necessary to constitute the offense of aggravated arson. 

Aggravated arson may also be committed by burning or setting on 

fire any other structure, movable or immovable, such as a theater, 

church, boat, trailer, tent, auditorium, or any other sort of shelter or 

edifice, whether public or private, wherein to the knowledge of the offender there is at the time a human being. It may be inferred that 

the offender had such knowledge when the nature of the structure, as 

a department store or theater during hours of business, or other circumstances, are shown to have been such that a reasonable man must 

have known of the presence of hnman beings therein at the time. 

It is not necessary that the dwelling or structure be consumed or 

materially injured ; it is enough if fire is actually communicated to any 

part thereof. Any actual burning or charring is sufficient, but a mere 

scorching or discoloration by heat is not. 

For the offense of aggravated arson, the value and ownership of the 

dwelling or other structure are immaterial, but should ordinarily be 

alleged and proved ta permit the finding, in an appropriate case, of 

the lesser included offense of simple arson. 

Proof.-(a) That the accused burned or set on fire the inhabited 

dwelling, or other structure, as alleged; (6) that such dwelling or 

structure was of a value and belonged to a certain person, as alleged ; 

(c) facts and circumstances sl~owing that the act was willful and 

~nalicious ; and if not an inhabited dwelling, (d) facts and circumstances showing that the accused had knowledge there was a human 

being in the structure at the time. 

b. SIMPLE ARSON. 

Discussion.-Simple arson is defined as the willful and malicious 

burning or setting fire to the property of another under circumstances 

not amountinu to aggravated arson. 

The offense lncludes burning or setting fire to real or personal property of someone other than the offender and, as in aggravated arson, it 

must be shown that the accused set the fire willfully and maliciously. 

Proof.-(a) That the accused burned or set fire to certain property 

of another, and the value of the property, as alleged; and (b) facts 

and circumstailces showing that the act was willful and malicious. 
PUNITIVE ARTICLES (1 207a 

206. ARTICLE 127-EXTORTION 

Discussion.-Article 127 defines extortion as the communication 

of threats to another with the intention thereby to obtain anything of 

value, or any acquittance, advantage, or immunity of any description. 

The offense is complete upon communication of the threat with the 

requisite intent, and evidence of the actual or probable success or 

failure of the extortion is immaterial to the determination of guilt. 

A threat may be communicated by word of mouth or in a writing, 

the essential element of the offense being the knowledge of the victim. 

An acquittance is, in general terms, a release or discharge from an 

obligation. An intent to obtain any advantage or immunity of any 

description may include an intent to make a person do an act against 

llis will. 

The threat sufficient to constitute extortion may be a threat to do 

nny unlamful injury to the person or property of the individual 

threatened or of any member of his family or of any other person held 

dear to him; or a threat to accuse the individual threatened or any 

member of his family or any other person held dear to him, of any 

crime; or a threat to expose or impute any deformity or disgrace to 

the individual threatened or to any member of his family or to any 

other person held dear to him; or a threat to expose any secret affecting the individual threatened or any member of his family or any 

other person held dear to him; or a threat to do any other harm. 

Proof.-(a) That the accused communicated certain threats to another, as alleged ; and (6) facts and circumstances showing his intent 

unlawfully to obtain anything of value, or any acquittance, advantage, 

or immunity of any description, as alleged. 

207. ARTICLE 128-ASSAULT I 

a. ASSAULT 

Dbcussion.-Article 128a defines an assault as an attempt or offer 

with unlawful force or -violence to do bodily harm to another, whether 

or not the attempt or offer is consummated. An offer to do bodily 

harm ta another, as distinguished from an attempt to do-such harm, 

is a putting of the other in reasonable fear that force will at once be 

applied to his person. Pointing an unloaded pistol which the assailant knows to be unloaded at another is not an attempt to do bodily 

harm with the pistol, for the assailant is cognizant of his inability to 

shoot the victim; yet such an act may be an assault if the victim is 

aware of the attack and is put in reasonable fear of bodily injury. On 

the other hand, pointing a loaded pistol with intent to shoot it at one 

whose back is turned and who is unaware of the impending application of violence to his person, although not a putting in fear, may 

llevertheless be an assault in the form of an attempt to do bodily harm. 
CHAPTER XXVlll 

Some other examples of acts which may constitute an assault are raising a stick over another's head as if to strike him and causing % to 

fear that he will be struck, striking at another with a cane or fist, assuming a threatening attitude and hurrying toward another whereby 

such other is put in fear of bodily harm, and drawing a pistol from a 

holster or pocket with an actual or apparent (to the person assailed) 

intent to use it. Preparation not amounting to an overt act, such as 

picking up a stone without any attempt or offer to throw it, does not 

constitute an assault, nor does the mere use of threatening words. 

If the circumstances known to the person menaced clearly negative 

an intent to do bodily harm there is no assault. Thus, if a person 

accompanies an apparent attempt to strike another by an unequivocal 

announcement in some form of his intention not to strike, there is no 

assault. This principle was applied in a case in which the accused 

raised his whip and shook it at the complainant within striking distance saying, "If you weren't an old man, I would knock you down." 

However, an offer to inflict bodily injury upon another instantly if 

the other does not comply with a demand which the assaila.nt has no 

lawful right to make is an assault. Thus, if A points a pistol at E and 

says to B, "If you don't hand over your watch I will shoot you,)' A 

has committed an assault upon B. 

An assault may consist of a culpably negligenk act or omission which 

foreseeably might and does cause another reasonably to fear that 

force will at once be applied to his person. See 1986 (Involuntary 

manslaughter), for a discussion of culpable negligence. 

It is not a defense to a charge of assault that fur some reason unknown to the assailant his attempt was bound to fail. Thus, if a 

person loads his rifle with what he believes to be a good cartridge and, 

pointing it at another, pulls the trigger, he may be guilty of assault 

although the cartridge mas in fact so defective that it did not explode. 

The same principle was applied to a case in which a person in a house 

shot through the roof at the place where he supposed a policeman mas 

concealed, although the policeman was at another place on the roof. 

If there is a demonstration of violence coupled wit11 an apparent 

ability to in'fiict bodily injury, so as to cause the person at whom it was 

directed reasonably to fear such injury unless he retreats to secure 

his safety, and under such circumstances he is compelled to retreat to 

avoid any impending danger, the assault is complete, even though the 

assailant may never have been within actual striking distance of the 

person assailed. There must, however, be an apparent present ability 

to inflict the injury. To aim a pistol at a man at such a distance that 

it clearly could not injure would not be an assault. 
1 ,PUNITIVE ARTICLES 

~ An assault in which the attempt or offer to do bodily harm is consummated by the infliction of such harm is called a battery. A battery 

may be defined as an unlawful, and intentional or culpably negligent, application of force to the person of another by a material 

agency used directly or indirectly. It may be a battery to spit on 

another, to push a third person against him, to set a dog at him which 

bites him, to cut his clotl~es while he is wearing them though without 

touching or intending to touch his person, to shoot him, to cause him 

to take poison, or to run an automobile against him. A man who 

fondles against her mill a woman not his wife commits a battery, and 

so ,does a person who, being excused in using force, uses more force 

than is required. Sending a missile into a crowd may be a battery on 

anyone whom the missile hits. If the injury is inflicted unintentionally and without culpable negligence, the offense is not committed. 

It is not a battery to lay hands on another to attract his attention or 

to seize another to prevent a fall. 

The force applied in a battery may have been directly or indirectly 

set in motion. Thus a battery can be committed by inflicting bodily 

lnjury on a person through striking the horse on which he is mounted 

or the vehicle in which he is present, as well as by striking him 

directly. 

Proof of a battery will support a conviction of assault, for an assault 

is necessarily included in a battery. 

In order to constitute an assault the act of violence must be unlawfiil. It must be done without legal justification or excuse (see 

197, Murder) and without the lawful consent of the person affected. 

With respect to the excuse of self-defense, a person may meet force 

with a like degree of force, except that he may use force likely to 

result in grievous bodily harm only when retreat is not reasonably 

possible or would apparently endanger his safety, or when he is in 

his own home or at a place of duty where he is required to remain. 

Prod.-(a) That the accused attempted or offered with unlawful 

force or violence to do bodily ham to a certain person, as alleged, or 

(6), in the case of a consummated assault, that with unlawful force 

1 or violence he did bodily harm to such person. 

I. AGGRAVATED ASSAULT 

Disenssion.-Article 1286 defines two lrinds of aggravated assault. 

One is an assault with a dangerous weapon or other means or force 

likely to prcduce death or grievous bodily harm. The other is an 

assault, with or without a weapon, in which the assailant intentionally 

inflicts grievous bodily harm. 
CHAPTER XXVlll 

See 213d (Various types of offenses under Article 134) as to assaults 

with intent to comrnit certain offenses of a civil nature and indecent 

assaults. 

(1) AssauZt with a dangerous weapon.-A weapon is dangerous 

when used in such a manner that it is likely to produce death or 

grievous bodily harm. By LLgrievous bodily harm" is meant serious 

bodily injury. When the natural and probable consequence of a particular use of any means or force would be death or grievous bodily 

harm, it may be said that the means or force is "likely" to produce 

that result. The use to which a certain kind of instrument is ordinarily put is of no importance with respect to the question of 5ts 

method of employment in a particular case. Thus it has been held 

that a bottle, a beer glass, a rock, a sugar bowl, a piece of pipe, a piece 

of wood, boiling water, drugs, or a rifle butt may be nsed in a manner 

likely to inflict death or grievous bodily harm. On the other hand, 

it has been held that an unloaded pistol, when presented as a firearm 

and not as a bludgeon, is not a dangerous weapon or a means or force 

likely to produce grievous bodily harm, and this mould be so whether 

or not the assailant knew it was unloaded. 

With respect to the offense of aggravated assault with a dangerous 

weapon or other means or force likely to produce death or grievous 

bodily harm, it is not necessary that death or grievous bodily harm 

be actually inflicted. 

(2) Assatclt in which grievous bdiFy hamn is intentiondly infEicted.--"Grievous bodily harm" does not include minor injuries, 

such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, torn members of the body, seribus damage 

to internal organs and other serious bodily injuries. 

When grievous bodily harm has been inflicted by means of intentionally using force in a manner likely to achieve that result, it 

may be inferred that grievous bodily harm was intended. For example, intentionally knocking a person from a height, such as a grandstand, so that the resulting fall breaks his leg, is an aggravated assault. 

On the other hand, striking a person with a fist in a sidewalk fight, 

and thereby causing him to fall in such a fashion that his head happens to hit the curbstone and his skull is fractured, is not an aggravated asault if no serious injury mas inflicted by the'blow itself, for, 

although the fractured skull was a foreseeable consequence of the blow 

with the fist so that had the victim died as a result of the fracture 

the offense might have been involuntary manslaughter, that injury 

nevertheless was not a likely, that is, a natural and probable, consequence of the assailant's act. 
PUNITIVE ARTICLES 1208 

It is possible to commit this kind of aggravated assault with the 

fists, as when, for instance, the victim is held by one of several assailants while the others beat him with their fists and break his nose or jaw. 

Proof.-AssauZt with a dangerous weapon.-(a) That the accused 

assaulted (see proof of assault) a certain person with a certain weapon, 

means, or force; and (6) the facts and circumstances of the case 

showing that such weapon, means, or force was used in a manner 

likely to prodnce death or grievous bodily harm. 

Assault in which grievous 6odiZy ham is $ntentionaZZy i.nfiated.- 

(a) That the accused assaulted (see proof of assault) a certain person; (6) that grievous bodily harm was thereby inflicted upon such 

person; and (c) the facts and circumstances of the case showing that 

such bodily harm was intelltionally inflicted. 

208. ARTICLE 129-BURGLARY 

Discussion.-Article 129 defines burglary as breaking and entering 

in the nighttime the dwelling house of another, with intent to commit 

an offense punishable under Articles 118 through 128, inclusive. These 

offenses are murder, manslaughter, rape and carnal knowledge, larceny and wrongful appropriation, robbery, forgery, maiming, sodomy, 

arson, extortion, and assault. 

It is immaterial whether the offense intended is committed or even 

attempted. If the offense is actually intended it is no defense that 

its commission was inlpossible. 

To constitute burglary the house must be the dmelling house of 

another-the term "dwelling house" including outhouses within the 

common inclosure, farmyard, or cluster of buildings used as a 

residence. 

A store is not a subject of burglary unless part of, or also used as, 

a dwelling house, as when the occupant uses another part of the same 

building as his dwelling, or when the store is habitually slept in by 

his servants or members of his family. 

The house must be in the status of being occupied at the time of 

the breaking and enterfng. It is not necessary to this status that 

anyone actually be in it; but if the house has never been occupied 

at all or has been left without any intention of returning to it this 

status does not exist. Separate dwellings within the same building, 

as a flat in an apartment house or a room in a hotel, are subjects of 

burglary by other tenants or guests, and in general by the owner of 

the building himself. A tent is not a subject of burglary. 

There must be a breaking, actual or constructive. Merely to enter 

through a hole left in the vall or roof or through an open window 

or door, even if left only slightly open and pushed farther open by 
1 204 CHAPTER XXVlll 

the person entering, will not constitute a breaking; but if there is 

any removal of any part of the house designed to prevent entry, other 

than the moving of a partly open door or window, it is sufficient. 

Opening a closed door or window or other similar fixture, or cutting 

out the glass of a window or the netting of a screen is a sufficient 

breaking. The breaking of an inner door by one who has entered the 

house without breaking, or by a servant lawfully within the house, but 

who has no authority to enter the particular room, is a sufficient breaking, but unless such a breaking is followed by an entry into the particular room with the requisite intent burglary is not committed. 

There is a constructive breaking when the entry is gained by a trick, 

such as concealing oneself in a box; or under false pretense, such as 

impersonating a was or telephone inspector ; or by intimidating the in- b 

mates through violence or threats into opening the door; or through 

collusion with a confederate, an inmate of the house; or by descending 

a chimney, even if only a partial descent is made and no room is 

entered. 

An entry must be effected before the offense is complete, but the 

entry of any part of the body, even a finger, is sufficient; and an insertion into the house of an instrument, except merely to facilitate 

further entrance, is a sufficient entry. 

Both the breaking and entry must be in the nighttime, which is the 

period between sunset and sunrise, when there is not sufficient daylight 

to discern a man's face, and both must be done with the intent to commit jn the house an offense punishable under Articles 11s through 128, 

inclusive. If the available evidence appears to warrant such action, 

the actual commission of the offense alleged in the burglary specification to have been intended should be charged in a separate specification. 

Proof.-(a) That the accused broke and entered a certain dwelling 

house of a certain other person, as specified; (6) that such breaking 

and eatering.were done in the nighttime; and (c) facts and circumstances (for instance, the actual commissio~~ of the offense) which shoq7 

that such breaking and entering were dolie 1~it11 the intent to commit 

the alleged offense therein. 

209. ARTICLE 130-HOUSEBREAKING 

Discussion.-Article 130 defines housebreaking as unlawfully entering the building or structure of another with intent to commit a 

criminal offense therein. The offense is broader than burglary in that 

the place entered is not reqnired to be a dwelling house ; it is not necessary that the place be occupied; it is not essential that there be a 

breaking; the entry may be either in the night or in the daytime; and 
PUNITIVE ARTICLES 1210 

the intent need not be to commit one of the offenses made punishable 

under Articles 118 through 128. The intent to commit some crimillal offense is an essential element of housebreaking and must be alleged and proved in order to support a conviction of this offense. 

Any act or omission which is punishable by courts-martial, except an 

act or omission constituting a purely military offense, is a "criminal 

off ease." 

The word "building" includes a room, shop, store, office, or apartment in a building. As used in this article, the word "structure" refers only to those structures which are in the nature of a building or 

dwelling. Examples of such structures are a stateroom, hold or other 

co~npartment of a vessel, an inhabitable trailer, an inclosed goods truck 

or freight car, s tent, and a houseboat. It is not necessary that the 

building or structure be in use at the time of the entry. As to what 

constitutes an entry, see 208 (Burglary). 

Tl~e principles of the last sentence of the discussion in 208 (Burglary) should be observed when charging housebreaking. 

Proof.-(a) That the accused unlawfully entered a certain building or structure of a certain other person as specified; and (b) the 

facts and circumstances sl~oming an intent to' commit a criminal 

offense therein, as alleged. 

210. ARTICLE 131-PERJURY 

Discussion.-ArticIe 131 defines perjury as willfully and corruptly 

giving, in a judicial proceeding or course of justice and upon a lawful 

oath OY in any form allowed by law to be substituted for an oath, 

any false testimony material to the issue or matter of inquiry. "Judicial proceeding" includes a trial by court-martial and "course of 

justice" includes an investigation conducted under Article 32. 

The false testimony must be millfully and co~ruptly given; that 

is, it must appear that tl~e accused did not believe it to be true. A 

witness may conmit perjury by testifying tliat be knows a thing to 

be true when in fact he either haws noithing about it at all or is 

not sure about it-, and this is so whether the thing is true or false in 

fact. A witness inay also commit perjury in testifying falsely as to 

his belief, remembrance, or impression, or as to his judgment or 

opinion. Thus, if a witness swears that he does not remember certain matters vhen in fact he does, or testifies that in his opinion n 

certain person 71;n.s drunlc when in fact he entertains the contrary 

opinion, he commits perjury if the other elements of the offense are 

present. 

The oath must be one required or authorized by law and must be 

duly administmed by one authorized to administer it. When a form 
1 210 CHAPTER XXVlll 

of oath has been prescribed a literal following of such form is not 

essential, it being sufficient if the oath administered conforlns in 

substance to the prescribed form. An oath includes an affirmation 

when the latter is authorized in lieu of an oath. 

It is no defense that the witness voluntarily appeared, or that he 

was incompetent as a witness or that his testimony was given in response to questions that he could have declined to answer, even if he 

was forced to answe+ over his claim of privilege. 

The false testimony must be with respect to a material matter, but 

that matter need not be the main issue in the case. Thus perjury may 

be committed by giving false testimony with respect to the credibility 

of a material witness, or in an affidavit in support of a request for a 

continuance, as well as by giving false testimony with respect to a 

fact from which a legitimate inference may be drawn as to the existence or nonexistence of a fact in issue. 

Proof.-(a) That, the accused took an oath or its equivalent in a 

certain judicial proceeding or course of justice, as alleged; (b) that 

the oath was administered to the accused in a matter in which an 

oath was required or authorized by law; (c) that the oath was administered by a person having authority to do so ; (d) that upon such 

oath the accused gave the testinzony alleged ; (e) that such testimony 

was material; and (f) the facts and circumstances showing that the 

accused did not believe such testimony to be true. 

If the accpsed is charged with having committed perjury before 

a court-martial, it must be shown .that the court-martial was dnly 

appointed and constituted. Ordinarily this may be shown by introducing in evidence pertinent parts of the record of trial of the case 

in which the perjury was allegedly committecl, or by the testimony 

of a person who was counsel, the law officer, or x nieinber of the court 

in that case to the effect that the court was so appointed and 

constituted. 

The falsity of the allegedly perjured statelllent cannot, ~vitho~~t 

corroboration by other testimony or by circumstailces tellcling to 

prove such falsity, be proved by the testimony of a single mitaess. 

However, docunlentary evidence directly disproving the truth of the 

statement charged to have been perjured need not be corroborated if 

the document is an official record shown to have been well knovn to ' 

the accused at the time he took the oath, or if it appears that the 

documentary evidence mas in existence before the statement was made 

and that such evidence sprang from the accused himself or mas in any 

manner recogilized by him as coiltailling the truth. In such a case, it 

may be inferrecl that the accused did not believe the allegedly perjured 

statement to be true. 
PUNlTlLE ARTICLES U211b 

211. ARTICLE 13Z--FRAUDS ,AGAINST THE GOVERNMENT 

a. MAKING A FALSE) yR FRAUDULENT CLAIM 

Discussion.-A claim is a demand for a transfer of ownership of 

money or property and does not include requisitions for the mere use 

of property. 

Making a claim is a distinct act from presenting it. A claim may 

be made in one place and presented in another. The article does not 

relate to claims against an officer of the United States in his private 

capacity, but to claims against the United States or any offlcer thereof 

as such. It is not necessary that the claim be allowed or paid or that 

it be made by the person to be benefited by the allowance or payment. 

The claim must be made with knowledge of its fictitious or dishonest 

character. This does not include claims, however groundless they 

may be, that are honestly believed by the maker to be valid, nor claims 

t,hat are merely made negligently or without ordinary prudence. 

However, if it appears that a false claim was made under circumstances which would cause the false character of the claim to be apparent to an ordinarily prudent man, it may be assumed that the claim was 

made with knowledge of its falsity. See also the discussion in 2116. 

As an example, a false claim is made when an officer having a claim 

respecting property lost in the military service knowingly includes 

articles that were not in fact lost and submits that claim to his commanding officer for the action of a board, but only so much of the claim 

as respects the articles not lost is false within the meaning of this 

article. 

Proof.-(a) That the accused made a certain claim against the 

United States, as alleged; (6) that the claim was false or fraudulent 

in the particulars specified; (c) that when the accused made the claim 

he knew that it was false or fraudulent in such particulars; and (d) 

the amount involved, as alleged. 

b. PRESENTING FOR APPROVAL OR PAYMENT A FALSE OR FRAUDULENT CLAIM 

Discussion.-See Discussion in 211a. 

False and fraudulent claims include not only those containing some 

material false stavtement, but also claims which the claimant knows to 

have been paicl or for some other reason knows he is not authorized to 

present or upon which he lrnoms he has no right to collect. 

The claim must be presented, directly or indirectly, to some person 

having authority to approve or pay it. A false claim may be tacitlg 

presented, as when a person who knows he is not entitled to certain pag 

accepts it nevertheless, without disclosing his disqualification, even 
ll211c CHAPTER XXVlll 

though he may not have made any verbal rel~resentation as to his entitlement to the pay. Instances of such an act are : An enlisted person 

approaching the pay table mhen his name ?s called and drawing pay 

for a period during which he was absent without leave, without disclosing the absence; and an officer cashing a pay check which includes an 

amount for a dependency allowance, knowing and not informing the 

proper authorities that there had been a change in his dependency 

status which resulted in his having no right to the allowance paid. 

When an officer knows that a certain duly assigned pay account 

of his is outstanding and that the assignee can collect on it if he 

chooses to do so, it is no defense to a charge against the officer of 

presenting for payment a second account covering the same period 

as the assigned account that the second account was presented relying 

on the assignee's statement that he would not present the first. But 

if the accused has good grounds to believe and actually cloes believe 

when he presents the second account that the assigned account had 

been canceled or surrendered by the assignee, his presentation of the 

second claim does not constitute this offense. A cancellation or surrender of the first account after the presentation of the second account is no defense to the charge. 

Other examples of this offense are presenting to a disbursing officer 

a false final statement, lrnaming it to be false, and presenting a voucher 

claiming rations or rental allowances for dependents known not to 

exist. 

Proof.-(a) That the accused presented for approval or payment 

to a certain person in the civil or military service of the United 

States having authority to approve or pay it a certain claim against 

the United States, as alleged; (b) that such claim was false or fraudulent in the particulars alleged ; (c) that when the accused presented 

the claim he knew it was false or fraudulent in such particulars; and 

(d) the amount involved, as alleged. 

c. MAKING OR USING A FALSE WRITING OR OTHER PAPER IN CONNECTION WITH CLAIMS 

Discussion.-See 211a and 6. The false or fraudulent statement 

must be material, that is, it must have a tendency to mislead governmental officials in their consideration or investigation of the 

claim. The offense of making a writing or other paper known to 

contain a false or fraudulent statement for the purpose of obtaining 

the approval, allowance, or payment of a claim is complete when the 

writing or paper is made for that purpose, whether or not any use 

of the paper has been attempted and whether or not the claim has 

been presented. 
I" PUNITIVE ARTICLES U 211f 

I Proof.-(a) That the accused made or used a certain writing or 

paper, as alleged; (b) that certain material statements in such 

writing or other paper were false or fraudulent, as alleged; (c) that 

the accused knew the statements were false or fraudulent; (d) facts 

and circumstances showing that the act of the accused was for the 

purpose of obtaining the approval, allowance, or payment of a certain claim or claims against the United States, as specified; and (e) 

the amount involved, as alleged. 

d. FALSE ,OATH IN CONNECTION WITH CLAIMS 

Discussion.-See 211a and 6. 

Proof.-(a) That the accused made an oath to a certain fact or to 

n certain writing or other paper, as alleged; (6) that the oath was 

false, as alleged; (6) that the accused knew it was false; and (d) 

facts and circumstances sllowing that the act was for the purpose of 

obtaining the approval, allomance, or payment of a certain claim or 

claims against the United States, as alleged. 

e. FORGERY OD' SIGNATURE IN CONNECTION WITH CLAIMS 

Discussion.-See 211a and 6. See also 202 (Forgery). Any 

fraudulent making of the signature of another, whether or not an 

attempt is made to imitate the handwriting, is forging or counterfeiting. 

Prod.-(a) That the accused forged or counterfeited the signature of a certain person on a certain writing or other paper as speciijed; or that he used the forged or counterfeited signature of a certain person, knowing such signature to be forged or counterfeited, as 

alleged; and (b) facts and circumstances showing that his act was 

for the purpose of obtaining the approval, allowance, or payment of 

n certain claim against the United States, as alleged. 

f. DELIVERING LESS THAN AMOUNT CALLED FOR BY RECEIPT 

Discussion.-With respect to this offense it is immaterial by what 

means, whether deceit, collusion, or otherwise, the accuged effected the 

transaction, or what his purpose was in so doing. 

The giving by a disbursing officer of the full amount called for by a . 

receipt but in excess of the amount properly due, then receiving back 

the excess over the amount due; and the insertion by a disbursing officer upon a receipt signed in blank of the amount properly due, after 

paying to the creditor a less amount, are examples of tJlis offense. 

Proof.-(a) That the accused had charge, possession, custody, or 

control of certain money or property of the United States furnished 

or intended for the armed forces thereof, as alleged; (6) that he obtained a receipt for a certain amount or quantity of that money or 
CHAPTER XXV111 

property, as alleged; (e) that for the receipt he knowingly delivered 

to a certain person having authority to receive it an amount or qnantity of the money or property less than the amount or quantity thereof 

specified in the receipt; and (d) the value of the undelivered money 

or property, as alleged. 

g. MAKING OR DELIVERING RECEIPT WITHOUT HAVING FULL 

ENOWLEDGE THAT IT IS TRUE 

Discussion.-When, for instance, an officer or other person subject 

to military law is authorized to make or deliver any paper certifying 

the receipt of any property of the Unitecl States furnished or intended for the armed forces thereof, and a receipt or other paper is presented to him for signature stating that a certain amount of supplies 

has been furnished by a certain contractor, it is his cluty before signing the paper to know that the full amount of supplies therein stated 

to have been furnished has in fact heen furnished, and that the statements contained in the paper are true. If, with intent to defraud the 

United States, he signs the paper without that knowleclge, he is guilty 

of a viqlation of this section of the article; and signing the paper 

without such knowledge is prima facie evidence of the intent to 

defraud. 

Proof.-(a) That the accused was authorized to make or deliver 

a certificate of the receipt from a certain person of certain property of 

the United States furnished or intended for the armed forces thereof, 

as alleged; (6) that he macle or delivered to that person a certificate 

of receipt, as allegecl; (c) that the certificate was made or delivered 

without the accused having full knowledge of the truth of a certain 

material statement or stateinents therein ; (d) facts and circnmstances 

showing that his act mas done with intent to defraud the United 

States; and (e) the amount involved, as alleged. 

212. ARTICLE 133-CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN 

~iscussion.:~he conduct contemplated may be that of an officer 

of either sex or of a cadet or midshipman. When applied to a female 

. o5cer the term "gentleman" is the equivalent of "gentlewoman." 

Conduct violative of this article is action or behavior in an official . 

capacity which, in dishonoring or disgracing the individual as an officer, seriously compromises his character as a gentleman, or action or 

behavior in an ~nofficial or private capacity which, in dishonoring 

or disgracing the individual personally, seriously compromises his 

standing as an officer. 

There are certain moral attributes common to the ideal officer and 

the perfect gentleman, a lack of which is indicated by acts of dishon- 
PUNITIVE ARTICLES 11 2130 

esty or unfair dealing, of indecency or indecorum, or of lawlessness, 

injustice, or cruelty. Not everyone is or can be expected to meet ideal 

moral standards, but there is a limit of tolerance below which the individual standards of an officer, cadet, or midshipman cannot fall 

without seriously compromising his standing as an officer, cadet, or 

~l?idsBipman or his character as a gentleman. This article contemplates conduct by an officer, cadet, or miclshipman which, taking all the 

circumstances into consideration, is thus conlpromising. 

This article includes acts made punishable by any other article, provided such acts amount to conduct unbecoining an officer and a gentlen~an; thus an officer who steals property violates both this and 

Article 121. 

Instances of violation of this article are : Knowingly making a false 

official statement; dishonorable failure to pay debts; opening and 

reading the letters of another without authority; using insulting or 

defamatory language to another officer in his presence or about him 

to other military persons; being grossly drunk and conspicuously 

disorderly in a public place; public association with notorious. prostitutes; committing or attempting to commit a crime involving moral 

turpitude; failing without a good cause to support his family. 

Proof.-(a) That the accused did or omitted to do the acts, as alleged ; and (6) the circumstances as specified. 

213. ARTICLE 134-GENERAL ARTICLE 

a. DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER 

AND DISCIPLINE IN THE ARMED FORCES 

Discussion.-The disorders and neglects punishable under Article 

134 include those acts or onlissions to the prejudice of good order and 

discipline not specifically mentioned in other articles. 

"To the prejudice of good order and discipline'' refers only to acts 

directly prejudicial to good-order and discipline and not to acts which 

are prejudicial only in a remote or indirect sense. An irregular or improper act on the part of a inenlber of the military service can scarcely 

be conceived which may not be regarded as in some indirect or remote 

sense prejudicing discipline, but the article cloes not contemplate such 

distant effects and is confined to cases in which the prejudice is reasonably direct and palpable. 

Instances of such disorders and neglects in the case of an officer are : 

Rendering himself unfit for duty by excessive use of intoxicants or 

drugs ; drunkenness ; and allowing a nlelnber of I~is command to go on 

duty knowing him to be drunk. 

Instances of such disorders and neglects in the case of enlisted persons are : Appearing in improper uniform ; wrongfully abusive use of 
fl213b CHAPTER XXVlll 

military vehicles; careless discharge of firearms; and impersonating 

an officer. 

A breach of a, custom of the service may result in a violation of this 

Article. In its legal sense the word 'ccustom" inlports something more 

than a method of procedure or a mode of conduct or behavior which is 

merely of frequent or nsual occurrence. Custom arises out of long 

established practices which by common consent have attained the force 

of law in the military or other community affected by them. There 

can be no such thng as a custom that is contrary to existing law or 

regulation. A custom which has not been adopted by existing statute 

or regulation ceases to exist when its observance has been long abandoned. Many cusitoms of the service are now set forth in regulations 

of the various armed forces. Violations of these customs should be 

charged under Article 92 as violations of the regulations in which 

they appear. 

It is a violation af this article wrongficliy to possess marihuana or 

a habit forming narcotic drug. Possession of rnarihuana or of a habit 

forming narcotic drug is presumed to be wrongful unless the contrary 

appears. A person's possession of a drug is innocent when the drug 

has been duly prescr-ibed for him by a physician and the prescription 

has not been obtained by fraud, or when his possession is the result of 

accident ox mistake, or when he possesses it in the performance of his 

duty. 

Proof.-(a) That the accused did or failed to do the acts, as a1- 

leged; and (6) the circnmstances as specified. 

b. CONDUCT OF A NATURE. TO BRING DISCREDIT UPON THE ARMED 

FORCES 

Discussion.-LLDiscredit" as here used means "to injure the reputation of." Examples of this conduct on the part of persons subject 

to military law may include acts in violation of local law of a nature 

to bring discredit npon the armed forces. So also any discreditable 

conduct not elsewhere made punishable by any specific article or by 

one of the other clauses of Article 134 is punishable under this 

clause. 

If an officer or enlisted person by his conduct in incurring private 

indebtedness, or by his attitude toward it or his creditor thereafter, 

reflects discredit npon the service to which he belongs, he may be 

brought to trial for his misconduct. He should not be brought to 

trial unless in the opinion of the military authorities the facts and 

lam are undisputed and there appears to be no legal or equitable 

counterclaim or set-off that may be urged by him. The military 

authorities will not attempt to discipline officers and enlisted persons 
PUNITIVE ARTICLES P 213c 

for failure to pay disputed private indebtedness or claims, that is, 

when there appears to be a genuine dispute as to the facts or the law. 

An officer may be tried for this offense under either Article 133 or 

Article 134, as the circumstances may warrant. 

Proof.-(a) That the accused did or failed to- do the acts, as 

alleged ; and (6) the circumstances as specified. 

c. CRIMES AND OFFENSES NOT CAPITAL 

Crimes and offenses not capital which are referred to and made 

by Article 134 inclnde those acts or omissions, not made 

pnishable by another article, which are denounced as crimes or 

~ffenses by enactments of Congress or under authority of Congress 

and made triable in the Federal civil courts. 

State and foreign laws are not included within the crimes and 

offenses not capital referred to in Article 134 and violations thereof 

may not be prosecuted as such except insofar as State law becomes 

Federal law of local application under Title 18 U. S. C. 5 13. On 

the other hand, an act which is a violation of a State law or a foreign 

law may constitute a disorder or neglect to the prejudice of good 

order and discipline or conduct of a nature to bring discredit upon 

the armed forces and so be punisl~able under the first or second clause 

of Article 134. 

For the purpose of court-martial jurisdictioil the Federal laws 

which may be applied under the clause, "crimes and offenses not 

capital," are divided into two groups: 

(1) Crimes and offenses of unZ'intited app2ication.-Certain 

crimes and offenses denounced by Title 18 U. S. C., such as counterfeiting (18 U. S. C. 471), various frauds against the Government 

not denounced by Article 132, and other offenses which are directly 

injurious to the Government and are made punishable wherever 

committed are made applicable under the third clause of Article 

134 to all persons subject to militaiy law regardless of where the 

wrongful act or omission occurred. 

(2) Crimes and offenses of Zocd appZication.-Crimes and offenses which are listed in Title 18 U. S. C. but mhicll are limited in 

their applicability to the special maritime and territorial jurisdiction of the United States as defined in Title 18 U. 5. C. 5 7, those 

applicable within the continental United States, and tl~ose included 

in the law of the District of Columbia, in the lams of the Territories 

or possessions of the United States, and in the laws applicable in 

reservations or places over which the United States has exclusive 

jurisdiction or concurrent jurisdiction with a State, which are not 

specifically included in some article, are made applicable under 
U 213d CHAPTER XXVIll 

Article 134 to all persons subject to military law who commit such 

crimes or offenses within the geographical boundaries of the areas 

in which they are applicable. For the lam of a reservation or place 

over which the United States has exclusive jurisdiction or concurrent jurisdiction with a State, see Title 18 U. S. C. § 13. For example, 

a person subject to military law cannot be prosecuted under the 

third clause of Article 134 for having committed a crime or offense, 

not capital, when the act occurred in occupied foreign territory, 

merely because that act would have been an offense against the lam 

of the District of Columbia if it had been committed there. Such 

an act might, however, regardless of where committed, in a proper 

case be prosecuted unde~ the first or second clause of Article 134 as 

a disorder or neglect to the prejudice of good order and discipline 

or as an offense of a nature to bring discredit upon the armed forces. 

d. VARIOUS !I?YpES OF OFFENSES UNDER ARTICLE 134 

(1) ASXAULTS INVOLPlA'G INTENT TO COJIMIT CaRTAIN OFFENSEB 

OF A CIVIL NATURB 

Discussion.-See 207 (Assault). The assaults here designated as 

being punishable under Article 134 are those perpetrated with intent 

to commit murder, voluntary manslaughter, rape, robbery, sodomy, 

arson, burglary, or housebreaking. An assault with intent to commit 

an offense is not necessarily the equivalent of an attempt to commit 

the intended offense, for an assault can be committed in furtherance 

of an intended act without thereby achieving that degree of proximity 

to consummation of the act which is essential to an attempt to commit 

that act (see 159, Attempts). 

Some of these assaults will be discussed below. 

(a) Assault wifh 'hnfent 50 murder.-This is an assault aggravated by the concurrence of an intent to murder, that is, an intent to 

commit an act which, should death ensue, wonld be murder. To constitute an assault wit11 intent to murder with a firearm, it is not aecessary that the weapon be discharged; and in no case is the actual 

infliction of injury necessary. Thus, if a man with intent to murder 

another deliberately assaults him by shooting at him, the fact that he 

misses does not alter the character of the offense. When the intent to 

murder exists, the fact that for some unknown reason the actual consummation of the murder by the means employed is impossible does 

not disprove guilt of an assault with intent to commit murder if the 

means are apparently adapted to the end in view. Thus, if a persorl 

intending to murder another loads his rifle wit11 what he believes to 

be a ball cartridge and ainls and discharges his rifle at the other, it is 

no defense that he, by accident, used a blank cartridge. 
PUNITIVE ARTICLES U 213d 

The intent to murder need not be directed against the person assaulted if the assault is committed with intent to murder some person. 

If the accused, intending to murder A, shoots at B, mistaking him for 

A, he is guilty of assaulting B with intent to murder him. Also, if a 

man fires into a group with intent to murder someone, he is guilty of 

an assault mith intent to murder each member of the group. 

(6) AssauZt with intent to commit woZuntary mansZaughter.- 

This is an assault committed with intent to do an act which, if death 

resulted therefrom, would be voluntary manslaughter. There can 

be no assault with intent to commit involuntary manslaughter, for 

involuntary manslaughter is not a crime capable of being intentionally 

committed. 

(c) Assault with intent to commit ?.ape.-This is an assault accompanied by an intent to have unlawful sexual intercourse with a 

woman by force and without her consent. The accused must have 

intended to overcome any resistance by force, actual or constructive, 

and to penetrate the woman's person. Any less intent will not suffice. 

Indecent advances and importunities, however earnest, not accompanied by such an intent, do not constitute this offense, nor do mere 

preparations to rape not amounting to an assault. Thus, if a man, 

intending to rape a. woman, conceals himself in her room to await a 

favorable opportunity to execute his design, but before the opportunity arises is discovered and flees, he is not guilty of an assault with 

intent to commit rape. 

No actual touching is necessary. If a man enters a woman's room 

and gets in the bled where she is for the purpose of raping her, he 

commits the offense under discussion although he does not touch the 

woman. 

Once an assault with intent to commit rape ismade, it is no defense 

that the man voluntarily desisted. 

Lesser offenses that may be included in a cha~ge of assault with 

intent to rape are indecent assault and assault. 

(d) AsaadC with. intent 50 rob.-This is an assault with the concurrent intent to &a1 property by taking it froin the person or in 

the presence of anolther, against his will, by means of force or violence 

or putting him in fear. The fact that the accused intended to take 

only money and that the person he intended to rob had none is not a 

defense. 

(e) Assaulg with intent to cornnzit sodomy .-The assault must 

be against a human being and must be mith the intent to comniit 

sodomy. Any less intent, or different intent, will not suffice. 

Proof.-(a) That the accnsed assaulted a certain person, as alleged; and (6) the facts and circumstances of the case showing the 
11 213d CHAPTER XXVIII. 

existence at the time of t.he assault of the intent of the accused to 

murder, or to commit voluntary manslaughter, rape, robbery, sodomy, 

arson, burglary, or housebreaking, as alleged. 

(2) INDECENT ASSAULT 

Discussion.-See 207 (Assault). An indecent assault is the taking 

by a man of indecent, lewd, or lascivious liberties with the person of 

R female, without her consent and against her will, with intent to 

gratify his lust or sexual desires. In a proper case indecent assault 

may be a lesser included offense of assault with intent to commit rape. 

Proof.-(a) That L11e accused assaulted s certain female by taking 

indecent, lewd, or lascivious liberties with her person; and (6) facts 

and circumstances showing that the acts were done with intent to 

gratify the lust or sexual desires of the accused. 

(2) INDECENT ACTS FITH A CHILD UiVDER THE AGE OF 16 YEAES 

Discussion.-This offense consists of taking any immoral, improper, 

or indecent liberties with, or the commission of any lewd or lascivious 

act upon or with the body of, any child of either sex under the age 

of 16 years with the intent of arousing, appealing to, or gratifying 

the lust or passions or sexual desires, either of the person committing 

the act, or of the child, or of both. Consent by a child to any such 

act or conduct is not a defense. 

Proof.-(a) That the accused took certain immoral, improper, or 

indecent liberties with a certain child, as alleged; or that he performed a certain lewd or lascivious act upon or with the body of a 

certain child, as alleged; {b) that the child was under the age of 16 

years, as alleged; and (c) facts and circumstances showing that the 

intent of the accused mas to arouse, appeal to, or gratify the lust 

or passions or sexual desires of the accused or the child or both, as 

alleged. 

(4) FALSE SWEARING 

Discussion.--False swearing is the making under lawful oath of 

any statement, oral or written, not believing the statement to be 

true. It may consist, for example, in giving false testimony in a judicial proceeding or course of justice on other than material matters 

or in making a false oath to an affidavit. It is not necessary that 

the proceeding in which the oath is taken should be a judicial proceeding or course of justice. The oath may be taken before any person 

authorized by law to administer oaths. See Article 136 and chapter 

XXII as to the authority of certain persons to administer oaths, and 

see 147a as to taking judicial notice of the signatures of persons 

authorized to administer oaths. An oath includes an affirmation when 

the latter is authorized in lieu of an oath. 
PUNITIVE ARTICLES ll213d 

Proof.-(a) That the accused took an oath or its equivalent in a 

proceeding or made an oath or its equivalent to an affidavit ; (6) that 

the oath was administered to the accused in a matter in which an 

oath was required or authorized by law; (c) that the oath was administered by a person having authority to do so; (d) that upon 

such oath the accused made or subscribed a certain statement, as 

alleged; and (e) facts and circumstances showing that the accused 

did not believe such statement to be true. 

The principles set forth in the last paragraph of the discussion of 

proof of perjury in 210 apply also to proof of false swearing. 

(5) DISLOYAL STATEMENTS UNDERMINING DIBOIPLINE AND 

LOYALTY 

Discussion.-Certain disloyal statements by military personnel 

]nay lack the necessary elements to constitute an offense under Title 

1s U. S. C. $5 2385, 238'7, and 2388, but nevertheless, under the circumstances, be punisl~able as conduct to the prejudice of good order 

.and discipline or conduct reflecting discredit upon the armed forces. 

Examples are public utterances designed to promote disloyalty or disaffection among troops, as praising the enemy, attacking the mar 

aims of the United States, or denouncing our form of government. 

Proof.-(a) That the accused made the disloyal statement, as alleged; and (6) facts and circumstances showing the design alleged. 

(6) XISPRIBION OE" A FELOKY 

Discussion.-A person who has knowledge of the actual commission of a felony by another and who conceals and does not as soon 

as possible make: h~omn the same to the civil or military authorities 

is guilty of inisprisioa of the felony. Any offense of a civil nature 

punishable under the authority of the code by death or by confinen~ent for a tern1 exceeding one year is a felony. A mere failure or 

refusal to disclose the felony without some positive act of concealment does not make one guilty of this offense. Making a false entry 

Jii an account book for the purpose of concealing a felonious theft 

committed by another, and intimidating a witness of a felony, are 

examples of a positive act of concealment. 

Proof.-(a) That the amused had knowledge of the actual cominission of a felony by another; and (b) that he concealed and did 

not as soon as possible make known the same to the civil or military 

authorities. 
BAEms CORPUS 

214. GENERAL.--a. Nature sf writ.-Habeas corpus is a ascretionary writ, extraordinary in nature, issued by a civil court upon 

proper cause shown to bquire into the legality of any restraint upon 

the liberty of a person. It is a smmnary remedy for ~mlawf ul restraint 

of liberty, and cannot be used to perform the functions of a writ of 

error or an appeal. Mere moral restraint (such as military arrest or 

parole, for example), as distinguished from confinement, is generzlly 

considered insufficient to warrant its issuance. A writ of habeas corpus (if issued by the' court, either immediately on the filing of the 

petition for the writ, which is rare, or pursuant to a hearing on an 

order to show cause why the writ should not issue) directs the custodian to produce before the issuing court on a certain date the body of 

the person restrained and to explaln the reason for the restraint. The 

burden is on the petitioner to show that he is illegally restrained. If 

it appears to the court on the face of the petition that the facts stated 

therein do not warrant the release of the petitioner from restraint, it 

will refuse to grant the writ without req~iirin~ the presence of the 

petitioner; or on motion of the respondelit in appropriate cases the 

court may dismiss the petition when filed, as, for example, when the 

petitioner has failed to exhaust his appellate remedies, when the 

petitioned court lacks jurisdiction of the parties or the subject matter, 

or when it appears that the sentencing court had jurisdiction of the 

parties and the offense charged and acted within its lawful porrer. 

After a hearing on a writ issued by the court (either immediately or 

pursuant to the hearing on the show cause order as stated above), it is 

either discharged or made permanent. If the court determines that 

it has jurisdiction to proceed and that the restraint is unlawful, the 

person is ordered released from such restraint. If the court determines either that it lacks jurisdiction to proceed or that the restraint 

is lawful the writ is discharged and the petition is dismissed. 

b. Exhaustion of remedies.-The appellate review of records of 

trial provided by part IX of the code, the proceedings, findings, and 

sentences of courts-martial as approved, reviewed, or affirmed as required by the code, and all dismissals and discharges carried into 

execution pursuant to sentences by courts-martial following approval, 

review, or affirmation as required by the code, are final and conclusive, 

and orders publishing the proceedings of courts-martial and all action 

taken pursuant to such proceedings are binding upon all departments, 
HABEAS CORPUS 11 215 

courts, agencies, and officers of the United States, subject only to action 

upon a petition for a new trial as provided in Article 73 and to action 

by the Secretary of a Department as provided in Article 74, and the 

authority of the President (Art. 76). 

Prior to the exhaustion of the remedies of appellate review and petition for new trial which are available to an accused person, as provided in Articles 67 and 73 and in section 12, act of 5 May 1950 (64 

Stat. 147; 50 U. S. C. 740), a resort to habeas corpus to test the legality 

of restraint imposed pursuant to a sentence of a court-martial is inappropriate and premature. 

Although the finality of court-martial proceedings and jud,gnents 

contemplated by Article 76 prevents a direct review by Federal courts 

of decisions of courts-martial on the merits, as by writ of error or 

appeal, Article 76 does not preclude an attack on the jurisdiction of a 

court-martial collaterally in habeas corpus. 

c. Scope of inquiry.-The scope of inquiry in a habeas corpus proceeding is limited to the question of whether the order, sentence (the 

term of con6nement imposed not yet having been served), or process 

under which the restraint is imposed was within the lawful power 

of the court or officer issuing it. With respect to the restraint imposed pursuant to a sentence of a court-martial the inquiry, however, 

may not properly be directed to the preliminary proceedings, such 

as the failure to follow the requirements of Article 32, nor may the 

inquiry extend to the sufficiency of the evidence to sustain the conviction or to the competence of the law officer or defense counsel. By 

habeas corpus the civil courts exercise no supervisory or correcting 

power over the proceedings of a court-martial. The correction of 

any errors it may have committed is for the military authorities and 

the Court of Military Appeals, which are alone authorized to review 

its decision. In a habeas corpus proceeding, the single inquiry, the 

test, is jurisdiction-whether the court-martial had jurisdiction of 

the person accused and the offense charged, and acted within its 

lawful powers in the sentence adjudged. See Hiate v. Brown, 339 

U. S. 103; Humphrey v. Xnzith, 336 U. S. 695; In re Yarnashita, 327 

U. S. 1 ; Ex parte Quirin, 317 U. S. 1 ; Collins v. ZcDonald, 258 U. S. 

416; Carter v. McCZaughrgr, 183 U. S. 365; Carter v. Ro6erts, 177 

U. S. 496; Swaim v. United States, 165 U. S. 553; In re Gridey, 

137 U. S. 147; Dynes v. Hoover, 61 U. S. (20 How) 65; McCeZZan v, 

Burnphrey, 181 F. 2d '757 (CA 3 1950). 

215. RETURN TO WRIT OR ORDER ISSUED BY A STATE 

COURT OR JUDGE.-A State caul-t or judge is without authority 

to issue a writ of habeas corpus if it appears that the person is confined under the authority, or claim and color of the authority, of the 

389 
U 216 CHAPTER XXlX 

United States, the principle being that no State can authorize one 

of its judges or courts to exercise judicial power by habeas corpus 

or any other process within the jurisdiction of another distinct and 

independent government. No 'State judge or comt, after being 

judicially informed that a petitioner is irm custody under the authority 

of the United States, has any right to interfere, or to require him 

to be brought before the State judge or court. If a person thus held 

be illegally imprisonecl, it is for the courts or judicial officers of the 

United States, and those courts or officers alone, to grant him release. 

A deserter apprehended by ally civil officer having authority to 

apprehend offenders under the laws of the United States or of any 

State, District, Territory, or possession of the United States, is in 

custody by authority of the United States (see Art. 8). 

If a State court or judge issues a writ, order, or other process to 

inquire into the legality of restraint imposed upon a person held by 

any of the armed forces, the officer to whom the process is directed 

will, in accordance with appropriate departmental regulations, report that fact by telegraph, telephone, or other expeditious means 

direct to the Judge Advocate General of tlie Department concernecl 

or to the General Counsel of the Treasury Department if the petitioner is a member of the Coast Guard and that armed force is not 

then operating as a part of the Navy; and by similar means mill report 

that,fact to the appropriate commander of the army area, naval 

district, air command, coast guard district, or other comparable command in which the person held by the military authorities is located. 

He mill also report the facts to the United States attorney for the 

district and request the latter to represent him. 

In the case of a person who has been apprehended under a warrant 

of attachment (115d (3), Warrant of attacl~ment), if not inconsistent 

with instructions received from the aathorities specified in the preceding subparagraph, the officer on whom the writ is served will not 

produce the body but will make return as indicated in 218 (Forms A 

and B). In other cases, sucll as in the case of a person subject to military law, the officer on whom the writ is served dl not produce the 

body but will make a return as indicated in 218 (Forms C and B) if 

such procedure is not inconsistent wit11 the instructiouls received from 

tho autllorities specified in the preceding subparagraph. 

216. WRIT OR ORDER ISSUED BY A FOREIGN COURT 

OR JUDGE.-A court or jndge of a foreign country has no authority to inquire into the legality of restraint upon any person held by 

United States military authority. Any process in the nature of a 

writ of habeas corpus issued by any foreign court, or judge to any officer acting in his official capacity as an officer of the United States mill 
HAEEAS CORPUS 1117 

not be obeyed, but its issuance will be reported to the commander of the 

United States armed force within whose command the person restrained is located, and to the Judge Advocate General of the appropriate Department. 

217. RETURN TO WRIT OR ORDER ISSUED BY A FEDERAL COURT OR JUDGE.-Subject to certain exceptions, United 

States courts and judges of such courts have the power to issue writs 

of habeas corpus to inquire into the legality of restraint upon liberty 

imposed by the authority or by the color of the authority of the United 

States (28 U. S. C. 2241). The single inquiry in military habeas 

corpus cases is juriscliction-whether the court-martial had jurisdiction of the pelason accused and the offense charged, and acted within its 

lawful powers in the sentence adjudged (214~). 

Upon the issuance of such a writ, order to show cause, or related 

process, the officer to whom it is directed mill, in accordance with approlwiate departmental regulations, report that fact by telegraph, telephone, or other expeditious means of communication, direct to the 

Judge Advocate General of the Department concerned, or to the General Counsel of the Treasury Department if the petitioner is a member of the Coast Guard and that armed force is not then operating as a 

part of the Navy; and he will report that fact to the appropriate commander of the army area, naval district, air command, coast guard 

district, or other comparable command, stating briefly the grounds on 

which the release of the person is sought. He will also report the 

facts to the United States attorney for the district and request the latter to represent him. 

If consistent with instructions received from the authorities specified in the preceding subparagraph, the officer on whom service has 

been made will obey the writ or order and make a return setting forth 

the reasons for the restraint. See 218 (Forms A and C). 

With reference to the papers to accompany the return in a case in 

which Form A applies, see 115d (3) (Warrant of attachment). In a 

case to which Form C applies, the copies of the charges and of the 

order under which the accused is held in arrest or confinement will be 

certified by the custodian of the originals and sworn to, before an 

officer authorized to administer oaths under Article 136, in the following form : 

I hereby certify that the foregoing is a full and true copy of the original 

charges preferred against -------------- -- ----, and of the original order for 

his arrest (confinement); that the same are in the usual form of military 

charges ; and that such charges and order conform to the rules regulating military procedure. 

.................................. 

(Show appropriate official designation) 
11 218 CHAPTER XXl:X 

Sworn to and subscribed before me this ---------- day of -------------- -----, 19 --. ---------------------------------- 

(Shorn appropriate official designation of 

officer administering oath) 

The copy of the order convening the court or publishing the sentence will be certified and verified in a similar manner. 

In the event the coul"crders the discharge of the person, hl~e 

officer making the return, through counsel or otherwise, will note an 

appeal pending instructions from the Department concerned; he will 

report expeditiously to-the Judge Advocate General (or comparable 

legal officer) of the appropriate Department the aetion taken by the 

court or judge, and forward a copy of the order and opinion of the 

court or judge as soon as it can be obtained. 

218. FORMS.-The following forms are set foa-ih as a guide in 

the appropriate suggested types of action invoked. The return in a 

particular case should, of course, vary from the form according to the 

facts. Normally, the preparation and filing of the return or other 

pleadings are accomplished by the United States attorney for the district, with such participation and assistance from the military authorities as he may desire (see 215 and 217). 

FORM A 

(Return to writ or order) 

(Name of appropriate Federal court) 

(Caption) 

Return. of Respondent to Writ of Habeas COI.~?L.S (01.der. fo Shozo Cause) 

To the Honorable .................... (court or judge) : 

Comes now the respondent in the above-captioned action, upon whom has 

been served a writ of habeas corpus (an order to show cause why a writ of 

habeas corpus should not issue) for the production of 

and (by his attorney) making return to the said writ (order) respectfully 

shows to the court (judge) that he holds the said .................... by authority of the United States pursuant to a warrant of attachment issued under 

Article 46, Uniform Code of Military Justice, by a trial counsel of a lawfully 

convened general (special) court-martial (by n suinmarg court-martial) and 

duly directed to him, the said respondent, for execution; that he is diligently 

and in good faith engaged in executing said warrant of attachment; and that 

he respectfully submits the same for the inspection of the court, together with 

the original subpoena and proof of service of the same, a copy of the order 

appointing the court-martial sworn to as such, before which the said ---------- ---------- has been subpoenaed to testify, a copy of the charges and specifications in the case, sworn to as such, in which the said .................... is a 

witness, a copy of the order referring the case to the court for trial, sworn to 

as such, and an affidavit of ------- ------ showing that said ---------- 

---------- is a material witness in the case, that he has been duly paid (tendered) the fees and mileage of a witness at the rates' allowed to witnesses 
HABEAS CORPUS (218 

attending the courts of the United States, and that he has failed to appear and 

has offered no valid excuse for such failure. 

(If writ has been issued add the fozlowhg final paragraph:) 

In obedience, however, to the said writ of habeas corpus the respondent herewith produces before the court the body of the said --------------,-----, and 

for the reasons hereinbefore set forth respectfully prays the cocrt to discharge 

the said writ. 

(If the fo~egoing refurn is made to an order to show cause, substitute the 

foZlowi?ag for the filtal paragraplt above:) 

WHEREFORE, for the reasons hereinbefore set forth the respondent respectfully prays the court to discharge the order to show cause, and dismiss the petition for the said writ of habeas corpus. 

United States Attorney Counsel for Respondent 

(or, if flled without representation of counsel) 

(Official designation) Respondent 

Dated --------------------, 19--. 

(Return to writ or order) 

(Name of appropriate State court) 

(Caption) , 

(Make return as in Form A or Form C, as appropriate (see %'IS), substitUting 

for the final paragraph the foZZowin.g:) 

Respondent herein further states that he has not produced the body of the 

said .................... because he holds him by authority of the United States 

as hereinbefore set forth, and that this court (your honor) is without jurisdiction to proceed in this action; and he respectfully prays this court (your honor) 

to discharge the said writ of habeas corpus (order to show cause, and dismiss 

the petition for the said writ df habeas corpus,) in accordance with the decisions of the Supreme Court of the United States in AbZeman v. Booth, 62 U. S. 

(21 How) 506, 523-524, and Tarble's Case, 80 U. S. (13 Wall) 397, 409 et seq. 

United States Attorney Counsel for Respondent 

(or, if filed without representation of counsel) 

.............................. 

(Official designation) Respondent Dated 19--. 

FORM C 

[Return to writ or order) 

(Name of appropriate Federal court) 

(Caption ) 

Retuf-TA of Respondent to Writ of Habeas Corpus (Order to Show Cause) 

To the Honorable .................... (court or judge) : 

Comes now the respondent in the above-captioned action, upon whom has 

been served a writ of habeas corpus (an order to show cause why a writ of 
1218 CHAPTER XXlX 

habeas corpus should not issue) for the production of --------------------, 

and (by his attorney) making return to the said writ (order) respectfully shows 

to the court (judge) that be holds the said .................... by authority 

of the United States. [as a member of the (here state the appropriate armed 

force)] [as a person subject to military jurisdiction under Article 3 of the 

Uniform Code of Military Justice] [as a prisoner in the custody of (an armed 

force) pursuant to the sentence of a general court-martial] under the following 

circumstances : 

That the said .................... was duly enlisted as a member of the 

----------------,--- (appropriate armed force) at --------------------, 

------------, on ,---------------, 19--, for a term of ---------- years. (If 

the offense is fraudulent enlistment, this recital should be omitted. This recital 

should also be omitted if the person is held as a person subject to military jurisdiction under Article 3 of the code, in which case a statement of the jurisdictional 

facts under that article should be inserted.) 

(Zlere state the oflense. If it is fraudlclent enlistment bu representing him 

self to be of the required age, it may be stated as follows :) 

Thatonthe---,------dayof----------------,19--,at--------------------, 

------------, the said --------------------, being then under 18 years of age, 

did fraudulently enlist in the military service of the United States for the term 

of ---------- years, by falsely representing himself to be over 18 years of age, to 

wit: ------------ years and ------------ months; and has, since the said 

enlistment, received pay and allowances (or either) thereunder. 

(If the offense is desertion., it may be stated substantially as fozlows:) 

That the said .................... deserted the said service at ---------- 

----------, ------------, on ------------------, IS--, and remained absent in 

desertion until he was apprehended on -------------------, 19--, by ---------- ---------- and was thereupon committed to the respondent as commanding 

officer of the post of ------------------. 

That the said ---------- -- --------- has been placed in confinement (arrest) 

and formal charges have been preferred against him for the said offense, and 

tun authenticated copy of the charges, and of the order under which the said 

.................... is held in confinement (arrest) are hereto appended; and 

that he will be brought to trial thereon as soon as practicable before a courtmartial [to be convened by .................... (appropriate convening aurhority)] [convened by Special Orders No. --------, Headquarters ---------- ------- &--, dated ----------------, 19--, an authenticated copy of which is 

hereto appended]. 

(If the person held is a prisoner under sentence of a court-martial, tAc following paragrapl~ sl~oz~ld besubstituted for the preceding paragraph:) 

That the said .................... was duly arraigned for the offense, before 

:I general court-martial, convened by Special Orders No. --------, Headquarters 

--------------------, dated 19--, was convicted'thereof by 

that court, and was sentenced to --------------------, which sentence was 

duly approved on ----------------, 19--, by the convening authority [(by the 

officer commanding for the time being) (by a successor in command to the 

convening authority) ( by --------------------, an officer exercising general 

court-martial jurisdiction)], as required by Part IX, Uniform Code of Military 

Justice; that upon appellate review the record of trial was held to be legally 

sufacient to support the findings of guilty and the sentence, and the sentence 

was approved and affirmed as required by Part IX, Uniform Code of Military 
HABEAS CORPUS 11 218 

Justice. An authenticated copy of the order promulgating the sentence as 

approved and armed is appended hereto. 

(If writ has been iasued add the following final paragraph:) 

In obedience, however, to the said writ of habeas corpus the respondent herewith produces before the court the body of the said --------------------, and 

for the reasons hereinbefore set forth respectfully prays the court to,discharge 

the said writ. 

(If the foregoiltg return is made to an order to ekow cause, substitute the 

following final paragraph for the paragraph above:) 

WHEREFORE, for the reasons hereinbefore set forth the respondent respectfully prays the court to discharge the order to show cause, and dismiss the 

petition for the said writ of habeas corpus. 

...................................... 

United States Attorney Counsel for Respondent 

(or, if filed without representation of counsel) 

(OfFlcinl designation] Respondent Dated --------------------, 19--. 
Appendix I 

CONSTITUTION 

OF THE UNITED STATES 

1787 

We the People of the United States, in Order to form a more perfect Union, 

establish Justice, insure domestic Tranquility, provide for the common defence, 

promote the general Welfare, and secure the Blessings of Liberty to ourselves 

and our Posterity, do ordain and establish this Constitution for the United 

States of America. 

ARTICLE I 

Section. 1. A11 legislative Powers Herein granted shall be vested in a Congress 

of the United States, which shall consist of a Senate and House of Representatives. 

Section. 2. The House of Representatives shall be composed of Members chosen 

every second Year by the People of the several States, and the Electors in each 

State shall have the Qualifications requisite for Electors of the most numerous 

Branch of the State Legislature. 

No Person shall be a Representative who shall not have attained to the Age\ 

of twenty five Years, and been seven Years a Citizen of the United States, and 

who shall not, when elected, be an Inhabitant of that State in which he shall be 

chosen. 

'Representatives and direct Taxes shall be apportioned among the several 

States which may be included within this Union, according to their respective 

Numbers, which sBal1 be determined by adding to the whole Number of free 

Persons, including those bound to Service for a Term of Years, and excluding 

Indians not taxed, three fifths of all other Persons. The actual Enumeration 

shall be made within three Years after the first Meeting of the Congress of the 

United States, and within every subsequent Term of ten Years, in such Manner 

as they shall by Lam direct. The Number of Representatives shall not exceed 

one for every thirty Thousand, but each State shall hare at Least one Representative; and until such enumeration shall be made, the State of New Hampshire 

shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence 

Plantations one, Connecticut five, New-Pork six, New Jersey four, Pennsylvania 

eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Caroline five, and Georgia three. 

When vacancies happen in the Representation from any State, the Executive 

Authority thereof shall issue Writs of Election to fill such Vacancies. 

The House of Representatives shall chuse their Speaker and other Officers; and 

shall have the sole Power of Impeachment. 

'Section. 3. The Senate of the United States shall be composed of two Senators 

from each State, chosen by the Legislature thereof, for six Years; and each 

Senator shall have one Vote. 

?This clause has been affected by the 14th and 16th nmendments, 

"his section has been affected by the 17th amendment. 
Art. 1, 5 5 APPENDIX 1 

Immediately after they shall be assembled in Consequence of the first Election, 

they shall be divided as equally as may be into three Classes. The Seats of 

the Senators of the first Class shall be vacated at the Expiration of the second 

Year, of the second Class at the Expiration of the fourth Year, and of the third 

Class at the Expiration of the sixth Year, so that one third may be chosen every 

second Year; and, if Vacancies happen by Resignation, or otherwise, during 

the Recess of the Legislature of any State, the Executive thereof may make 

temporary Appointments until the next Meeting of the Legislature, which shall 

then fill such Vacancies. 

No Person shall be a Senator who shall not have attained to the Age of Wthirty 

Years, and been nine Years a Citizen of the United States, and who shall not, 

when elected, be an Inhabitant of that State for which he shall be chosen. 

The Vice President of the United States shall be President of the Senate, but 

shall have no Vote, unless theg be equally divided. 

The Senate shall chuse their other Officers, and also a President pro ternpore, 

in the Absence of the Vice President? or when he shall exercise the Office of 

President of the United States. 

The Senate shall have the sole Power to try all Impeachments. When sitting 

for that Purpose, theg shall be on Oath or Affirmation. When the President of 

the United States is tried, the Chief Justice shall preside: And no Person shall 

be convicted without the Concurrence of two thirds of the Members present. 

Judgment in Cases of Impeachment shall not extend further than to removal 

from Office, and disqualification to hold and enjoy any Office of honor, Trust or 

Profit under the United States: but the Party convicted shall nevertheless be 

liable and subject to Indictment, Trial, Judgment 'and Punishment, according to 

Law. 

Section. 4. The Times, Places and Manner of holding Elections for Senators 

and Representatives, shall be prescribed in each State by the Legislature thereof; 

but the Congress may at any time by Law make or alter such Regulations, except 

as to the Places of chusing Senators. 

a The Congress shall assemble at least once in every Year, and such Meeting 

shall be on the first Monday in December, unless they shall by Law appoint a 

ditierent Day. 

Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum 

to do,Business; but a smaller Number may adjourn from day to day, and may 

be authorized to compel the Attendance of absent Members, in such Manner, and 

under such Penalties as each House may provide. 

Each House may determine the Rules of its Proceedings, punish its Members 

for disorderly Behaviour, and, with the Concurrence of two thirds, expel a 

hlember. 

Each House shall keep a Journal of its Proceedings, and from time to time 

publish the same, excepting such Parts as may in their Judgment require Secrecy ; 

and the Yeas and Nays of the Members of either House on any question shall, at 

the Desire of one fifth of those Present, be entered on the Journal. 

Neither House, f3uring the Session of Congress, shall, without the Consent 

of the other, adjourn for more than three days, nor to any other Place than that 

in which the two Houses shall be sitting. 

8 This clause has been affected by the 20th amendment. 

398 
CONSTITUTION Art. 1, 0 8 

Section. 6. The Senators and Representatives shall receive a Compensation for 

their Services, to be ascertained by Law, and paid out of the Treasury of the 

united States. They shall in all Cases, except Treason, Felony and Breach of 

the Peace, be privileged from Arrest during their Attendance at the Session of 

their respective Houses, and in going to and returning from the same; and for 

any Speech or Debate in either House, they shall not be questioned in any other 

I'lace. 

No Senator or Representative shall, during the Time for which he was elected, 

be appointed to any civil Office under the Authority of the United States, which 

sl~all have been created, or the Emoluments whereof shall have been encreased 

during such time ; and no Person holding any Ofice under the United States, shall 

be n Member of either House during his Continuance in Office. 

Section. 7. All Bills for raising Revenue shall originate in the House of Representatives: but the Senate may propose or concur with Amendments as on other 

Liills. 

Every Bill which shall have passed the House of Representatives and the 

Senate, shall, before it become a Law, be presented to the President of the United 

States; If he approve he shall sign it, but if not he shall return it, with his 

Objections to that House in which it shall have originated, who shall enter the 

Objections at large on their Journal, and proceed to reconsider it. If after 

such Reconsideration two thirds of that House shall agree to pass the Bill, it 

sliall be sent, together with the Objections, to the other House, by which it shall 

likewise be reconsidered, and if approved by two thirds of that House, it shall 

become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against 

the Bill sllall be entered on the Journal of each House respectively. If any Bill 

shall not be returned by the President witl~in ten Days (Sundays excepted) 

after it shall have been presented to him, the Same shall be a Law, in like Manner 

as if he had signed it, unless the Congress by their Adjournment prevent its 

Return, in which Case it shall not be a Law. 

Every Order, Resolution, or Vote to which the Concurrence of the Senate and 

House of Representatives may be necessary {except on a question of Adjournment) sllall be presented to the President of the United States; and before the 

Same shall take Effect, shall be approved by him, or being disapproved by him, 

shall be repassed by two thirds of the Senate and House of Representatives, 

according to the Eules and Limitations prescribed in the Case of a Bill. 

Section. 8. The Congress shall hare Power To lay and collect Taxes, Duties, 

Immsts and Excises, to pay the Debts and pro~ide for the common Defence and 

general Welfare of the United States ; but all Duties, Imposts and Excises shall 

be uniform throughout the United States ; 

To borrow Money on the credit of the United States ; 

To regulate Commerce with foreign Nations, and among the several States. 

alld with the Indian Tribes ; 

To establish an uniform Rule of Naturalization, and uniform Laws on the 

subject of Bankruptcies throughout the United States; 

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the 

Standard of Weights and Measures ; 

To provide for the Punishment of counterfeiting the Securities and current 

Coin of the United States ; 

Ta establish Post Offices and post Roads ; 
Art. I, 5 10 APPENDIX 1 

To promote the Progress of Science and useful Arts, bg securing for limited 

Times to Authors and Inventors the esclusire Xight to their respective Writings 

and Discoveries ; 

To constitute Tribunals inferior to the supreme court; 

To define and punish Piracies and Felonies committed on the high Seas, and 

Offences against the Law of Nations ; 

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water ; 

To raise and support Armies, but no Appropriation of WLoney to that Use shall 

be for a longer Term than two Years ; 

To provide and maintain a Kavy ; 

To make Rules for the Government and Regulation aof the land and naval 

Forces ; 

To provide for calling forth the Militia to execute the Laws of the Union, 

suppress Insurrections and repel Invasions ; 

To provide for organizing, arming, and disciplining, Me Jfilitia, and for governing such Part of them as may be employed in the Serrice of the United States, 

reserving to the States respectively, the Appointment of the Officers, and the 

Authority of training the mitia according to the discipline prescribed by 

Congress ; 

To exercise exclusive Legislation in all Cases whatsoever, over such District 

(not exceeding ten l'tliles sqnare) as may, by Cession of particular States, and 

the Acceptance of Congress, become the Seat of the Gorernment of the United 

States, and to exercise like Authority over all Places purchased by the Consent 

of the Legislature of the State in which the Same shall be, for the Erection of 

Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings ;--And 

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the 

Government of the United States, or in any Department or Oficer thereof. 

Section. 9. The Migration or Importation of SLIC~ Persons as any of the Statw 

now existing shall think proper to admit, shall not be prohibited by the Congress 

prior to the Year one thousand eight hundred and eight, but a Tau or duty may be 

imposed on such Importation, not exceeding ten dollars for each Person. 

The Privilege of the .Writ of Habeas Corpus shall not be suspended, unless when 

in Cases of Rebellion or Invasion the public Safety may require it. 

No Bill of Attainder or ex post facto Law shall be passed. 

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the 

Census or Enumeration herein before directed to be taken. 

No Tax or Duty shall be laid on Articles exported from any State. 

No Preference shall be given by any Regulation of Commerce or Revenue to 

the Ports of one State over those of another: nor shall Vessels bound to, or from, 

one State, be obliged to enter, clear, or pay Duties in another. 

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and 

Expenditures of all public Money shall be published from time to time. 

No Title of Nobility shall be granted by the United States: And no Person 

holding any Office of Profit or Trust under them, shall, without the Consent of 

the Congress, accept of any present, Elmolument, Office, or Title, of any kind 

whatever, from any Ring, Prince, or foreign State. 

Section. 10. No State shall enter into any Treaty, Alliance, or Confederation ; 

grant Letters of Marque and Reprisal ; coin Money ; emit Bills of Credit; make 
1 CONSTI'IUTION Art. 11, 8 1 

any Thing but gold and silver Coin a Tender in Payment of Debts ; pass any Bill 

of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, 

or grant any Title of Nobility. 

No State shall, without the Consent of the Congress, lay any Imposts or Duties 

on Imports or Exports, except what may be absolutely necessary for executing its 

inspection Laws : and the net Produce of all Duties and Imposts, laid by any State 

on Imports or Exports, shall be for the Use of the Treasury of the United States ; 

and all such Laws shall be subject to the Revision and Oontroul of the Congress. 

No State shall, without the Consent of Congress, lay ally Duty of Tonnage, keep / !Troops, or Ships of War in time of Peace, enter into any Agreement or Compact 

with another State, or with a foreign Power, or engage in War, unless actually 

( invaded, or in such imminent Danger as will not admit of delay. 

I ARTICLE I1 

Section. 1. The executive Power shall be vested in a President of the United 

States of America. He shall hold his Office during the Term of four Years, and, 

together with the Vice President, chosen for the same Term, be elected, as follows 

Each State shall appoint, in such Manner as the Legislature thereof may direct, 

a Number of Electors, equal to the whole Number of Senators and Representatives 

to which the State may be entitled in the Gongress : but no Senator or Representative, or Person holding an Office of Trust or Profit under, the United States, shall 

be appointed an Elector. 

'The Electors shall meet in their respective States, and vote by Ballot for two 

Persons, of whom one at least shall not be an Inhabitant of the same State with 

themselves. And they shall make a List of all the Persons voted for, and of the 

Number of Votes for each; which List they shall sign and certify, and transmit 

sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the 

Senate and House of Representatives, open all the Certificates, and the Votes 

shall then be counted. The Person having the greatest Number of Votes shall 

be the President, if such Number be a Majority of the whole Number of Electors 

appointed ; and if there be more than one who have such Majority, and have an 

equal Number of Votes, then the House of Representatives shall immediately 

chuse by Ballot one of them for President; and if no Person have a Msjority, 

then from the five highes.t on the List the said House shall in like Manner chuse 

the President. But in chusing the President, the Votes shall be taken by States, 

the Representation from each State having one Vote; A quorum for this Purpose 

shall consist of a Member or Members from two thirds of the States, and a 

Majority of all the States shall be necessary to a Choice. In every Case, after the 

Choice of the President, the Person having the greatest Number of Votes of the 

Electors shall be the Vice President. But if there should remain two or more 

who have equal Votes, the Senate shall chuse from them by Ballot the Wce 

President. 

The Congress may determine the Time of chusing the Electors, and the Day on 

which they shall give their Votes ; which Day shall be the same throughout the 

United States. 

No Person except a natural born Citizen, or a Citizen of the United States, 

at the time of the Adoption of this Constitution, shall be eligible to the Office 

of President; neither shall any Person be eligible to that Office who shall not 

'This clause has been affected by the 12th amendment. 

I:. 
Art. Ill, 5 1 APPENDIX 1 

have attained to the Age of thirty five Years, and been fourteen Years a Resident 

within the United States. 

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the 

Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the 

President and Vice President ; declaring what Officer shall then act as President, 

and such Officer shall act accordingly, until the Disability be removed, or a 

President shall be elected. 

- The President shall, at stated Times, receive for his Services, a Compensation, 

which shall neither be encreased nor diminished during the Period for which 

he shall have been elected, and he shall not receive within that Period any other 

Emolument from the United States, or any of them. 

Before he enter on the Execution of his Office, he shall take the following 

Oath or AfXrmati~n:-~~I do solemnly swear (or affirm) that I will faithfully 

execute the Office of President of the United States, and will to the best of my 

Ability, preserve, protect and defend the Constitution of the United States." 

Section. 2. The President shall be Commander in Chief of the Army and Navy 

of the United States, and of the Militia of the several States, when called into 

the actual Service of thme United States ; he may require the Opinion, in writing, 

of the principal Officer in each of the executive Departments, upon any Subject 

relating to the Duties of their respective Offices, and he shall have Power to grant 

Reprieves and Pardons for Offences against the United States, except in Cases 

of Impeachment. 

He shall have Power, by and with the Advice and Consent of the Senate, to 

make Treaties, provided two thirds of the Senators present concur ; and he shall 

nominate, and by and with the Advice and Consent of the Senate, shall appoint 

Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, 

and all other Officers of the United States, whose Appointments are not herein 

otherwise provided for, and which shall be established by Law ; but the Congress 

may by Law vest the Appointment of such inferior Officers, as they think proper, 

in the President alone, in the Courts of Law, or in the Heads of Departments. 

The President shall have Power to fill up all Vacancies that may happen 

during the Recess of the Senate, by granting Commissions which shall expire 

at the End of their next Session. 

Section. 3. He shall from time to time give to the Congress Information of the 

State of the Union, and recommend to their Consideration such Measures as 

he shall judge necessary and expedient; he may, on extraordinary Occasions, 

convene both Houses, or either of them, and in Case of Disagreement between 

them, wit11 Respect to the Time of Adjournment, he may adjourn them to such 

Time as he shall think proper; he shall receive Ambassadors and other gublic 

Ministers; he sl~all take Care that the Laws be faithfully executed, and shall 

Colnmission all the Officers of the United States. 

Section. 4. The President, Vice President and all civil Officers of the United 

States, shall be remooed from Office on Impeachment for, and Conviction of, 

Treason, Bribery, or other high Crimes and Misdemeanors. 

ARTICLE I11 

Section. 1. The judicial Power of the United States, shall be vested in .one 

supreme Court, and in such inferior Col~rts as the Congress may from time to 

time ordain and establish. The Judges, both of the supreme and inferior Courts, 
CONSTITUTION Art. IV, 8 3 

shall hold their Offices during good Behaviour, ancl shall, at stated Times, receive 

for their Services, a Compensation, which shall not be diminished during their 

Continuance in Office. 

Section. 2. The jadieial Power shall extend to all Cases, in Lam and Equity, 

arising under this Constitution, the Laws of the United States, and Treaties 

made, or which shall be made, under their Authority ;-to all Cases affecting 

9mbassadors, other public Ninisters and Consuls;-to all Cases of admiralty 

and maritime Jurisdiction ;-to Controversies to which the United States shall 

be a Party ;-to Controversies between two or more States;-between a State 

and Citizens of another State ;-between Citizens of different States,-between 

Citizens of the same State claiming Lands under Grants of different States, and 

between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers and Consuls, and 

those in which a State shall be Party, the supreme Court shall have original 

Jurisdiction. In all the other Cases before mentioned, the supreme Court shall 

have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, 

and uncler such Regulafions as the Congress shall make. 

The Trial of all Cri~nes, except in Cases of Impeachment, shall be by Jury; 

and such Trial shall be held in the State where the said Crimes shall have been 

committed; but when not committed within any State, the Trial shall be at such 

Place or Places as the Congress may by Law have directed. 

Section. 3. Treason against the United States, shall consist only in levying 

War against them, or in adhering to their Enemies, giving them Aid and Comfort. 

No Person shall be conrlcted of Treason unless on the Testimony of two Witnesses 

to the same overt Act, or on Confession in open Court. 

The Congress shall have Power to declare the Punishment of Treason, but no 

Attainder of Treason shall work Corruption of Blood, or Forfeiture except during 

the Life of the Person attainted. 

ARTICLE IV 

Section. 1. Full Faith and Credit shall be given in each State to the public 

Acts, Records, and judicial Proceedings of every other State. And the Congress 

may by general Lams prescribe the Manner in which such Acts, Records and 

Proceedings shall be proved, and the Effect thereof. 

Section. 2. The Citizens of each State shall be entitled to all Privileges and 

Immunities of Citizens in the several States. 

A Person charged in any State with Treason, Felony, or other Crime, who 

shall flee from Justme, and be found in another State, shall on Demand of the 

executive Authority of the State from which he fled, be delivered up, to be 

removed to the State having Jurisdiction of the Crime. 

No Person held to Service or Labour in one State, under the Laws thereof, 

escaping into another, shall, in Consequence oQ any Law or Regulation therein, 

be discharged from such Service or Labour, but shall be delivered up on Claim 

of the Party to whom such Ser~ice or Labour may be due. 

Section. 3. New States may be admitted by the Congress into this Union; but 

no new State shall be formed or erected within the Jurisdiction of any other 

State; nor any State he formed by the Junction of two or more States, or Parts 

of States, without the Consent of the Legislatures of the States concerned as 

well as of the Congress. 

The Congress shall have Power to dispose of and make all needful Rules and 

Regulations respectiqg the Territory or other Property belonging to the United 
Amend. I APPENDIX 1 

States; and nothing In this Constitution shaU be so construed as to Prejudice 

any Claims of the United States, or of any particular State. 

Section. 4. The United States shall guarantee to every State in this Union a 

Republican Form of Government, and shall protect each of them against Invasion ; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. 

ARTICLE Y 

The Congress, whenever two thirds of both Houses shall deem it necessary, 

shall propose Amendments to this Constitution, or, on the Application of the 

Legislatures of two thirds of the several States, shall call a Oonvention for 

proposing Amendments, which, in either Case, shall be valid to all Intents and 

Purposes, as Part of this Constitution, when ratified by the Legislatures of three 

fourths of the several States, or by Conventions in three fourths thereof, as the 

one or the other Mode of Ratification may be proposed by the Congress; Provided 

that no Amendment which may be made prior to the Year One thousand eight 

hundred and eight shall in any &lamer affect the first and fourth Clauses in the 

Ninth Section of the first Article; and that no State, without its Consent, shall 

be deprived of its equal BufPrage in the Senate. 

ARTICLE VI 

All Debts contracted and Engagements entered into, before the Adoption of 

this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. 

This Constitution, and the Laws of the United States which shall be made 

in Pursuance thereof; and all Treaties made, or which shall be made, under the 

Authority of the United States, shall be the supreme Law of the Land; and the 

Judges in every State shall be bound thereby, any Thing in the Constitution or 

Laws of any State to the Contrary notwithstanding. 

The Senators and Representatives before mentioned, and the Members of the 

several State Legislatures, and all executive and judicial Officers, both of the 

United States and of the several States, shall be bound by Oath or Affirmation, 

to support this Constitution; but no religious Test shall ever be required as a 

Qualification to any Office or public Trust under the United States. 

ARTICLE VII 

The Ratification of the Conventions of nine States, shall be sufficient for the 

Establishment of this Constitution between the States so ratifying the Same. 

Articles in Addition lo, and Amendment of, the Constitution of the United States 

of America, Proposed b?,i Congress, and Ratifled h?,i the Legislatures of the 

Several States Pf~rsuant to the Fifth Article of the OriginaZ Constitution 

AMENDMENT I 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the 

press ; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 
CONSTITUTION Amend. IX 

AMENDMENT I1 

A well regulated Militia, being necessary to the security of a free State, the 

right of the people to keep and bear Arms, shall not be infringed. 

AMENDMENT 111 

No Soldier shall, in time of peace be quartered in any house, without the comsent of the Owner, nor in time of war, but in a manner to be prescribed by law. 

AMENDMENT IV 

The right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, 

and particularly describing the place to be searched, and the persons or things 

to be seized. 

AMENDMENT Y 

No person shall be held to answer for a capital, or otherwise infamous crime, 

unless on a presentment or indictment of a Grand Jury, except in cases arising 

in the land or naval forces, or in the Militia, when in actual servi~e in time 

of War or public danger; nor shall any person be subject for the same offence 

to be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal 

case to be a witness against himself, nor be deprived of life, liberty, or property, 

without due process of law; nor shall private property be taken for public use, 

without just compensation. 

AMENDMENT VI 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and 

public trial, by an impartial jury of the State and district wherein the crime shall 

have been committed, which district shall have been previously ascertained by 

law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 

AMENDMENT VII 

In Suits at common law, where the value in controversy shall exceed twenty 

dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, 

shall be otherwise reexamined in any Court of the United States, than according 

to the rules of the common law. 

AMENDMENT VIII 

Excessive bail shall not be required, nor excessire fines imposed, nor cruel 

and unusual punishments inflicted. 

AMENDMENT IX 

Theenumeration in the Constitution, of certain: rights, shall not be construed 

to deny or disparage others retained by the people. 
Amend. Xlll APPENDIX 1 , 

AMENDMENT X 

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the 

people. 

MrIENDMEhT XI 

The Judicial power of the United States shall not be construed to extend to any 

suit in law or equity, commence,d or prosecuted against one of the United States 

by Citizens of another State, or by Citizens or Subjects of any Foreign State. 

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the 

same state with themselves ; they shall name in their baLlots the person voted for 

as President, and in distinct ballots the person voted for as Vice-President, and 

they shall make distinct lists of all persons voted for as President, and of all 

persons voted for as Vice-president, and of the number of votes for each, which 

lists they shall sign and certify, and transmit sealed to the seat of the government 

of the United States, directed to the President of the Senate ;--The President of 

the Senate shall, in the presence of the Senate and House of Representatives, open 

all the certificates and the ~otes shall then be counted ;-The person having 

the greatest number of rotes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person 

have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing 

the President, the votes shalL be taken by states, the representation from each 

state having one vote; a quorum for this purpose shall consist of a member or 

members from two-thirds of the states, and a majority of all the states shall be 

necessary to a choice. And if the House of Representatives shall not choose a 

President whenever the right of choice shall devolve upon them, before the fourth 

day of March next following, then the Vice-President shall act as President, as 

in the case of the death or other constitutional disability of the President.- 

'I'l~e person having the greatest number of votes as Vice-President, shall be the 

Vice-President, if such number be a majority of the whole number of Electors 

appointed, and if no person have a majority, then from the two highest numbers 

on the list, the Senate shall clloose the Vice-President; a quorum for the 

purpose shall consist of two-t1ii1.d~ of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of VicePresident of the United States. 

AMENDMENT XI11 

Section 1. Neither slavery nor involuntary servitude, except as a punishment 

for crime whereof the party shall have been duly convicted, shall exist within 

the United States, or any place subject to their jurisdiction. 

Section 2. Congress shall hase power to enforce this article by appropriate 

legislation. 
CONSTITUTION Amend. XW 

AMENDMENT XIV 

Section 1. All persons born or naturalized in the United States, and subject 

to the jurisdiction thereof, are citizens of the United States and of the State 

wherein they reside. No State shall make or enforce any law which shall 

abridge the privileges or immunities of citizens of the United States; nor shall 

any State deprive any person of life, liberty, or property, without due process 

of law; nor deny to any person within its jurisdiction the equal protection of 

the laws. 

Section 2. Representatives shall be apportioned among the several States 

according to their respective numbers, counting the whole number of persons 

in each State, excluding Indians not taxed. But when the right to vote at any 

election for the choice of electors for President and Vice President of the United 

States, Representatives in Congress, the Executive and Judicial officers of a 

State, or the members of the Legislature thereof, is denied to any of the male 

inhabitants of such State, being twenty-one years of age, and citizens of the 

United States, or in any way abridged, except for participation in rebellion, or 

other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number 

of male citizens twenty-one years of age in such State. 

Section 3. No person shall be a Senator or Representative in Congress, or 

elector of President and Vice President, or hold any office, civil or military, under 

the United States, or under any State, who, having previously taken an oath, 

as a Member of Congress, or a s a n officer of the United States, or as a member 

of any State legislature, or as an executive or jnclicial officer of any State, to 

support the Constitution of the United States, shall hare engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. 

But Congress may by a vote of two-thirds of each House, remove such disability. 

Section 4. The ralidity of the public debt of the United States, authorized by 

law, inchding debts incurred for payment of pensions and bounties for services 

in suppressing insurrection or rebellion, shall not be questioned. But neither 

the United States nor any State shalL assume or pay any debt or obligation 

incurred in aid of insurrection or rebellion against the United States, or any 

claim for the loss or emancipation of any slave; but all such debts, obligations 

and claims shall be held illegal and void. 

Section 5. The Congress. shall have power to enforce, by appropriate legislation, the provisions of this article. 

AMENDMENTXV 

Section 1. The light of citizens of the United States to rote shall not be denied 

or abridged by the United States or by any State on account of race, color, or 

previous condition of servitude. 

Section 2. The Congress shall have power to enforce this article by appropriate 

legislation. 

AMENDMENT XVI 

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. 
Amend. -XX APPENDIX 1 

AMENDMENT XVIl 

The Senate of the United States shall be composed of two Senators from each 

State, elected by the people thereof, for six years; and each Senator shall have 

one vote. The electors in each State ahall have the qualifications requisite for 

electors of the most numerous branch of the State legislature. 

When vacancies happen in the representation of any State in the Senate, the 

executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empaver the executive 

thereof to make temporary appointments until the people fill the vacancies by 

election as the legislature may direct. 

This amendment shall not be so construed as to affect the election or term of 

any Senator chosen before It becomes valid as part of the Constitution. 

' AMENBMENT XVIIl 

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof 

into, or the exportation thereof from the United States and all territory subject 

to the jurisdiction thereof for beverage purposes is hereby prohibited. 

Section 2. The Congress and the several States shall have concurrent power 

to enforce this article by appropriate legislation. 

Section 3. This article shall be inoperative unless it shall have been ratified 

as an amendment to the Constitution by the legislatures of the several States, 

as provided in the Constitution, within seven gears from the date of the submission hereof to the States by the Congress. 

AMENDMENT XIX 

The right of citizens of the United States to vote shalnot be denied or abridged 

by the United States or by any State on account of sex. 

Congress shall have power to enforce this article by appropriate legislation. 

AiiENDMENT XX 

Section 1. The terms of the President and Vice President shall end at noon 

on the 20th day of January, and the terms of Senators and Representatives at 

noon on the 3d day of January, of the years in which such terms would have 

ended if this article had not been ratified; and the terms of their successors shall 

then begin. 

Section 2. The Congress shall assemble at least once in every year, and such 

meeting shall begin at noon on the 3d day of January, unless they shall by law 

appoint a different day. 

Section 3. If, at the time fixed for the beginning of the term of the President, 

the President elect shall have died, the Vice President elect shall become President. 

If a President shall not have been chosen before the time fired for the beginning 

of his term, or if the President elect shall have failed to qualify, then the Vice 

President elect shall act as President until a President sliall have qualified; and 

the Congress may by law provide for the case wherein neither a President elect nor 

a Vice President elect shall have qualified, declaring who shall then act as 

President, or the manner in which one who is to act shall be selected, and such 

This nrticle was repealed by the 21st amendment. 
CONSTITUTION Amend. XXI 

person shall act accordingly until a President or Vice President shall have 

qualifled. 

Section 4. The Congress may by law provide for the case of the death of any 

of the persons from whom the House of Representatives may choose a President 

whenever the right of choice shall have devolved upon them, and for the case of 

the death of any of the persons from whom the Senate may choose a Vice President 

whenever the right of choice shall have devolved upon them. 

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. 

Section 6. This article shall be inoperative unless it shall have been ratifled 

a s a n amendment to the Constitution by the legislatures of three-fourths of the 

several States within seven years from the date of its submission. 

AMENDMENT XXI 

Section 1. The eighteenth article of amendment to the Constitution of the 

United States is hereby repealed. 

Section 2. The transportation or importation into any StaDe, Territory, or 

possession of the United States for delivery or use therein of intoxicating liquors, 

in violation of the laws thereof, is hereby prohibited. 

Section 3. This article shall be inoperative unless it shall have been ratifled 

as an amendment to the Constitution by conventions in the several States, as 

provided in the Constitution, within seven years from the date of the submission 

hereof to the States by the Congress. 
Appendix 2 

THE ACT OF 5 MAY 1950 

The act of 5 May 1950* contains the Uniform Code of Military Justice (section 1) and 16 other sections. Part a of this appendix sets forth the Uniform 

Code of Military Justice. Part b sets forth the other sections of the act to which 

military personnel should have ready access. 

UNIFORM CODE OF MILITARY JUSTICE 

Be it enacted by She Senate and House of Repreae~~tatives of the United States 

of America in Congress asserr~bled, That a Uniform Code of Military Justice for 

the government of the armed forces of the United States, unifying, consolidating, 

revising. and codifying the Articles of War, the Articles for the Government of 

the Navy, and the disciplinary laws of the Coast Guard, is hereby enacted as 

follows, and thearticles in this section may be cited as "Uniform Code of Military 

Justice, Article ". 

UNIFORM CODE OF MILITARY JUSTICE 

I'n r t Article 

I. General Provisions ................................ 1 

11. Apprehension and Restraint ----------------: ------------ 7 

111. Non-Judicial Punishment .............................. 15 

IV. Courts-Martial Jurisdiction ............................ . 16 

V. Appointment and Composition of Courts-Mar tial----------------- 22 

YZ. Pre-TriaI Procedure--------------------------------- 30 

VII. Trial Procedure------------------------------- 36 

VIII. Sentences---------------------------------------- 55 

IX. Review of Courts-Martial------------- 1 ......................... 59 

X. Punitive Articles ------------------------------ 77 

XI. Miscellaneous Provisions ---------------------------- 135 

PART I-GENERAL PROYISIONS 

Article 

1. Definitions. 

2. Persons subject to the code. 

3. Jurisdiction to try certain personnel. 

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

5. Territorial applicability of the code. 

6. Judge advocates and legal officers. 

ART. 1. Definitions. 

The following terms when used in this code shall be construed in the sense 

indicated in this article, unless the context shows that a different sense is intended, 

namely : 

(I) "Department" shall be construed to refer, severally, to the Department of 

the Amy, the Department of the Navy, the Department of the Air Force, and, 

'Public Law 506, 81st Congress, c. 169, 1 1, 64 Stat. PO8 ; Tltle 50 U. S. C. (Chap. 22) 

bB 561-736. 
Art. 2 APPENDIX 2 

except when the Coast Guard is operating as a part of the Navy, the Treasury 

Department ; 

(2) "Armed force" shall be construed to refer, severally, to the Army, the Navy, 

the Air Force, and, except when operating as a part of the Navy, the Coast Guard; 

(3) "Navy" shall be construed to include the Marine Corps and, when operating 

as a part of the Navy, the Coast Guard ; 

(4) "The Judge Advocate General" shall be construed to refer, severally, to 

The Judge Advocates General of the Army, Navy, and Air Force, and, except 

when the Coast Guard is operating as a part of the Navy, the General Counsel of 

the Treasury Department ; 

(5) "Officer" shall be construed to refer to a commissioned officer including a 

commissioned warrant officer ; 

(6) "Superior officer" shall be construed to refer to an officer superior in rank 

or command ; 

(7) "Cadet" shall be construed to refer to a cadet of the United States Military 

Academy or of the United States Coast Guard Academy; 

(8) "Midshipman" shall be construed to refer to a midshipman at the United 

States Naval Academy and any otber midshipman on active duty in the naval 

service ; 

(9) "Enlisted person" shall be construed to refer to any person who is serving 

in an enlisted grade in any armed force ; 

(10) "Military" shall be construed to refer to any or all of the armed forces ; 

(11) "Accuser" shall Be construed to refer to a person who signs and swears 

to charges, to any person who directs that charges nominally be signed and 

sworn by another, and to any other person who has an interest other than an 

official interest in the prosecution of the accused ; 

(12) "Law officer" shall be construed to refer to an official of a general courtmartial detailed in accordance with artlcle 26; 

(13) "Law specialist" shall be construed to refer to an officer of the Navy 

or Coast Guard designated for special duty (law) ; 

(14) "Legal officer" shall be construed to refer to any officer in the Navy or 

Coast Guard designated to perform legal duties for a command. 

ART. 2. Persons subject to the code. 

The following persons are subject to this code : 

(1) All persons belonging to a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment ; all 

volunteers from the time of their muster or acceptance into the armed forces 

of the United States; all inductees from the time of their actual induction into 

the armed forces of the United States, and all other persons lawfully called or 

ordered into, or to duty in or for training in, the armed forces, from the dates 

they are required by the terms of the call or order ,to obey the same ; . . 

NOTE.-National Guard personnel attending service schools under Section 99, National 

Defense Act, are not in the armed forces of the United States and hence are not subject 

under the provisions of Artlcle 2(1) to trial by courts-martial convened by the commanding o5cer of the service school (Dig. Op. JAG 1912-40, sec. 359(6)). See also Joh?MOn 

v. Bayre, 168 U. S. 109. 

(2) Cadets, aviation cadets, and midshipmen; 

NOT&-See Articles l(7) and (8). 
ACT OF 5 MAY 1950 Art. 2 

(3) Reserve personnel while they are on inactive duty training authorized 

by written orders which are voluntarily accepted by them, which orders specify 

that they are subject to this code; 

(4) Retired personnel of a regular component of the armed forces who are 

entitled to receive pay ; 

(5) Retired personnel of a reserve component who are receiving hospitalization from an armed force ; 

(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve; 

(7) All persons in custody of the armed forces serving a sentence imposed by 

a court-martial ; 

(8) Personnel of the Coast and Geodetlc Survey, Public Health Service, and 

other organizations, when assignedJto and serving with the armed forces of the 

United States ; 

(9) Prisoners of war in custody of the armed forces;, 

NOT&-See Articles 45 to 67, inclusive, Geneva Conventlon of 27 Jnly 1929 (Prisoners 

of War). 

(10) In time of war, all persons serving with or accompanying an armed force 

in the field ; 

-NoTe.-The words "in the field" impIy military operations with a view to an enemy 

(14 Ops. of Atty. Gen'l. p. 22 (1872)), and it has been said that in view of the technical 

and common acceptation of the term, the question of whether an armed force is "in the 

fleld" is not to be determined by the locality in which it may be found, but rather by the 

activity in which it may be engaged at any particular time (Hines v. Mikell, 259 B'. 28, 

at 34). Thus forces assembIed in temporary cantonments in the United States for the 

purpose of training preparatory for service in the actual theater of war were held to he 

"in the fleld" (Hines v. Mikeil, supra) and a merchant ship and crew engaged in transporting troops and supplies to a battle zone mere held to constitute a military expedition 

"in the field" (McCune v. Kilpatrick, 53 F. Supp. 80 ; In re Berue, 54 F. Supp. 252). See 

also Es parte Gerlach, 247 F. 616; Hearlngs before a Subcommittee of the Committee on 

Armed Services, House of Representatives, Eighty-first Congress, First Session, H. R. 

2498, 7-31 March, 1, 2, and 4 April 1949, pp. 872, 873. 

One may be considered to be "accompanying" an armed force although he is not directly 

employed by such force or by the Government but works for a contractor engaged on a military project or serves on a merchant ship carrying war supplies or troops (Perlstein 

v. U. S., 151 I?. 2d 167, Ce~t. Dism., 328 U. S. 822; In re DlBartolo, 50 F. Supp. 929; In re 

Berue, supra ; McCune v. Kilpatrick, supra). In those cases, however, in which a civilian 

has been held to have been "accompanying" an armed force, it has appeared that he has 

either moved with a military operatioh or thst his presence within a military installation or theater was not merely incidental but was connected with or dependent upon the 

activities of the armed force or its personnel. He must, in order to come within this 

class of persons subject to military law, "accompany" the armed force in fact. .Although 

a person "accompanying" an armed force may be "serving with" it as well, the distinction 

is an important one, for even though a civilian's contract with the Government may have 

come to an end before he has committed an offense, so that it mag- be said he is no 

longer "serving with" an armed force, jurisdictlon may remaln on the ground that he is 

accompanying an armed force because of his continued connection with a military community (Perlstein v. U. S., supra; Grewe v. France, 75 F. Supp. 433). CM 329933, 

Miquiabas, 7 Bull. JAG (Army) 125 at 120. 

(11) Subject to the provisions of any treaty or agreement to. which the United 

States is or may be a party or to any accepted rule of international law, all 

persons serving with, employed by, or accompanying the armed forces without 

the continental limits of the United States and without the following territories: 

That part of Alaska east of longitude one hundred and seventy-two degrees west, 

the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the 

Virgin Islands ; 
Art. 4 APPENDIX 2 

(12) Subject to the provisions of any treaty or agreement to which the United 

States is or may be a party or to any accepted rule of international law, gll 

persons within an area leased by or otherwise reserved or acguired for the use ' 

of the United States which is under the control of the Secretary of a Department 

and which is without the continental limits of the Unjted States and without 

the fouowing Territories : That part of Alaska east of longitude one hundred and 

seventy-two degrees west, the Canal Zone, the main group of the Hawaiian Islands, 

Puerto Rico, and the Virgin Islands. 

NOTE.-Pertinent treaties or executive agreements should be consulrvd before iurlsdictlon 

is asserted under this clause. 

NOTES, &~ISCELLAFEOUS.-O~~~~ persons aubject to military law Patients in the arm^ 

and Navy General Hospital, Hot Springs, drkan5as (act 3 Mar 1909, 35 Stat. 748, ne 

amended ; 24 U. S. C. 20). 

ART. 3. Jurisdiction f o try certain persmnel. 

(a) Subject to the provisions of article 43, any person charged with having 

committed, while in a status in which he was subject to this code, an offense 

against this code, punishable by confinement of five years or more and for whiah 

the person cannot be tried in the courts of the United States or any State or 

Territory thereof or of the District of Columbia, shall not be relieved from 

amenability to trial by courts-martial by reason of the termination of said status. 

NOTE.-As to the jurisdiction of United States courts to try cases involving offenses 

committed without the territorial limits of the United States and without the special 

maritime and territorial jurisdiction of the United States as defined in Title 18 U. 5. C. f 7, 

see U. S. v. Bowmaq&, 260 U. S. 94 ; nnd 213c. 

(b) All persons discharged from the armed forces subsequently charged with 

having fraudulently obtained said discharge shall, subject to the provisions of 

article 43, be subject to trial by court-martial on said charge and shall after 

apprehension be subject to this code while in the custody of the armed forces for 

such trial. Upon conviction of said charge they shall be subject to trial by courtmartial for all offenses under this code committed prior to the fraudulent 

disehkrge. 

(o) Any person who has deserted from the armed forces shall not be relieved 

from amenability to the jurisdiction of this code by virtue of a separation from 

any subsequent period af service. 

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

(a) When any officer, dismissed by order of the President, makes a written 

application for trial by court-martial, setting forth, under oath, that he has beeh 

wrongfuIIy dismissed, the President, as soon as practicable, shall convene a 

general court-martial to try such officer on the charges on which he was dismissed 

A court-martial so convened shall have jurisdiction to try the dismissed officer on 

such charges, and he shall be held to hare waived the right to plead any statute 

of limitations applicable to any offense with which he is charged. The courtmartial may, as part of its sentence, adjudge the affirmance of the dismissal, but 

if the court-martial acquits the accused or if the sentence adjudged, as finally 

approved or affirmed, does not include dismissal or death, the Secretary of the 

Department shall substitute for the dismissal ordered by the President a form 

of discharge authorized for administrative issuance. 

(b) If the President fails to convene a general court-martial within six months 

from the presentation of an application for trial under this article, the Secretary 
ACT OF 5 MAY 1950 Art. 7 

of the Department shall substitute for the dismissal ordered by the President a 

form of discharge authorized for administrative issuance. 

(o) Where a discharge is substituted for a dismissal under the authority of 

this article, the President alone may reappoint the officer to such commission~d 

rank and precedence as in the opinion of the President such former officer would 

have attained had he not been dismissed. The reappointment of such a former 

oftlcer shall be without regard to position vacancy and shall affect the promotion 

status of other officers only insofar as the President may direct. All time 

between the dismissal and such reappointment shall be considered as actual 

service for all purposes, including the right to receive pay and allowances. 

(d) When an officer is discharged from any armed force by administrative 

action or is dropped from the rolls by order of the President, there shall not be 

a right to trial under this article. 

ART. 5. Territorial applicability of the code. 

This code shall be applicable in all places. 

ART. 6. Judge advocates and legal officers. 

(a) The assignment for duty of all judge advocates of the Army and Air 

Force and law specialists of the Navy and Coast Guard shall be made upon the 

recommendation of The Judge Advocate General of the armed force of which 

they are members. The Judge Advocate General or senior members of his 

staff shall make frequent inspections in the field in supervision of the administration of military justice. 

(b) Convening authorities shall at all times communicate directly with their 

sta judge advocates or legal officers in matters relating to the administration 

of military justice; and the staff judge advocate or legal officer of any command 

is authorized to communicate directly with the staff judge advocate or .legal 

officer of a superior or subordinate command, or with The Judge Advocate 

General. 

(c) No person who has acted as member, law officer, trial counsel, assistant 

trial counsel, defense counsel, assistant defense counsel, or investigating officer 

in any case shall subsequently act as a staff judge advocate or legal officer to 

any reviewing authority upon the same case. 

PART 11-APPREHENSION AND RESTRAINT 

Article 

7. Apprehension. 

8. Apprehension of deserters. 

9. Imposition of restraint. 

10. Restraint of persons charged nith offenses. 

11. Reports and receiving of prisoners. 

12. Confinement with enemy prisoners prohibited. 

13. Punishment prohibited before trial. 

14. Delivery of offenders to civil authorities. 

ART. 7. Apprehension. 

(a) Apprehension is the taking into custody of a person. 

(b) Any person authorized under regulations governing the armed forces 

to apprehend persons subject to this code or to trial thereunder may do so upon 

reasonable belief that an offense has been co~nmitted and that the person apprehended committed it. 
Art. 11 APPENDllX 2 

(c) All officers, warrant m fficers, petty officers, and noncommissioned officers 

shall have authority to quell all quarrels, frays, and disorders among persons 

subject to this code and to apprehend persons subject to this code who take 

part in the same. 

NOT~.-A~ to arrest and clo,sbody of members of friendly foreign forces within the 

United States, see sections 2 nod 6, act of 30 June 1944 (58 Stat. 643; 22 U. S. C. 

702, 706). 

ART. 8. Apprehension of deserters. 

It shall be lawful for any ci?il officer having authority to apprehend offenders 

under the laws of the United States or of any State, District, Territory, or 

possession of the United States summarily to apprehend a deserter from the 

armed forces of the United States and deliver him into the custody of the armed 

forces of the United States. 

ART. 9. Imposition of restraint. 

(a) Arrest is the restraint of a person by an order not imposed as a punishment for an offense directing him to remain within certain specified limits. 

Confinement is the pliysical restraint of a person. 

(b) An enlisted person map be ordered into arrest or confinement by any 

officer by an order, oral or written, delivered in person or through other persons 

subject to this code. A eommanding officer may authorize warrant officers, petty 

officers, or noncommissimed officers to order enlisted persons of his command 

or subject to his authority into arrest or eonfmement. 

(c) An officer, a warrant officer, or a civilian subject to this code or to trial 

thereunder may be ordered into arrest or confinement only by a commanding 

officer to whose authoritg he is subject, by an order, oral or written, delivered 

in person or by another officer. The authority to order such persons into arrest 

or confinement may not be delegated. 

(d) No person shall he ordered into arrest or confinement except for probable 

cause. 

(e) Nothing in this article shall be construed to limit the authority of persons 

authorized to apprehend offenders to seeure the custody of an alleged offender 

until proper authority may be notsed. 

ART. 10. Restraint of persons charged with offenses. 

Any person subject to this code charged with an offense under this code shall 

be ordered into arrest or confinement, as circumstances may require; but when 

charged only with an offense normally tried by a summary court-martial, such 

person shall not ordinarily be placed in codnement. When any person subject 

to this code is placed in arrest or confinement prior to trial, immediate steps 

shall be taken to inform him of the specific wrong of which hg is accused and to 

try him or to dismiss the charges and release him. 

ART. 11. Reports and receiving of prisoners. 

(a) No provost marshal, commander of a guard, or master at arms shall 

refuse to receive or keep any prisoner committed to his charge by an officer of 

the armed forces, when the committing officer furnishes a statement, signed by 

him, of the offense charged against the prisoner. 

(b) Every commaxlder ofa guard or master at arms to whose charge a prisoner 

is committed shall, within twenty-four hours after such commitment or as soon 

as he is relieved from guard, report to the commanding officer the name of such 
ACT OF 5 MAY 1950 Art. 15 

prisoner, the offense charged against him, and the name of the person who ordered 

or authorized the commitment. 

ART. 12. Confinement with enemy prisoners prohibited. 

No member of the armed forces of the United States shall be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces of the United States. 

ART. 13. Punishment prohibited before trial. 

Subject to the provisions of article 57, no person, while being held for trial 

or the results of trial, shall be subjected to punishment or penalty other than 

arrest or confinement upon the charges pending against him, nor shall the arrest 

or confinement imposed upon him be any more rigorous than the circumstances 

require to insure his presence, but he may be subjected to minor punishment 

during such period for infractions of discipline. 

ART. 14. Delivery of offenders to civil authorities. 

(a) Under such regulations as the Secretary of the Department may prescribe, 

a member of the armed forces accused of an offense against civil authority may 

be delivered, upon request, to the civil nuthority for trial. 

(8) When delivery under this article is made to any civil authority of a person 

undergoing sentence of a court-martial, such delivery, if followed by conviction 

in a civil tribunal, shall be held to interrupt the execution of the sentence of 

the court-martial, and the offender after having answered to the civil authorities 

for his ofeense shall, upon the request of competent military authority, be returned to military custody for the completion of the mid court-martial sentence. 

PART 111-NON-JUDICIAL PUNISHMENT 

Article 

15. Commanding officer's non-judicial punishment. 

ART. 15. Commanding officer's non-judicial punishment. 

(a) Under such regulations as the President may p~escribe, any commanding 

officer may, in addition to or in lieu of admonition or reprimand, impose one 

of the following disciplinary punishments for 'minor oEenses without the intervention of a court-martial- 

(1) upon officers and warrant officers of his command: 

(A) withholding of privileges for a period not to exceed two consecutive 

weeks ; or 

(B) restriction to certain specified limits, with or without suspension from 

duty, for a period not to exceed two consecutive weeks; or 

(C) if impased by an officer exercising general c.ourt-martial jurisdiction, 

forfeiture of not to exceed one-half of his pay per month for a period not exceeding one month ; 

(2) upon other military personnel of his command : 

(A) withholding of privileges for a period not to exceed two consecutive 

weeks; or 

(E) restriction to certain specified limits, with or without suspension from 

duty, for a period not to exceed two consecutive weeks; or 

{C) extra duties for a period not to exceed two cornsecutive weeks, and not 

to exceed two hours per day, holidays included; or 

(D) reduction to next inferior grade if the gra'de from which demoted was 

established by. the command or an equivalent or lower command; or 
Art. 17 APPENDIX 2 

(E) if imposed upon a person attached to or embarked in a vessel, confinement for a period not to exceed seven consecutive days ; or 

(F) if imposed upon a person attached to or embarked in a vessel, confinement on bread and water or diminished rations for a period not to exceed three consecutive days. 

(b) The Secretary of a Department mag, by regulation, place limitations 

on the powers granted by this article with respect to the kind and amount of 

punishment authorized, the categories of commanding omcers authorized to 

exercise such powers, and the applicability of this article to an accused who 

demands trial by court-martial. 

(c) An officer in charge may, for minor ogenses, impose on enlisted persons 

assigned to the unit of which he is in charge, such of the punishments authorized 

to be imposed by commanding officers as the Secretary of the Department may 

by regulation specifically prescribe, as provided in subdivisions (a) and (b). 

(d) A person punished under authority of this article who deems his punishment unjust or disproportionate to the offense may, through the proper channel, 

appeal to the next superior authority. The appeal shall be promptly forwarded 

and decided, but the person punished may in the meantime be required to undergo 

the punishment adjudged. The officer who-imposes the punishment, his successor in command, and superior authority shall have power to suspend, set aside, 

or remit any part or amount of the punishment and to restore all rights, privileges, and property affected. 

(e) The imposition and enforcement of disciplinary punishment under authority 

of this article for any act or omission shall not be a bar to trial by court-martial 

for a serious crime or offense growing out of the same act or omission, and not 

properly punishable under this article; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so 

shown shall be considered in determining the measure of punishment to be 

adjudged in the event of a finding of guilty. 

PART IV-COURTS-MARTIAL JURISDICTION 

Article 

16. Courts-martial classifled. 

17. Jurisdiction of courts-martial in general. 

18. Jurisdiction of general courts-martial. 

19. J'urisdiction of special courts-martial. 

20. Jurisdiction of summary courts-martial. 

21. Jurisdiction of courts-martial not exclusive. 

ART. 16. Courts-martial classified. 

There shall be three kinds of courts-martial in each of the armed forces, 

namely : 

(1) General courts-martial, which shall consist of a law officer and any 

number of members not less than five; 

(2) Special courts-martial, which shall consist of any number of members 

not less than three ; and 

(3) Summary courts-martial, which shall consist of one officer. 

ART. 17. Jurisdiction of courts-martial in general. 

(a) Each armed force shall have court-martial jurisdiction over all persons 

subject to this code. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed 

by the President. 
ACT OF 5 MAY 1950 Art. 20 

(8) In all cases, departmental review subsequent to that by the offlcer with 

authority to convene a general court-martial for the command which held the 

trial, where such review is required under the provisions of this code, shall be 

carried out by the armed force of which the accused is a member. 

ART. 18. Jurisdiction of general courts-martial. 

Subject to article 17, general courts-martial shall have jurisdiction to try 

persons subject to this code for any offense made punishable by this code and 

may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this cude, including the penalty of death when specifically authorized by this code. General courts-martial shall also have jurisdiction to try any person who by the law of war is subject to trial by a military 

tribunal and may adjudge any punishment permitted by the law of war. 

NOT&-See 14 as to the jurisdiction of a general court-martial under the law of war; 

CM 302791 Kaukoreit, 5 Bull. JAG (Army) 262 ; Cnf 318380 Yabusaki, 6 Bull. JAG (Army) 

117 ; and CM 337089 Ailcins, 9 Bull. JAG (Army) 71. 

The limitations on the discretion of military tribunals to adjudge punishments against 

prisoners of war are prescribed in the Genera Convention on .Prisoners of War, 27 July 

1929, some of which are: 

Article 46. Punishments other than those provided for the same acts for soldiers 

of the national armies may not be imposed upon prisoners of war by the military authorities 

and courts of the detaining power. 

Rank being identical, officers, non-commissioned omcers, or soldiers who are prisoners 

of war undergoing a disciplinary punishment, shall not be subject to less favorable treatment than that provided in the armies of the detaining power with regard to the same 

punishment. * * 

Article 48. Prisoners of war may not be treated differently from other prisoners after 

having suffered the judicial or disciplinary punishment which has been imposed on them. 

However, prisoners punished as a result of attempted escape may be subjected to special 

surveillance, which, however, may not entail the suppression of the guarantees granted 

prisoners by the present Convention. 

Article 49. No prisoner of mar may be deprived of his rank by the detaining power. 

Prisoners given disciplinar~ punishment may not be deprived of the prerogative attached to their rank. * * * 

Article 63. Scntence mag be pronounced against a prisoner of war only by the same 

courts and according to the same procedure as in the case of persons belonging to the 

armed forces of the detaining power. 

ART. 19. Jurisdiction of special courts-martial. 

Subject to article 17, special courts-martial shall have jurisdiction to try 

persons subject to this code for any noncapital offense made punishable by this 

code and, under such regulations as the Resident may prescribe, for capital 

offenses. Special courts-martial may, under such limitations as the President 

may prescribe, adjudge any punishment not forbidden by this code except death, 

dishonorable discharge, dismissal, confinement in excess of six months, hard 

labor without confinement in excess of three months, forfeiture of pay exceeding 

two-thirds pay per month, or forfeiture of pay for a period exceeding six months. 

A bad-conduct discharge shall not be adjudged unless a complete record of the 

proceedings and testimony before the court has been made. 

ART. 20. Jurisdiction of summary courts-martial 

Subject to article 17, summary courts-martial shall have jurisdiction to try 

persons subject to this code except officers, warrant officers, cadets, aviation 

cadets, and midshipmen for any noncapital offense made punishable by this 

code. No person with respect to whom summary courts-martial have jurisdiction shall be brought to trial before a summary court-martial if he objects thereto, 
Art. 22 APPENDIX 2 

unless under the provisions of artlclle 15 he has been permitted and has elected 

to refuse punishment under such article. Where objection to trial by summary 

court-martial is made by an accused who has not been permitted to refuse punishment under article 15, trial shall be ordered by special or general courtmartial, as may be appropriate. Summary courts-martial may, under such 

limitations as the President may prescribe, adjudge any punishment not forbidden 

by this code except death, dismissal, dishonorable or bad-conduct discharge, confinement in excess of one month, hard labor without confinement in excess of 

forty-five days, restriction to certain specified limits in excess of two months, or 

forfeiture of pay in excess of two-thirds of one month's pay. 

ART. 21. Jurisdiction of courts-martial not exclusive. 

The provisions of this code conferring jurisdiction upon courts-martial shall 

not be construed as depriving military commissions, provost courts, or other 

military tribunals of concurrent jurisdiction in respect of offenders or offenses 

that by statute or by the law of mar may be tried by such military commissions, 

provost courts, or other military tribunals. 

NOTB.-A military commission to try offenses agninst the la!\- of war may be appointed 

by any field commander or by any commander competent to appoint a general court-martial 

(In re Yamashita, 327 U. S. 1). 

Congress has incorporated by reference as within the jurisdiction of military commissions 

all offenses which are defined as such by the law of war and which may constitutionally 

be included within that jurisdiction (Ex parte Quirin, 317 U. S. 1). 

Congress has adopted the system of military common law applied by military tribunals 

so far as it should be recognired and deemed applicable by the courts and as further defined 

and supplemented by the Hague Convention (In re Yamashita, supra). 

PART V-APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL 

Article 

22. Who may convene general courts-martial. 

23. Who may convene special courts-martial. 

24. Who may convene summary courts-martial. 

25. Who may serve on courts-martial. 

26. Law officer of a general court-martial. 

27. Appointment of trial counsel and defense counsel. 

28. Appointment of reporters and interpreters. 

29. Absent and additional members. 

ART. 22. Who may convene general courts-martial. 

(a) General courts-martial &ay be convened by- 

(1) the President of the United States; 

(2) the Secretary of a Department ; 

(3) the commanding officer of a Territorial Department, an Army Group, an 

Army, an Army Corps, a division, a separate brigade, or a corresponding unit 

of the Army or Marine Corps ; 

(4) the commander in chief of a fleet; the commanding officer of a naval 

station or larger shore activity of the Navy beyond the continental limits of the 

United States ; 

(5) the commanding officer of an air command, an air force, an air division, 

or a separate wing of the Air Force or Marine Corps ; 

(6) such other commanding officers as may be designated by the Secretary 

, of a Department ; or 

(7) any other commanding ofleer in any of the armed forces when empowered 

by the President. 
ACT OF 5 MAY 1950 Art. 25 

(b) When any such commanding officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such 

authority when deemed desirable by him. 

ART. 23. Who may convene special courts-martial. 

(a) Special courts-martial may be convened by- 

(1) any person who may convene a general court-martial; 

(2) the commanding officer of a district, garrison, fort, camp, station, Air 

Force base, auxiliary air field, or other place where members of the Army or 

Air Force are on duty ; 

p(3) the commanding officer of a brigade, regiment, detached battalion, or 

corresponding unit, of the Army ; 

(4) the commanding officer of a wing, group, or separate squadron of the 

Air Force ; I 

(5) the commanding officer of any naval or Coast Guard vessel, shipyard, 

base, or station; the commanding officer of any Marine brigade, regiment, 

detached battalion, or corresponding unit ; the commanding officer of any Marine 

barracks, wing, group, separate squadron, station, base, auxiliary airfield, or 

other place where members of the Marine Corps are on duty; 

(6) the commanding officer of any separate or detached command or group of 

detached units of any of the armed forces placed under a single commander for 

this purpose ; or 

(7) the commanding officer or officer in charge of any other command when 

empowered by the Secretary of a Department. 

{b) When any such'officer is an accuser, the court shall be convened by superior 

competent authobity, and may in any case be convened by such authority when 

deemed advisable by him. 

ART. 24. Who may convene summary courts-martial. 

(a) Summary courts-martial may be convened by- 

(1) any person who may convene a general or special court-martial; 

(2) the commanding officer of a detached company, or other detachment of 

the Army; 

(3) the commanding officer of a detached squadron or other detachment of 

the Air Force; or 

(4) the commanding officer or officer in charge of any other command when 

empowered by the Secretary of a Department. 

[b) When but one officer is present with a command or detachment he shall 

be the summary court-martial of that command or detachment and shall hear 

and determine all summary court-martial cases brought before him. Summary 

courts-martial mag, however, be convened in any case by superior competent 

authority when deemed desirable by him. 

ART. 25. Who may serve on courts-martial. 

(a) Any officer on active duty with the armed forces shall be eligible to serve 

on all courts-martial for the trial of any person who may lawfully be brought 

before such courts for trial. 

(b) Any warrant officer on active duty with the armed forces shall be eligible 

to' serve on general and special courts-martial for the trial of any person, other 

than an officer, who may lawfully be brought before such courts for trial. 

(c) (1) Any enlisted person on active duty with the armed forces who is not 

a member of the same unit as the accused shall be eligible to serve on general 

and special courts-martial for the trial of any enlisted person who may lawfully 

be brought before such courts for trial, but he shall serve as a member of a 
Art. 27 APPENDIX 2 

court only if, prior to the eanrening of such court, the accused personally has 

requested in writing that enlisted persons serve on it. After such a request, no 

enlisted person shall be tried by a general or special court-martial the membership of which does not include enlisted persons in a number comprising at least 

one-third of the total membership of the court, unless eligible enlisted persons 

cannot be obtained on account of physical conditions or military exigencies. 

Where such persons cannot be obtained, the court may be convened and the trial 

held without them, but the convening authority shall make a detailed written 

statement, to be appended to the record, stating why they could not be obtained. 

(2) For the purposes of tkis article, the word "unit" shall mean any regularly organized body as defined by the Secretary of the Department, but in no 

case shall it be a body larger than a company, a squadron, or a ship's crew, or 

than a body corresponding to one of them. 

(d) (1) When it can be aroided, no person in the armed forces shall be tried 

by a court-martial any member of which is junior to him in rank or grade. 

(2) When convening a court-martial, the convening authority shall appoint 

as members thereof such persons as, in his opinion, are best qualified for the duty 

by reason of age, education, training, experience, length of service, and judicial 

temperament. No person shall be eligible to sit as a member of a general or 

special court-martial when he is the accuser or a witness for the prosecution 

or has acted as investigating oEeer or as counsel in the same case. 

ART. 26. Law officer of a general court-martial. 

(a) The authority convening a general court-martial shall appoint as law 

officer thereof an officer who is a member of the bar of a Federal court or of the 

highest court of a State of the United States and who is certzed to be qualified 

for such duty by The Judge Advocate General of the armed force of which he 

is a member. No person shalI be eligible to act as law officer in a case when he 

is the accuser or a witness for the prosecution or has acted as investigating 

officer or as counsel in the same case. 

(b) The law officer shall not consult with the members of the court, other than 

on the form of the findings as prorided in article 39, except in the presence of 

the accused, trial counsel, and defense counsel, nor shall be vote with the members 

of the court. 

ART. 27. Appointment of trial counsel and defense counsel. 

(a) For each general and special court-martial the authority convening the 

court shall appoint a trial counsel and a defense counsel, together with such 

assistants as he deems necessary or appropriate. No person who has acted as 

investigating officer, law officer, ar court member in any case shall act subsequently as trial counsel, assistant trial counsel, or, unless expressly requested by 

the accused, as defense counsel or assistant defense counsel in the same case. 

No person who has acted for the prosecution shall act subsequently in the same 

case for the defense, nor shall any person who has acted for the defense act 

subsequently in the same case for the prosecution. 

(6) Any person who is appointed as trial counsel or defense counsel in the 

case of a general court-martial- 

(I) shall be a judge advocate of the Army or the Air Force, or a law 

specialist of the Navy or Coast Guard, who is a graduate of an accredited 

law school or is a member of the bar of a Federal court or of the highest court 

of a State; or shall be a person who is a member of the bar of a Federal court 

or of the highest court of a State ; and 
ACT OF 5 MAY 1950 Art. 30 

(2) shall be certified as competent to perform such duties by The Judge 

Advocate General of the armed force of which he is a member. 

(c) In the case of a special court-martial- 

(1) if the trial counsel is qualified to act as counsel before a general courtmartial, the defense counsel appointed by the convening authority shall be a 

person similarly qualiAr$l; and 

(2) if the trial counsel is a judge advocate, or a law specialist, or a member 

of the bar of a Federal court or the highest court of a State, the ddense counsel 

appointed by the convening authority shall be one of the foregoing. 

ART. 28. Appointment of reporters and interpreters. 

Under such regulations as the Secretary of the Department may prescribe, the 

convening authority of a court-martial or military commission or a court of 

inquiry shall appoint qualified caurt reporters, who shall record the proceedings 

of and testimony taken before such court or commission. Under like regulations 

the convening authority of a court-martial, military commission, or court of 

inquiry may appoint an interpreter who shall interpret for the court or commission. 

ART. 29. Absent and additional members. 

(a) No member of a general or special court-martial shall be absent or excused 

after the accused has been arraigned except for physical disability or as a result 

of a challenge or by order of the convening authority for good cause. 

(a) Whenever a general court-martial is reduced below five members, the trial 

shall not proceed unless the courening authority appoints new members sufficient 

in number to provide not less than Eve members. When such new members have 

been sworn, the trial may proceed after the recorded testimony of each witness 

previously examined has been read to the court in the presence of the law officer, 

the accused, and counsel. 

(c) Whenever a swial court-martial is reduced below three members, the 

trial shall not proceed unless the convening authority appoints new members 

sufficient in number to provide not less than three members. When such new 

members have been sworn, the trial shall proceed as if no evidence had previously 

been introduced, unless a verbatim record of the testimony of previously examined 

witnesses or a stipulation thereof is read to the court in the presence of the 

accused and counsel. 

PART M-PRETRIAL PROCEDURE 

Article 

30. Charges and specifications. 

31. Compulsory self-incrimination prohibited. 

32. Investigation. 

33. Forwarding of charges. 

34. Advice of staff judge advocate and reference for trial. 

35 Service of charges. 

ART. 30. Charges and specifications. 

{a) Charges and speclficattions shall be signed bg a person subject to this code 

under oath before an officer of the armed forces authorized to administer oaths 

and shall state- 

(1) that the signer has personal knowledge of, or has investigated, the 

matters set forth therein ; and 
Art. 32 APPENDfX 2 

(2) that the same are true In fact to the best of his knowledge and belief. 

(6) Upon the preferring of charges, the proper authority shall take immediate 

steps to determine what disposition should be made thereof in the interest of 

justice and discipline, and the person accused shall be informed of the charges 

against him as soon as practicable. 

ART. 31. Compuls~ory self-incrimination prohibited. 

(a) No person subject to this code shall compel any person to incriminate 

himself or to answer any question the answer to which may tend to incriminate 

him. 

(b) No person subject to this code shall interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have 

to make any statement regarding the offense of which he is accused or suspected 

and that any statement made by him may be used as evidence against him in a 

trial by court-martial. 

(c) No person subject to this code shall compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him. 

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement shall 

be received in evidence against him in a trial by court-martial. 

ART. 32. Investigation. 

(a) No charge or specification shall be referred to a general court-martial 

for trial until a thorough and impartial investigation of all the matters-set forth 

therein has been made. This investigation shall include inquiries as to the 

truth of the matter set forth in the charges, form of charges, and the disposition 

which should be made of the case in the interest of justice and discipline. 

(8) The accused shall be advised of the charges against him and of his right 

to be represented at such investigation by counsel. Upon his own request he 

shall be represented by civilan counsel if provided by him, .or military counsel 

of his own selection if such counsel be reasonably available, or by counsel appointed by the officer exercising general court-martial jurisdiction over the 

command. At such investigation full opportunity shall be given to the accused 

to c~oss-examine witnesses against him if they are available and to present 

anything he may desire in his own behalf, either in defense or mitigation, and 

the investigating officer shall examine available witnesses requested by the 

accused. If the charges are forwarded after such investigation, they shall be 

accompanied by a statement of the substance of the testimony taken on both 

sides and a copy thereof shall be given to the accused. 

(c) If an investigation of the subject matter of an offense has been conducted 

prior to the time the accused is charged with the offense, and if the accused 

was present at such investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subdivision (b) of this 

article, no further investigation of that charge is necessary under this article 

unless it is demanded by the accused after he is informed of the charge. A 

demand for further investigation entitles the accused to recall witnesses for 

further cross-examination and to offer any new evidence in his own behalf. 

(a) The requirements of this article shall be binding on all persons administering this code, but failure to follow them in any case shall mt constitute 

jurisdictional error. 
ACT OF 5 MAY 1950 Art. 36 

ART. 33. Forwarding of charges. 

When a person is held for trial by general court-martlal, the commanding 

J officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation 

and allied papers, to the officer exercising general court-martial jurisdiction. If 

the same is not practicable, he shall report in writing to such officer the reasons 

for delay. 

ART. .34. Advice of staff judge advocate and reference for trial. 

(a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his stfi judge advocate or legal officer for 

consideration and advice. The convening authority shall not refer a charge 

to a general court-martial for trial unless he has found that the charge alleges 

an offense under this code and is warranted by evidence indicated in the report 

of investigation. 

(b) If the charges or specifications are not formally correct or do not conform 

to the substance of the evidence contained in the report of the investigating 

officer, formal corrections, and such changes in the charges and 'specifications 

as are needed to make them conform to the evidence may be made. 

ART. 35. Service of charges. 

The trial counsel to whom court-martial charges are referred for trial shall 

cause to be served upon the accused a copy of the charges upon which trial is 

to be had. In time of peace no person shall, against his objection, be brought 

to trial before a general court-martial within a period of five days subsequent 

to the service of the charges upon him, or before a special court-martial within 

a period of three days subsequent to the service of the charges upon him. 

PART YII-TRIAL PROCEDURE 

Article 

36. President may prescribe rules. 

37. Unlawfully influencing action of 

court. 

38. Duties of trial counsel and defense 

counsel. 

39. Sessions. 

40. Continuances. 

41. Challenges. 

42. Oaths. 

43. Statute of limitations. 

44. Former jeopardy. 

45. Pleas of the accused. 

Article 

46. Opportunity to obtain witnesses and 

other evidence. 

47. Refusal to appear or testify. 

48. Contempts. 

49. Depositions. 

50. Admissibility of records of courts of 

inquiry. 

51. Voting and rulings. 

52. Number of votes required. 

53. Court to announce action. 

54. Record of trial. 

ART. 36. President may prescribe rules. 

(a) The procedure, including modes of proof, in cases before courts-martial, 

courts of inquiry, military commissions, and other military tribunals may be 

prescribed by- the President by regulations which shall, so far as he deems 

practicable, apply the principles of lam and the rules of evidence generally 

recognized in the trial of criminal cases in the United States district courts, 

but which shall not be contrary to or inconsistent with this code. 

(b) All rules and regulations made in pursuance of this article shall be uniform insofar as practicable and shall be reported to the Congress. 
Art. 40 APPENDIX 2 

ART. 37. Unlawfully influencing act.ion of court. 

No authority convening a general, special, or summary c ourt-martial, nor any 

other commanding officer, shall censure, reprimand, or admonish such court 

or any member, lam officer, or counsel thereof, with reqet to the findings or 

sentence adjudged by the court, or with respect to any other exercise of its 

or his functions in the conduct of the proceeding. No pierson subject to this 

code shall attempt to coerce or, by any unauthorized means, influence the action 

of a court-martial or any other military tribunal or any member thereof, in 

reaching the findings or sentence in any case, or the action of any convbing, 

approving, or reviewing authority with respect to his jmdicial acts. 

ART. 38. Duties of trial counsel and defense counsel. 

(a) The trial counsel of a general or special court-martial shall prosecute in 

the name of the United States, and shall, under the direction of the court, prepare 

the record of the proceedings. 

(b) The accused shall have the right to be represented in his defense before 

a general or special court-martial by civilian counsel if provided by him, or bp 

military counsel of his own selection if reasonably available, or by the defense 

counsel duly appointed pursuant to article 27. Should the accused have counsel 

of his own selection, the dul~ appointed defense counsel, and assistant defense 

counsel, if any, shall, if the accused so desires, act as his associate counsel; 

otherwise they shall be excused by the president of the court. 

(G) In every court-martial proceeding, the defense counsel may, in the event 

of conviction, forward for attachment to the record of proceedings a brief of 

such matters as he feels should be considered in behalf of the accused on review, 

including any objection to the contents of the record which he may deem appropriate. 

(d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when be is qualified to be a trial counsel as required 

by article 27, perform any duty imposed by law, regulation, or the custom of 

the service upon the trial counsel of the court. An assistant trial counsel of a 

special court-martial may perform any duty of the trial counsel. 

(e) An assistant defense counsel of a general or special court-martial may, 

under the direction of the defensecounsel or when he is qualified to be the defense 

counsel as required by article 27, perform any duty imposed by law, regulation, 

or the custom of the service upon counsel for the accused. 

ART. 39. Sessions. 

Whenever a general or special court-martial is to deliberate or vote, only the 

members of the court shall be present. After a general court-martial has finally 

voted on the findings, the court may request the law officer and the reporter to 

appear before the court to put the Endings in proper form, and such proceedillgs 

shall be on the record. All other proceedings, including any other consultation 

of the court with counsel or the law officer shall be made a part of the record 

and be in the presence of the accused, the defense counsel, the trial counsel, and 

in general court-martial cases, the law oflicer. 

ART. 40. Continuances. 

A court-martial may, for reasonable cause, grant a continuance to st~y party for 

such time and as often as may appear to be just. 
ACT OF 5 MAY 1950 Art. 43 

ART. 41. Challenges. 

(a) Members of a general or special court-martial and the law officer of a 

general court-martial may be challenged by the ac:used or the trial counsel for 

cause stated to the court. The court shall determine the relevancy and validity 

of challenges for cause, and shall not receive a challenge to more than one person 

. at a time. Challenges by the trial counsel shall ordinarily be presented and 

decided before those by the accused are offered. 

(b) Each accused and trial counsel shall be entitled to one peremptory challenge, but the law offlcer shall not be challenged except for cause. 

ART. 42. Oaths. 

(a) The law officer, all interpreters, and, in general and special courts-martial, 

the members, the trial counsel, assistant trial counsel, the defense counsel, assistant defense counsel, and the reporter shall take an oath or affirmation in the 

presence of the accused to perform their duties faithful&. 

(b) All witnesses before courts-martial shall be examined on oath or affirmation. 

ART. 43. Statute of limitations. 

(a) A person charged with desertion or absence mithout leave in time of war, 

or with aiding the enemy, mutiny, or murder, may be tried and punished at any 

time without limitation. 

NoTI0.-An absence without leave from 7 March 1947 to 5 February 1949, having begun 

at a day prior to the adoption by Congress of the Jolnt Resolution of 25 July 1947 (P. L. 

239, 80th Cong., 61 Stat. 449) terminntlng the war with respect to punishment of certain 

mllitary offenses when committed "in time of mar," wns held subject to the operution of 

Article of War 39 as amended by the act of 24 June 1948 (62 Stat 604, 627) which made 

absence without leave committed in time of war an offense prosecution for which is never 

barred by lapse of time. ACM 1659, Schauf, 2 CMR 325,328. 

(b) Except as otherwise provided in this artlcle, a person charged with desertion in time of peace or any of the offenses punishable under articles 119 

through 132 inclusive shall not be liable to be tried by court-martial if the 

offense was committed more than three years before the receipt of sworn charges 

and specifications by an officer exercising summary court-martial jurisdiction 

over the command. 

(c) Except as otherwise provided in this article, a person charged with any 

offense shall not be liable to be tried by court-martial or punished under article 

15 if the offense was committed more than two years before the receipt of sworn 

charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under article 

15. 

(d) Periods in which the accused was absent from territory in which the 

United States has the authority to apprehend him, or in the custody of civil 

authorities, or in the hands of the enemy, shall be excluded in computing the 

period of limitation prescribed in this article. 

(e) In the case of any offense the trial of which in time of war is certified 

to the President by the Secretary of the Department to be detrimental to the 

prosecution of the mar or inimical to the national security, the period of 

limitation prescribed in this article shall be extended to six months after the 

termination of hostilities as proclaimed by the President or by a joint resolution 

of Congress. 
Art. 47 APPENDIX 2 

(f) When the United States is at war, the running of any statute of limitations applicable to any offense under this code 

(1) involving fraud or attempted fraud against the United States or any 

agency thereof in any manner, whether by conspiracy or not; or 

(2) committed in connection with the acquisition, care, handling, custody, 

control or disposition of any real or personal property of the United States; or 

(3) committed in connection with the negotiation, procurement, award, 

performance, payment for, interim financing, cancellation, or other termination or settlement, of any contract, subcontract or purchase order which is 

connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency; 

shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress. 

ART. 44. Former jeopar* 

(a) No person shall, without his consent, be tried a second time for the same 

offense. 

(71) No proceeding in which an aceused has been found guilty by a courtmartial upon any charge or specification shall be held to be a trial in the sense 

of this article until the finding of guilty has become final after review of the 

case has been fully completed. 

(c) A proceeding which, subsequent to the introduction of evidence but prior 

to a finding, is dismissed or terminated by the convening authority or on motion 

of the prosecution for failure of available evidence or witnesses without any 

fault of the accused shall be a trial in the sense of this article. 

ART. 45. Pleas of the accused. 

(a) If an accused arraigned before a court-martial makes any irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it 

appears that he has entered the plea of guilty improvidently or through lack of 

understanding of its meaning and effect, or if he fails or refuses to plead, a 

plea of not guilty shall be entered in the record, and the court shall proceed 

as though he had pleaded not guilty. 

(b) A plea of guilty by the accused shall not be received to any charge or 

specification alleging an offense for which the death penalty may be adjudged. 

ART. 46. Opportunity to obtain witnesses and other evidence. 

The trial counsel, defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe. Process issued in court-martial cases 

to compel witnesses to appear and testify and to compel the production of other 

evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue and shall run to any part of the United 

States, its Territories, and possession& 

ART. 47. Refusal to appear or testify. 

(a) Every person not subject to this code who- 

(1) has been duly subpenaed to appear as a witness before any court-martial, 

military commission, court Of inquiry, or any other military court or board, or 

before any military or civil officer designated to take a deposition to be read in 

evidence before such court, commission, or board ; and 
ACT OF 5 MAY 1950 Art. 49 

(2) has been duly paid or tendered the fees and mileage of a witness at the 

rates allowed to witnesses attending the courts of the United States ; and 

(3) willfully neglects or refuses to appear, or refuses to qualify as a witness 

or to testify or to produce any evidence which such person may have been 

legally subpenaed to produce ; 

shall be deemed guilty of an offense against the United States. 

(b) Any person who commits an offense denounced by this article shall be tried 

on information in a United States district court or in a court of original criminal 

jurisdiction in any of the Territorial possessions of the United States, and jurisdiction is hereby conferred upon such courts for such purpose. Upon conviction, 

such persons shall be punished by a fine of not more than $500, or imprisonment 

for a period not exceeding six months, 0.r both. 

'(o) It shall be the duty of the United States district attorney or the officer 

prosecuting for the Government in any such court of original criminal jurisdiction, upon the certification of the facts to him by the military court, commission, 

court of inquiry, or board, to flle an information against and prosecute any person 

violating this article. 

(d) The fees and mileage of witnesses shall be advanced or paid out of the 

appropriations for the compensation of witnesses. 

NOTE.-As to other offenses by persons not subject to the code which may be committed 

in connection with courts-martial, see Title 18 U. S. C. $5 206, 210, 1505, 1621, 1622. 

ART. 48. Contempts. 

A court-martial, provost court, or military commission may 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. Such punishment shall not 

exceed confinement for thirty days or a fine of $100, or both. 

ART. 49. Depositions. 

(a) At any time after charges have been signed as provided in article 30, any I party may take 'oral or written depositions unless an authority competent to 

convene a court-martial for the trial of such charges forbids it for good cause. 

If a Ueposition is to be taken before charges are referred for trial, such an authority may designate officers to represent the prosecution and the defense and 

may authorize such officers to take the deposition of any witness. 

(b) The party at whose instance a deposition is to be taken shall give to every 

other party reasonable written notice of the time and place for taking the 

deposition. 

(c) Depositions may be taken before and authenticated by any military or civil 

officer authorized by the laws of the United States or by the laws of the place 

where the deposition is taken to administer oaths. 

(a) A duly authenticated deposition taken upon reasonable notice to the other 

party, so f a r a s otherwise admissible under the rules of evidence, may be read in 

evidence before any military court or commission in any case not capital, or in 

any proceeding before a court of inquiry or militarg board, if it appears- 

(1) that the witness resides or is beyond the State, Territory, or District in 

which the court, commission, or board is ordered to sit, or beyond the distance 

of one hundred miles from the place of trial or hearing ; or 

(2) that the witness by reason of death, age, sickness, bodily infirmity, imprisonment. military necessity, nonamenability to process, or other reasonable 

cause, is unable or refuses to appear and testify in person at the place of trial 

or hearing; or 
Art. 51 APPENDIX 2 

(3) that the present whereabouts of the witness is unknown. 

(e) Subject to the requirements of subdivision (d) of this article, testimony 

by deposition may be adduced by the defense in capital cases. 

(f) Subject to the requirements of subdivision (a) of this article, a deposition 

may be read in evidence in any case in which the death penalty is authorized 

by law but is not mandatory, whenever the convening authority shall have directed 

that the case be treated as not capital, and in such a case a sentence of death may 

not be adjudged by the court-martial. 

ART. 50. AdmissibiIity of records of courts of inquiry. 

(a) In any case not capital and mot extending to the dismissal of an officer, the 

sworn testimony, contained in the duly. authenticated record of proceedings of 

u court of inquiry, of a person whose oral testimony cannot be obtained, may, if 

atherwise admissible under the rules of evidence, be read in evidence by any 

party before a court-martial or military commission if the accused was a party 

before the court of inquiry and if the same issue was involved or if the accused 

consents to the introduction of such evidence. 

(b) Such testimony may be read in evidence only by the defense in capital 

cases or cases extending to fie dismissal of an officer. 

(c) Such testimony mag also be read in evidence before a court of inquiry or a 

military board. 

ART. 51. Voting and rulings. 

(a) Voting by members of a general or special court-martial upon questions 

nf challenge, on the findings, and on the sentence shall be by secret written ballot. 

The junior member of the court shall in each case count the votes, which count 

shall be checked by the president, wlm shall forthwith announce the result of 

the ballot to the members of the court. 

(0) The law offlcer of a general court-martial and the president of a special 

court-martial shall rule upon interlocutory questions, other than challenge, arising 

during the proceedings. Any such ruling made by the law officer of a general 

court-ma;tial upon any interlocutory question other than a motion for a tlnding 

of not guilty, or the question of accused's sanity, shall be final and shall constitute the ruling of the court; but the law officer may change any such ruling at 

any time during the trial. Unless such ruling be final, if any member objects 

thereto, the court shall be cleared and closed and the question decided by a vote 

as provided in article 52, viva voce, beginning with the junior in rank. 

(c) Before a vote is taken on the findings, the law officer of a general courtmartial and the president of a special court-martial shall, in the presence of the 

accused and counsel, instruct the court as to the eIements of the offense and 

charge the court- 

(1) that the accused must be presumed to be innocent until his guilt is 

established by legal and competent evidence beyond reasonable doubt; 

(2) that in the case being considered, if there is a reasonable doubt as to the 

guilt of the accused, the doubt shall be resolved in favor of the accused and 

he shall be acquitted ; 

(3) that if there is a reasonable daubt as to the degree of guilt, the finding 

must be in a lower degree as to which there is no reasonable doubt; and 

(4) that the burden of proof to establish the guilt of the accused beyond 

reasonable doubt is upon the Gorernment. 
ACT OF 5 MAY 1950 Art. 55 

ART. 52. Number of votes required. 

(a) (1) No person shall be co.nvicted of an offense for which the death, penalty 

is made mandatory by law, except by the concurrence of all the members of the 

court-martial present at the time the vote is taken. 

(2) No person shall be convicted of any other offense, except by the concurrence of two-thirds of the members present at the time the vote is taken. 

(b) (1) No person shall be sentenced to sder death, except by the concurrence 

of all the members of the court-martial present at the time the vote is taken and 

for an offense in this code made expressly punishable by death. 

(2) No person shall be sentenced to life imprisonment or to confinement in 

excess of ten years, except by the concurrence of three-fourths of the members 

present at the time the vote is taken. 

(3) All other sentences shall be determined by the concurrence of two-thirds 

of the members present at the time the vote is taken. 

(c) All other questions to be decided by the members of a general or special 

court-martial shall be determined by a majority rote. A tie vote on a challenge 

shall disqualify the member challenged. A tie vote on a motion for a finding 

of not guilty or on a motion relating to the question of the accused's sanity shall 

be a determination against the accused. A tie vote on any other question shall 

be a determination in favor of the accused. 

ART. 53. Court to announce action, 

Every oourt-martial shall announce its findings and sentence to the parties 

as soon as determined. 

ART. 54. Record of trial. 

(a,) Each general court-martial shall keep a separate record of the proceedings 

of the trial of each case brought before it, and wch record shall be authenticated 

by the signature of the president and the law officer. In case the record cannot 

be authenticated by either the president or the law officer, by reason of the death, 

disability, or absence of such officer, it shall be signed by a member in lieu of 

him. If both the president and the law officer are unavailable for such reasons, 

the record shall be authenticated by two members. 

(b) Each special and summary court-martial shall keep a separate record of 

the proceedings in each case, vhich record shall contain such matter and be 

authenticated in such manner as may be required by regulations which the 

President may prescribe. 

(c) A copy of the record of the proceedings of ,each general and special courtmartial shall be given to the accused as soon as authenticated. 

PART VIII-SENTENCES 

Article 

55. Cruel and unusual punishments prohibited. 

56. Maximum limits. 

57. Effective date of sentences. 

58. Execution of conflnement. 

ART. 55. Cruel and unusual punishments prokibi ted. 

Punishment by flogging, or by branding, marking, or tattooing on the body, 

or any other cruel or unusual punishment, shall mot be adjudged by any courtmartial or inflicted upon any person subject to this code. The use of irons, 

single or double, except for the purpose of safe custody, is prohibited. 
Art. 58 APPENDIX 2 

ART. 56. Maximum limits. 

The punishment which a court-martial may direct for an offense shall not 

exceed such limits as the President may prescribe for that offense. 

ART. 57. Effective date of sentences. 

(a) Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement 

not suspended, the forfeiture may apply to pay or allowances becoming due on 

or after the date such sentence is approved by the convening authority. No 

forfeiture shall extend to any pay or allowances accrued before such date. 

(6) Any period of confinement included in a sentence of a court-martial shall 

begin to run from the date the sentence is adjudged by the court-martial, but 

periods during which the sentence to con6nement is suspended shall be excluded 

in computing the service of the term of confinement. 

(c) All other sentences of courts-martial shall become efeective on the date 

ordered executed. 

ART. 58. Execution of confinement. 

(a) Under such instructions as the Department concerned may prescribe, any 

sentence of confinement adjudged by a court-martial or other military tribunal 

whether or not such sentence includes discharge or dismissal, and whether or 

not such discharge or dismissal has been executed, may be carried into execution 

by confinement in any place of conhement under the control of any of the armed 

forces, or in any penal or correctional institution under the control of the United 

States, or which the United States may be allowed to use; and persons so confined in a penal or correctional institution not under the control of one of the 

armed forces shall be subject to the same discipline and treatment as persons 

confined or committed by the courts of the United States or of the State, Territory, District, or place in which the institution is situated. 

(6) The omission of the words "hard labor" in any sentence of a court-martial 

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. 

PART IX-REVIEW OF COURTS-MARTIAL 

Article 

59. Error of law; lesser included offense. 

60. Initial action on the record. 

61. Same-General court-martial records. 

62. Reconsideration and revision. 

63.' Rehearings. 

64. Approval by the convening authority. 

65. Disposition of records after review 

by the convening authority. 

Article 

68. Branch offices. 

69. Review in the office of The Judge 

Advocate General. 

70. Appellate counsel. 

71. Execution of sentence; suspension 

of sentence. 

72. Vacation of suspension. 

73. Petition for a new trial. 

74. Remission and suspension. 

75. Restoration. 

76. Finality of court-martial judgments. 

66. Review by the board of review. 

67. Review by the Court of Military Appeals. 
ACT OF 5 MAY 1950 Art. 63 

ART. 59. Error of law; lesser included offense. 

(a) A finding or sentence'of a court-martial shall not be held incorrect on the 

ground of an error of law unless the error materially prejudices the substantial 

rights of the accused. 

(b) Any reviewing authority with the power to approve or aferm a flnding 

of guilty may approve 'or affirm so much of the tlnding as includes a lesser 

included offense. 

AFtT. 60. Initial action on the record. 

After every trial by court-martial the record shall be'forwarded to the convening authority, and action thereon may be taken by the officer who convened 

the court, an officer commanding for the time being, a successor in command, 

or by any officer exercising general court-martial jurisdiction. 

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

The convening authority shall refer the record of every general court-martial 

to his staff judge advocate or legal officer, who shall submit his written opinion 

thereon to the convening authority. If the final action of the court has resulted 

in an acquittal of all charges and specifications, the opinion shall be limited to 

questions of jurisdiction and shall be forwarded with the record to The Judge 

Advocate General of the armed force of which the accused is a member. 

ART. 62. Reconsideration and revision. 

(a) If a specification before a court-martial has been dismissed on motion 

and the ruling does not amount to a finding of not guilty, the convening authority 

may return the record to the court for reconsideration of the ruling and any 

further appropriate action. 

b) Where there is an apparent error or omission in the record or where the 

record shows improper or inconsistent action by a court-martial with respect to 

a finding or sentence which can be rectified without material prejudice to thg 

substantial rights of the accused, the convening authority may return the record 

to the court for appropriate action. In no case, however, may the record be 

returned- 

(1) for reconsideration of a finding of not guilty of any specification or a 

ruling which amounts to a finding of not guilty ; or 

(2) for reconsideration of a Ending of not guiIty of any charge, unless the 

record shows a finding of guilty under a specification laid under that charge, 

which suficientlg alleges a violation of some article of this code; or 

(3) for increasing the severity of the sentence unless the sentence prescribed 

for the offense is mandatory. 

ART. 63. Rehearings. 

(a) If the convening authority disapproves the flndings and sentence of a court-martial he may, except where there is lack of sufficient evidence in the 

record to support the findings, order a rehearing, in which case he shall state 

the reasons for disapproval. If he disapproves the findings and sentence and 

does not order a rehearing, he shall dismiss the charges. 

( b) Every rehearing shall take place before a court-martial composed of members not members of the court-martial which first Beard the case. Upon such 

rehearing the accused shall not be tried for any oneme of which he was found 

not guilty by the flrst court-martial, and no sentence in excess of or more severe 

than the original sentence shall be imposed unless the sentence is based upon 
Art. 66 APPENDIX 2 

a finding of guilty of an offense uot considered upon the merits in the original 

proceedings or unless the sentence prescribed for the offense is mandatory. 

ART. 64. Approval by the convening authority. 

In acting on the dings and sentence of a court-martlal, the convening authority shall approve only such findings of guilty, and the sentence or such part 

or amount of the sentence, as be finds correct in law and fact and as he in his 

discretion determines should be approved. Unless he indicates otherwise, ap 

proval of the sentence shall constitute approval of the hdings and sentence. 

ART. 65. Disposition of records after review by the convening authority. 

(a) When the convening authority has taken final action in a general courtmartial case, he shall forward the entire record, including his action thereon and 

the opinion or opinions of the staff judge advocate or legal officer, to the appropriate Judge Advocate General. 

(b) Where the sentence of a special court-martial as approved by the convening authority includes a bad-conduct discharge, whether or not suspended, the 

record shall be forwarded to the officer exercising general court-martial jurisdiction over the command to be reviewed in the same manner as a record of 

trial by general court-martial or directly to the appropriate Judge Advocate 

General to be reviewed by a board of review. If the sentence as approved by an 

officer exercising general court-martial jurisdiction includes a bad-conduct discharge, whether or not suspended, the record shall be forwarded to the appropriate Judge Advocate General to be reviewed by a board of review. 

(c) All other special and summary court-martial records shall be reviewed 

by a judge advocate of the Army or Xir Force, a law specialist of the Navy, or 

a law specialist or lawyer of the Coast Guard or Treasury Department and shall 

be transmitted and disposed of as the Secretary of the Department may prescribe 

by regulations. 

ART. 66. Review by the board of review. 

(a) The Judge Advocate General of each of the armed forces shall constitute 

in his office one or more boards of review, each composed of not less than three 

officers or civilians, each of whom shall be a member of the bar of a Federal 

court or of the highest court of a State of the United States. 

(ZI) The Judge Advocate General shall refer to a board of review the record 

in every case of trial by court-martial in which the sentence, as approved, affects 

a general or flag officer or extends to death, dismissal of an officer, cadet, or 

midshipman, dishonorable or bad-conduct discharge, or confinement for one year 

or more. 

(c) In a case referred to it, the board of review shall act only with respect 

to the findings and sentence as approved by the convening authority. It shall 

affirm only such findings of guilty, and the sentence or such part or amount of 

the sentence, as it finds correct in law and fact and determines, on the basis 

of the entire record, should be approved. In considering the record it shall have 

authority to weigh the evidence, judge the credibility of witnesses, and determine 

controverted questions of fact, recognizing that the trial court saw and heard the 

witnesses. 

(d) If the board of review sets aside the findings and sentence, it may, except 

where the setting aside is based on lack of sufficient evidence in the record ta 

support the findings, order a rehearing. If it sets aside the findings and sentence 

and does not order a rehearing, it shall order that the charges be dismissed. 
ACT OF 5 MAY 1950 Art. 67 

(e) The Judge Advocate General shall, unless there is to be further action by 

the President or the Secretary of the Department or the Court of Military 

Appeals, instruct the convening authosity to take action in accordance with the 

decision of the board of review. If the board of review has ordered a rehearing 

but the convening authority flnds a rehearing impracticable, he may ,dismiss the 

charges. 

(f) The Judge Advocates General of the armed forces shall prescribe uniform 

rules of procedure for proceedings in and before boards of review and shall meet 

periodically to formulate policies and procedure in regard to review of courtmartial cases in the offices of the Judge Adrocates General and by the boards of 

review. 

ART. 67. Review by the Court of Military Appeals. 

(a) (1) There is hereby established a Court of Military Appeals, which shall 

be located for administrative purposes in the Department of Defense. The Court 

of Military Appeals shall consist of three judges appointed from civilian life by 

the President, by and with the advice and consent of the Senate, for a term of 

fifteen years. Not more than two of the judges of such court shall be appointed 

from the same political party, nor shall any person be eligible for appointment to 

the court who is not a member of the bar of a Federal court or of the highest court 

of a State. Each judge shall receive a salary of $17,500 a year and shall be 

eligible for reappointment. The President shall designate from time to time one 

of the judges to act as Chief Judge. The Court of Military Appeals shall have 

power to prescribe its own rules of procedure and to determine the number of 

judges required to constitute a quorum. A racancy in the court shall not impair 

the right of the remaining judges to exercise all the powers of the court. 

(2) The terms of office of the'three judges first taking office after the effective date of this subdivision shall expire, as designated by the President at the 

time of nomination, one on May 1, 1956, one on May 1, 1961, and one on May 1, 

1966. The terms of office of all successors shall expire fifteen years after the 

expiration of the terms for which their predecessors were appointed, but any 

judge appointed to fill a vacancy occurring prior to the expiration of the term 

for which his predecessor was appointed shall be appointed only for the unexpired 

term of his predecessor. 

(3) Judges of the Court of Military Appeals may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, or 

upon the ground of mental or physical disability, but for no other cause. 

(4) If any judge of the Court of Military Appeals is temporarily unable to 

perform his duties because of illness or other disabilitg; the President may designate a judge of the United States Court of Appeals to Ell the office for the period 

of disability. 

(b) The Court of Military Appeals shall review the record in the following 

cases : 

(1) All cases in which the sentence, as affirmed by a board of review, affects 

a general or flag officer or extends to death ; 

(2) All cases reviewed by a board of review which The Judge Advocate 

General orders forwarded to the Court of Military Appeals for review; and 

(3) All cases reviewed by a board of review in which, upon petition of the 

accused and on good cause shown, the Court of Militarg Appeals has granted 

a review. 
Art. 69 APPENDIX 2 

(c) The accused shall have thirty days from the time he is notifled of the 

decision of a board of review to petition the Court of Military Appeals for a 

grant of review. The court shall act upon such a petition within thirty days of 

the receipt thereof. 

(d) In any case reviewed by it, the Court of Military Appeals shall act only 

with respect to the findings and sentence as approved by the convening authority 

and as affirmed or set aside as incorrect in law by the board of review. In a case 

which The Judge Advocate General orders forwarded to the Court of Military 

Appeals, such action need be taken only with respect to the issues raised by him. 

In a case reviewed upon petition of the accused, such action need be taken only 

with respect to issues specified in the gtant of review. The Court of Military 

Appeals shall take action only with respect to matters of law. 

(e) If the Court of Military Appeals sets aside the findings and sentence, it 

may, except where the setting aside is based on lack of sufficient evidence in the 

record to support the findings, order a rehearing. If it sets aside the hdings 

and sentence and does not order a rehearing it shall order that the charges be 

dismissed. 

(t) After it has acted on a case, the Court of Military Appeals may direct 

The Judge Advocate General to return the record to the board of review for 

further review in accordance with the decision of the court. Otherwise, unless 

there is to be further action by the President, or the Secretary of the Department, 

The Judge Advocate General shall instruct the convening authority to take action 

in accordance with that decision. If the court has ordered a rehearing, but the 

convening authority flnds a rehearing impracticable, he may dismiss the charges. 

(g) The Court of Military Appeals and The Judge Advocates General of the 

armed forces shall meet annually to make a comprehensive survey of the operation of this code and report to the Committees on Armed Services of the Senate 

and of the House of Representatives and to the Secretary of Defense and the 

Secretaries of the Departments the number and status of pending cases and any 

recommendations relating to uniformity of sentence policies, amendments to this 

code, and any other matters deemed appropriate. 

ART. 68. Branch offices. 

Whenever the President deems such action necessary, he may direct The Judge 

Advocate General to establish a branch office, under an Assistant Judge Advocate 

General, with any distant command, and to establish in such branch office one or 

more boards of review. Such Assistant Judge Advocate General and any such 

board of review shall be empowered to perform for that command, under the 

general supervision of The Judge Advocate General, the duties which The Judge 

Advocate General and a board of review in his office would otherwise be required 

to perform in respect of all cases involving sentences not requiring approval by 

the President. 

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

Every record of trial by general court-martial, in which there has been a flnding 

of guilty and a sentence, the appellate review of which is not otherwise provided 

for by article 66, shall be examined in the offlce of The Judge Advocate General. 

If any part of the flndings or sentence is found unsupported in law, or if The 

Judge Advocate General so directs, the record shall be reviewed by a board of 

review in accordance with article 66, but in such event there will be no further 

review by the Court of Military Appeals except pursuant to the provisions of 

article 67(b) (2). 
ACT OF 5 MAY 1950 Art. 72 

ART. 70. Appellate counsel. 

(a) The Judge Advocate General shall appoint in his office one or more oficers 

as appellate Government counsel, and one or more officers as appellate defense 

counsel who shall be qualified under the provisions of article 27 (b) (1). 

(b) It shall be the duty of appellate Government counsel to represent the United 

States before the board of review or the Court of Military Appeals when directed 

to do so by The Judge Advocate General. 

(c) It shall be the duty of appellate defense counsel to represent the accused 

before the board of review or the Court of Military Appeals- 

(1) when heis requested to do so by the accused ; or 

(2) when the United States is represented by counsel ; or 

(3) when The Judge Advocate General has transmitted a case to the Court 

of Military Appeals. 

(d) The accused shall have the right to be represented before the Court of 

Military Appeals or the board of review by civilian counsel if provided by him. - 

(e) Military appellate counsel shall also perform such other functions in connection with the review of court-martial cases as The Judge Advocate General 

shall direct. 

ART. 71. Execution of sentence; suspension of sentence. 

(a) No court-martial sentence extending to death or involving a general or flag 

officer shall be executed until approved by the President. He shall approve the 

sentence or such part, amount, or commuted form of the sentence as he sees fit, 

and may suspend the execution of the sentence or any part of the sentence, as 

approved by him, except the death sentence. 

(b) N'o sentence extending to the dismissal of an officer (other than a general 

or flag officer), cadet, or midshipman shall be executed until approved by the 

Secretary of the Department, or such Under Secretary or Assistant Secretary 

as mag be designated by him. He shall approve the sentence or such part, 

amount, or commuted form of the sentence as he sees fit, and may suspend the 

execution of any part of the sentence as approved by him. In time of war or 

national emergency lie may commute a sentence of dismissal to reduction to any 

enlisted grade. A person who is so reduced may be required to serve for the 

duration of the war or emergency and six months thereafter. 

(c) KO sentence which includes, unsuspended, a dishonorable or bad-conduct discharge, or confmement for one gear or more shall be executed until 

affirmed by a board of review and, in cases reviewed by it, the Court of Military 

Appeals. 

(d) All other court-martial sentences, unless suspended, may be ordered executed by the convening authority when approved by him. The convening authority may suspend the execution of any sentence, except a death sentence. 

ART. 72. Vacation of suspension , 

(a) Prior to the vacation of the suspension of a special court-martial sentence 

which as approved includes a bad-conduct discharge, or of any general courtmartial sentence, the officer having special court-martial jurisdiction over the 

probationer shall hold a hearing on the alleged violation of probation. The 

probationer shall be represented at such hearing by counsel if he so desires. 

(b) The record of the hearing and the recommendations of the officer having 

special court-martial jurisdiction shall be forwarded for action to the omcer 

exercising general court-martial jurisdiction over the probationer. If he vacates 
Art. 75 APPENDIX 2 

the suspension, the vacation shall be effective, subject to applicable restrictions 

in article 71 (c), to execute any unexecuted portion of the sentence except a 

dismissal. The vacation of the suspension of a dismissal shall not be efPective 

until approved by the Secreta~y of the Department. 

(o) The suspension of any other sentence may be vacated by any authority 

competent to convene, for the command in which the accused is serving or 

assigned, a court of the kind tBat imposed the sentence. 

ART. 73. Petition for a new trial. 

At any time within one gear after approval by the conrening authority of a 

court-martial sentence which extends to death, dismissal, dishonorable or badconduct discharge, or confinement for one year or more, the accused may petition The Judge Advocate General for a new trial on grounds of newly discovered 

evidence or fraud on the .court. If the accused's case is pending before the 

board of review or before the Court of Military Appeals, The Judge Advocate 

General shall refer the petition to the board or court, respectively, for action. 

Otherwise The Judge Advocate'General shall act upon the petition. 

ART. 74. Remission and suspension. 

(a) The Secretary of the Department and, when designated by him, any 

Under Secretary, Assistant Secretary, Judge Advocate General, or commanding 

officer may remit or suspend any part or amount of the anexecuted portion of 

any sentence, including all uncollected forfeitures, other than a sentence ap 

proved by the President. 

(b) The Secretary of the Department may, for good came, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial. 

ART. 75. Restoration. 

(a) Under such regulations as the President may prescribe, all rights, privileges, and property affected by an executed portion of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or 

discharge, shall be restored unless a new trial or rehearing is ord~red and such 

executed portion is included in a sentence imposed upon the new trial or 

rehearing. 

(b) Where a previously executed sentence of dishonorable or bad-conduct 

discharge is not sustained on a new trial, the Secretary of the Department shall 

substitute therefor a form of discharge authorized for administrative issuance 

unless the accused is to serve out the remainder of his enlistment. 

(c) Where a previously executed sentence of dismissal is not sustained on a 

new trial, the Secretary of the Department shall substitute therefor a form of 

discharge authorized for administrative issuance and the officer dismissed by 

such sentence may be reappointed by the President alone to such commissioned 

rank and precedence as in the opinion of the President such former officer 

would have attained had he not been dismissed. The reappointment of such a 

former officer shall be without regard to position vacancy and shall affect the 

promotion status of other oflcers only insofar as the President may direct. All 

time between the dismissal and such reappointment shall be considered as actual 

service for all purposes, including the right to receive pay and allowances. 
ACT OF 5 MAY 1950 Art. 76 

ART. 76. Finality of court-martial judgments. 

The appellate review of records of trial provided by this code, the proceedings, 

findings, and sentence of courts-martial as approved, reviewed, or affirmed as 

required by this code, and all dismissals and discharges carried into execution 

pursuant to sentences by courts-martial following approval, review, or affirmation as required by this code, shall be final and conclusive, and orders publishing 

the proceedings of courts-martial and all action taken pursuai~t to such proceedings shall be binding upon all departments, courts, agencies, and officers 

of the United States, subject only to action upon a petition for a new trial as 

provided in article 73 and to action by the Secretary of a Department as provided in article 74, and the authority of the President. 

PART X-PUNITIVE ARTICLES 

Article 

77. Principals. 

78. Accessory after the fact. 

79. Conviction of lesser included 

offense. 

80. Attempts. 

81. Conspiracy. 

82. Solicitation. 

83. Fraudulent enlistment, appointment, or separation. 

84. Unlawful enlistment, appointment, 

or separation. 

85. Desertion. 

86. Absence without leave. 

87. Missing movement. 

88. Contempt towards officials. 

89. Disrespect towards superior officer. 

90. Assaulting or willfully disobeying 

officer. 

91. Insubordinate conduct towards 

noncommissioned officer. 

92. Failure to obey order or regulation. 

93. Cruelty and maltreatment. 

94. Mutiny or sedition. 

95. Arrest and confinement. 

96. Releasing prisoner without proper 

authority. 

97. Unlawful detention of another. 

98. Noncompliance with procedural 

rules. 

99. Misbehavior before the enemy. 

100. Subordinate cornperling surrender. 

101. Improper use of countersign. 

102. Forcing a safeguard. 

103. Captured or abandoned property 

104. Aiding the enemy. 

105. iWisconduct as prisoner. 

Article 

106. Spies. 

107. False official statements. 

108. Military property of United 

States-Loss, damage, destruction, or wrongful disposition. 

109. Property other than military property of the United StatesWaste, spoil, or destruction. 

110. Improper hazarding of vessel. 

111. Drunken or reckless driving. 

112. Drunk on duty. 

113. isb behavior of sentinel. 

114. Dueling. 

115. Malingering. 

116. Riot or breach of peace. 

117. Provoking speeches or gestures. 

118. Murder. 

119. h1anslaughter. 

120. Rape and carnal knowledge. 

121. Larceny and wrongful appropriation. 

122. Robbery. 

123. Forgery. 

124. Maiming. 

125. Sodomy. 

126. Arson. 

127. Extortion. 

128. Assault. 

129. Burglary. 

130. Housebreaking. 

131. Perjury. 

132. Frauds against the Government. 

133. Conduct unbecoming an officer and 

gentleman. 

134. General article. 
Art. 83 APPENDIX 2 

ART. 77. Principals. 

Any person punishable under this code who- 

(1) commits an offense punishable by this code, or aids, abets, counsels, 

commands, or procures its commission; or 

(2) causes an act to be done which if directly performed by him would be 

punishable by this code; 

is a principaL 

ART. 78. Accessory after the fact. 

Any person subject to this code who, knowing that an offense punishable by 

this code has been committed, receives, comforts, or assists the offender in order 

to hinder or prevent his apprehension, trial, or punishment shall be punished 

as a court-martial may direct. 

ART. 79. Conviction of lesser included offense. 

An accused may be found goilty of an offense necessarily included in the 

offense charged or of an attempt to commit either the offense charged or of an 

offense necessarily included therein. 

ART. 80. Attempts. 

(a) An act, done with specific intent to commit an offense under this code, 

amounting to more than mere preparation and tending but failing to effect its 

commission, is an attempt Lo commit that offense. 

(b) Any person subject to this code who attempts to commit any offense 

punishable by this code shall be punished as a court-martial may direct, unless 

otherwise specifically prescribed. 

(c) Any person subject to this code may be convicted of an attempt to commit 

an offense although it appears on the trial that the offense mas consummated. 

ART. 81. Conspiracy. 

Any person subject to this cocTe who conspires with any other person or persons 

to commit an offense under this code shall, if one or more of the conspirators 

does an act to effect the object of the conspiracy, be punished as a court-martial 

may direct. 

ART. 82. Solicitation. 

(a) Any person subject to this code who solicits or advises another or others 

to desert in violation of article 85 or mutiny in violation of article 94 shall, if 

the offense solicited or advised is attempted or committed, be punished with the 

punishment provided for the commission of the offense, but if the offense 

solicited or advised is not committed or attempted, he shall be punished as a 

court-martial may direct. 

(b) Any person subject to this code who solicits or advises another or others 

to commit an act of misbehavior before the enemy in violation of article 99 or 

sedition in violation of article 94 shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the ' 

offense, but if the offense solicited or advised is not committed, he shall be 

punished as a court-martial mag direct. 

ART. 83. Fraudulent enlistment, appointment, or separation. 

Any person who- 

(1) procures his own enlistment or appointment in the armed forces by 

means of knowingly false representations or deliberate concealment as to his 
ACT OF 5 MAY 1950 Art. 88 

qualifications for such enlistment or appointment and receives pay or allowances thereunder ; or 

(2) procures his own separation from the armed forces by means of knowingly false representations or deliberate concealment as to his eligibility for 

such separation ; 

shall be punished as a court-martial may direct. 

ART. 84. Unlawful enlistment, appointment, or separation. 

Any person subject to this code who effects an enlistment or appointment in 

or a separation from the armed forces of any person who is known to him to be 

ineligible for such enlistment, appointment, or separation because it is prohibited 

by law, regulation, or order shall be punished as a court-martial may direct. 

ART. 85. Desertion. 

(a) Any member of the armed forces of the United States who- 

(1) without proper authority goes or remains absent from his place of 

service, organization, or place of duty with intent to remain away therefrom 

permanently ; or 

(2) quits his unit or organization or place of duty with intent to avoid 

hazardous duty or to shirk important service ; or 

(3) without being regularly separated from one of the armed forces enlists ' 

or accepts an appointment in the same or another one of the armed forces 

without fully disclosing the fact he has not been so regularly separated, or 

enters any foreign armed service except when authorized by the United 

States ; 

is guilty of desertion. 

(b) Any officer of the armed forces who, having tendered his resignation and 

prior to due notice of the acceptance of the same, quits his post or proper duties 

without leave and with intent to remain away therefrom permanently is guilty 

of desertion. 

(6) Any person found guilty of desertion or attempted desertion shall be punished, if the offense is committed in time of war, by death or such other punishment,as a court-martial may direct, but if the desertion or attempted desertion 

occurs at any other time, by such punishment, other than death, as a courtmartial may direct. 

ART. 86. Absence without leave. 

Any member of the armed forces who, without proper authority- 

(1) fails to go to his appointed place of duty at the time prescribed; or 

(2) goes from that place; or 

(3) absents himelf or remains absent from his nnit, organization, or other 

place of duty at which he is required to be at the time prescribed ; 

shall be punished as a court-martial may direct. 

ART. 87. Missing movement. 

Any person subject to this code who through neglect or design misses the 

movement of a ship, aircraft, or unit with which he is required in the course 

of duty to move shall be punished as a court-martial may direct. 

ART. 88. Contempt towards officials. 

Any officer who uses contemptuous words against the President, Vice President, 

Congress, Secretary of Defense, or a Secretary of a Department, a Governor or 

a legislature of any State, Territory, or other possession of the United States 

441 
Art. 94 APPENDIX 2 

in which he is on duty or present shall be punished as a court-martial may 

direct. 

ART. 89. Disrespect towards superior officer. 

Any person subject to this code who behaves with disrespect towards his 

superior officer shall be punished as a court-martial may direct. 

ART. 90. Assaulting or willfully disobeying officer. 

Any person subject to this code who- 

(1) strikes his superior officer or drams or lifts up any weapon or offers 

any violence against him while he is in the execution of his office; or 

(2) willfully disobeys a lawful command of his superior officer; 

shall be punished, if the offense is committed in time of war, by death or such 

other punishment as a court-martial may direct, and if the offense is committed 

at any other time, by such punishment, other than death, as a court-martial 

may direct. 

ART. 91. Insubordinate conduct towards noncommissioned officer. 

Any warrant officer or enlisted person who- 

(1) strikes or assaults a warrant officer, noncommissioned officer, or petty 

officer, while such officer is in the execution of his office ; or 

(2) willfully disobeys Me lawful order of n warrant officer, noncommissioned officer, or petty officer ; or 

(3) treats with contempt or is disrespectful in language or deportment 

toward a warrant officer, noncom~uissioned officer, or petty'officer while such 

officer is in the execution of his office ; 

shall be punished as a court-martial may direct. 

ART. 92. Failure to obey order or regulation. 

Any person subject to this code who- 

(1) violates or fails to obey any lawful general order or regulation; or 

(2) having knowledge of any other lawful order issued by a member of 

the armed forces, which it is his duty to obey, fails to obey the same; or 

(3) is derelict in the performance of his duties ; 

shall be punished as a court-martial may direct. 

ART. 93. Cruelty and maltreatment. 

Any person subject to this code who is guilty of cruelty toward, or oppression 

or maltreatment of, any person subject to his orders shall be punished as a 

court-martial may direct. 

ART. 94. Mutiny or sedition. 

(a) Ally person subject to this code- 

(1) who with intent to usurp or override lawful military authority refuses, 

in concert with any other person or persons, to obey orders or otherwise do 

his duty or creates any violence or disturbance is guilty of muting ; 

(2) who with intent to cause the overthrow or destruction of lawful civil 

authority, creates, in concert with any other person or persons, revolt, violence, 

or other disturbance against such authority is guilty of sedition; 

(3) who fails to do his utmost to prevent and suppress an offense of mutiny or sedition being committed in his presence, or fails to take all reasonable 

means to Worm his superior or commanding officer of an offense of mutiny 
ACT OF 5 MAY 1950 Art. 100 

or sedition which he knows or has reason to believe is taking place, is guilty 

of a failure to suppress or report a mutiny or sedition. 

(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or 

failure to suppress or report a mutiny or sedition shall be punished by death or 

such other punishment as a court-martial mag direct. 

ART. 95. Arrest and confinement. 

Any person subject to this code who resists apprehension or breaks arrest or 

who escapes from custody or confinement shall be punished as a court-martial 

may direct. 

ART. 96. Releasing prisoner without proper authority. 

Any person subject to this code who, without proper authority, releases any 

prisoner duly committed to his charge, or who through neglect or design suffers 

any such prisoner to escape, shall be punished as a court-martial may direct. 

ART. 97. Unlawful detention of another. 

Any person subject to this code who, except as provided by law, apprehends, 

arrests, or confines any person shall be punished as a court-martial may direct. 

AELT. 98. Noncompliance with procedural rules. 

Bny person subject to this code who- 

(I) is responsible for unnecessary delay in the disposition of any case of a : 

person accused of an offense under this code ; or 

(2) knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, ox after trial of an 

accused ; 

shall be punished as a court-martial may direct. 

ARC 99. Misbehavior before the enemy. 

Any member of the armed forces who before or in the presence of the enemy- 

(1) runs away ; or 

(2) shamefully abandons, surrenders, or delivers up any command, unit, 

place, or military property which it is his duty to defend ; or 

(3) through disobedience, neglect, or intentional misconduct endangers the 

safety of any such command, unit, place, or military property; or 

(4) casts away his arms or ammunition; or 

(5) is guilty of cowardly conduct; or 

(6) quits his place of duty to plunder or pillage ; or 

(7) causes false alarms in any command, unit, or place under control of 

the armed forces ; or 

'(8) willfully fails to do his utmost to encounter, engage, capture, or destroy 

any enemy troops, combatants, vessels, aircraft, or any other thing, which it is 

his duty so to encounter, engage, capture, or destroy ; or 

(9) does not afford all practicable relief and assistance ta any troops, com- batants, vessels, or aircraft of the armed forces belonging to the United States 

or their allies when engaged in battle ; 

shall be punished by death or such other punishment as a court-martial may 

dirwt. 

ART. 100. Subordinate compelling surrender. 

hy person subject to this code who compels or attempt~l to compel a commander of any place, vessel, aircraft, or other mllltary property, or of any body 
Art. 105 APPENDIX 2 

of members of the armed forces, to give it up to an enemy or to abandon it, or who 

strikes the colors or flag to an enemy without proper authority, shall be punished 

by death or such other punishment as a court-martial may direct. 

ART. 101. Improper use of countersign. 

Any person subject to this code who in time of war discloses the parole or 

countersign to any person not entitled to receive it or who gives to another who 

is entitled to receive and use the parole or countersign a different parole or 

countersign from that which, to his knowledge, he was authorized and required 

to give, shall be punished by death or such other punishment.as a court-martial 

nlay direct. 

ART. 102. Forcing a safeguard. 

Any person subject to this code who forces a safeguard shall suffer death or 

such other punishment as a court-martial may direct. 

ART. 103. Captured or abandoned property. 

(a) All persons subject to this code shall secure all public property taken 

from the enemy for the service of the United States, and shall give notice and turn 

over to the proper authority without delay all captured or abandoned property 

in their possession, custody, or control. 

(6) Any person subject to this code who- 

(1) fails to carry out the duties prescribed in subdivision (a) of this article; 

a! 

(2) buys, sells, trades, or in any way deals in or disposes of captured or 

abandoned property, whereby he shall receive or expect any profit, benefit, or 

advantage to himself or another directly or indirectly connected with himself; 

or 

(3) engages in looting or pillaging; 

shall be punished as a court-martial may direct. 

ART. 104. Aiding the enemy. 

Any person who- 

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, 

money, or other thing ; or 

(2) without proper authbrity, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with 

the enemy, either directly or indirectly ; 

shall suffer death or such other punishment as a court-martial or military commission may direct. 

ART. 105. Misconduct as a prisoner. 

Any person subject to this code who, while in the hands of the enemy in time 

of war- 

(1) for the purpose of securing favorable treatment by his captors acts 

without proper authority in a manner contrary to Inw, custom, or regulation, 

to the detriment of others of whatever nationality held by the enemy as civilian 

or military prisoners; or 

(2) while in a position of authority over such persons maltreats them without 

justifiable cause ; 

shall be punished as a court-martial may direct. 
ACT OF 5 MAY 1950 Art. 113 

M.T. 106. Spies. 

Any person who in time of war is found lurking as a spy or acting as a Spy in 

or about any place, vessel, or aircraft, within the control or jurisdiction of any 

of the armed forces of the United States, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work 

in aid of the prosecution of the war by the United States, or elsewhere, shall be 

tried by a general court-martial or by a military commission and on conviction 

shall be punished by death. 

ART. 107. False official statements. 

Any person subject to this code who, with intent to deceive, signs any false 

record, return, regulation, order, or other official document, knowing the same 

be false, or makes any .other false official statement knowing the same to be 

false, shall be punished as a court-martial may direct. 

MtT. 108. Military property of United States-Loss, damage, destruction, or 

wrongful dispositian. 

Any person subject to this code who, without proper authority- 

(1) sells or otherwise disposes of; or 

(2) nillfullg or through neglect damages, destroys, or loses; or 

(3) willfully or through neglect suffers to be lost, damaged, destroyed, sold 

or wrongfully disposed of; 

any military property of the United States, shall be punished as a court-martial 

mag direct. 

MZT. 109. Property other than military property of United States--Waste, spoil, 

or destruction. 

Any person subject to this code who willfully or recklessly wastes, spoils, or 

otherwise willfully and wrongfully destroys or damages any property other than 

military property of the United States shall be punished as a court-martial may 

direct. 

ART. 110. Improper hazarding of vessel. 

(a) Any person subject to this code who willfully and wrongfully hazards or 

snfeers to be hazarded any vessel of the armed forces shall suffer death or such 

other punishment as a court-martial may direct. 

(b) Any person subject to this code who negligently hazards or suffers to be 

hazarded any vessel of the armed forces shall be punished a court-martial may 

direct. 

ART. 111. Drunken or reckless driving. 

Any person subject to this code who operates any vehicle while drunk, or in a 

reckless or wanton manner, shall be punished as a court-martial may direct.. 

ART. 112. Drunk on duty. 

by person subject to this code, other than a sentinel or look-out, who is found 

~dmmk on duty, shall be punished as a court-martial may direct. 

ART. 113. Misbehavior of sentinel. 

by sentinel or l~ok-out who is found drunk or sleeping upon his post, or leaves 

11 before he is regularly reliered, shall be punished, if the offense is committed 

lm time of mar, by death or such other punishment as a court-martial may direct, 

blnt if the offense is committed at any other time, by such punishment other than 

death as a court-martial may direct 
Art. 120 APPENDIX 2 

ART. 114. Dueling. 

Any person subject to this code who fights or promotea, 'or is concerned in or 

connives at fighting a duel, or who, having knowledge of a challenge sent or 

about to be sent, fails to report the fact promptly to the proper authority, shall 

be punished as a court-martial may direct. 

ART. 115. Malingering. 

Any person subject to this code who for the purpose of aroiding work, duty, or 

service 

(1) feigns illness, physical disablement, mental lapse or derangement; or 

(2) intentionally inflicts self-injury ; 

shall be punished as a court-martial may direct. 

ART. 116. Riot or breach of peace. 

Any person subject to this code who causes or participates in any riot or breach 

of the peace shall be punished as a court-martial may dir,ect. 

ART. 117. Provoking speeches or gestures. 

Any person subject to this code who uses provoking or reproachful words or 

gestures towards any other person subject to this code shall be punished as a 

court-martial may direct. 

ART. 118. Murder. 

Any person subject to this code who, without justification or excuse, unlawfully 

kills a human being, when he- 

(1) has a premeditated design to kill ; or 

(2) intends to kill or inflict great bodily harm ; or 

(3) is engaged in an act which is inherently dangerous to others and evinces 

a wanton disregard of homan life; or 

(4) is engaged in the perpetration or attempted perpetration of burglary, 

sodomy, rape, robbery, or aggravated arson; 

is guilty of murder, and shall suffer such punishment as a court-martial may 

direct, except that if found guilty under paragraph (1) or (4) of this article, he 

shall suffer death or imprisonment for life as a court-martial may direct. 

ART. 119. Manslaughter. 

(a) Any person subject to this code Who, with an intent to kill or inflict great 

bodily harm, unlawfully kills a human being in the heat of suclden passion 

caused by adequate provocation is guilty of voluntary manslaughter and shall 

be punished as a court-martial may direct. 

(b) Any person subject to this code who, without an intent to kill or inflict 

great bodily harm, unlawfully kills a human being- 

(:) by culpable negligence ; or 

(2) while perpetrating or attempting to perpetrate an offense, other than 

those specified in paragraph (4) of article 118, directly affecting the person; 

is guilty of involuntary manslaughter and shall be punished as a court-martial 

may direct. 

ART. 120. Rape and carnal knowledge. 

(a) Aby persoh subject to this code who comlllits an act of sexual intercourse 

with a female not his wife, by force and without her consent, is guilty of rape 

and shall be punished by death or such other punishment as a court-martial may 

direct. 
ACT OF 5- MAY 1950 Art. 125 

(b) Any person subject to this code who, under circumstances not amounting 

to rape, commits an act Of sexual intercourse with a female not his wife who 

bas not attained the age of sixteen years, is guilty of carnal knowledge and 

shall be punished as a court-martial may direct. 

(c) Penetration, however slight, is sufficient to complete these offenses. 

ART. 121. Larceny and wrongful appropriation. 

(a) Any person subject to this code who wrongfully takes, obtains, or withholds, by any means whatever, from the possession of the true owner or of any 

other person any money, personal property, or article of value of any ltind- 

(1) with intent permanently to deprive or defraud another person of the 

use and benefit of property or to appropriate the same to his own use or the 

use of any person other than the true owner, steals such property and is guilty 

of larceny; or 

(2) with intent temporarily to deprive or defraud another person of the 

use and benefit of property or to appropriate the same to his own use or the 

use of any person other than the true owner is guilty of wrongful appropriation. 

(b) Any person found guilty of larceny or wrongful appropriation shall be 

punished as a court-martial may direct. 

ART. 122. Robbery. 

Any person subject to this code who with inteqt to steal takes anything of value 

from the person or in the presence of another, against his mill, by means of force 

or violence or fear of immediate or future injury to his person or property or the 

person or property of a relative or member of his family or of anyone in his 

company at the time of the robbery, is guilty of robbery and shall be punished 

as a court-martial may direct. 

ART. 123. Forgery. 

Any person subject to this code who, with intent to defraud- 

(1) falsely makes or alters any signature to, or any part of, any writing 

which moulcl, if genuine, apparently impose a legal liability on another or 

change his legal right or liability to his prejudice ; or 

(2) utters, offers, issues, or transfers such a writing, known by him to be so 

made or altered ; 

is guilty of forgery and shall be punished as a court-martial may direct. 

ART. 124. Maiming. 

Any person subject to this code who, with intent to injure, disfigure, or disable, 

inflicts upon the person of another an injury mhich- 

(1) seriously disfigures his person by any mutilation thereof; or 

(2) destroys or disables any member or organ of his body; or 

(3) seriously di~ninishes his physical vigor by the injury of any member or 

organ ; 

is guilty of maiming and shall be punished as a court-martial may direct. 

ART. 125. Sodomy. 

(a) Any person subject to this code who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty 

of sodomy. Penetration, howerer slight, is sufficient to complete the offense. 

(b) Any person found guilty of sodomy shall be punished as n court-martial 

may direct. 
Art. 132 APPENDIX 2 

ART. 126. Arson. 

(a) Any person subject to this code who willfully and maliciously burns or 

sets on fire an inhabited dwelling, or any other structure, movable or immovable, 

wherein to the knowledge of the offender there is at the time a human being, is 

guilty of aggravated arson and shall be punished as a court-martial may direct. 

(b) Any person subject to this code who willfully and maliciously burns or 

sets fire to the property of another, except as provided in subdivision (a) of this 

article, is guilty of simple arson and shall be punished as a court-martial may 

direct. 

ART. 127. Extortion. 

Any person subject to this code who communicates threats to another person 

with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity of any description is guilty of extortion and shall be punished 

as a court-martial may direct. 

ART. 128. Assault. 

(a) Any person subject to this code who attempts or offers with unlawful force 

or violence to do bodily harm to another person, whether or not the attempt or 

offer is consummated, is guilty of assault and shall be punished as a court-martial 

may direct. 

(b) Any person subject to this code who- 

(1) commits an assault with a dangerous weapon or other means or force 

likely to produce death or grievous bodily harm ; or 

(2) commits an assault and intentionally inflicts grievous bodily harm with 

or without a weapon ; 

is guilty of aggravated assault and shall be punished as a court-martial may 

direct. 

ART. 129. Burglary. 

Any person subject to this code who, with intent to commit an offense punishable 

under articles 118 through 128, inclusive, breaks and enters, in the nighttime, the 

dwelling house of another, is guilty Of burglary and shall be punished as a courtmartial may direct. 

ART. 130. Housebreaking. 

Any person subject to this code Who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of 

housebreaking and shall be punished as a court-martial may direct. 

ART. 131. Perjury. 

Any person subject to this code who in a judicial proceeding or course of 

justice willfully and corruptly gives, upon a lawful oath or in any form allowed 

by law to be substituted for an oath, any false testimony material to the issue 

or matter of inquiry is guilty of perjury and shall be punished as a courtmartial may direct. 

ART. 132. Frauds against the Government. 

Any person subject to this code- 

(1) who, knowing it to be false or fraudulent- 

(A) makes any claim against the United States or any officer thereof; or 

(B) presents to any person in the civil or military service thereof, for 

approval or payment, any claim against the United States or any officer 

thereof; or 

448 
ACT OF 5 MAY 1950 Art. 135 

(2) who, for the purpose of obtaining the approval, allowance, or payment 

of any claim against the United States or any oflcer thereof- 

(A) makes or uses any writing or other paper knowing the same to 

contain any false or fraudulent statements; or 

(B) makes any oath to any fact or to any writing or other paper knowing such oath to be false ; or 

(C) forges or counterfeits any signature upon any writing or other paper, 

or uses any such signature knowing the same to be forged or counterfeited ; or 

(3) who, having charge, possession, custody, or control of any money or 

other property of the United States, furnished or intended for the armed 

forces thereof, knowingly delivers to any person having authority to receive 

the same, any amount thereof less than that for which he receives a certificate 

or receipt; or 

(4) who, being authorized to make or deliver any paper certifying the 

receipt of any property of the United States furnished or intended for the 

armed forces thereof, makes or delivers to any person such writing without 

having full knowledge of the truth of the statements therein contained and 

with intent to defraud the United States ; 

shall, upon conviction, be punished as a court-martial may direct. 

ART. 133. Conduct unbecoming an officer and gentleman. 

Any officer, cadet, or midshipman who is convicted of conduct unbecoming an 

officer and a gentleman shall be punished as a court-m?rtial may direct. 

ART. 134. General article. 

Though not specifically mentioned in this code, all disorders and neglects to 

the prejudice of good order and discipline in the armed forces, all conduct of 

a nature to bring discredit upon the armed forces, and crimes and offenses not 

capital, of which persons subject to this code may be guilty, shall be taken 

cognizance of by a general or special or summary court-martial, according to 

the nature and degree of the offense, and punished at the discretion of such 

court. 

PART XI-MISCELLANEOUS PROVISIONS 

Article 

335. Courts of inquiry. 

136. Authority to administer oaths and to act as notary. 

137. Articles to be explained. 

138. Complaints of wrongs. 

139. Redress of injuries to property. 

140. Delegation by the President. 

ART. 135. Courts of inquiry. 

(a) Courts of inquiry to investigate any matter may be convened by any 

person authorized to convene a general court-martial or by any other person 

designated by the Secretary of a Department for that purpose whether or not 

the persons involved have requested such an inquiry. 

(b) A court of inquiry shall consist of three or more officers. For each 

court of inquiry the convening authority shall also appoint counsel for the 

court. 

(c) Any person subject to this code whose conduct is subject to inquiry shall 

be designated as a party. Any person subject to this code or emgloyed by the 
Art. 136 APPENDIX 2 

Department of Defense who has a direct interest in the subject of inquiry shall 

have the right to be designated as n party upon request to the court. Any 

person designated as a party shall be given due notice and shall have the right 

to be present, to be represented by counsel, to cross-examine witnesses, and to 

introduce evidence. 

(d) Members of a court of inquiry may be challenged bg a party, but only for 

cause stated to the court. 

(e) The members, counsel, the reporter, and interpreters ,of courts of inquiry 

shall take an oath or affirmation to faithfully perform their duties. 

(f) Witnesses may be summoned to appear and testify and be examined before 

courts of inquiry as provided for courts-martial. 

(8) Courts of inquiry shall make findings of fact but shall not express opinions 

or make recommendations unless required to do so by the convening authority. 

(h) Each court of inquiry shall keep a record of its proceedings, which shall 

be authenticated by the signatures of the president and counsel for the court 

and forwarded to the convening authority. In case the reeord cannot be authenticated by the president it shall be signed by a member in lieu of the president 

and in case the record cannot be authenticated by the counsel for the court it 

shall be signed by a member in lieu of the counsel. 

ART. 136. Authority to administer oaths and to act as notary. 

(a) The following persons on active duty in the armed forces shall have anthority to administer oaths for the purposes of military administration, including 

military justice, and shall have the general powers of a notary public and of a 

consul of the United States, in the performance of all notarial acts to be executed 

by members of any of the armed forces, wherever they mag be, and by other 

persons subject to this code outside the continental limits of the United States : 

(1) All judge advocates of the Army and Air Force; 

(2) All law specialists; 

(3) All summary courts-martial ; 

(4) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants ; 

(5) All commanding officers of the Navy and Coast Guard; 

(6) All staff judge advocates and legal officers, and acting or assistant staff 

judge advocates and legal officers ; and 

(7) All other persons designated by regulations of the armed forces or by 

statute. 

(b) The following persons on active duty in the armed forces shall have authority to administer oaths necessary in the performance of their duties : 

(1) The president, law officer, trial counsel, and assistant trial counsel for 

all general and special courts-martial ; 

(2) The president and the counsel for tlie court of any court of inquiry; 

(3) A11 officers designated to take a deposition; 

(4) All persons detailed to conduct an investigation; 

(5) A11 recruiting officers; and 

(6) A11 other persons designated by regulations of the armed forces or by 

statute. , 

(c) No fee of any character shall be paid to or received by any person for the 

performance of any notarial act herein authorized. 

(d) The signature without seal of any such person acting as notary, together 

with the title of his office, shall be prima facie evidence of his authority. 
ACT OF 5 MAY 1950 Art. 139 

?Tom.-In addition to the authority conferred by Article 136, the following statutes 

confer authority to administer oaths : 

Any officer or clerk of any of the departments lawfully cletailed to investigate frauds 

on, or attempts to defraud, the Government, or any irregularity or misconduct of any 

officer or agent of the United States, and any omcer of the Army, Navy, Marine Corps 

or Coast Guard, detniled to conduct an investigation, and the recorder, and if there be 

none the presiding officer, of ally militnry, navnl, or Coast Guard board appointed for 

such purpose, shall have authority to administer an oath to any witness attending to 

testify or depose in the course of such investigation (R. 5. 183, ns amended by act 13 

Feb 1911, 36 Stat. 898; 5 U. S. C. 93). 

See, however, Article 30a as to authority to administer the oath to charges. Only 

otiicers, including commissioned warrant oacers, may administer such oaths. 

In all cases in which, under the laws of the United Stntes, oaths are authorized or required to be administered, they may be administered by hotnries public duly appointed 

in any State, District, or Territory of the United States, by clerks nud prothonotaries 

of courts of record of any such State, District, or Territory, by the deputies of suc6 

clerks and prothonotaries, and by all magistrates nuthorieed by the lams of or pertaining 

to any such State, District, or Territory to ndmlnister oatha (act 3 Jul 1926, 44 Stat. 

830 ; 5 U. S. C. 92a). 

Every consular o5cer of the United Stntes is hereby required, whenever application is 

made to him therefor, within the limits of his consulate, to administer to or take from any 

person any oath, affirmation, affidavit, or deposition, and to perform any other notarial 

act which any notary public is required or autliorized by law to do within the United 

States * * * (act 5 Apr 1900, 34 Stat. 101 ; 22 U. S. C. 1195). 

ART. 137. Articles to be explained. 

Articles 2, 3, 7 through 15, 25, 27, 31,37, 38, 5.5, 77 through 134, and 137 through 

139 of this code shall be carefully explained to every enlisted person at the time 

of his entrance on active dyty in any of the armed forces of the United States, 

or within six days thereaf~kr. They shall be explained again after he has completed six months of active duty, and again at the time he reenlists. A complete 

text of the Uniform Code of Military Justice and of the regulations prescribed 

by the President thereunder $hall be made available to any person on active 

duty in the armed forces of the United States, upon his request, for his personal 

examination. 

ART. 138. Complaints of wrongs. 

Any member of the armed forces who believes himself wronged by his commanding officer, and, upon due application to such commander, is refused redress, may complain to any superior officer who shall forward the complaint 

to the officer exercising general court-martial jurisdiction over the officer against 

whom it is made. That officer shall examine into said complaint and take proper 

measures for redressing the wrong complained of; and he shall, as soon as 

possible, transmit to the Department concerned a true statement of such complaint, with the proceedings had thereon. 

ART. 139. Redress of injuries to property. 

(a) Whenever complaint is made to any commanding officer that willful damage has been done to the property of any person or that his property has been 

wrongfully taken by members of the armed forces he may, subject to such regulations as the Secretary of the Department may prescribe, convene a board to 

investigate the complaint. The board shall consist of from one to three officers 

and shall have, for the purpose of such investigation, power to summon witnesses and examine them upon oath or affirmation, to receive depositions or 

other documentary evidence, ad to assess the damages sustained against the 

responsible parties. The assessment of damages made by such board shall be 

subject to the approval of the commanding officer, and in the amount approved 
by him shall be charged against the pay of the offenders. The order -of such 

commanding officer directing charges herein authorized shall be conclusive on 

any disbursing officer for the payment by him to the injured parties of the 

damages so assessed and approved. 

(b) Where the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages 

assessed and approved mag be made in such proportion as may be deemed 

just upon the individual members thereof who are shown to have been present 

at the scene at the time the damages complained of were inflicted, as determined 

by the approved findings of the board. 

NOTE.-A municipal corporation is, for cirll purposes, deemed a "person" (United 

States v. Amedy, 24 U. S. (11 Wheat.) 392, 4121 and is so considered within the meaning 

of Article 139. 

This article provides the administrative remedy for damage to or loss of property 

resulting from offenses denounced in Article 109. 

This article is not intended to affect the provisions of 40 Stat. 705 (1918), as amended 

(34 U. S. C. 600) (claims for damages not occasioned by vessels) ; 60 Stat. 842 (1946). 

as amended (25 U. S. C. 2671 et seq.) (tort claims) ; or similar enactments. 

ART. 140. Delegation by the President. 

The President is authorized to delegate any authority vested in him under 

this code, and to provide for the subdelegation of any such authority. 

Sec 2. If any articIe or part thereof, as set out in section I of this Act, shall 

be held invalid, the remainder shall not be affected th$reby. 

See. 3. No inference of a legislative construction is to be drawn by reason of 

the part in which any article is placed nor by reason of the catch lines of the 

part or the article as set out in section 1 of this Act. 

Sec 4. All offenses committed and all penaLties, forfeitures, fines, or liabilities 

incurred prior to the effective date of this Act under any law embraced in or 

modified, changed, or repealed by this Act may be prosecuted, punished, and 

enforced, and action thereon may be completed, in the same manner and with the 

same effect as if this Act had not been passed. 

See. 5. This Act shall become effective on the last day of the twelfth month 

after apllroval of this Act, or on July 1, 1950, whichever date is later : Provided, 

That the provisions of article 67(a) of this Act shall become effective on the last 

day of the ninth month after approval of this Act: Provided further, That the 

provisions of section 12 of this Act shall become effective on the date of the 

approval of this Act. 

See. 6. Articles of War 107,108, 112,113,119, and 120 (41 Stat. 809, 810, all), 

as amended, are further amended as follows : 

(a) Delete from article 107, the words "Article 107." 

(21) Delete from article 108, the words "Article 108." 

(G) Delete from article 112, the words "Article 112." 

(d) Delete from. article 113, the words "Article 113." 

(e) Delete from article 119, the words "Article 110." 

(f) Delete from article ,120, the words "Article 120." 

These provisions as amended herein shall be construed to have the same force, 

effect, and applicability as they now have, but shall not be known as "Articles 

of War". 
ACT OF 5 MAY 1950 See. 6 

(a) BoZdJers to Make Good Tine LO&.-e very soldier who in an existing or subsequent 

enlistment deserts the service of the United States, or without proper authority absents 

himself from his organization, station, or duty for more than one day, or who ia confined 

for more than one day under sentence, or while awaiting trial and disposition of his case, 

if the trinl results in conviction, or through the. intemperate nae of drugs or alcoholic 

liquor, or through disease or injury the result of his own misconduct, renders himself 

unable for more than one day to perform duty, shall be liable to serve, after his return 

to a full-duty status, for such period as shall, with the time he may have served prior 

to such desertion, unauthorized absence, confinement or inability to perform duty, amount 

to the full term of that part of his enlistment period which he is required to serve with 

his organization before being furloughed to the Army reserve. (Act 4 June 1920, 41 Stat. 

809, as amended by act 5 Yay 1950 ; 10 U. S. C. 1579.) 

Note.-Does not apply to the naval service and the Coast Guard. 

(b) Boldiers-Beparation From the service.-No enlisted person, lawfully inducted into 

the military service of the United States, shall be discharged from said service without 

a certificate of discharge, and no enlisted person shall be discharged from said service 

before his term of service has expired, except in the manner prescribed by the Secretary of 

the Army, or by sentence of a general or special court-martial. (Act 4 June 1920, 41 Stat. ' 809, as amended by act 6 May 1950 ; 10 U. S. C. 1580.) 

Note.-Does not apply to the naval service and the Coast Guard. 

(c) Effects of Deceased Persons-Disposition of.-In case of the death of any person 

subject to military law the commanding officer of the place of command will permit the 

legal representative or widow of the deceased, if present, to take possession of all his 

effects then in camp or quarters; and if no legal representative or widow be present, the 

commanding officer shall direct a summary court to secure all such effects, and said 

summary court shall have authority to collect and receive any debts due decedent's estate 

by local debtors and to pay the undisputed local creditors of decedent in so far as any 

money belonging to the deceased which may come into said summary court's possession 

under this article will permit, taking receipts therefor for flle with sald court's flnal report 

upon its transactions to the Department of the Army; and as soon as practicable after 

the collection of such effects said summary court shall transmit such effects and any 

money collected, through the Quartermaster Department, at Government expense, to 

the widow or legal representative of the deceased, if such be found by said court, or 

to the son, daughter, father, provided the father has not abandoned the support of 

his family, mother, brother, sister, or the next of kin in the order named, if such be 

found by said court, or the beneficiary named in the mill of the deceased, if such 

be found by said court, and said court shall thereupon make to the Department of 

the Army a full report of its transactions ; but if there be none of the persons hereinabove 

named, or such perspns or their addresses are not known to or rei~dily ascertainable by 

said court, and the said court shall so find, said summary court shall have authority 

to convert into cash, by public or private sale, not earlier than thirty days after the 

death of the deceased, all effects of deceased except sabers, insignia, decorations, medals, 

watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes; and as 

soon as practicable after converting such effects into cash said summary court shall deposit 

, with the proper officer, to be designated in regulations, any cash belonging to decedent's 

estate, and shall transmit n receipt for such deposits, any wlll or other papers of value 

belonging to the deceased, any sabers, insignia, decorations, medals, watches, trinkets, 

manuscripts, and other articles valuable chiefly as keepsakes, together with an inventory 

of the effects secured by said summary court, and a full account of its transactions, to the 

Department of the Army for transmission to the Auditor for the Department of the Army 

for action as authorized by law in the settlement of accounts of deceased officers and 

enlisted men of the Army. 

The provisions of this article shall be applicable to inmates of the United States Soldiers' 

Home who die in any United States military hospital outside of the District of Columbia 

where sent from the home for treatment. (Act 4 June 1920, 41 Stat. 809, as amended 

by act 5 May 1950 ; 10 U. S. C. 1584.) 

Note.-Does not apply to the naval service and the Coast Guard. 

(d) Inquests.-When at any post, fort, camp, or other place garrisoned by the military 

forces of the United Stntes and under the exclusive jurisdiction of the United States, any 

person shall have been found dead under circumstances which appear to require investi- 
. . Sec. 7 APPENDIX 2 

gation, the commanding ofacer will designate and direct a summary court-martial to 

investigate the circumstances attending the death; nnd, for this purpose, such summary 

court-martial shall have power to summon witnesses and examine them Upon oath or 

atlrmation. He shall promptly transmit to the post or other commander a report of his 

investigation and of his findings as to the cause of the death. (Act 4 June 1920, 41 Stat. 

810, as amended by act 5 Nay 1950 ; 10 0. S. C. 1586.) 

Note.-Does not apply to the naval service and the Coast Guard. 

(e) Rank and Precedence among Regulars, Militia, and Vo1ttnteers.-That when two or more oflcers of the same grade are on duty in the same field, department, or command, or of 

organizations thereof, the President may assign the command of the forces of such field, 

department, or command, or of any organization thereof, without regard to seniority of 

rank in the same grade. (Act 4 June 1920, 41 Stat. 811, as amended by act 7 Aug. 1947, 

61 Stat. 913, and act 5 May 1950 ; 10 U. 8. C. 1591.) 

Note.-Does not apply to the naval service and the Coast Guard. 

(f) Command when Different Corps or Commands Happen to Join.-When different 

corps or commands of the military forces of the United States happen to join or do duty 

together, the officer highest in rank of the line of the Regular Army, Marine Corps, forces 

drafted or called into the service of the Unitecl States, or Volunteers, there on duty, shall, 

subject to the provisions of the last preceding article, command the whole and give orders 

for what is needful in the service, unless otherwise directed by the President. (Act 4 June 

1920, 41 Stat. 811, as amended by act 5 May 1950 ; 10 U. S. C. 1692.) 

See. 7. (a) AUTHORITY OF NAVAL OFFICERS AFTER LOSS OF VESSEL OR AIRCRAFT.-When the crew of any naval vessel or naval aircraft are 

separated from their vessel or aircraft by means of its wreck, loss, or destruction, 

all the command and authority given to the officer of such vessel or aircraft 

shall remain in full force until such crew shall be regularly discharged or 

reassigned by competent authority. 

(b) AUTHORITY OF OFFICERS OF SEPARATE ORGANIZATION OF 

MARINES.-When a force of marines is embarked on a naval vessel or vessels, 

as a separate organization, not a part of the authorized complement thereof, 

the authority and powers of the officers of such separate organizations of marines 

shall be the same as though such organization mere serving at a naval station 

on shore, but nothing herein shall be construed as impairing the paramount 

authority of the commanding officer of any vessel over the vessel under his 

command and all persons embarked thereon. 

(c) COMMANDERS' DUTIES OF EXAMPLE AND CORRECTION.-A11 

commanding officers and others in authority in the naval service are required 

to show in themselves a good example of virtue, honor, patriotism, and subordination; to be vigilant in inspecting the conduct of all persons who are placed 

under their command; to guard against and suppress all dissolute and immoral 

practices, and to correct, according to the laws and regulations of the Navy, 

all persons who are guilty of them; and to take all necessary and proper measures, under the laws, regulations, and customs of the naval service, to promote 

and safeguard the morale, the physical well-being, and the general welfare of 

the officers and enlisted persons under their command or charge. 

(d) DIVINE SERVICE.-The commanders of vessels and na~al activities to 

which chaplains are attached shall cause divine service to be performed on 

Sunday, whenever the weather and other circumstances allow it to be done; 

and it is earnestly recommended to all officers, seamen, and others in the naval 

service diligently to attend at every performance of the worship of Almighty God. 

(e) REVERENT BEHAVIOR.-A11 persons in the Navy are enjoined to behave themselves in a reverent and becoming manner during divine service. 
ACT OF 5 MAY 1950 Src. 12 

OATH OF ENLISTMENT 

Sec. 8. Every person who is enlisted in any armed force shall take the folloming oath or affirmation at the time of his enlistment: "I, --------------------, 

do solemnly swear (or affirm) that I will bear true faith and allegiance to the 

United States of America; that I will serve them honestly and f&thfully against 

,711 their enemies whomsoever; and that I will obey the orders of the Prepident 

of the United States and the orders of the officers appointed over me, according 

I to regulations and the Uniform Code of Military Justice." This oath or affirmation may be talren before any officer. 

1 NOTB.-Any commissioned ofecer of any component (including the reserve component), 

of any of the armed forces of the United States, whether or not on active duty, is 

authorized to administer the oath required for the enlistment of any person, the oath required for the ap~ointment of any person to commissioned or warrant ofecer grade, and 

any other oath required by law in connection wlth the enllstment or appointment of any 

person in any of the aforesaid services. (See. 1, act 22 Nay 1950, 64 Stat. 187; 10 

U. S. C. 19 ; 34 U. S. C. 217a-2.) 

REMOVAL OF CIVIL SUITS 

Sec. 9. When any civil or criminal prosecution is commenced in any court of 

a State of the United States against any member of the armed forces of the 

United States on account of any act done under color of his office or status, or in 

respect to which he claims any right, title, or authority under any law of the 

United States respecting the armed forces thereof, or under the law of war, 

such suit or prosecution may at any time before the trial or final hearing thereof 

be removed for trial into the district court of the United States in the district 

where the same is pending in the manner prescribed by lam, and the cause shall 1 thereupon be entered on the docket of such district court, which shall proceed 

as if the cause had been originally commenced therein and shall have full power 

to hear and determine said cause. 

DISMISSAL OF OFFICERS 

Sec 10. No officer shall be dismissed from any of the armed forces except by 

sentence of a general court-martial, or in commutation thereof, or, in time of 

war, by order of the President; but the President may at any time drop from 

the rolls of any armed force any officer who has been absent without authority 

from his place of duty for a period of three months or more, or who, having 

been found guilty by the civil authorities of any offense, is finally sentenced to 

confinement in a Federal or State penitentiary or correctional institution. 

See. 11. The proviso of section 3 of the Act of April 9, 1906 (34 Stat. 104, ch. 

1370), is amended to read as fallows : 

"Provided, That such midshipman shall not be confined in a military or naval 

prison or elsewhere with men who have been convicted of crimes or misdemeanors ; 

and such finding and sentence shall be subject to review in the manner prescribed 

for general court-martial cases.'' 

Sec 12. Under such regulations as the President may prescribe, The Judge 

Advocate General of any of the armed forces is authorized upon application of 

an accused person, and upon good cause shown, in his discretion to grant a new 

trial, or to vaeate a sentence, restore rights, privileges, and property afpected by 

such sentence, and substitute for a dismissal, dishonorable discharge, or badconduct discharge, previously executed, a form of discharge authorized for admin. 
Sec. 14 APPENDIX 2 

istrative issuance, in any court-martial case iDvolving offenses committed during 

World War I1 in which application is made within one year after termination of 

the war, or after its final disposition upon initial appellate review whichever is 

the later: Provided, That only one such application for a new trial may be entertained with regard to any one case: Alzd provided further, Within the meaning of 

this section and'of article of war 53, World War I1 shall be deemed to have ended 

as of the effective date of this Act. 

QUALIFICATIONS OF THE JUDGE ADVOCATES GENERAL 

See. 13. Hereafter The Judge Advocate General of an armed force, exclusive 

of the present incumbents and exclusive of the Coast Guard, shall be appointed 

from among those officers who at the time of such appointment are members of 

the bar of a Federal court or the highest court of a State or Territory and who 

haye had not less than a total of eight years' experience in legal duties as 

commissioned officers. 

Sec 14. The following sections or parts thereof of the Revised Statutes or 

Statutes at Large are hereby repealed. Any substantive rights or liabilities 

existing under such sections or parts thereof prior to the effective date of this 

Act shall not be affected by this repeal, and this Act shall not be effective to 

authorize trial or punishment for any offense if such trial or punishment is 

barred by the provisions of existing law : 

(a) Chapter I1 of the Act of June 4,1920 (41 Stat. 759, 787-811, ch. 227), as 

amended, except Articles of War 107,108,112,113,119, and 120; 

(b) Revised Statutes, 1228 through 1230; 

(c) Act of January 19,1911 (36 Stat. 894, ch. 22) ; 

(d) Paragraph 2 of section 2 of the Act of March 4,1915 (38 Stat. 1062,1084, 

ch. 143) ; 

(e) Revised Statutes 1441,1621, and 1624, articles 1 through 14 and 16 through 

63, as amended; 

(f) The provision of section 1457, Revised Statutes, which subjects officers 

retired from active service to the rules and articles for the government of the 

Navy and to trial by general court-martial ; 

(g) Section 2 of the Act of June 22, 1874 (18 Stat. 191,192, ch. 392) ; 

(h) The provision of the Act of March 3,1893 (27 Stat. 715,716, ch. 212), under 

the heading "Pay, Miscellaneous", relating to the punishment for fraudulent 

enlistment and receipt of any pay or allowances thereunder; 

(i) Act of January 25, 1895 (28 Stat. 639, ch. 45), as amended; 

(j) Provisions contained in the Act of March 2,1895 (28 Stat. 825,838, ch. 186), 

as amended, under the heading "Naval Academy", relating to the power of the 

Secretary of the Navy to convene general courts-martial for the trial of naval 

cadets (title changed to "midshipmen" by Act of July 1, 1902, 32 Stat. 662, 686, 

ch. 1368), his power to approve proceedings and esecute sentences of such courtsmartial, and the exceptional provision relating to approval, confirmation, and 

carrying into effect of sentences of suspension and dismissal ; 

(k) Sections 1 through 12 and 15 through 17 of the Act of February 16, 1909 

(35 Stat. 621, 623, ch. 131) ; 

(1) The provision of the Act of August 29, 1916 (39 Stat. 556, 573, ch. 417), 

under the heading "Hospital Corps", malting officers and enlisted men of the 

Medical Department of the Navy who are serving with a body of marines detached 

for service with the Army subject to the rules and Articles of War while so 

serving ; 
ACT OF 5 MAY 1950 Seo 16 

(m) The provisions in the Act ,of August 29, 1916 (39 Stat. 556, 586, ch. 

417), under the heading L'Administration of Justice"; 

(n) Act of October 6, 1917 (40 Stat. 393, ch. 03) ; 

(0) Act of April 2, 1918 (40 Stat. 501, ch. 30) ; 

(p) Act of April 25,1935 (49 Stat. 161, ch. 81) ; 

(q) The provision of section 6, title I, of the Naval Reserve Act of 1938 (52 

Stat. 1175, 1176, ch. GDO), making members of the Fleet Reserve and officers and 

enlisted men who have been or may be transferred to the retired list of the 

Naval Reserve Force or the Naval Reserve or the honorary retired list with 

pay subject to the laws, regulations, and orders for the government of the Navy; 

(r) Section 301, title 111, of the Naval Reserve Act of 1938 (52 Stat. 1175, 

1180, ch. 690) ; 

(s) Act of March 22,1943 (57 Stat. 41, ch. 18) ; 

(t) Act of April 0,1943 (57 Stat. 58, ch. 36) ; 

(u) Title 14, United States Code, sections 4(f) and 758; 

(v) All of chapter 15 of title 14, United States Code, including the chapter 

number, the analysis, and the reference thereto in the table of contents to 

part I. 

Sec. 15. Section 227 of title 14, United States Code, is amended by striking 

out the mord "disn~issal" and inserting in lieu thereof the mord "discharge" in 

the catchline; and by striking out the word i6dismiSs" and inserting in lieu thereof 

the word "discharge" in the text. 

Sec. 16. (a) Chapter 13 of title 14, United States Code, is amended by adding 

at the end thereof the following new sections : 

508. Deserters ; arrest of by civil authorities; penalties. 

"(a) Any civil officer having authority to arrest offenders under the laws 

of the United States or of any State, Territory, or District, may arrest summarily a deserter fram the Coast Guard and deliver him into the custody of 

Coast Guard authorities. The Commandant may, pursuant to applicable regulations, provide for reimbursement for the transportation and other necessary 

expenses to effectuate such delivery. 

"(b) No person who is convicted by court-martial for desertion from the 

Coast Guard in time of war, and as the result of such conviction is dismissed 

or dishonorably discharged from the Coast Guard shall afterwards be enlisted, 

appointed, or commissioned in any military or naval service under the United 

States, unless the disability resulting from desertion, as established by this 

section, is removed by a board of commissioned officers of the Coast Guard 

convened for consideration of the case, and the action of the board is approved 

by the Secretary; or unless he is restored to duty in time of war. 

"g 509. Prisoners ; allowances to ; transportation. 

" (a) Persons codned in prisons in pursuance of the sentence of a Coast Guard 

court shall, during such confinement, be allowed a reasonable sum, not to exceed 

$3 per month, for ne,cessary prison expenses, and shall upon discharge be furnished with suitable civilian clothing and paid a gratuity, not to exceed $25. 

Snch allowance shall be made in amounts to be fixed by, and in the discretion 

-of, the Secretary and only in cases where the prisoners so discharged would 

' otherwise be unpro~ided with suitable clothing or without funds to meet their 

immediate needs. 

"(b) The Commandant may transport to their homes or places of enlistment, 

as he may designate, all discharged prisoners; the expense of such transportation shaIl be paid out of any money to the credit of prisoners when discharged.'' 
Sec. 17 APPENDIX 2 

(ZI) The analysis of chapter 13 of said title 14, United States Code, is 

amended by adding at the end thereof the following new items: 

"508. Deserters ; arrest of by civil authorities ; penalties. 

"509. Prisoners ; allowances to ; transportation." 

See. 17. There is hereby authorized to be appropriated, out of any moneys in 

the Treasury not otherwise appropriated, such sums as may be necessary to 

carry out the purposes of this Act. 

Approved May 5, 1950. 
Appendix 3 

PUNISHMENT UNDER ARTICLE 15 

NON-JUDICIAL PUNISHMENT FORMS 

a. RECORD OF PUNISHMENT UNDER ARTICLE 15 UPON ENLISTED 

PERSONS. 

UNIT PUNISHMENT BOOK 

Glassborn. Peter E. Pvt RA 1682436t Co A, 109 Inf 

NAME, LAST NAME FIRST GRADE SERVICE NUMBER ORGANIZATION 

b. IMPOSITION OF PUNISHMENT UNDER ARTICLE 15 UPON 

OFFICERS. 

(1) Army and Air Force. 

HEADQUARTERS 

THIRTIETH AIR FORCE 

Andrews Air Force Base 

Maryland 

24 October 1951 

SUBJECT: Disciplinary Punishment 

THRU: Commanding General 

11th Fighter Wing 

Andrews Air Force Base, Maryland 

TO: Major John J. Hawk, USAF 

415th Fighter Squadron 

Andrews Air Force Base, Maryland 

1. It has been reported that on or about 2200 hours, 20, October 1951, at South 

Post, Fort Myer, Virginia, you drove an automobile at 40 miles per hour on B 

Street which was plainly marked by signs showing the speed limit to be 20 miles 

per hour. It is also reported that you behaved in a rude and overbearing manner 

toward a military policeman who cautioned you about your violation of local 

traffic regulations. 
App. 3b APPENDIX 3 

2. The Commanding General, Thirtieth Air Force, proposes to impose punishment upon you pursuant to Article 15 as to such offenses unless trial by courtmartial is demanded. You mill acknowledge receipt of this communication by 

indorsement through proper channels, and you mill state therein whether you 

demand trial in lieu of action under Article 15. You may submit any matter in 

mitigation, extenuation, or defense. 

BY COMMAND OF MAJOR GERTERAL FALCON : 

/s/ John Crow 

/t/ JOHN CROW 

Colonel, USAF 

Adjutant General 

(NOTE.-Under the provislons of 133a, the letter notifying the accused of the intention 

to impose punishment and all subsequent indorsements will be through proper military 

channels. Indorsements by intermediate commanders through whom the communication 

may pass are not shown on this form. Accordingly, the indorsements are not numbered.) 

Ind 

415th Fighter Squadron, Andrews Air Force Base, Maryland, 27 October 1951. 

TO : CG, Thirtieth Air Force, Andrews Air Force Base, Maryland 

THRU: CO, 415th Fighter Group, Andrews Air Force Base, Maryland 

Receipt is acknowledged. Trial by court-martial is not demanded. No matters 

in mitigation, extenuation, or defense are submitted. 

/s/ John J. Hawk 

/t/ JOHN J. HAWK 

Major, USAF 

Ind 

Hq Thirtieth Air Force, Andrews Air Force Base, Maryland, 29 October 1951 

TO: Iilajor John J. Hawk, USAF, 415th Fighter Squadron, Andrews Air Force 

Base, Maryland 

THRU : CG, 11th Fighter Wing, Andrews Air Force Base, Margland 

1. You are hereby ordered to forfeit $25.00 of your pay and you will take ' 

necessary action to insure that this forfeiture is promptly effected. 

2. You are hereby reprimanded. In violating the post traffic regulations of 

an Army installation and in behaving yourself in a reprehensible manner towards 

a military policeman who was performing his duty in bringing your infractions 

to your attention, you have conducted yourself in a manner prejudicial to good 

order and military discipline. It is expected that your future conduct will set 

an example of decorum to be followed by your associates in: the service. 

3. You are advised of your right to appeal in accordance with paragraph 134, 

MCM, 1951. You are directed to reply further by indorsement and to state 

therein the date of receipt of this indorsement and any appeal you may desire 

to make. 

/s/ Richard Falcon 

/t/ RICHARD FALCON 

51ajor General, USAF 

Commanding 
FORMS--NON-JUDICIAL PUNISHMENT 

Ind 

App. 3b 

415th Fighter Squadron, Andrems Air Force Base, Maryland, 31 October 1951 

TO : CG, Thirtieth Air Force, Andrews Air Force Base, &laryland 

THRU : CO, 415th Fighter Group, Andrews Air Force Base, Maryland 

1. Received 29 October 1051. Contents noted. 

2. I do not appeal from this punishment. 

/s/ John J. Hawk 

/t/ JOHN J. HAWK 

Major, USAF 

(2) Navy and Coast Guard. 

From : Commander Service Force, Atlantic Fleet 1 August 1951 

To : Lieutenant A. B. C------, U. S. Navy 

Via : Commanding Officer, - , U. S. S. --- 

Subj : Dereliction in performance of duty-Imposition of disciplinary punishment 

and letter of reprimand for 

Ref: Board of Investigation convened 11 July 1951 by order Comservlant 

1. The finding of facts in the referenced investigation, in which you were 

a party, reveals that you were derelict in the performance of your duties in that 

on 5 July 1951 as officer of the deck of the first watch on board the U. S. S. 

at anchor in Hampton Roads, Norfolk, Virginia, you failed and neglected 

to require frequent and regular inspection of the ship's small boat which was 

then in the water and tied up at the fan tail. As a result of your negligence, 

the fact that the small boat was adrift mas not discovered until it had beached 

itself with consequent damage to the boat. Therefore, a forfeiture of $100.00 

of your pay for one month is hereby imposed. 

2. In addition, you are hereby reprimanded for your negligence in this matter 

which was oontrary to the standards of alertness and good seamanship required 

of all watch officers. 

3. By copy of this letter your commanding oficer is hereby directed to make 

notation of this letter in your next fitness report. 

4. You are advised of your right to appeal in accordance with paragraph 134, 

MCM, 1951. You are directed to reply without delay, through official channels, 

and to state therein the date of receipt of this commu~lication and any appeal 

you may desire to make. 

( Signed ) 

D. k. F 

Copy to : 

Commanding Officer 

U. S. s. 

(Nore.-When disciplinary punishment is bnsed on a report of facts established by a 

court of inquiry or board of investigation before which the nccused was not a party, the 

accused shall be informed that .disciplinary punishment is contemplated in his case and 

of the specific offense forming the bnsls therefor. The accused mill also be informed 

that he is privileged to make a written stntement setting forth any cause why such 

disciplinary punishment should not be imposed or any other pertinent matter in connectioo 

therewith.) ' 
Appendix 4 

FORMS FOR ORDERS APPOINTING COURTS-MARTIAL 

a. GENERAL COURT-MARTIAL APPOINTING ORDERS. 

(1) Appointing orders. 

(Designation of command of officer convening court-martial) 

(Place) . (Date) 

NOTI3 1.-The heading of orders appointing general courts-martial (including 

letterhead, place, date, etc.) may be as indicated, or as prescribed in appropriate 

departmental regulations. This appendix shows only the content required to be 

set forth in all appointing orders. Abbreviations authorized in the department 

may be used. 

A, general court-martial is hereby ordered to convene (at) (on board) - 

at - hours on - I&, or as soon thereafter as practicable, for,the 

trial of such persons as mag properly be brought befqre it. The court will be 

constituted as follows : 

LAW OFFICER 

(Lieutenant Commander) (Major) -, (* ) , certifled in accordance 

with Article 26a 

MEMBERS 

(Captain) (Colonel) 9 (* ) 

(Commander) (Lieutenant Colonel)----- , (* ) 

(Commander) (Lieutenant Colonel)------ , (* 1 

tLieutenant Commander) (Major) , (* ) 

(Lieutenant Commander) (Major) I (* ) 

(Lieutenant) (Captain) 3 (* ) 

COUNSEL 

(Lieutenant Commander) (Major) (* ) TRIAL COUNSEL, certsed in 

accordance with Article 27b 

(Lieutenant, jg) (First Lieuten- (* ) ASSISTANT TRIAL COUNSEL, 

ant) -, not certified in accordance with Article 

270 

(Lieutenant Commander) (Major) (* ), DEFENSE COUNSEL, certi- 

, fled in accordance with Article 270 

(Lieutenant) (Captain) , (* ), ASSISTANT DEFENSH COUN8EL, not certified in accordance with 

Article 270 

NOTE 2.-Appointing orders may be signed personally by the oflcer having authority to convene the general court-martial, or may be authenticated ie any manner 

prescribed In appropriate departmental regulations. 

NOTE 3.-Legal qualifications of all counsel of a general court-martlal are shown 

in the appointing orders. See 6b and d. 

"NOTE 4.-(* ). The further identification of the ofecer members of the 

court, the law omcer, and counsel, by service number, organization, etc., will be as 
FORMS-APPOINTING ORDERS 

prescribed in appropriate departmental regulations, or as Is customary in the 

particular service. 

NOTE 6.-When a commnnding ofacer is designated by the Secretary of a Department pursuant to Artlcle 22a(6) or empowered by the President pursuant to Article 22a('i) to convene general courts-martlnl (50(2) ), the appointing order will 

cite such authorization in the flrst paragrnph: 

-- 

"Pursuant to authority contained in (par. -, General Orders -, Dept. I$--) (Navy Department's file A 17-1151 (1) (310126), - 

19-1 ( ), a general co~rt-martial is hereby ordered to convene," etc. 

NOTE 6.-A successlon ot orders modifying an appointing order may result in 

serious errors. When prncticable, it should be avoided by appointing a new court. 

See 37c(l). It is not decrnad advisable to issue an order dissolving a court-martial, 

and when a new court is appointed to replace one in existence, the following sentence @auld merely be addcd, below the names of the personnel of the court (36b). 

to the order appointlng t~e new court: 

"A11 unarraigned cases In the hands of the trial counsel of the general courtmartial convened by -, mill be brought to trial before the court hereby 

appointed." 

(2) Order amending appointing orders. 

(a) Adding members. 

NOTE 7.-For heading and closure, see Notes 1 and 2 above. 

NOTE 8.-When an enlisted person has requested enlisted members on the court 

which tries him, the folloming may be used when his case has already been referred 

to a court without enlisted membership to the number of one-third. See 36c(2) (a). 

This general type of order mar also be modified and used to appoint additional 

ofacer members to the court (37a). 

The text of such an appointing order in the Armp might rend as follows : 

The following members are aptd to GCM convened by par - SO - Hq 61st 

Inf Div (for the trial of PRIVATE - , RA 12 345 678, Co 31 6lst Inf, only) 

(for the trial of enlisted persons who make a timely request, pursuant to Article 

25c, that enlisted persons serve on it). 

MSGT Co B 61st Inf 

MSGT Hq Btry 3d FA Bn 

SFC Co C 1st Inf 

SGT Co G 1st Inf 

NOTE 9.-Additional members may be detailed for one specified case only, or for 

all cases which may come before the court. 

NOTE 10.-An order appointing enlisted persons as members of a general courtmartial must show the un-it to which each is assigned. See 4a, 36b, and Article 25c. 

(b) Replacing law o@cer. 

NOTE 11.-For heading aud closure, see Notes 1 and 2 above. This form may be 

modified to replace a member of the court or counsel. 

(Lieutenant Commander) (Major) - ,(*Note 4 above), certMed in 

accordance with Article 26a, is appointed Law Officer of the general court-martial 

convened by - , vice (Lieutenant) (Captain) -, (*Note 4 above), 

relieved. 

NOTE 12.-Same as for general courts-martial, except that no law officer is 

appointed and the manner of stating legal qualifications of counsel is different. 

Qualiflcntions of counsel or their lack of qualifications in the sense of Article 27 

must be shown in the apDointing order (60 and (1). If counsel is qualified to act 

as counsel before a general court-martial (Art. 27c(l)), the phrase, "certified in 
App. 4c APPENDIX 4 

accordance with Article 27b," mill be nsed. If counsel is a judge advocate, a law 

specialist, or a member of the bar of a Federal court or the highest court of a State 

(Art. 27c(2) ), but has not been certified in accordance with Article 27b, the phrases, 

"judge advocate," "law specialist," or "member of the bar of - ," respectively, 

wlll be used. If counsel has none of tllg foregoing legal qualifications, the phrase, 

"not a lawyer in the sense of Article Pi'," \\.ill be uscd. In a particular case, an appointing order might list counsel and their legal qualifications or lack of legal 

qualifications, as follows : 

(Lieutenant) (Captain)- , (*Note 4 above), TRIAL COUNSEL, (Judge 

Advocate) (Law Specialist) 

(Ensign) (Second Lieutenant) -, ('*Note 4 above), ASSISTANT TRIAL COUNSEL, not a lawyer in the sense of Article 27 

(Lieutenant Commander) (*Note 4 above), DEFENSE COUNSEL, 

(Major) , certified in accordance with Article 27b 

(Lieutenant) (Captain)------ (*Note 4 above), ASSISTANT DEFENSE 

COUNSEL, member of Bar of (Supreme 

Court of Ohio) (U. S. District Court, District 

of New Jersey) 

 NOT^ 13.-When desirable, a convening authority may specify in the order the 

names of the person or persons to be tried. See Notes 8 and 9, above, for the use 

of "only" in appointing orders. 

C. SUMMARY COURT-MARTIAL APPOINTING ORDERS. 

No~n 14.-As to hending, signature, or authentication, etc., see Notes 1 and 2, 

above. 

EfPective this date (Major) (Lieutenant Commander) -, (*Note 4, 

above), is appointed a summary court-martial. - 
Appendix 5 

CHARGE SHEE.T 

CHARGE SHEET 

PL4CE OllE 

I ACCUSED (Last na.e.FAr.1 n..s.Yiddla Inltl.A)(Lial a1ia.s~ -ham SERVICE NUMBER 

..tO,I.A.) 

RANK OR GRADE 

- I 

ORGIHIZ*II~N AND ARMED FORCE (11 I~~..C~.L~ A. mot . OITE OF ~IRTH PPY PLR MONTH 

ma. bar of."? .r..d forts, a,.,. 0th.r ..prop,i.,. d.. 

,.ription .ba.And that he A, .ublrsl to.ilAl.rv la..) BISlC S 

CONIRIBUIIOUIOFAUILI OR PUIRTERS 

ALLOIAHCE (YW, 116h (1)) - 

SEl OR 

FOREIGN OUIV ' TOTAL s 

RECORD OF SERVICE 

IHIIIAL OLIE OF CURRENT SERVICE lERI OF CURRENT SERIICE 

PRIOR SERYICE (4. to .ash pr1.r p.?Iod o/ .errice. 8i.n Inclu*Ara data. of ..rsic.andordanliationInrhich servinl 

at I,rmln.llon.) 

DATA AS TO WITNESSES 

 AYE OF WITHISS LODRESS wll~EssES FOR 

QROStCUTlOl ACCUSEL 

OOCUMENTS AN0 OBJECTS 

LlSl &YO OESCRIBC. li NO1 ATIPICHED TO CHARGESl NOTE IMERE I1 HA? BE FOUND. 

OlTA IS TO RESTRAINT 

NAlURE OF AN1 RISIRAINT OF ACCUSED DLlE LOCATION 
APP. 5 APPENDIX 5 

Charge : Violation of the Uniform Code of Llllitary Justice. Article 

Specification 

II Ihls space 1s In,ufllslcnl for all charls. and .~.cIficalionl. 1h.1 -I11 be ..I forth num.rlc.lly. front to 

back. on .rp.r.t. .ho.t. .,,ached to ,hi. P.,.. 
CHARGE SHEET APP. 5 

SIGNAIURE OF ACCUSER ORGANIZAIION 

AFFIDAVIT 

Bcfore me. the undersigned, authorlred by law to dminister atb in cases of this character. 

peramally appared the above-mmd accuser this day of . 19-. 

nnd signed the foregoing chsrgeo and rpec~ficetions der eath that he is e person subject to the 

UniformCcde of Mllitsry Justice. srd that' he either has personal knmledge of or has inveoticsted 

the nntterr xt forth therein. and that the ram ere tru in fact, to th best of his knwledge ardblief. 

SIOII~UI~ RINK ARO 0~~111~11101 OF OFFICEI 

IDYIIIS1ERlIG 011s 

OFFICIAL CIARICTCR.IS IOJUTI~T.SUYYIV CouRr. ETC. 

1Er r11AORIPn 29a, YCH. 1951, l1D lR1lCLES 30. 

IN0 136. 

Olllce, .d.lnl,t.,ln# emth -#I W b coaml..lsnsd ofl1s.r. 

OIlE 

I have this date informed the accused of the charges against him. 

JIOIIlU11 RINK IN0 OROIIIZIlIOI 

OCaIEllIlOl OF Cn**InD OF OFFtCIl EKEIC1SII0 

SUMMIII COUIl-MIITIIL JUIIIDICIIOI #LICE DIlE 

the sworn chsrgea above were received at - hours. this date. 

FOR TRE CCMMANDlNG . 

SlGRIlUIE. LAIC, #ID OFFICIAL CIPlClTl Of OFFICER SlGIllG 

isr laoouspar 

OESlG~IllOI OF COYMIID OF COS~11lIO IUlUOlllI PLlLF DATE . 19- 

Referred for trial to the court-martial appointed by 

. 19-. subject to the following inotructions: 2 

BY of COIHIBD OR OIDEI 

I have served a cppy hereof on each of the ebove-named accused, this day of 

.19-. 

1111 AID ORGA11Z1TIOX OF TRIAL COUlSEL 

RANK 
APPENDIX 5 ' 

-- - 
Appendix 6 

FORMS FOR CHARGES AND SPECIFICATIONS 

a. INSTRUCTIONS. 

1. Use of forms.-These forms are to be used in drafting charges and specifications, not only for the offenses specifically provided for, but as they may be 

adapted to like offenses. The suggested forms do not as a matter of law exclude 

other methods of alleging the same offenses, but the appropriate form listed 

with a punitive article setting forth a specific offense is prescribed for use, 

when properly completed, as a sufficient allegation of that offense. Except to 

a1 in the blanks with the information required, such a form should not ordinarily 

be added to or deviated from. As to general principles oy drafting specifications 

when an offense is not provided for herein, see 28. 

2. Abbreviations.-Dates and times should be written in Arabic numerals, and 

the designation of organization or command may include Roman or Arabic 

numerals and the abbreviations "U. S." and "U. S. S." Otherwise, abbreviations 

should not be used in specifications. 

3. Numbering of charges and specifications.-When there is more than one 

charge, the charges should be numbered, using the Roman numerals I, 11, etc. 

When there is more than one specification under a charge, the specifications 

under that charge should be numbered, using the Arabic numerals 1, 2, etc. 

Additional charges (24b) are numbered in the same manner as the original 

charge; a single added charge is designated simply "Additional Charge," but if 

more than one, they are numbered Additional Charge I, Additional Charge 11, 

etc. Specifications under additional charges are designated as prescribed above. 

The term "Additional" is not used in connection with the specifications. 

4. Name and description of the accused.-The name of the accused as stated 

in the specification should include his first name, middle name or initial, and, 

except in a case in which the jurisdiction of the court over the person is not 

dependent upon his being a person subject to the Uniform Code of Military 

Justice (e. g., see Arts. 104, 106), should be accompanied by such descriptive 

language of rank, grade, armed force, organization, or position as will show 

that he is a person subject to the code, and therefore subject to the jurisdiction 

of the court as to persons. The service number of the accused is not alleged 

in the specification. In the ordinary case of an enlisted person, for example, 

the specification would read, "In that Private John J. Smith, U. S. Army, 

Company A, 7th Infantry, did," etc. ; or, "In that James P. Jones, yeoman, third 

cl&~s, U. S. Navy, U. S. S. -, did," etc. ; or "In that Corporal Harold L. Brown, 

. U. S. Air Force, Headquarters and Headquarters Squadron, 402d Bombardment 

Group, did," etc. A person on active duty belonging to a reserve component of 

the Navy, Marine Corps, or Coast Guard should be described as such ; for example. 

"In that Charles L. White, lieutenant, U. S. Naval Reserve, U. S. S. -, on 

active duty, did," etc. 

In the case of persons subject to the code under Article 2, subsections (3) 

through (12), or subject to trial by court-martial under Article 3 or 4, a description of the accused's position or status which will indicate the basis of jurisdiction of a court-martial should be averred ; e. g., John Jones, (Captain, U. S. Air 

Force Reserve, on inactive duty training authorized by written orders which 

were voluntarily accepted by him, which orders specifled he was subject to the 
App. 6a APPENDIX 6 

. Uniform Code of Military Justice) (a person in custody of - serving a sentence imposed by a court-martial) (a member of the Public Health Service assigned to and serving with - ) (a person within - ,an area under the 

control of the Secretary of - ) (a gerson convicted of having obtained a 

fraudulent discharge) (a former major, U. S. Army, who was dismissed by order 

of the President and has made a writtenapplication for trial by court-martial), 

etc. 

5. Use of aliases.-If the accused is known by more than one name, as when 

without discharge a person enlists two or more times, each time under a different 

name, he should be charged under the name he admits to be his true name. If 

there be no such admission, he should be charged under the name, etc., pertaining to his first unterminated enlistment with the other names, under aliases; 

thus, "Private John P. Smith, U. S. Army, Company B, 7th Infantry, alias John 

Brown, seaman, U. S. Coast Guard." 

6. In case of change of rank or grade.-When the rank or grade of the accuscd 

has changed since the date of an alleged offense, the accused should be designated 

by his present grade followed by a statement of his grade at the date of the 

alleged offense ; thus, "In that A B, seaman, -, then guaser's mate, third 

class, --- , did," etc. 

7. Time and place of offense.-The time and place of the comlsission of the 

offense charged should be stated in the specification with sufficient precision to 

identify the offense and enable the accused to understand what particular act 

or omission he is called upon to defend. It is proper pleading to allege in a 

specification that a certain offense ~ccurred "on or about" a certain day, ''at or 

near" a certain place, or, if it is necessary to be more explicit as to the time, "at 

or about" a certain hour, using a 24-hour clock, e. g., "at or about 2300 hours." 

These phrases are to be construed reasonably in the light of the circumstances of 

each particular case, When the act (or acts) specified extends over a considerable period of time it is proper to allege it (or tbem) as having occurred, 

for example, "from about 15 June 1951 to about 4 November 1951." So, also, 

it is proper to allege that an offense wa8 committed while "enroute" between 

certain points. 

8. Form of specification in joint offense.-In the case of a joint offense (26d) 

each accused may be charged separately as if he alone was concerned or all 

may be charged jointly, that is, in a single specification, in accordance with 

the principles of the follo.wing examples, depending on the decision of the person 

preferring the charges as to how the persons concerned should be tried. If A 

and B are joint perpetrators of an offense and it is intended to charge and try 

both at the same trial, tbey, should be charged in a single specification as 

follows : 

"In that (A) and (B), acting jointly and is Durssance of a cornman intent, 

did (here allege place, time, and offense)!' 

If it is intended that B shall be tried alone, he may be charged 19 the same 

manner as if he had committed the offense by himself. However, if it is desirable to show in the specification that A was a, joint actor with him, even though 

B is not to be tried with B, B might be charged as follows: 

"In that (B) did, in conjunctian with (A), (here allege place, time, and 

offense) ." 

Note that when several persons are to be tried in a common trial, as distin- 

- guished from a joint trial, each is charged separately on individual charge 

sheets (266 ; 331). 
FORMGCHARGES AND SPECIFICATIONS App. 6b 

9. Principals.-Whea a person has not himself directly committed an offense, 

but is liable for its commission as a principal under Article 77, he may be charged 

as though he himself had committed the acts which constitute the offense. 

10. Person against whom offense committed.-In the case of an offense against 

the person or property of an individual, the first name and suiname of such . individual should be stated, if known. Military rank or grade should be alleged if important to the offense, as in an allegation of disobedience of the 

command of a superior officer; or if the individual has no military position, 

it may otherwise be necessary to allege his status, as in an allegation of using 

provoking words towards a person subject to the code (see Art. 117). Address, 

station, or military organization of the person against whom the offense was 

committed need not ordinarily be alleged. 

If the name of the individual against whom the offense was committed is 

not knowli, he may be described as "a person whose name is unknown." 

11. Value.-When the value of property is material with respect to the 

amount of punishment which may be adjudged upon conviction of an offense, 

such value should be alleged, for in such a case a punishment greater than the 

minimum may not be adjudged unless there is an allegation, as well as proof, 

of a value which will support the punishment. See, for a discussion of value, 

200a (Larceny). If several articles of different kinds are the subject of the 

offense, the value of each article should be stated, followed by a statement 

of the aggregate value. An example of proper pleading in this respect would 

be that the accused stole "one shirt, value $- ; one pair of shoes, 

value $--; and one blanket, value $-; of a total value of $-." 

The value of an article should be stated as "value $2.08" if known exactly, 

e. g., per government price list ; or "value of about $5.00" if not so exactly known, 

as in the case of used items of civilian property. 

12. Law of warrIn the case of a person subject to trial by general courtmartial by the law of war (see Art. 18), the Charge should be: "Violation 

of the Law of War"; or "Violation of -, --- ," referring to the local 

penal law of the occupied territory. See 14. However, the erroneous designation of an article of the Uniform Code of Military Justice in such a case does 

not affect the jurisdiction of the court. 

b. SPECIMEN CHARGES. 

Charge I: Violation of the Uniform Code of Nilitary Justice, Article 83. 

fJpecilhztion: In that Private Richard Roe, U. S. Army, Company A, 2d Infantry, alias Private John Doe, U. S. Army, Company F, 29th Infantry, did, 

under the name of John Doe, at Fort Jay, New York, on or about 24 October 

1951, by means of deliberate concealment of the fact that he was then a private 

in said Company A, 2d Infantry, procure himself to be enlisted as a private in 

the Army and did thereafter, at Fort Jay, New York, receive allowances undet 

the enlistment so procured. 

Charge 11: Violation of the Uniform Code of Military Justice, Article 85. 

Bpecification: In that Private Richard Roe, U. S. Army, Company A, 2d Infantry, alias Private John Doe, U. S. Army, Company F, 29th Infantry, did, on or 

about 6 June 1951, without proper authority and with intent to remain away 

therefrom permanently, absent himself from his organization, to wit : Company 

A, 2d Infantry, and did remain so absent in desertion until he was apprehended 

on or about 4 November 1951. 
App. 6c APPENDIX 6 

Charge III: Violation of the Uniform Code of Military Justice, Article 134. 

Specifiation 1: In that Private Richard Roe, U. S. .4rmy, Company A, 2d Infantry, alias Private John Doe, U. S. Army, Company B, 29th Infantry, was, at 

Chicago, Illinois, on or about 5 June 1951, drunk and disorderly in uniform in a 

public place, to wit: Joe's Tavern, located at 936 Blank Street in said city. 

Specification 2: In that Private Richard Roe, U. S. Army, Company A, 2d Infantry, alias Private John Doe, U. S. Army, Company F, 29th Infantry, did, at Fort 

Sheridan, Illinois, on or about 5 June 1951, wrongfuIly and willfully discharge a 

firearm, to wit: a carbine, in the day room of Company A, 2d Infantry, under 

circumstances such as to endanger human life. 

c. FORMS FOR SPECIFICATIONS. 

ARTICLE 78 

Accessory 

the fact 

after 1. In that - , knowing that (at) (on board) - , on or about - I%, - had committed an offense punishable 

by the Uniform Code of Military Justice, to wit: - , did, (at) 

(on board) - , on or about - 19-, in order to (hinder) 

(prevent) the (apprehension) (trial) -(punishment) of the said 

, (receive) (comfort) (assist) the said - by -. 

ARTICLE 80 

Attempts 2. In that - did, (at) (on board) - , on or about 

19-, attempt to (escape from lawful confinement in 

) (steal - , of a value of about $-, the property 

of -) (- 1. 

ARTICLE 81 

Conspiracr 3. In that - did, (at) (on board) - , on or about 

19-, conspire with - (and - ) to commit an 

offense under the Uniform Code of Military Justice, to wit: (larceny of - , of a value of about $- the property of - ) 

(- ), and in order to effect the object of the conspiracy the 

said - (and - ) did -. ' 

ARTICLE 82 

Solicitation, etc. 4. In that - did, (at) (on board) -, on or about 

19-, by (here state the mauner and form of solicitatioil 

or advice), (solicit) (advise) - (and - ) to (desert in 

violation of Article 85) (mutiny in violation of Article 94),* 

'[and, as a result of such (solicitation) (advice), the offense 

(solicited) (advised) was, on or about - I%--, (at) (on 

board) - , (attempted) (committed) by - (and 

11. 

*If the offense solicited or advised is not attempted or committed, 

omit'the words contained in brackets. 

5. In that - did, (at) (on board) - , on or about 

IS-, by (here state the manner and form of solicitation 

or advice), (solicit) (advise) - (and - ) to commit 

(an act of. misbehavior before the enemy in violation of Article 

99) (sedition in violation of Article 94), *[and, as a result of such 
FORMS-CHARGES AND SPECIFICATIONS APP. 6c 

(solicitation) (advice), the offense (solicited) (advised) was, on 

- 

oi' about - 19-, (at) (on board) - , committed by 

(and - 11. 

*If the offense solicited or advised is not committed, omit the words 

contained in brackets. 

ARTICLE 83 

6. In that - did, (at) (on board) - , on or about Fraudulent 

- enlistment or 19-, by means of [knowingly false representations that 

(here state the fact or facts material to qualification for enlistment or appointment which were represented), when in fact 

(here state the true fact or facts)] [deliberate concealment of 

the fact that (here state the fact or facts disqualifying the 

accused for enlistment or appointment which were concealed)], 

procure himself to be (enlisted as a - ) (appointed as a 

) in the (here state the armed force in which the accused 

procured the enlistment or appointment), and did thereafter, 

(at) (on board) - , receive (pay) '(allowances) (pay and 

allowances) under the (enlistment) (appointment) so procured. 

7. In that' - did, (at) (on board) - ,on or about ~;,",~~~~t 

19-, by means of [knowingly false representations that 

(here state the fact or facts material to eligibility for separation 

which were represented), when in fact (here state the true 

fact or facts)] [deliberate concealment of the fact that (here 

state the fact or facts concealed which made the accused ineligible 

for separation) 1, procure himself to be separated from the (here 

state the armed force from which the accused procured his 

separation). 

ARTICLE 84 

8. In that - did, (at) (on board) - , on or about Effectins 

19-, effect [the (enlistment) (appointment) of - ment, etc. as a - in (here state the armed force in which the person 

was enlisted or appointed) 1 [the separation of - from (here 

state the armed force from which the person was separated) 1, 

then well knowing that the said - was ineligible for swh 

(enlistment) (appointment) (separation) because (here state 

facts whereby the enlistment, appointment, or separation was 

prohibited by law, regulation, or order). 

ARTICLE 85 

9. In that - did, on or about - I%--, without proper Desertion with 

authority and with intent to remain away therefrom permanently, :?EtL"., 

absent himself from his [organization, to wit: - ] [ (place of permanently 

service) (place of duty), to wit: - ,located at (- 1 

(APO - )I, and did remain so absent in desertion until (he 

was apprehended) on or about - I%--. 

10. In that - did, on or about - I%-, with intent to Desertion with 

~ntento avoid (avoid hazardous duty) (shirk important service), namely: h,,do, 

, quit his (unit) (organization) (place of duty), to wit: du*-etc. 

, located at (- ) (APO - 1, and did remain so 

absent in desertion until on or about - I$--. 
App. ,6c APPENDIX 6 

Desertion by reenlistment, 

etc. 

Desertion prior to acceptance of resignation 

Attempted 

desertion 

Failing to go to or leaving place of duty 

Absence from 

unit, etc. 

sence from 

$:it, etc, with 

intent to avoid maneuvers 

Abandoning 

watch or guard 

Missing 

movement 

11. In that - , without being regularly separated from 

the (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard), 

did, (at) (on board) - , on or about - 19-, [(enlist) 

(accept an appointment) as a - in the (Army) (Navy) 

(Marine Corps) (Air Force) (Coast G~rd) without fully disclosing the fact that he had not been so regularly separated] 

[enter a foreign armed service, to wit: , not being authorized to do so by the United States], and did remain so absent 

in desertion with respect to his former (enlistment) (appointment) until (he was apprehended) on or about - 19-. 

12. In that - , having tendered his resignation and prior 

to due notice of the acceptance of the same, did, on or about 

19-, without leave and with intent to remain away 

therefrom permanently, quit his (post) (proper duties), to wit: 

, and did remain so absent in desertion until (he was 

apprehended) on or about - 1%. 

13. In that - did, (at) (on board) - , on or about 

19-, attempt to (absent himself from his place of service, 

to wit: - , without proper authority and with intent to 

remain away therefrom permanently) (- 1. 

ARTICLE 86 

14. In that - did, (at) (on board) - , on or about 

19-, without proper authority, (fail to go at the time 

prescribed to) (go from) his appointed place of duty, to wit: 

(here set forth the appointed place of duty). 

15. In that - did, on or about - 19--, without proper 

authority, absent himself from his (unit) (organbation) (place 

of duty at which he was required to be), to wit: - , located at 

(- ) (00 - ), and did remain so absent until on or 

about - 19-. 

16. In that - did, on or about - I%--, without proper 

authority and with intent to avoid (maneuvers) (field exercises), 

absent himself from his (unit) (organization) (place of duty 

at which he was required to be), to wit: - ,located at 

(- ) (APO - ), and did remain so absent until on or 

about - I$--. 

17. In that - ,,being a member of the - (guard) 

(watch) (duty section), did, (at) (on board) -, on or about 

I&, without proper authority, go from his (guard) . 

(watch) (duty section) with intent to abandon the same. 

ARTICLE 87 

18. In that - did, (at) (on board) - , on or about 

19-, through (neglect) (design) miss the movement 

of (Aircraft No. - ) (Flight 11) (the U. S. S. - ) (Company A, 1st Infantry) (- ), with which he was required in 

the course of duty to move. 
FORMS-CHARGES AND SPECIFICATIONS .App. 6c 

ARTICLE 88 

19. In that - did, (at) (on board) - , on or about Contempt 

IS-, [use (orally and publicly) (- ) the following toward olcials 

contemptuous words] [in a contemptuous manner, use (orally and 

publicly) (- ) the following words] against the I (President) 

(Vice President) (Congress) (Secretary of - ) 1 [ (Governor) 

(legislature) of the (State of - ) (Territory of - 1 

(--- ), a (State) (Territory) (- ) in which he, the said , was then (on duty) (present)], to wit: "- ," or words 

to that effect. 

ARTICLE 89 

20. In that - did, (at) (on board) - , on or about Disrespect 

to supenor I&, behave himself with disrespect towards - , his officer 

superior officer, by (saying to him, "- ," or words to that 

effect) (contemptuously turning from and leaving him while he, 

the said -, was talking to him, the said - ) (- ). 

ARTICLE 9d 

21. In that - did, (at) (on board) - , on or about ~~~ioEcer 

19-, strike - , his superior officer, who was then in 

the execution of his office, (in) (on) the - with (a) (his) 

22. In that - did, (at) (on board) - , on or about Drawins, et:.. 

weapon agalnst I!&-, (draw) (lift up) a weapon, to wit: a - , against superior officer 

-, his superior officer, who was then in the execution of his 

office. 

23. In that - did, (at) (on board) - , on or about Offering 

19-, offer vioIence against - , his superior officer, who ~d~~r',"fficer 

was then in the execution of his office, in that he, the said -, 

did -. 

24. In that - , having received a lawful command from Willfdl disobedience of , his superior officer, to - , did, (at) (on board) - superior oacer 

on or about - I%-, willfully disobey the same. 

ARTICLE 91 

25. In that - did, (at) (on board) - , .on or about Assault on warrant, non- 19-, (strike) (assault) - , his superior - officer, commissioned, 

who was then in the execution of his office, by - him (in) or petty o5cer 

(on) (the - ) with (a) (his) -. 26. In that - , having received a lawful order from -, willful dig- obedience of his superior - officer, to - , did, (at) (on board) ,- , warrant. nonon or about - I%--, willfully disobey the same. commissioned. 

or petty officer 

27. In that - , tat) (on board) - , on or about - IS-, [did treat with contempt] [was disrespectful in (language) z,",";$;;,",";;t, 

(deportment) toward] - , his superior - officer, who noncommiswas then in the execution of his office, by (saying to him, "- sioned. or petty 

-- 

officer 

," or words to that effect) (spitting at his feet) 

(- ). 
App; 6c 

Violating 

general order or regulation 

Failure to obey lawful order 

Derelict in duty 

Cruelty townrd. 

etc., a person subject to his 

orders 

Mutiny 

Sedition 

APPENDIX 6 

ARTICEE 92 

28. In that - did, (at) (on board) - , on or about 

I&, (violate) (fail to obey) a lawful general (order) 

(regulation), to wit : [paragraph - , (Army) (Air Force) 

Regulation- , dated - 19-1 [General Order No. -, 

U. S. Navy, dated - 19-1 [- 1, by -. 

29. In that -----, having knowledge of a lawful order issued 

by - (to submit to certain medical' treatment) (to - 1

(not to -) (-), an order which it was his duty to obey, 

did, (at) (on board) - , on or about - 19-, fail to obey 

the same. 

30. In that - , (at) (on board) - , (on or about - 19-) (from about - 1% to about - I&), was derelict 

in the performance of his duties in that he [negligently failed to 

(inspect the report of file1 on board said ship for the twenty-four 

hour period ending on - ) (inspect the guard) (wind and 

compare all chronometers on board the said - ) (perform 

eolnplete motor maintenance on - thereby permitting the 

water in the radiator to become seriously low) (inspect properly 

the engine on Aircraft No. - thereby clearing it for flight 

with a loose sparkplug) (keep properly the accounts of - by 

neglecting to verify the monthly bank balances for comparison 

with cash deposited) (- ), as it was his duty to do] 

[- I. 

ARTICLE 93 

31. In that - , (at) (on board) - , on or about - IS--, [was cruel toward] [did (oppress) (maltreat)] - , a 

person subject to his orders, by (kicking him in the stomach) 

(confining him for twenty-four hours without water) (- 1. 

ARTICLE 94 

32. In that - , with intent to (usurp) (override) (usurp 

and override) lawful military authority, did, (at) (on board) 

, on or about - 19-, [refuse, in concert with (- 1 

(and) (others whose names are unknown), to (obey the orders 

of - to -) (perform his duty as - )I [create 

(violence) (a distnrbance) b' (attacking the officers of the said 

ship) (barricading himself in Barracks T-7, firing his rifle at 

, and exhorting other persons to join him in defiance 

of -) (- 1. 

33. ;n that - , with intent to cause the (overthrow) 

(destruction) (overthrow and destruction) of lawful civil authority, to wit: - , did, (at) (on board) - , on or about 

19-, in concert mith (- ) (and) other^ whose names 

are uulmown), create (revolt) (violence) (a disturbance) against 

such authority by (entering the Town Hall of - and destroying property aud records therein) (marching upon and compelling 

the surrender of the police of ----) (- 1. 
FORMS-CHARGES AND SPECIFICATIONS App. 6c 

34. In that - did, (at) (on board) - , on or about ~'~',"~ss,f"or 

- 19-, fail to [do, his utmost to prevent and suppress a report.mutiny 

(mutiny) (sedition) among the (soldiers) (sailors) (airmen) Orsed't'on 

(- ) of - , which (mutiny) (sedition) was being com- mitted in his presence, in that (he took no means to compel the 

dispersal of the assembly) (he made no effort to assist - who was attempting to quell the mutiny) (-- ) 1 [take all 

reasonable means to inform - , (his superior) (his commanding officer), of a (mutiny) (sedition) among the (soldiers) 

(sailors) (airmen) (-) of - , which (mutiny) (sedition) 

he the said - (knew) (had reason to believe) was taking 

place]. 

35. In that - , with intent to (usurp) (override) (usurp Attempted 

a.nd override) lawful military authority, did, (at) (on board) mut'ny 

, on or about - IS--, attempt to [create (violence) (a 

disturbance) by -1 [--- 1. 

ARTICLE 95 

36. In that - did, (at) (on board) - , on or about Resisting 

IS-, resist being lawfully apprehended by - , (an apprehension 

armed force policeman) (- 1. 

37. In that - , having been duly placed in arrest (in quar- Breaking 

ters) (in his company area) (- ), did, (at) (on board) arrest 

, on or about - IS-, break said arrest. 

38. In that - did, (at) (on board) - , On Or about Escape from 

I@--, escape from (the lawful custody of - ) (IanTfU1 custody confinement or 

confinement in - I. 

ARTICLE 96 

39. In that - did, (at) (on board) - , on or about Releasing 

I%-, [without proper authority release] [through (neg- ~$~~~~o$$; 

lect) (design) suffer] - , a prisoner duly committed to his ~p:,","~~ . charge (to escape). escape 

ARTICLE 97 

40. In that - did, (at) (on board) - , on or about unladnl 

19-, unlawfully (apprehend - ) (place - in detention 

arrest) (confine - in - I. 

ARTICLE 98 

41. In that - , being charged with the duty of [ (investiga- ~nnecessa, 

ing) (taking immediate steps to determine the proper disposi- ~;~;;~~gof 

tion of) charges preferred against - , a person accused of case 

an offense under the Uniform Code of Military Justice] 

[- I, was, (at) (on board) - , on or about - 19--, 

responsible for unnecessary delay in (investigating said charges) 

(determining the proper disposition of said charges) (- I, 

in that he (did - ) (failed to -) (- 1. 

42. In that - , being charged with the duty of - , did, Failing to 

(at) (on board) - ,on or about - 19-, knowingly and ZEgif," Zth 

intentionally fail to (enforce) (comply with) Article -, code 

Uniform Code of Military Justice, in that he -. 
App. 6c APPENDIX 6 

ARTICLE 99 

Misbehavior 

before the 

enemy : -Running away 

Shamefully abandoning, 

etc.. command, 

etc. 

-Endangering safety of 

command, etc. 

-Casting away 

arms, etc. 

-Cowardly 

conduct 

-Quiting place of duty to plunder or pillage 

-Causing false 

alarm 

-Failing to do 

utmost to 

encounter, 

etc.. enemy 

troops, etc. 

-Failing to 

afford relief 

Compelling 

surrender, 

striking colors, 

etc. 

43. In that - did, (at) (on board) - ,on or about 

I$--, (before) (in the presence of) the enemy, run away 

(from his company) (and hide) (- ), (and did not return 

until after the engagement had been concluded) (- 1. 

44. In that - did, (at) (on board) - , on or about 

19-, (before) (in the presence of) the enemy, shamefully 

(abandon) (surrender) (deliver up) - , which it was his 

duty to defend. 

45. In that - Aid, (at) (on board) - , on or about 

I$--, (before) (in the presence of) the enemy, endanger 

the safety of - , which it was his duty to defend, by (disobeying an order from - to engage the enemy) (neglecting 

his duty as a sentinel by engaging in a card game while on his 

post) (intentional misconduct in that he became drunk and 

fired flares, thus revealing the location of his unit) (- 1. 

46. In that - did, (at) (on board) - , on or about 

19, (before) (in the presence of) the enemy, cast away 

his (rifle) (ammunition) (- 1. 

47. In that - , (at) (on board) - , on or about - 

I!&-, (before) (in the presence of) the enemy, was guilty of 

cowardly conduct, in that -. 48. In that - did, (at) (on board) - , on or about 

- I%, (before) (in the presence of) the enemy, quit his 

place of duty for the purpose of (plundering) (pillaging) 

(plundering and pillaging). 

49. 111. that - did, (at) (on board) - , on or about 

1&, (before) (in the presence of) the enemy, cause a 

false alarm in (Fort - ) (the said ship) (the camp) 

(- ) by [needlessly and without authority (causing the 

call to arms to be sounded) (sounding the general alarm) 1 

[-I - 

50. In that - , being (before) (in the presence of) the 

enemy, did, (at) (on board) - , on or about - 19-, by 

(ordering his own troops to halt their advance) (- ), willfully fai1,to do his utmost to (encounter) (engage) (capture) 

(destroy), as it was his duty to do, (certain enemy troops which 

were in retreat) (- ). 

51. In that - did, (at) (on board) - , on or about 

I%, (before) (in the presence of) the enemy, fail to 

afford all practicable relief and assistance to (the U. S. S. - 

which was engaged in battle and had run aground, in that hi 

failed to take her in tow) (certain troops of the ground forces 

of -, which were engaged in battle and were pinned down 

by enemy are, in that he failed to furnish air cover) (- ) 

as he properly should have done. 

ARTICLE 100 

52. In that - did, (at) (on board) - , on or about 

- 19-, [(compel) (attempt to compel) - , the commander of - , (to give it up to the enemy) (to abandon 
FORMLCHARGES AND SPECIFICATIONS App. 6c 

said - 1, by - ] [without proper authority, strike 

the (colors) (flag) to the enemy]. 

ARTICLE 101 

53. In that - did, (at) (on board) - , on or about 

19-, disclose the (parole) (countersign), to wit : -, 

to - , a person who was not entitled to receive it. 

54. In that - did, (at) (on board) - , on or about 

19-, give to - , a person entitled to receive and 

use the (pkrole) (countersign), a (parole) (countersign), 

namely: - , which was different from that which, to his 

knowledge, he was authorized and required to give, to wit : -. 

ARTICLE 102 

55. In that - did, (at) (on boayd) - , on or about 

19-, force a safeguard [, linown by him to have been 

placed over the premises occupied by - at - , by (overwhelming the guard posted for the protection of the same) 

(- 11 C- 1. 

ARTICLE 103 

56. In that - did, (at) (on board) - , on or about 

19-, fail to secure for the service of the United States 

certain public property taken from the enemy, to wit: -, 

of a value of about $-. 

57. In that - did, (at) (on board) - , on or about 

- 19-, fail to give notice and turn over to proper authority 

without delay certain (captured) (abandoned) property which 

had come into his (possession) (custody) (control), to wit: 

-, of a value of about $-. 

58. In that - did, (at) (on board) - , on or about 

IS-, (buy) (sell) (trade in) (deal in) (dispose of) 

(-) certain (captured) (abandoned) property, to wit: 

, of a value of about $- , thereby (receiving) (expecting) a (profit) (benefit) (advantage) to (himself) (- , his 

accomplice) (- , his brother) (- 1. 

59. In that - did, (at) (on board) - , on or about 

19-, engage in (looting) (pillaging) (looting and pillaging) by unlawfully (seizing) (appropriating) - , [property which had been left behind] [the property of - I (an 

inhabitant of -) (- 1. 

ARTICLE 104 

- 

60. In that - did, (at) (on board) - , on or about 

IS-, (aid) (attempt to aid) the enemy with (arms) 

(ammunition) (supplies) (money) (- ), (by furnishing and 

delivering to - , members of the enemy's armed forces, - 1 

(- - 

Improper usc of countersign 

Fercing a safeguard 

Failing to secure public 

property taken 

from enemy 

Captured or 

abandoned 

property 

-Dealing in 

Looting, etc 

Aiding the 

enemy 

61. In that - did, (at) (on board) - , on or about 

19-, without proper authority, knowingly [(harbor) 

(protect) -, an enemy, by (concealing the said - in 

his house) (- ) 1 [ (give intelligence to) (communicate with) 
App. 6c APPENDIX 6 

(correspond with) (hold intercourse with) the enemy (by informing a patrol of the enemy's forces of the whereabouts of a 

military patrol of the United States forces) (by writing and 

transmitting secretly through the lines to one - , whom he 

the said - knew to be an officer of the enemy's armed forces, 

a communication in words and figures substantially as follows, 

to wit: -) (indirectly by publishing in - , a newspaper 

published at - , a communication in words and figures as 

follows, to wit: - , which communication was intended to 

reach the enemy) (- 11. 

ARTICLE 105 

Mi?conduct 

prasoner as 62. that - , while in the hands of the enemy, did, (at) 

(on board) - , on or about - I%--, withont proper 

authority and for the purpose of securing favorable treatment 

by his captors, (report to the commander of Camp - the 

preparations by - , a prisoner at said camp, to escape, as a 

result of which report the said - was placed in solitary confinement) (- ). 

Maltreatment 63. that 

of prisoner did, (at) (on board) -, on or about 

IS-, while in the hands of the enemy and in a position 

of authority over - , a prisoner at - , as (officer in 

charge of prisoners at -) (- ) , (deprive the said - 

of - 1(- ) without justifiable cause. 

ARTICLE 106 

64. In that - was, (at) (on board) - , on or about 

I$--, found (lurking) (acting) as a spy in and about 

, [a (fortification) (post) (base) (vessel) (aircraft) 

(--- ) within the control and jurisdiction of an armed force 

of the United States, to wit: - 1 [a (shipyard) (manufacturing plant) (- ) engaged in work in aid of the prosecution 

of the war by the United States] [- 1, for the purpose of 

(collecting) (attempting to collect) informaLion in regard to the 

[(numbers) (resources) (operations) (- ) of the armed 

forces of the united States] [(military production) (- of 

the United States] [- 1, with intent to impart the same to 

the enemy. 

ARTICLE 107 

Signing false 65. In that - did, (at) (on board) - , on or about 

o5cial document; making - 19-, with intent to deceive, [sign an official (record) false official (return) ( statement ), to wit: -1 [make to - an official 

statement, to wit : - 1, which (record) (return) (statement) 

(- ) was (wholly false) (false in that - ) , and was then 

known by the said - to be so false. 

ARTICLE 108 

Selling, etc., 66. In that - did, (at) (on board) - , on or about 

military 

property - I%--, without proper authority, (sell to - ) (dispose 

of by -) - , of a value of about $- , military property of the United States. 
FORMS-CHARGES AND SPECIFICATIONS App. 6c 

67. In that - did, (at) (on board) - , on or about Damaging, etc., 

- military 19-, without proper authority, (willfully) (through property 

neglect) (damage by - ) (destroy by - ) (lose) -, 

of a value of about $- , military property of the United States, 

*(the amount of said damage being in the sum of about $- ). 

68. In that - did, (at) (on board) -, on or about ~~f

- 19-, without proper authority, (willfully) (through military 

neglect) suffer -, of a value of about $- , military prop- Property 

erty of the United States, to be (lost) (damaged by -) 

(destroyed by - ) (sold to - ) (wrongfully disposed of 

by - ), *(the amount of said damage being in the sum of 

about $- ). 

*This allegation should be used when damage is alleged. 

ARTICLE 109 

69. In that - did, (at) (on board) - , on or about Waste, fte., 

- 

of non-m~litary 19-, [ (willfully) (reclclessly) waste] 1 (willfully) (reck- property 

lessly) 

- 

spoil] [willfully and wrongfully (destroy) (damage) by 

1- , of a value of about $- , the property of 

-, *(the amount of said damage being in the sum of about 

$- ). 

'This allegation should be used when damage is alleged. 

ARTICLE 110 

70. In that - , on - 19-, while serving in command Hazarding of 

of the - , making entrance to Boston Harbor, did negligently 

hazard the said vessel by failing and neglecting to maintain or 

cause to be maintained an accurate running plot of the true 

position of said vessel while ~naking said approach, as a result 

of which neglect the said -, at or about - hours on the 

day aforesaid,'became stranded in the vicinity of Channel Buoy 

Number Three. 

71. In that - , on - IS--, while serving as navigator 

of the U. S. S. - , cruising on special service in the - 

Ocean off the coast of - , notwithstanKing the fact that at 

about midnight, - 19-, the northeast point of - Island 

bore abeam and was about six miles distant, the said ship being 

then under way and making a speed of about ten knots, and well 

knowing the position of the said ship at the time stated, and 

that the charts of the locality were unreliable and the currents 

thereabouts uncertain, did then and there negligently hazard 

the said vessel by failing and neglecting to exercise proper care 

and attention in navigating said ship while approaching - 

Island, in that he neglected and failed to lay a course that would 

carry said ship clear of the last aforesaid island, and to change 

the course in due time to avoid disaster ; and the said ship, as a 

result of said negIigence on the part of said - , ran upon 

a rock off the southwest coast of - Island, at about - 

hours, - IS-, in consequence of which the said U. S. S. 

was lost. 
App. 6c APPENDIX 6 

Suffering a vessel to be 

hazarded 

Drunken or 

reckless 

operation of 

vehicle 

Drunk on duty 

Misbehavior of 

sentinel or lookout 

72. In that -, on - I&, while serving as navigator 

of the U. S. S. - and well knowing that at about sunset 

of said day the said ship had nearly run her estimated distance from the - position, obtained and plotted by him, 

to the position of -, and well knowing the difficulty of 

sighting - from a safe distance after sunset, did then and 

there negligently hazard the said vessel by failing and neglecting 

to advise his commanding officer to lay a safe course for said 

ship to the northward before continuing on a westerly course, 

as it was the duty of the said - to do ; in consequence of 

whieh the said ship was, at about - hours on the day above 

mentioned, run upon - Bank in the - Sea, about latitude - degrees, - minutes, north, and longitude - degrees, - minutes, west, and seriously injured. 

73. In that - ,while serving as combat intelligence center 

officer on board the - , making passage from Boston to 

Philadelphia, and having, between - and - hours on 

19-, been duly informed of decreasing radar ranges and 

constant radar bearings indicating that the said - was upon 

a collision course approaching a radar target, did then and there 

negligently suffer the said vessel to be hazarded by failing and 

neglecting to report said collision course with said radar target 

to the officer of the deck, as it was his duty to do, and he the 

said - , through said negligence, did cause the said - 

to collide with the - at or about - hours on said 

date, with resultant damage to both vessels. 

ARTICLE 111 

74. In that - did, (at) (on board) - , on or about 

1!3-, (in the motor pool area) (near the Officers' Club) 

(on - Street between - and - Avenues) (- ) 

operate a vehicle, to wit: (a truck) (a passenger car) (- 1, 

[while drunk] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve) (driving at a speed 

in excess of 50 miles per hour on the sidewalk and wrong side 

of said street) (- )I (and did thereby cause said vehicle 

to strike and injure -). 

ARTICLE 112 

75. In that - was, (at) (on board) - ,on or about 

-'I&, found drunk while on duty as -. 

ARTICLE 113 

76. In that - , on or about - 19-, (at) (on board) 

, being (posted) (on post) as a (sentinel) (lookout) (at 

Warehouse No. 7) (on Post No. 11) (for radar observation) 

(- ) [was found (drunk) (sleeping) upon his post] [did 

leave his post before he was regularly relieved]. 
FORMGCHARGES AND SPECIFICATIONS App. 6c 

ARTICLE 114 

77. In that - (and - ) did, (at) (on board) -, on or about - 19-, flght a duel (with - ), using as 

weapons therefor (pistols) (swords) (- ) - 

78. In that - did, (at) (on board) -, on or about 

19-, promote a duel between - and - by (telling 

said - he would be a coward if he failed to challenge said 

- to a duel) (knowingly carrying from said - to said 

a challenge to fight a duel). 

79. In that - , being officer of the (day) (deck) (at) (on 

board) --- and having knowledge that - and - intended and were about to engage in a duel near - , did, (at) 

(on board) - , on or about - I&, connive at the 

fighting of said duel by knowingly permitting - , one of the 

parties to said proposed duel, to leave - and go toward the 

place appointed for said duel at the time which he, - , then 

knew had been appointed therefor. 

80. In that - , haring knowledge that a challenge to fight 

a duel (had been sent) (was about to be sent) by - to -, 

did, (at) (on board) - , on or about - IS--, fail to 

report that fact promptly to the proper authority. 

ARTICLE 115 

81. In that - did, (at) (on board) - , (on or about 

- 19-) (from about - 19- to about - 19-), for 

the purpose of avoiding (his duty as officer of the day) (his 

duty as aircraft mechanic) (work in the mess hall) (service as 

an enlisted person) (- ) [feign (a headache ) (a sore back) 

(illness) (mental lapse) (mental derangement) (- 1 

[intentionally injure himself by - 1.

ARTICLE 116 

62. In that - did, (at) (on board) - , on or about 

- IS-, (cause) (participate in) a riot by unlawfully assembling IT-ith (- and -- ) (and) (others to the number 

of about - u7hose names are unknown) for the purpose of 

(resisting the police of - ) (assaulting passers-by) (- 1. 

and in furtherance of such purpose did (fight with said police) 

(assault certain women, to wit: -) (- ). 

83. In that - did, (at) (on board) - , on or about 

19-, (cause) (participate in) a breach of the peace by 

[wrongfully engaging in a fist fight in the dayroom with - 1 

[using the following (profane) (indecent) (- ) language 

(toward - ), to wit: "- ", or words to that effect] 

[wrongfully shouting and singing in a public place, to wit: - 1

r- 1. 

ARTICLE 117 

84. In that - did, (at) (on board) - , on or about 

IS-, wrongfully use (provoking) (reproachful) (words, 

to wit : "- ", or words to that effect) (and) (gestures, to wit: 

Dueling, etc. 

Malingering ; se!f-inflicted 

InJury 

Riot 

Breach of the 

peace 

Provoking 

speeches or 

gestures 
App. 6c APPENDIX 6 

Murder 

) towards (Sergeant - , U. S. Air Force) (Harold 

Brown, a person serving with the Army of the United States in 

the field) (- , captain, U. S. Navy). 

ARTICLE 118 

85. In that - did, (at) (on board) - , on or about 

19, [with premeditation] [while (perpetrating) (attempting to perpetrate) - ], murder - by means of 

(shooting him with a rifle) (pushing him over a cliff) (running 

into him with an automobile) (- 1. 

No.rn.-In charging murder under sections (2) and (3) of Article 118, 

all material inclosed in brackets is omitted. 

ARTICLE 119 

Voluntary 

manslnughter 86. In that - did, (at) (on board) - , on or about 

19-, willfully and unlawfully kill - by - him 

(in) (on) the - with a -. Involuntary 87. In that - did, (at) (on board) - , on or about 

manslaughter 19-, [by culpable negligence] [while (perpetrating) 

(attempting to perpetrate) an offense directly affecting the person 

of - , to wit: (maiming) (a battery) (- ) 1 unlawfully 

kill - by - him (in) (on) the - with a -. 

ARTICLE 120 

Rape and earnal 88. In that - did, (at) (on board) - , on or about 

knowledge I&, (rape) (commit the offense of carnal knowledge 

with) -. ARTICLE 121 

I arceny 89. In that - did, (at) (on board) - , on or about 

19-, steal - , of a value of about $- , the property of -. Wrongful 90. In that - did, (at) (on board) - , on or about 

approprintion 19-, wrongfully appropriate - , of a value of about 

$- , the property of -. 

ARTICLE 122 

Forgery 

Robbery 91. In that - did, (at) (on board) - , on or about 

19-, by means of (force and violence) (and) (putting him 

in fear) steal from the (ljersou) (yresence) of - , against 

his will, (a watch) (- ), of a value of about $- , the 

property of -. 

ARTICLE 123 

92. In that - did, (at) (on board) - , an or about 

- 19-, with intent to defraud, falsely [make (in its entirety) 

(the signature of - to) (- ) a certain (check) (writing) 

(- ) in the following words and figures, to wit : -1 [alter 

a certain (check) (writing) (- ) in the following words and 

figures, to wit: - , by (adding thereto - (- )I, 
FORMS-CHARGES AND SPECIFICATIONS App. 6c 

which said (check) (writing) (- ) would, if genuine, apparently operate to the legal prejudice of another. 

93. In that - did, (at) (on board) - , on or about 

I&, with intent to defraud, (utter) (offer) (issue) 

(transfer) a certain (check) (writing) (- ) in the following 

words and figures, to wit: - , a writing which would, if 

genuine, apparently operate to the legal prejudice of another, 

[which said (check) (writing) (- )] [the signature to which 

said (check) (writing) (-)I [- ] was, as he, the said 

, then well knew, falsely (made) (altered). 

ARTICLE 124 

94. In that - did, (at) (on board) - , on or abont 

19-, maim - by (crushing his foot with a sledge 

hammer) (- 1. 

ARTICLE 125 

95. In that - did, (at) (on board) - , on or about 

19-, commit sodomy with -. 

ARTICLE 126 

96. In that - did, (at) (on board) - , on or about 

I&, willfully and maliciously (burn) (set on fire) [an 

inhabited dwelling, to wit: (the residence of -) (-, 

the property of - )] [, knowing that a human being was 

therein at the time, (the Post Theater) (- , the property of 

) 1, of a value of about $-. 

97. In that - did, (at) (on board) - , on or about 

19-, willfully and maliciously (burn) (set fire to) (an 

automobile) (- ), the property of - , of a value of about 

$-. 

ARTICLE 127 

98. In that - did, (at) (on board) - , on or about 

I%, with intent unlawfully to obtain ($100) (- 1, 

communicate to - a threat to (kidnap his son, - 1 

(accuse - of having committed sodomy) (- 1. 

ARTICLE 128 

99. In that - did, (at) (on board) - , on or about 

- I.&, assault - by (striking at him with a - 1

(- 1. 

100. In that - did, (at) (on board) - , on or about 

- 19-, unlnwfullg (strike) (-) - (on) (in) the 

with -. 101. In that - did, (at) (on board) - ,on or about 

- 19-, commit an assault upon - by (shooting) (striking) (cutting). (- ) (at him) (him) (in) (on) (th-) 

with [a dangerous weapon] [a (means) (force) likely to produce 

grievous bodily harm], to wit: a (pistol) (pickax) (bayonet) 

(club) (- 1 - 

Maiming 

Sodomy 

Aggravated 

arson 

Simple arson 

Extortion 

Assault 

Assault (eon- summated by a battery) 

Assault, aggravated: 

-With a dangerous 

weapon. 

means, or force 
App. 6c APPENDIX 6 

-Inflicting 

grnevous 

bodily harm 

Burglary 

102. In that - did, (at) (on board) -, on or about 

19--, commit an assault upon - by (shooting) (striking) (cutting) (- ) (him) (in) (on) the - with a 

(club) (rock) (brick) (- ) and did thereby intentionally inflict grievous bodily harm upon him, to wit: a (broken leg) (deep 

cut) (fractured skull) (- 1. 

ARTICLE 129 

103. In that - did, at - , on or about - 19--, in 

the nighttime, burglariously break and enter the (dwelling house) 

(- within the curtilage) of -, with intent to commit 

(murder) (larceny) (- ) therein. 

Housebreaking 104. In that - did, (at) (on board) - , on or about 

19-, unlawfully enter the (dwelling) (room) (bank) 

(store) (warehouse) (shop) (tent) (stateroom) (- of 

, with intent to commit a criminal offense, to wit: -, 

therein. 

ARTICLE 131 

Perjury 105. In that - , having taken a lawful (oath) (affirmation) 

in a (trial by - court-martial of -) (trial by a court 

of competent jurisdiction, to wit: -, of - ) (deposition 

for use in a trial by - of - ) (-) that he would 

(testify) (depose) truly, did, (at) (on board) - , on or 

abont - I$--, willfully, corruptly, and contrary to such 

(oath) (affirmation), (testify) (depose) in substance that -, 

which (testimony) (deposition) was upon a material matter and 

which he did not then believe to be true. 

ARTICLE 132 

Making false 

claim 106. In that - did, (at) (on board) - , on or about 

19-, [by preparing (a voucher) (- ) for presentment to - , an officer of the United States duly authorized 

to (approve) (allow) (pay) (approve, allow, and pay) such 

claim] [- 1, make a claim against the (United States) 

(finance officer at -) (- ) in the amount of $- for 

[private property alleged to have been (lost) (destroyed) in the 

military service] [- 1, which claim was (false) (fraudulent) 

(false and fraudulent) in the amount of $- in that -, 

and was then known by the said - to be (false) (fraudulent) (false and fraudulent). 

107. In that - did, (at) (on board) - , on or about 

19-, by presenting (a voucher) (- ) to- , a11 

officer of the United States duly authorized to (approve) pa^) 

(approve and pay) such claim, present for (approval) (payment) (approval and payment) a claim against the (United 

States) (finance officer at - ) (-) in the amount of 

$- for (services alleged to have been rendered to the United 

States by - during -) (-), which claim was 

(false) (fraudulent) (false and fraudulent) in the amount of 

Presenting 

false claim 
FORMS-CHARGES AND SPECIFICATIONS App. 6c 

$- in that - , and was then known by the said - 

to be (false) (fraudulent) (false and fraudulent). 

108. In that - , for the purpose of obtaining the (approval) E;pwg;i;:;; 

(allowance) (payment) (approval, allowance, and payment) of 

a claim against the United States in the amount of $-, did, 

(at) (on board) -, on or about - I!+-, (make) (use) 

(make and use) a certain (writing) (paper), to wit: -, 

which said (writing) (paper), as he, the said - , then knew, 

contained a statement that - , which statement was (false) 

(fraudulent) (false and fraudulent) in that - , and was 

then knon7n by the said - to be (false) (fraudulent) (false 

and fraudulent). 

109. In that - , for t11e.purpose of obtaining the (approval) Making false 

oath (allowance) (payment) (approval, allowance, and payment) of 

a claim against the United States, did, (at) (on board) -, on or about - 19-, make an oath [to the fact that - 1 

[to a certain (writing) (paper), to wit: - , to the effect 

that - 1, which said oath was false in that - , and was 

then known by the said - to be false. 

110. In that ---;--, for the purpose of obtaining the (approval) ,"i"?f;,";g;eetc-. 

(allowance) (payment) (approval, allowance, and payment) of 

a claim against the United States, did, (at) (on board) -, on or about - 19-, (forge) (counterfeit) (forge and counterfeit) the signature of - upon a - in words and figures 

as follows: -. 

111. In that - , for the purpose of obtaining the (approval) zgg,of:iged 

(allowance) (payment) (approval, allowance, and payment) of 

a claim against the United States, did, (at) (on board) -, 

on or about - 19-, use the signature of - on a certain 

(writing) (paper), to wit: - , such signature being (forged) 

(counterfeited) (forged and counterfeited), and then known by 

the said - to be (forged) (counterfeited) (forged and 

counterfeited). 

112. In that - , having (charge) (possession) (custody) Paring amount less than called (control) of (money) (- ) of the United States, (furnished) for by receipt 

(intended) (furnished and intended) for the armed forces thereof, 

did, (at) (on board) - , on or about - 19-, knowingly 

deliver to - , the said - having authority to receive the 

same, (an amount) (- ), which, as he, - , then knew, 

was ($-I (- ) less than the (amount) (- ) for 

which he received a (certificate) (receipt) from the said-. 

113. In that - , being authorized to (make) (deliver) g;F&: receipt 

(make and deliver) a paper certifying ths receipt of property of knowledge of 

the United States (furnished) (intended) (furnished and in- the facts 

tended) for the armed forces thereof, did, (at) (on board) -, on or about - 19-, without having full knowledge of the 

truth of the statements therein contained and with intent to defraud the United States, (make) (deliver) (make and deliver) 

to - such a writing, in words and figures as follows: -, 

the property therein certified as received being of a value of 

about $-. 
App. 6c APPENDIX 6 

Copying, etc., examinatton 

Paper 

Drunk, etc. 

Failure, etc.. 

to pay debt 

Failure to 

keep promise 

to pay debt 

Abusing public 

animal 

Adultery 

Assault: 

-Indecent 

-Upon a com- missioned 

officer 

-Upon a war- rant, non- commissioned, 

or petty o5cer 

ARTICLE 133 

114. In that - did, (at) (on board) - , on or about 

IS--, while undergoing a written examination on the 

subject of - , wrongfully and dishonorably (receive) (request) unauthorized aid by [(using) (copying) the examination paper of -1 [- 1. 

115. In that - was, (at) (on board) - , on or about 

- I%--, in a public place, to wit: - , (drunk) (disorderly) (drunk and disorderly) while in uniform, to the disgrace 

of the armed forces. 

116. In that - , being indebted to - in the sum of 

$- for - , which amount became due and payable (on) 

(about) (on or about) - , did, (at) (on board) - , from 

19-- to - I%-, dishonorably fail to pay said debt. 

117. In that - , having, on or about - I*, become 

indebted to - in the sum of $- for - , and having 

failed without due cause to liquidate said indebtedness, and 

having, on or about - 19-, promised said --- (in writing) 

that on or about - 19- he would (settle such indebtedness 

in full) (pay on such indebtedness the sum of $-) , did, without due cause, (at) (on board) - , on or about - I&S 

dishonorably fail to keep said promise. 

ARTICLE 134 

118. In that - did, (at) (on board) - , on or about 

IS-, wrongfully (kick a public horse in the belly) 

(- 1. 

119. In that - (, a married man,) did, (at) (on board) 

, on or about - 19-, wrongfully have sexual intercourse with - , (a married woman) (a woman) not his wife. 

120. In that - did, (at) (on board) - ,on or about 

I%--, cominit an indecent assault upon - by -, 

with intent to gratify his (lust) (sexual desires). 

121. In that - did, (at) (on board) - , on or about 

19-, assault -, a commissioned officer of [the Army 

of the United States] [- , a friendly foreign power] [the 

United States (Navy) (Marine Corps) (Air Force) (Coast 

Guard) 1, by -. 

NOTE.--That the accused did not know the commissioned officer to be 

such is a defelise to this kind of assault-but not to on included assault 

in which the official position of the victinl is immaterial. 

122. In that - 'did, (at) (on board) - , on or about 

19-, assault - , a (warrant) (noncommissioned) 

(petty) officer of [the Army of the United States] [the United 

States (Navy) (Marine Corps) (Air Force) (Coast Guard)], 

by -. 

NOTE.-That the accused did not know the xarrant, etc., officer to be 

such is a defense to thls kind of assault-but not to an included assault 

in which the offlcial position of the victim is immaterial. 
I FORMS-CHARGES AND SPECIFICATIONS App. 6c 

123. In that - did, (at) (on board) - , on or about -zsynain the 

19-, assault - , a person then having and in the execution'of 

execution of (air police) (military police) (shore patrol) (civil duties 

law enforcement) duties, by -. 124. In that - did, (at) (on board) - , on or about -With intent 

to commit ----- 19-, with intent to commit (murder) (voluntary man- certain 

slaughter) (rape) (robbery) (sodomy) (arson) (burglary) 

(housebrealring), commit an assault upon - by -. 

125. In that - did, (at) (on board) - , on or about Assault (con- summated by a 19-, unlawfully (strike) (- 1- , a child under battery) upon a 

the age of sixteen years, (in) (on) the - with -. child under the 

age of 16 

126. In that - did, at - , on or about - lo--, 

wrongfully and bigamously marry - , having at the time of Bigamy 

his said marriage to - a lawful wife then living, to wit: 

127. In that - , being at the time (a contracting officer Briberyand 

for - ) (the personnel oacer of -) (- 1, did, (fit) P'y,"king, etc. 

(on board) - , on or about - 19-, wrongfully and unlawfully (ask) (accept) (receive) from - , (a contracting 

company engaged in -) (- ), (the sum of $- ) 

(- , of a value of about $- 1 (- ), [with intent to 

have his (decision) (action) influenced with respect to] [(as 

compensation for) (in recognition of) services (rendered) (to be 

rendered) (rendered and to be rendered) by him the said - 

in relation to] an official matter in which the United States was 

and is interested, to wit: (the purchasing of military supplies 

from - ) (the transfer of - to duty with - ) 

(- ). 

128. In that - did, (at) (on board) - , on or about -Promising. 

19-, wrongfully and unlawfully (promise) (offer) (give) etc' 

to - , (his commanding officer) (the claims officer of - 1

(- ), (the sum of $-) (- , of a value of about 

$-) (- ), [with intent to influence the (decision) 

(action) of the said - with respect to] [(as compensation 

for) (in recognition of) services (rendered) (to be rendered) 

(rendered and to be rendered) by the said - in relation to] 

an official matter in \17hich the United States was and is interested, 

to wit: (the granting of leave to - ) (the processing of a 

claim against the United States in favor of -) (- ). 

129. In that - did, (at) (on board) - , on or about Check. worthless, making 19-, [with intent to deceive, wrongfully and unlawfully] and uttering 

make and utter to - a certain check, in words and figures 

as follows, to wit: - , (in payment of a debt in the amount 

of $- ) (for - ) [, he, the said - , then not intending 

to have sufficient funds in the - bank available to meet 

payment of said check upon its presentment for payment in due 

course], and did thereafter wrongfully and dishonorably fail to 

(place) (maintain) sufficient funds in (the - ) (said) bank 

for payment of such check upon its presentment for payment. 

No~a.-Both allegations inclosed in brackets should be used in a case 

in which the accused had given the check in purported payment of a 
App. 6c APPENDIX 6 

Debt, failing to pay 

Disloyal 

statements 

Disorderly, 

drunkenness. 

etc.: 

-In command, 

quarters, etc., or under 

servlce 

discrediting 

circumstances 

-Drinking liquor wrth 

prrsoner . 

-Drunk, pris- oner found 

-Incapacitating oneself for 

performance 

of duties 

through prior indulgence in 

intoxicating 

liquors 

Drugs. habit 

forming, or 

marihuana: 

-Wrongful 

possessron 

-Wrongful use 

False or unau- thorized pass, 

making, etc. 

debt not intending to have sufficient funds in the bank available to meet 

payment upon presentment in due course, but had not thereby obtained 

any money, personal property, or artlcle of value. Obtaining money, 

personal property, or an article of value by means of givlng a check, 

without intending to hare sufficient funds in the bank availnble to meet 

payment upon presentment in due course, may be charged as larceny 

or wrongful appropriation, as the case may be, in violation of Article 

151 (see 200). Without the materinl In brackets, thls specltlcation may 

be used to denounce merely a mrongfhl and dishonorable failure to 

place or maintain suficient funds in the bank for payment of the 

check. 

130. In that - , being indebted to - in the sum of 

$- for - , which amount became due and payable (on) 

(about) (on or about) - ,did, (at) (on board) - , from 

19- to - I$--, wrongfully and dishonorably fail to 

pay said debt. 

131. In that - did, (at) (on board) - , on or about 

19-, with design to [promote (disloyalty) (disaffection) 

(disloyalty and disaffection) among (the troops) (the civilian 

populace) (the troops and the ci'vilian populace)] [- 1, 

publicly utter the following statement, to wit: "- ", or words 

to that effect, which statement was disloyal to the United States. 

132. In that - was, (at) (on board) - , on or about 

19-, (drunk) (disorderly) (drunk and disorderly) [in 

(command) (quarters) (station) (camp) (- )I [on board 

ship] [in uniform in a public place, to wit : -1 [- 1. 

133. In that - , a (sentinel) (--- ) in charge of prisoners, did, (at) (on board) on or about - 19-, unlawfully drink intosicating liquclr with - , a prisoner under his 

charge. 

134. In that - , a prisoner, was, (at) (on board) -, on or about - I%--, found drunk. 

135. In that - was, (at) (on board) - , on or about 

19-, as a result of previous indulgence in intoxicating 

liquor, incapacitated for the proper performance of his duties. 

136. In that - did, (at) (on board) - , on or about 

19-, wrongfully have in his possession - ounces, 

more or less, of (a habit forming narcotic drug, to wit: - ) 

(marihuana). 

137. In that - did, (at) (on board) - , on or about 

19-, wrongfully use (a habit forming narcotic drug, to 

wit: - ) (marihuana). 

138. In that - did, (at) (on board) - , on or about 

19-, wrongfully [and falsely (make) (forge) (alter by 

) (counterfeit) (tamper with by - ) 1 [sell to - 1

[give to - I [(use) (have in his possession) with intent to 

(defraud) (deceive)] (a certain instrument purporting to be) 

(a) (an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (- ) in words and fi~res as 
FORMS-CHARGES AND SPECIFICATIONS App. 6c 

follows : - , [he,.the said - , then well knowing the same 

to be (false) (unauthorized) (- 1. 

130. In that - did, (at) (on board) -, on or about False awearing 

19-, (in an affidavit) (in his testimony before a - 

court-martial at the trial of - ) (in - ) wrongfully and 

unlawfully (make) (subscribe) under lawful (oath) (afirmation) a statement in substance as follows : -, which statement 

he did not then believe to be true. 

140. In that - did, (at) (on board) - , on or about Firearm, 

19-, through carelessness, discharge a (service rifle) ?;:,":,"2: 

(- ) in the (squadroom) (tent) (barracks) (- compart- careicssness 

ment) (-) of -. 141. In that - did, (at) (on board) - , on or about 

- 19-, wrongfully and willfully discharge a firearm, to wit: 

-, (in the mess hall of -) (- ), under circumstances such as to endanger human life. 

142. In that - , being (the driver of) (a passenger in) (the 

senior officer in) a vehicle at the time of (an accident) (a collision), did, at - , on or about - 19-, wrongfully and 

unlawfully leave the scene of the (accident) (collision) without 

[rendering assistance to - who had been struck (and injured) by the said vehicle] [making his identity known]. 

143. In that (Sergeant) (- 1- (, boatswain's mate, 

first class, U. S. Navy,) (, - ,)did, (at) (on board) -, on or about - 19-, gamble with (Private) (-) - 

-Willfully, 

under such 

circumstances 

as to endanger life 

Fleeing scene of accident 

Gambling with 

subordinate 

(, seaman apprentice, U. S. Navy) (, - ). 

144. In that - did, (at) (on board) - , On or about Homicide, 

19-, unlawfully Kill - , [by negligently - the negligent 

said - (in) (on) the - with a - 1 [by driving a 

(motor vehicle) (- ) against the said - in a negligent 

manner] [- 1. 

145. In that - did, (at) (on board) - , 011 OP about Impersonating 

I&, wrongfully and unlawfully impersonate an 1 (officer) Officers etc- 

(warrant officer) (noncommissioned officer) (petty officer) (agent 

or superior authority) of the (Army) (Navy) (Marine Corps) 

(Air Force) (Coast Guard) ] [an official of the Government of 

] by [publicly wearing the uniform and insignia of rank 

of a (lieutenant of the - 1 (- ) ] [showing the credentials 

of -1 C- 1 (with intent to defraud -by - 1. 146. In that - did, (at) (on board) - , on or about Indecent acts 

1%. [take (immoral) (improper) (indecent) liberties with a 

with] [commit a (lewd) (lascivious) act (upon) (with) the 

body of] - , a (female) (male) under sixteen years of age, 

by [fondling (her) (him) and placing his hands upon (her) (his) 

leg and private parts] [- 1, with intent to (arouse] (appeal 

to) (gratify) the (lust) (passions) (sexual desires) of the said 

(and - 1.

- 

147. In that - did, (at) (on board). - , on or about Indecent 

19-, while (at a barracks window) (- ) willfully 

and wrongfully expose in an indecent manner to public view 

his -.- 
App. 6c APPENDIX 6 

Indecent, insulting, or ob- scene language commnnicated 

by a male to a Female 

Indecent. lewd 

acts with 

another 

Loaning money 

at usurious 

rate 

146. In that - did, (at) (on board) - ,on or about 

- I%-, (orally) (in writing) communicate to - , a 

female, certain (indecent) (insulting) (obscene) language, to 

wit: -. 149. In that - did, (at) (on board) - , on or about 

- I%--, wrongfully commit an indecent, lewd, and lascivious 

act with - by -. 

150. In that - (, for and in behalf of one - ,) did, (at) 

(on board) - , on or about - 1%-, loan to - $-, 

under an agreement whereby he, the said - , was to receive 

for the use of said money for - (months) (days) [interest 

at the rate of - per cent per (annum) (month)] [the sum 

of $- 1, thereby (demanding) (receiving) (demanding and 

receiving) an usurious and unconscionable rate of interest for said 

loan. 

Mail, taking, opening, etc. - 

151. In that - did, (at) (on board) - , on or about 

I%-, wrongfully and unlawfully take (a) certain 

[letter (s) ] [postal card (s) ] [package (s) 1, addressed to -, 

[out of the (- Post Office - ) (orderly room of - 1 

(unit mail box of - ) (- )] [from - ] before (it) 

(they) (was) (were) {delivered) (actually received) (to) (by) 

the person(s) to whom (it) (they) (was) (were) directed, with 

design to [obstruct the correspondence] [pry into the (business) 

(secrets)] of -. 

152. In that - did, (at) (on board) - , on or about 

- I*, [wrongfully and unlawfully (open) (secrete) 

(destroy)] [steal] (a) certain [letter(s)l [postal card(s)] 

[package (s) 1, addressed to -, which said [letter (s) ] 

[- 1 [ (was) (were) then [in the (- Post Office - 1

(orderly room of - ) (unit mail box of - ) (custody of 

) (- ) 1 [on the (bunk of -) (- I I [had ~reviously been committed to - , (a representative of - ,) 

an official agency for the transmission of communications,] before 

said [letter(s)] [- 1 (was) (were) (delivered) (actually 

received) (to) (by) the person(s) to whom (it) (they) (was) 

(were) directed. 

$glzcd.fr:siefe 153. In that - did, (at) (on board) - , on or about 

matter in 19-, wrongfully and knowingly (deposit) (cause to be 

deposited) in the (United States) (- ) mails, for mailing 

and delivery to - , a (letter) (picture) (- ) (containing) 

(portraying) (suggesting) (- ) certain obscene, lewd, and 

lascivious matter, to wit: -. 

Misprision 

of felony 154. In that - , having knowledge that - had actually 

committed a felony (at) (on board) - , on or about - 

197, to wit: (the murder of -) (- ), did, from about 

- 19- to about - 19-, wrongfully and unlawfully 

conceal such felony and fail to make the same known to the 

civil or military authorities. 

Nuisance, 155. In that - did, (at) (on board) -, on or about committing - 1&, wrongfully (urinate) (defecate) (-) [on the 
FORMS-CHARGES AND SPECIFICATIONS App. 6c 

floor of the squadroom] [on the (deck) (bulkhead) of - 1

[-I. 

156. In that - did, (at) (on board) - , on or about Pandering 

- 19-, wrongfully and unlawfully [(compel) (induce) 

(entice) (procure)] [attempt to (compel) (induce) (entice) 

(procure) 1 - to engage in (acts of prostitution) (sexual 

intercourse for hire and reward) with persons to be directed to 

(him) (her) by the said -. 

157. In that - did, (at) (on board) - , on or about 

- 19-, wrongfully and unlawfully [receive valuable consideration, to wit: - , on account of arranging for] [arrange 

for] (- ) (unnamed persons) to engage in (sexual intercourse) (sodomy) with - , (a prostitute) (- ) . 158. In that - , a prisoner on parole, did, (at) (on board) Parole, 

, on or about - I&, violate the conditions of his parole viO'atiOn Of 

by -. 

159. In that - , having taken a lawful oath [in a proceed- Perjury. 

ing before (a board of offlcers) (a court of inquiry) concerning "atutOry 

-1 [upon the making of an affidavit as to -1 [- 1, 

a case in which a law of the United States authorized an oath to 

be administered, that [he, the said - , would (testify) 

(declare) (depose) (certify) truly] [a written (declaration) 

(deposition) (certificate) subscribed by him was true], did, (at) 

(on board) - , on or about - I$--, willfully and contrary 

to such oath (state) (subscribe) a material matter, to wit : -, 

which matter he did not then believe to be true. 

NOT~.-I~ the matter falsely stated or subscribed under lawful oath ia 

not material, the offense should be charged as false swearing. 

160. In that - did, (at) (on board) - ,on or about Perjury, subIS--, procure - to commit perjury by inducing him, Of 

the said - , to take a lawful (oath) (affirmation) in a (trial 

by - court-martial of -) (trial by a court of competent 

jurisdiction, to wit: -, of - ) (deposition for use in a 

trial by - of -) (- ) that he, the said -, would 

(testify) (depose) (- ) truly, and to (testify) (depose) 

(- ) willfully, corruptly, and contrary to such (oath) (affirmation) in substance that - , which (testimony) (deposition) (- ) was upon a material matter and which the said 

and the said - did not then believe to be true. 

161. In that - ,(a sentinel) (overseer) (- ) in charge Prisoner, 

of prisoners, did, (at) (on board) - , on or about - 19-, allowing to do unauthorwrongfully allow - , a prisoner under his charge, to [(go bedact 

to) (enter) (go to and enter) an unauthorized place, to wit: 

1 [(hold unauthorized conversation with - ) (loiter) 

(neglect his task by - ) (obtain intoxicatingliquor) (- ) 1. 

162. In that - did, (at) (on board) - , on or about Public record. 

19-, willfully and unlawfully [ (conceal) (remove) (muti- :,";:%: ,t,. 

late) (obliterate) (destroy)] [appropriate with intent to (conceal) (remove) (mutilate) (obliterate) (destroy)] a public record, to wit: [the (descriptive list) (rough deck log) (quartermaster's note book) of - 1C- 1. 
App. 6c APPENDIX 6 

Quarantine, medical, breaking 

Refusing. 

wrongfnlly. 

to testify 

Restriction, 

breaking 

Sentinel, lookout, offenses 

against and by 

Stolen property, knoyingly re- ceimng 

Straggling 

Threat. communicating 

Unclean accouterment, arms. 

etc. 

Uniform, un- clean, i.mproper. appearing ~n 

Unlawful entry 

163. In that - ,having been duly placed in medical quarantine (in the isoIation ward, - Hospital) (- ), did, 

(at) (on board) - ,on or about- I%--, break said medical quarantine. 

164. In that - , being in the presence of a [(general) 

(special) court-martial] [duly appointed board of officers] 

[- 1 of the United States, of which - mas (law officer) 

(president) (- ), (and having been directed by the saidto qualify as a witness) (and having qualified as a witness and 

having been directed by the said - to answer the following 

questions put to him as a witness, "- "), did, (at) (on board) 

, on or about - I%--, wrongfully refuse (to qualify as 

a witness) (to aaswer said questions). 

165. In that - ,having been duly restricted to the limits 

of - , did, (at) (on board) - , on or about - It?--, 

break said restriction. 

- 

166. In that - did, (at) (on board) -, on or about 

19-, [ (attempt) (threaten) to] (unlawfully strike) (assault) - , a (sentinel) (lookout) in the execution of his duty, 

[ (in) (on) the - ] with (a) (his) -. 167. In that - , (a prisoner), did, (at) (on board) -, on or about - I%, wrongfulljr [use the following (threateuing) (insulting) (threatening and insulting) language] [behave in 

an (insubordinate) (disrespectful) (insubordinate and disrespectful) manner] toward - , a (sentinel) (lookout) in the execution of his duty, ["- ," or words to that effect] [by - 1. 

168. In that - , while posted as a (sentinel) (lookout), 

did, (at) (on board) - , on or about - 19-, (loiter) 

(wrongfully sit down) on his post. 

169. In that - did, (at) (on board) - , on or about 

19-, unlawfully (receive) (buy) (conceal) - , of a 

value of about $- , the property of - , which property, 

as he, the said -, then well knew, had been stolen. 

170. In that - did, at - , on or about - I*, 

while accompanying his organization on (a practice march) 

(maneuvers) (- ), without just cause, straggle. 

171. In that - did, (at) (on board) - , on or about 

19-, wrongfully communicate to - a threat to (iujure - by - ) (accuse - of having committed the 

offense of -) (- ). 

172. In that - was, (at) (on board) - , on or about 

19-, found with an unclean (rifle) (uniform) (- 1, 

he being at fault in failing to maintain such property in a clean 

condition. 

173. In that - did, on or about - 19-, wrongfully appear (at) (on board) - (without his - ) (in an unclean 

) (with an unclean -) (- 1. 

174. In that - did, (at) (on board) - , on or about 

19--, unlawfully enter the (dwelling house) (garage) 

(warehouse) (tent) (vegetable garden) (orchard) (stateroom) 

(-) of -. 
FORMLCHARGES AND SPECIFICATIONS App. 6c 

175. In that - did, (at) (on board) - , on or about :~;3,3;;;~~ 

-- 19-, unlawfully carry a concealed weapon, to wit: a 

-. 

176. In that - did, (at) (on board) - , on or about Wearing tnau- 

- 

thorized insig- 19-, wrongfully and without authority wear upon his nia,ete. 

(uniform) (civillan clothing) [the insignia of grade of a (master 

sergeant of -) (chief gunner's mate of - ) ] [the Combat 

Infantryman Badge] [the Distinguished Service Cross] [the ribbon representing the Silver Star] [the lapel button representing 

the Legion of Merit] r- I. 
Appendix 7 

There is set forth below a copy of the form for the report of the investigating officer 

required under the provisions of Article 32. As a guide, sample entries pertaining to an 

accused member of the Army have been entered. 

OFFICER EXERCISING GENERAL COURT-YLRTIPL JURISNOTE: XI addlrlonal .Par. 1. ragwired lor any Item. enter tho oddlllonal matrrl.1 an .apar.l. mh..l. Be mur. lo 

Idanllly much malarial rlth the propor num.rls.1 and. .ha" appropriats, lottorad hm~dln, (Bxampl.. .bs'). Socursly 

attach any add1rIon.l .h.o: lo rho lorn and add a noto In rhs approprlat. ltam of the lor.: -8.. mddltlon.1 .h.=r". 

AnY matter. conalderad Purmuant lo paralraph 94 vhtsh ara not Idanrlll.bla .Irh numerical and 1.lr.r.d Laadlnl. of 

the Iorm should be added on an additional ahact, mhlrh rlll be referred lo and Idsnr1ll.d In It.. 17. R.n.r#.. 
INVESTIGATING OFFICER'S REPORT APP. 7 

PRESERVED FOR SAFEKEEPING US IHDICUTEO: 

One .45 caliber pistol, now in the custody of the Commanding Offiaer, 

61st Infantry. 

2 
APP. 7 APPENDIX 7 

Both the campmy cormrander and the firat sergeant state that he 

has been an excellent aoldier. 

(If no such loclomur.. war. racalvrd. clack 'NO".) 

16. (Check .pprolri.I. box ONLY 1i lrirl 1. r0~0mm.nd.d.l 

TRlrL BY tlD GENERAL 0 s?~ClAl 0 SUuwARI COURT-HPRTIPL IS RECOMHENDEO. 

17. REHI\RKS. (Check 710. 11 thore or. none. Check .rKSm nnd Id.nlllr tho .ddlllpn.l .h.el om which 

they appear If Ih.re a,, ram.rlo,J 

X 

x TYPED NAIL, RANK, IUD ORGINIIIIIDN Or IIIVESTIGATIUG OFCICLR 

JACK L. JEEIKS, Cnpt, 61et Inf 

SIGNATURE 

rl 

@dp w 
Appendix 8 

PROCEDURE FOR TRIALS BEFORE GENERAL AND 

SPECIAL COURTS-MARTIAL 

CONTENTS 

Preconvening procedure--- - - - - - 

Seating of court ------------_- -

Appointing orders ----------- - - 

Accounting for personnel- -- -- - _ Reporter sworn-- ------------ - 

Qualifications of prosecution- - - - 

Qualifications of defense ---_ - - -- Excusing counsel not desired- - - - 

Enlisted membership ----------- 

Court convened--------------- 

Personnel sworn -------- ----_-- 

Challenges- - - - - - - - - - - - - - - - - - - - 

By prosecution -------------- 

By defense- - - - - - - - - - - - - - - - - 

Withdrawal of charges --------- 

Arraignment-- - - - - - - - - - - - - - - - - 

Motions--_ - _ - - - - - - - - - - - - - - - - - 

Rulings on motions ---------- 

Voting on rulings ---------_-- 

Page 

500 

500 

501 

501 

502 

502 

502 

504 

504 

504 

504 

505 

507 

507 

507 

507 

508 

508 

508 

508 

509 

Exhibits-Continued 

Description for record -------- 

Depositions and authenticated 

official records -------_---- 

Confessions; admissions- -- - - - Accused's right to limit testimony --- - - - - - - - - -- - - - - - - - 

Excluding members of general 

courts-martial - - - - - -- - - - - - In-court hearing --------. --- 

Out-of-court hearing ---- - - -- _ Presentation of additional instructions- - - - - - - - - - - - - - - - Adjournment or recess- - - - - - - - - 

Reconvening------------------ 

Accounting for members after 

recess, etc.-- --------------- New member ------- --- ------- 

Prosecution rests--- -- -- .--- -- Presentation of defense case- - - _ - 

Accused as witness ------------ 

Page 

Explanation of plea of guilty---- 509 Explanation of accused's rights- - 51 6 

Presentation of vrosecution case- 510 Defense rests- - ---_ -- ------ --- 517 

Testimony ----- _ - - - - - - - - - - - - - - 

Oath of witness ---------_--- 

Formal questions ------- -- --- 

Direct examination--, - - _- _-- 

Use of interpreter-'- - --- ----- 

Cross-examination- - - - - - - - - - - 

Redirect examination- - ------ 

Recross-examination- - - - - - - - - Examination by court -------- 

Excusing witness ------------ Warning witness- - ---------- 

Witness recalled ---- --------- 

Objections to testimony--- ----- 

Argument on objections-- -- - - Ruling on objections --------- 

Striking testimony -------- -- -. 

Exhibits-- -- - - - - - - - - - - - - - - - - - - 

Marking- - - - - - - - - - - - - - - - - - _ Identification.. - - - - - - - - - - - -. - 

Offer ---- - - _ - _ - - - - - - -. . - . _ . 

510 

510 

510 

510 

51 1 

511 

511 

511 

511 

511 

511 

511 

511 

512 

512 

512 

512 

512 

512 

512 

512 

Rebuttal ..................... 

Witness called by court -------- 

Closing arguments ------------- 

Charging court __-------------- 

Concluding charge by law officerFindings- - ---- _- -- ---------- - Voting ..................... 

Announcing ------ - - - - - - - - -- - 

Presentence procedure-- -- ----- 

Personal data from charge 

sheet-------------------- 

Previous convictions --------- 

Matter in aggravation, mitigation, or extenuation -------- Sentence--------------------- 

Voting ..................... 

Announcing ---------------- Adjournment ----------------- 

Contempt procedure --_-------- 

Revision procedure-_ ---------- 
APPENDIX 8 

a. TRIAL PROCEDURE 

Preeonvening NOTE.-Prior to the president calling a court-martial to order, the law officer @resiprocedure dent of a spircial court-martial) should examine the appointing order. determine lha t 

the accused and a quorum are present (including onethird enlisted persons if they 

hare been requested) and that the appointed t-ial counsel and defense counsel are 

apparently qualified. See 61a. Witnesses should be excluded from the courkoom 

except when they testify. See 53f. 

Seating NOTE.-The members are seated alternately to the right and left 

of the president according to rank. The lam officer is seated apart from 

the members, Acceptable seating arrangements appear below: 

General Court-Martial 
GUIDE-TRIAL PROCEDURE App. 8a 

Special Court-Martial 

1 

PRES: The court will come to order. Court called to order 

NoTn.-The reporter (TC in a special court-martial without reporter) is responsible for keeping n record of the hour and date of each 

opening or closing Of the court, whether for recess, adjournment, or 

otherwise, for insertion in the record. 

TC: The court is convened by - , (as amended by -,) a Appointing 

orders 

copy of which has been fhrnished to (the law officer,) each 

member of the court, counsel, the accused, and to the reporter for insertion at this point in the record. 

The following persons named in the appointing orders are Persons 

present : present 

The following persons named in the appointing orders are Persons absent 

absent : 

TC: The prosecution is ready to proceed with the trial in the Presence of 

case of the United States against accused 

(Name, rank, organization of 

, who (is) (are) present 

accused read from the Charge Sheet) 

in court. 

NOT~.-I~ any accused nre present solely to permit smearing in their 

presence of those ofRcinls and clerical assistants of the court who are 

required to act under oath (53b and 112c; Art. 42), the TC will make 

the following announcement : "In addition, the following accused persons, 

who will be esm~ed after the oaths have been administered to those 

aficials and clericaz assistants of the eourt who are required to act under 

oath, are present: 
App. 80 APPENDIX 8 

*Appointment 

of reporter 

Interpreter 

Legal qualifi- cations of 

prosecution 

TC: - has been appointed reporter for this court and will 

now be sworn. 

NOTE.-The reporter rises and stands with right hand raised; the 

TC, right hand raised, faces the reporter and administers the oath. 

TC: You swear (or affirm) that you will faithfully parform the 

duties of reporter to this court. So help you God. 

REPORTER: I do. 

NOTE.-The reporter records verbatim all proceedidgs had in the case 

(49b, 53d), subject to the exceptions set forth in appendix 9 and herein. 

NOTE.-Any interperpreter used is simllarlg introduced and may be 

sworn at this point or just before he acts. See 114 as to the form of the 

oath. 

TC: The legal qualifications of all members of the prosecution 

are correctly stated in the appointing orders (except 

that ). 

NOTE.-If the TC of a general court-martial is not qualified as prescribed by Article 27b, or if in his absence no member of the prosecution 

present is so qualified, the court will adjourn and report the matter 

to the convening nuthority. 

Priorparticipa- TC: NO member of the prosecution named in the appointing or- tion by member 

of prosecution ders has acted as investigating officer, law officer, court member, or as a member of the defense in this case, or as counsel 

for the accused at a pretrial investigation or other proceedings in~olving the same general matter. 

NOTE.-If any member of the prosecution appears to be disqualsed, 

the court will take the action indicated in 61e. See 6a. 

DC TC: By whom will the accused be defended? 

DC: The accused [is to be defended by (- , the appointed 

defense counsel) .(and) (- , the appointed assistant 

defense counsel) ] [introduces as individual counsel, -1. 

Qualifications TC: Will counsel representing the accused state whether the of DC 

legal qualifications of the appointed members of the defense 

are other than as stated in the appointing orders (and will 

individual counsel state whether he has been certified as 

counsel by an appropriate Judge Advocate General, and, 

if not, whether he has any of the legal qualifications 

enumerated in Article 277, (1) ) ? 

DC: The legal qualifications of all appointed members of the defense are correctly stated in the appointing orders (except 

that . 1. 

NOTE.-If the appointed DC of a general court-martial is not qualified 

as prescribed by Article 27b, the court will adjourn and report the matter 

to the convening authority. Similar action will be taken if the appointed DC of a spedal court-martial is not qualified as prescribed by 

Article 27c. See 61f(3). 

No!~~.-Legal qualifications of all counsel for the defense not shown 

in the appointing orders, Including individual counsel, if any, will be 

stated (61f(2) ). 

*Not applicable to special courts-martial if reporter ia not used. 
App. 8a 

No~ar.-If the jurisdictional requirements with respect to appointed 

counsel are met (61J(3)), but no member of the defense present at the 

trial, including individual counsel, has legal qualifications equivalent to 

those of any member of the prosecution who is legally qualified, the law 

offleer (president of a special court-martial) will inform the accused: 

LO (PRES) : - , one of the members of the prosecution is ,";",';cion of 

(certifled in accordance with Article 27b) (qualified quali6cations 

in the sense of Article 27c(2) ). No member of the 

defense present has equivalent legal qualifications. 

You have the right to be represented by counsel who 

has such qualifications. Unless you expressly request that you be represented by the defense counsel 

who is now present, the court will adjourn pending 

procurement of defense counsel who is so qualified. 

Do you expressly request that you be represented by 

the defense counsel who is now present? 

ACCUSED: I do (not). 

LO (PRES): Do you also wish the services of counsel who has 

legal qualifications equivalent to those of the member of the prosecution mentioned? 

ACCUSED: I do (not). 

NOTE.-If the accused expressly requests that he be represented by the 

DC then present (including individual counsel) and does not wish the 

services of a counsel who has the requisite equivalent legal qualifications, 

the trial will proceed. Otherwise, the court will adjourn pending procurement of a defense counsel who has the requisite qualifications. 

TC: Has any member of the defense (including individual Priorparticipncounsel) acted as the accuser, a member of the prosecution, by DC 

investigating officer, law officer, or member of the court in 

this case? 

DC: (No counsel for the defense has, so acted.) (- , it 

member of the defense, has acted as - .) 

Nom.-If a member of the defense has, participated in the same 

case as a member of the prosecution, he will be excused forthwith (61f (4) ). 

See 6a. In other cases the TC will advise the accused : 

TC: - , (the regularly appointed defense counsel) (-), Explanation to accused previously has acted as - in this case. He may not 

now act as a member of the defense unless expressly requested by you. Do yon expressly request his services in 

this case? 

ACCUSED: I do (not). 

NOTPI.-If he does so request, the proceedings continue. If he does not 

request the services of such counsel, the LO (president of special courtmartial) will excuse him. 

NOTE.-If the excusing of counsel not desired by accused, because of Action when 

prior participation (Art. 27a), deprlves the accused of that representation to whi@h he is entitled by Articles 27b and 38b under the circum- desired 

stances existing before the pamcular court, the court will adjourn and 

report the matter to the convening authority (61f(4)). 

NoTE.-I~ appropriate the accused may atate (Art. 38b) : 
App. 8a 

Excusing 

counsel not desired 

Request for 

enlisted 

membership 

Court convened 

Members 

sworn 

*LO sworn 

APPENDIX 8 

ACCUSED: I (do not) desire the (regularly appointed defense 

counsel) (and) (assistant defense counsel) to act 

(as associate counsel) in this case. 

NOTE.-COU~S~~ not desired by accused will be excused at this time 

(61f(3)). 

LO (PRES): It appears that counsel for both sides have the 

requisite qualifications. 

Norm.-When the accused is an enlisted person, he adds: 

LO (PRES) : Has the accused made a request in writing that the 

membership of this court include enlisted persons? 

TC: The accused has (not) made such a request (which is herewith submitted to the court). 

LO (PRES): This request will be attaohed to the appointing 

orders which are to be inserted in the record. 

NoTE.-I~ such a request has been made and requirements for enlisted 

membership do not appear to have been met, the court will adjourn and 

report the matter to the convening authority. See 61g and Article 25c. 

More.-If an accused is present solely to permit swearing in his 

presence of the personnel of the court (53b, 1120; Art. 42), such personnel properly may not be sworn until after the qualifications of counsel 

have been established and, if he is an enlisted person, his desires with 

respect to enlisted court members have been made a matter of record. 

LO (PRES) : Proceed to convene the court. 

TC: The court will be sworn: 

NOTE.-All persons in the courtroom stand while the oath is administered to the members of the court, LO, and counsel. See 112d. Each 

member raises his right hand as his name is called by the TC in administering the following oath : 

TC: You, Colonel - , Lieutenant Colonel -, (- ) , 

do swear (or affirm) that you will faithfully perform 

all the duties incumbent upon you as a member of this 

court ; that you will faithfully and impartially try, according 

to the evidence, your conscience, and the laws and regulations provided for trials by courts-martial, the case of (the) , 

(each) accused now before this court; and that if any doubt 

should arise not explained by the laws and regulations, 

then according to the best of your understanding and the 

custom of war in like cases; that you will not divulge the 

findings and sentence in any case until they shall have been 

duly announced by the court ; and that you will not disclose 

or discover the vote or opinion of any particular member 

of the court upon a challenge or upon the findings or sentence 

unless required to do so before a court of justice in due 

course of law. So help you God. 

EACH MEMBER ,OF THE COURT: I do. 

NOTE.-The members lower their hands but remain stadding while 

the TC administers the oath to the LO, who raises his right hand. 

TC: You, Commander - , do swear (or affirm) tbat you will 

faithfully and impartially perform, according to your conscience and the laws and regulations provided for trials by - - 

*Not applicable in special courts-martial. 
GUIDE-TRIAL PROCEDURE App. 8a 

courts-martial, all the duties incumbent upon you as law 

ofecer of this court; that if any doubt should arise not 

explained by the laws and regulations, then according to 

the best of your understantling and the custom of war in 

like cases; and that you will not divulge the findings or 

sentence in any case until they shall have been duly announced by the court. So help you God. 

LO: I do. 

NOTE.-The president administers the oath to the members of the 

prosecution, who raise their right hands : 

PRES : You, Oaptain - and Lieutenant - , do swear (or Prosecution 

aworn affirm) that you will faithfully perform the duties of 

trial counsel and will not divulge the findings or sentence 

of the court to any but the proper authority until they 

shall be duly disclosed. So help you God. 

TC (AND ASST TC) : I do. 

NOTE.-The oath is then administered by the president to the members 

of the defense, including individual counsel, who raise their right hands : 

PRES: You, Major - , Lieutenant - , (and Mr. -,) Defense sworn 

do swear (or affirm) that you will faithfully perform the 

duties of defense (and individual) counsel and will not 

divulge the findings or sentence of the court to any but the 

proper authority until they shall be duly disclosed. So 

help you God. 

DC (AND ASST DC) : I do. 

NOTE.-bll persons except the TC are then seated. 

LO (PRES) : The court is now convened. 

NOT~.--If an accused has been present solely to peqmit swearing in 

his presence of the personnel of the court (53b and 112c; Art. 42), the 

TC should make the following announcement: "- , an accused who 

was present during the administration of oaths to the personnel of the 

court ..will be ezc~rsed. Th.e reporter will note that it is n,ou* - hours, - I&.'' When the court subsequently assembles for the 

trial of such an accused, the TC, aftcr accounting for the personnel of 

the court, the accused, and his counsel, nrill announce : <'TAe prosecntiom 

is now rcady to proceed in the ease of the Ulsited Stntes against -, 

who was present dt~rii~g the administration of oaths to the personnel of 

the court." The record of trial in the case of such an accused will show 

all the proceedings had in the case prior to the time that he withdrew 

after the administration of oaths. Thereafter, the proceedings and 

record in his case mill continue from this point. 

NoTE.-I~ it appears that any witnesses in the case are present in 

the courtroom, the LO (president of a special court-martial) should make 

the follow in^ announcement : ''Unless they are required to be present for 

other reasons, aft persons expecting to be called as witnesses in the case 

of - will withdraw from the courtroom." 

NOTE.-The TC now states the general nature of the charges and 

disclose$l every ground for challenge believed 'by him to exist in the 

case (62b). If an announcement of the withdrawal of a charge or spec 

ification is to be made prior to the arraignment of the accused, the TC 

should not state the nature of such charge or specification in advising 

the court of the general nature of the charges (56d, 65a). 
App. 8a 

. .- 

APPENDIX 8 

-nature of 

charge 

-grounds 

disclosed by 

records 

-grounds disclosed by 

enlisted 

members 

-grounds disclosed by members 

-procedure 

TC: The general nature of the charges in this case is -. , the 

charges were preferred by - ;forwarded with recommendations as to disposition by - (-) (and 

) ; and investigatgd by -. Neither the law officer nor any member of the court will be a witness for the 

prosecution. 

The records of this case disclose [no grounds for challeuge] 

[grounds for the challenge of - , for the following 

reasons: he (is not eligible to serve as - ) (is the 

accuser) (was the investigating officer) (forwarded the 

charges with recommendation as to disposition) (has 

previously participated in the case as - ) (is an enlisted 

member of the same unit as accused) (- 1. 

N0Tn.-See 621, as to disclosing grounds for challenge. If disclosed 

grounds for challenge are undisputed and are within the first eight 

grounds enumerated in 62f the LO (president of a special court-martial) 

wiU excuse the LO or member forthwith (62c and h (2)). If there are 

enlisted members of the court : 

TC: Records indicate that the accused is a member of -. If any enlisted member of the court is now a member of the 

same unit, it is requested that he so state. 

Norn.-The eighth ground for challenge provides that an enlisted member of the court may not belong to the same company or corresponding military unit as the accused. If the excusing of an enlisted court member 

or aetion on challenges results in an enlisted membership of less than 

one-tbird of the total membership of the court present, the court will 

adjourn and rep~rthe matter to the convening authority (62h(4)). 

TC: If any member of the court (or the law officer) is aware of 

any facts which he believes may be a ground for challenge 

by either side against him, he should now state such facts. 

Nom.-As to the procedure on challenges, see 62h. A challenged 

member (LO) will be glven the right to make a statement with respect 

to the challenge. Note that if LO (president of a special court-martial) 

takes the stand to testify as to his competency, he continues to rule on 

interlocutory questions. If a member (LO) is challenged for any of the 

first eight grounds enumerated in 62f, and he admits the fact upon which 

the challenge is based, he will be excused forthwith. If it is manifest 

that any other cllallenge will be unanimously sustained, the LO (president of a special court-martial) may excuse the challenged person "subject to the objection of any member." In case of objection by any member, or in the event of a contested challenge, evidence may be presented 

to the court upon the issue. Thereafter, the challenged member will 

withdraw, the court will close, and a vote as to whether the challenge will 

be sustained will be talicn by secret written ballot; n tie vote disqualifies 

the member challenged. See 62h(3). 

Challenges for canse should be made before arraignment but may be 

presented at any stage of the proceedings if the challenger has exercised 

due diligence or the challenge is based upon grounds enumerated in 62j, 

clauses 1 to 8. Challenges for cause may again be presented, even though 

once overruled, if for good cause such as newly discovered eviden'ce (62d). 

The TC will administer the following oath to a challenged member who 

is to be examined as to his competency : 

"You swear (or anrm) that you will answer truthfully to the questions 

touching your competency as a member of the court in this case. So help 

you God.'' 

As to limitations on inquiry a s t o eligibility of LO see 620. 
GUIDE-TRIAL PROCEDURE App. 8a 

TC: The prosecution (has no) challenges for cause (- on 

the ground - ). 

TC: The prosecution has no peremptory challenge (desires to 

challenge peremptorily - 1. 

NOT=.-As to peremptory challenges, see 62e. When the right to make 

;I peremptory challenge is exercised, the challenged member will be exrused forthwith. 

TC: Does (any of) the accused desire to challenge any member 

of the court (or the law officer) for cause? 

NOT=.-When there is more than one accused, the challenges of each 

for cause are ordinarily disposed of before their peremptory challenges 

are made. 

DC : No. (The accused challenges - for cause on the ground 

-.) 

TC: Does (any of) the accused wish to exercise his right to one 

peremptory challenge against any member? 

DC: The accused, - ,(has no peremptory) challenges (- 

peremptorily). 

TC: By direction of the convaning authority the prosecution 

withdraws the following charge (s) and specification (s) 

and will not pursue the same further at this trial: (Spec%- 

cation 2 of Charge 11) (- ) - 

NOTE.-A charge or specification withdrawn after the convening of 

the court and before arraignment should be mentioned by number onlythe nature of the offense set forth in a charge or specification so withdrawn should not be made known to the court (56d). 

The TC now should present to the members of the court (and the 

LO) copies of only those charges and specifications upon which the 

accused is to be arra2g%ed. 

When a specification is withdrawn after evidence has been taken 

on the issue of guilt or innocence, the reasons therefor should be fully 

stated in the record of trial (56b). 

TC: The charges have been properly referred to this court for 

trial, and with their specifications, are as follows: 

NOTE.-The 'TC now reads the charges and specifications upon which 

the accused is to be tried, with the name and description of the accuser, the asdavit, and the reference for trial (pp. 2 and 3 of Charge 

Sheet). They are copied verbatim into the record at this point, regardless of whether the accused waives the actual rending of the charges 

and specifications. The accused mug waive the actual reading of the 

charges and specifications in court (65a) : 

TC: With the consent of the accused I shall omit the reading of 

the charges, a copy of which is before each member of the 

court (, the law officer,) and the accused. The charges 

are signed by - ,a person subject to the code, as accuser; are properly sworn to before an officer of the armed 

forces authorized to administer oaths ; and are properly 

referred to this court for trial by - , the convening 

authority. The charges and specifications, the name and 

description of the accuser, his affidavit, and the reference 

for trial will be copied verbatim into the record. 

DC: The accused consents. 

LO (PRES) : The reading of the charges may be omitted. 

-by prosecution (for cause) 

(peremptory) 

-by defense 

(for cause) 

(peremptory) 

Withdrawal of 

charges 

Arraignment: 

--charges and 

specifications 

read 

-waiver of 

reading 

charges 
App. 80 APPENDIX 8 

-notice of 

service 

Motions, etc. 

Ruling on motion 

Rulings by LO or president on interlocutory 

questions 

Voting on rulings 

Amendment of 

charges 

Form of 

nmendment , after severance 

TC: The charges were served on the accused by (me) (- 1 on - 19-. - , how do you plead? 

No~~.-This completes the a~raignment, of which the pleas are no 

part (65a). 

No~n.-Unless the date of service is at least five days prior to the 

date of trial in a general court-martial (three days for a special courtmartial), except in time of mar, the accused may object to this defect 

in service (Art. 35). If he does so, the court must grant a continuance 

at this point following arraignment. 

TC: Before receiving your pleas, I advise you that any motions 

to dismiss any charge or to grant other relief shohld be made 

at this time. 

NOTE.-Motions to, dismiss and for other relief, such as motions to 

sever, for continuance, or for examination of the accused because of suspected insanity, are properly presented at this point; all proceedings 

and action thereon will be recorded. See 536, 67, and 68. Any explanation of the accused's right to move that a charge be dismissed (53h, 6Bc) 

because barred by .the statute of limitations, and the accused's response 

thereto, will be recorded. 

DC: The defense [has no motions to be made] [moves that Specification - , Charge - , be dismissed because of former 

acq~~ittal, on - ,by a court-martlal convened pnrsuant to - , dated - I!+-, of the charge of - 

(reciting charge and specifications in full)] [moves that 

NoTE.-T~~ ruling on n motion to dismiss may be : 

LO (PRES): (Subject to objection by any member of the court,) 

the motion is (denied) (granted. The accused will 

not be required to plead to Specification -, 

Charge - 1. 

 NOT^.-The president of a special court-martial rules on interlocutory 

questions "subject to objection by any member of the court, - ." See 

57c and e, and Article 61b. In ruling on a motion for a finding of not 

guilty, or the question of accused's sanity, the LO rules "subject to objection by any member of tlie court" ; otherwise his rulings on interlocutory 

questions (other than challenges) are final (57d), while those of the gresident are made as indicnted. 

No'm.-If any member objects to a ruling when he may properly do 

so, the court mill close and vote orally, beginning with the junior in 

rank. The court determines by majority vote whether the ruling is sustained or not. A tie vote on a motion for a finding of not guilty or 

on a motion relating to the question of the accused's sanity is a determination against the accused; otherwise a tie vote is a determination in 

favor of the accused (57f; Art. 5%). 

hT~~~e.-If charges are amended on motion or otherwise or after a motion 

to sever is granted in the case of accused jointly charged, the amendment will be for~nnlly stated for tlre record. See 690(3). For example, 

after a motion to sever is granted, the formal amendment may be in tlie 

followillg form : 

LO (PBES) : Each specification is formally amended by striking 

out the words "and - ,"the accused who is not 

now to be tried, and the words "acting jointly and in 

pursuance of a common intent," and by inserting 

after the word "did," the wsrds "acting in conjunc- 
GUIDE-TRIAL PROCEDURE App. 8a 

tion with - ,"the accused who is not now to Be 

tried. Trial will proceed on the charges as amended. 

NOT&-The accused and his counsel rise while entering the pleas. 

In joint and common trlals, each accused wU1 plead separately. 

DC: The accused, -, pleads: 

To all Specifications and charge^: (Not guilty) (Guilty) 

or 

To Specification 1 of the Charge: Guilty 

To Specification 2 of the Charge : Not guilty 

To the Charge: Guilty 

or 

To Specification -, Charge -: Guilty, except the words '-91 and "- " (, substituting therefor, respectively, 

the words "-" and I'-," to the excepted words, not 

guilty, to the substituted words, guilty). 

To Charge - :(Guilty) (Not guilty, but guilty of a violation of Article -1.. 

etc. 

NOTE.-If the accused pleads guilty to a lesser included offense against 

which the statute of limitations has apparently run, the LO (president of a special court-martial) will advise the accused of his right to 

interpose the statute in bar of trial and punishment as to that oflense 

(68~). 

In any case in which a plea of guilty is entered, the meaning and effect 

will be explained to the accused. See 53h and 70. The following 

-guilty to one specification 

-with excep- tions and 

substitutions 

---explanation of plea ef 

guilty 

(statute of 

limitations) 

explanation may be used : 

LO (PRES) : - , you have pleaded guilty to (Speciflcatioll (form of explanation) , Charge - ) (the lesser included offense of 

). By so doing, you have admitted every act 

or omission (charged) and every element of that 

(included) offense. Your plea subjects you to a 

finding of guilty without further proof of that 

offense, in which event you may be sentenced by 

the court to the maximum punishment authorized 

for it. You are legally entitled to plead not guilty 

and place the burden upon the prosecution of proving your guilt of that offense. Your plea will not 

be accepted unless you understand its meaning and 1 

effect. Do you understand? 

ACCUSED: Yes, sir. 

LO (PRES): Understanding this, do you persist in your plea of 

guilty? 

ACCUSED: Yes, sir. [I desire to change my plea(s) to not 

guilty.] 

NOTE.-Upon inquiry by the accused, the LO (president of a special Adviceas to court-martial) should advise him of Le maximum punishment which may p-shment 

be adjudged for an offense or offenses to which he has pleaded guilty. 

Before advising the accused of the maximum punishment, the LO (president of a special court-martial) shouId refer to chapter XXV. He may 

also request counsel for both sides to submit legal autherity on the 

question. 

If an enlisted person has pleaded goilty to an offense or offenses for 

none of which dishonorable or bad conduct diacharge is authorized, the 
App. 8a APPENDIX 8 

Legal 

authorities 

Presentation 

prosecution 

case 

Stipulation 

Introduction 

of witness 

Oath of 

witnese 

Formal 

questions 

LO (president of a special court-martial) should supplement his advice 

as to the maximum punishment with a statement in substantially the 

following form : "However, df the oourt receives evidence of two or more 

previous co~tvlctions, the mam.mum punishment which could be adjudged 

for the o#ense(s) to which you have pleaded guilty would be: bad conduct 

discharge, conpnement at hard Zabw for -, and forfeiture of -." Thls supplemental advice may also be appropriate in the 

case of an accused who 1s a prisoner sentenced to a punitive discharge. 

In this connection, see Section B, Table of Maximum Punishments (127~). 

Lf the accused persists in his plea of guilty, ahd it appears later that 

he was erroneo~~sly advised of a punishment less severe than the maximum 

legally authorized for dhe oE'ense or offenses to which he pleaded guilty, 

the court should adrlse him of the correct maximum punishment and give 

him an opportunity to withdraw his plea of guilty. See 70. 

TC: (The prosecution has no legal authorities to present to the 

court.) (With the permission of the court, I wish to read the 

following exhacts from legal authorities : - .)

NOTE.-See 44g(2). 

TC: Does the defense desire to present legal authorities at this 

time? 

DC: The defense does (not). 

of TC: The prosecution has (no) (an) opening statement. 

NOTE.-No openihg statement is required, and none should be made 

unless it will clarify the procedure to be followed by the TC. When, for 

example, the prosecution relies principally upon a confession. and before 

the confession is introduced a witness is called to give evidence corroborating the commission of the offense, the TC may indicate in an opening state 

ment what he intends to do, in order that the evidence may be properly 

appraised as it is presented. In this connection, see 44f(3). 

TC: With the consent of the accused, the prosecution and defense 

stipulate -. 

Nom.-Prior to the acceptance of any stipulation the LO (president of 

a special court-martial) should determine that the accused joins in the 

stipulation. See 154b. 

LO (PRES): (Subject to objection by any member of the court,) 

the stipulation is (not) accepted. 

TC: The prosecution calls as a witness -. 

Nore.-When the witness is sworn, he raises his right hand, and the 

TC administers the oath. 

TC: You swear (or a*m) that the evidence you shall give in' 

the case now in hearing shall be the truth, the whole truth, 

and nothing but the truth. So help you God. 

WITNESS: I do. 

NOTI.-A witness may be sworn by the oath indicated or by any oath 

recognized by hls religion, or by such acts or ceremony as he declares 

blhding on his conscience (112d). As to the competency of witnesses in 

general, see 148a. 

N0~a.-The witness now takes his seat in the witness chair. Usually 

the flrst two questions asked every witness are formal and are asked by 

the TC. whether the witness be called by him, by the defense, or by the 

court. 

TC: State your full name, (grade, organization, station, and 

armed force) (occupation and residence). 
GUIDE-TRIAL PROCEDURE 

WITNESS : 

. TC: Do you know the accused? 

WITNESS: 

NOTE.-If the witness states that he knows the accused, he will normally 

be asked to point to the accused if he sees him in the courtroom, and to 

state the name and organization of the accused, If he knows. It iti not 

necessary to aslr the second question if the identity of the accused has 

already been established or if the TC intends to establish such identity 

at a later stage of the proceedings. 

NOTE.-Succeeding questions and answers are recorded in order exactly 

as spoken. Physical events which transpire, and witnesses' identiflcations and illustrations given by motions, gestures, or by reference to 

persons or other physical objects within the court's view, will be described 

as accurately as possible by the reporter, with the assistance of the TC, 

DC, and LO (president of a special court-martial), if necessary. 

NOTE.-At the beginning of testimony given through an interpreter, 

the record will note such to Be the case but the questions and answers 

are recorded in the manner indicated above. See 114 as to form of oath. 

NoTE.-A~ the conclusion bf direct examinntion TC announces: 

TC: The prosecution has no further questions. 

NOTE.-After the prosecution has concluded the direct examination 

of a witness, the DC cross-examines or declines to cross-examine the 

witness. 

DC: The defense has no (further) questions. 

NOTE.-If the defense cross-examines the witness the TC may conduct 

3 redirect examination; after he has concluded, the DC may similarly 

conduct a recross-examination. When both the TC and DC have concluded their questions the TC asks the court : 

'kc: Are there any questions by the court? 

NOTE.-Any member wishing to question the witness, first secures the 

permission of the LO (president of a special court-martial). 

If either the TC or DC wishes to ask further questions of t6e witness 

after his examination has been turned over to the court, permission of 

the court should be secured. Such requests should, in general, be 

granted, subject to the court's discretionary power to limit or reject 

superfluous interrogation. 

When questions by the court are concluded, the LO (president of a 

special court-martial) announces : 

LO (PRES): The witness is excused (, subject to recall). 

??OTE.-U~~~SS expressly excused from further attendance during the 

trial, all witnesses will remain subject to call or recall until the trial 

has been concluded. In an appropriate case (53f), the witness may 

be instructed as follows : 

LO (PRES): You are instructed not to discuss your testimony in 

this case with anyone except the counsel or the accused. You will not allow any witness in this case 

to talk to you about the testimony he has given or 

which he intends to give. If anyone, other than 

counsel or the accused, attempts to talk to you about 

your testimony ln this case, you should make the 

circumstances known to the counsel for the side 

originally calling you as a witness. 

NOTE.-When a witness is recalled, the TC reminds such witness, 

after he has appeared before the court : b. 

51 1 

App. 8a 

Direct 

examination 

Use of 

interpreter 

Crossexamination 

Redirect and recrossexamination 

Examination 

by court 

Excusing 

witness 

Warning 

witness 

Recalled 
App. 8a 

Objections: 

Striking 

testimony : 

Contempt 

procedure 

Exhibits: 

-marking for 

identification 

APPENDIX 8 

TC: You are reminded that you are still under oath. 

NOTE.-Objections are treated as follows, e. g.: 

TC: What was the accused carrying? 

DC: Objection. Any answer to that question is immaterial. 

Now.-After hearing pertinent argument, if any, the ruling should 

be made in substantially the following manner: 

LO (PRES): (Subject to objection by any member of the court,) 

objection of defense counsel is (sustained) (overruled). 

NOTE.-Any remarks or testimony ordered stricken are nevertheless 

fuly recorded although they are not considered by the court as evidence. 

For example : 

TC: What was the color of the hat that the accused was wearing? 

WITNESS: Accokding to what the police officers told me, he was 

wearing a black Homburg. 

DC: I move that answer be stricken as hearsay. 

LO (PRES): (Subject to objection by any member of the court.) 

the answer will be stricken, and the court is instructed to disregard it. 

Noen.-For proceedings in contempt, see appendix 8b. Such proceedings will appear in and as a part of the regular record of the case 

before the court. In this connection, see 118. 

NOTn.-In introducing documentary evidence or other materlal things, 

the following procedure should be followed by' counsel : 

DC: ~e~uest that the reporter mark this exhibit for identification. 

NOTE.-The reporter is responsibIe for keeping a list of exhibits marked 

for identification, and also as flnally accepted into evidence. Prosecution exhibits should be numbered consecutively ; defense exhibits should 

be lettered consecutively. To clarify the proceedings in regard to exhibits, they should not be renumbered or relettered when admitted in 

evidence, but should be admitted by the same number or letter they 

bore "for identification," even though omissions thereby appear in the 

sequence of numbers or letters of exhibits finally admitted. Ordinarily, 

the words "for identification" are simply lined out when the exhibit 

is admitted in evidence. 

The reporter will mark on the exhibit (or tag affixed thereto) the 

appropriate number or letter and state, e, g. : 

REPORTER: This will be Defense Exhibit C for identification. 

NOTD.-The exhibit is sho\vn to the other side which is given an Opportunity to examine it. 

DC (TO WITNESS) : Do you recognize Defense Exhibit C for 

identiiication? 

WITNESS: I do. It is a watch (letter) I found in the accused's 

pocket when I searched him. 

DC: How do you recognize it as being the same one? 

WITNESS: 

NOTE.-When counsel is ready to offer the exhibit in evidence, he states 

to the court : 

DC: Defense Exhibit C for identification is offered in evidence 

as Defense Elxhibit C (and permission is requested to with- 
GUIDE-TRIAL PROCEDURE App. 8a 

draw it at the conclusion of the trial and substitute a written 

description (true copy) therefor). 

TC: I object because 

NOT&-An exhibit need not be offered in evidence at the time referred 

to by the witness, and mag be held for introduction later in the trial. 

However, opposing counsel must be given an opportunity to examine it in 

order that proper cross-examination of the witness in regard to the 

exhibit may be conducted. 

N0~e.-After making the offer, opposing connsel is again given the opportunity to examine the exhibit. Cross-examination may be conducted 

by opposing counsel, and other evidence may be offered and arguments 

made by either side prior to a ruling by the LO (president of a special 

court-martial) as to whether the exhibit will be admitted in evidence. 

LO (PRES): (Subject to objection by any member of the court,) 

the objection is overruled. Defense Exhibit C for 

identification is admitted in evidence as Defense 

Exhibit C [(and a description) (true copy) may 

be subtitutedl. 

No~n.--UnleSS the testimony of a witness has developed a full and 

accurate description of Rn object to be withdrawn later (54~31, counsel 

or the LO (president of a special court-martial) should give a verbal 

description at this time, for the record, of such an object, thus affording 

all parties an opportunity to advise in regard to such description. See 

13%. 

NOTD.-If an exhibit is offered, but is not admitted by the court, the 

side offering it may request that it be attached to the record for the information of the consening authority (54d). 

NOTE.-In the case of depositions and properly authenticated official 

records, the item is marked by the reporter and shown to the opposing 

counsel. In an appropriate caBe, the offer might be as follows: ' 

TC: Prosecution Exhibit 17 for identification, a duly authenticated extract copy of the morning report of - , is offered in evidence as Prosecution Exhibit 17. 

NOTE.-Before a confession may be received in evidence the prosecution 

ordinarily must show that it mas voluntary. See 140a. If, upon ohjection by the defense to the admission in evidence of a confession or 

admission on the ground that it was not voluntary, it appears to the 

court that the accused does not understand his right to testify for the 

limited purpose of showing the circumstances under which the confession 

or admission was obtahed without subjecting himself to cross-examination upon other issues (149b), the LO (president of a special courtmartial) should explain to the accused his rights in accordance with 53h 

and 140a as follows : 

LO (PRES) : - , the prosecution has offered in evidence a 

confess,ion (admission) allegedly made by you and 

has introduced evidence tending to show that it mas 

voluntarily made by you. As the accused in the 

case you hase the right at this time to introduce 

any efidence you may desire relevant to the circumstances under which the confession (admission) was obtained. You also have the right to 

take the stand at this time as a witness for the 

limited purpose of showing the circumstances under 

which the confession (admission) mas obtained. 

--description of 

article for the 

record 

--depositions and authenticated othcial 

records 

-confessions ; admissions 

(explanation of 

accused's right to limit his 

testimony to 

circumstances) 
App. 8a APPENDIX 8 

If you do that, whatever you say mill be considered 

and weighed as e+idence by the court just as is the 

testimony of other witnesses. You may be crossexamined upon your testimony, but if you limit 

your testimony to the circumstances surrounding 

the taking of the confession (admission) you cannot be cross-examined on the qnestion of your guilt 

or innocence of the offense itself, nor can yon be 

asked on cross-etamination whether the confession 

(admission) is true or false. En other words, yon 

can only be cross-examined upon the issues concerning which you testify and upon your credibility, 

but not upon anything dse. 

On the other hand, you need not take the stand 

at all. You have a perfect right to remain silent, 

.and the fact that you do not taike the stand yourself will not be considered as an admission that 

your confession (admission) was voluntary, nor 

can it be commented upon in any way by the trial 

counsel in addressing the, cou~rt. Do you understand your rights? 

ACCUSED: Yes, sir. 

LO (PRES) : Proceed. 

*Exeluding Nore.-See 57d (2), 570 (23, and 73c (2) for rules governing certain members of proceedings had outside the presence, view, or hearing of members of a 

generaZ court-martial. The procedure for an in-court conference requested martial : . by counsel may be as follows : 

-in-court 

conference DC (TC): I would like to confer with the law officer out of the 

healing of the members of the court. 

LO: Counsel for both sides and the accused will come forward. 

NOTE.-After an in-court conference, the procedure may be as follows: 

LO: Let the record show that the accused and counsel for both 

sides conferred with the law officer out of the hearihg of the 

members of the court. (The trial will proceed.) (The 

court will recess until - so that counsel may present 

certain additional matters to the law officer outside the 

presence of the members of the court.) (The court will 

recess. If the members of the court will remain in the 

vicinity of the courtroom, I shall, as soon as practicable, 

notify the president of the approximate time of reassembly 

of the court for the continuation of the trial.) 

--out-of-eourt Now.-During the recess, the lam o5cer will, in the presence of the 

hcaring accused, counsel for both sides and when appropriate, the reporter, 

conduct a preliminary hearing to determine whether the members of the 

ceurt should be excluded during the presentation of the matter in question. If the lam ofRcer deeldes to heor the matter out of the presence 

of the members, he should advlse the president of the court informaIly 

of the appromate time when the court cnn renssemble to proceed with 

the trial. All persons, except those whose presence is necessary, mny 

be excluded from any out-of-court hearlug. When the court has reasNot applicable in special courts-martial. 
GUIDE-TRIAL PROCEDURE 

sembled after such a hearing, and the personnel have been accounted 

for, the following procedure may be appropriate : 

LO: Let the record show that, during the recess, a hearing was 

held out of the presence of the members of the court. It 

was attended by the law officer, the accused, counsel for 

both sides, and the reporter. The proceedings of the hearing 

(will not be appended to the record) (will be appended to 

the record as Appellate Exhibit 1). The trial will proceed. 

LO: Let the record shorn that, during the recess, a hearing was 

held out of the presence of the members of the court. It 

was attended by ihe law officer, the accused, counsel for 

both sides, and the reporter. Counsel for (both sides) (the 

defense) (the prosecution) presented proposed additional 

instructions and argument in support thereof. The additional instructions proposed by Qe prosecution will be appended to the record as Appellate Exhibit 2. The additional 

instructions proposed by the defense will be appended to the 

record as Appellate Exhibit 3. The-arguments of counsel 

(will not be appended to the record) (will be appended to 

the record as Appellate Exhibit 4). The court is advised 

that the elements of the offense(s) are as follows : -.

etc. 

NOTE.-In the event of adjournment (a period extending beyond the 

same dny) or a recess, the procedure should be substantially as follows : 

LO (PRES): The court will (adjourn) (recess) until - 

hours (, - 19-). 

PRES: The court will come to order. 

NOTE.-If the place of trial is changed, nr the court reconvenes at a 

place other than that where it adjourned, the TC will so state for the 

record. See 54e as to views and inspections. 

TC: A11 parties to the trial who were present when the court 

(adjourned) (recessed) are again present in court (except 

1. 

N~TE.-T~~ term "parties to the trial," as used above, includes, when 

appropriate, the law ofticer and members of the court as well as counsel, 

the accused, the reporter, and the interpreter. It also includes a witness 

who mas not excused prior to the adjourning, recessing,, or closing of the 

court. If a member of the court is absent after arraignnzent, the absence 

must be shown to have been the result of challenge, physical disability, 

or the order of the convening authority (41d(4) ; Art. 29a). 

TC: Captain -- is now present and has been appointed to 

the court by 

NOTE.-If such member was appointed by the snme orders es convened the court, it will be so announced; if by an order not heretofore 

incorporated in the record, the trial coonsel will announce : 

App. 8a 

-recording out-of-court 

hearing 

-recording presentation 

of additional 

instructions 

Adjournment 

Reconvening 

Accounting for 

personnel after 

adjournment 

or recess 

New member: 

TC: A copy of the orders appointing Captain - mill be 

attached to the orders appointing the court which are to be 

inserted in the record 
App. 8a APPENDIX 8 

-reading record 

Prasecution 

rests 

Presentation of 

defense case 

Accused as a witness : 

-explanation of rights 

NOTE.-Proceedings concerning excusing, swearing, and challenging 

of the new member are substantially as for original members. If the 

individual joins the court as a member, the record continues : 

LO (PRES) : The record of the proceedings so far had in this case 

will be read to the newmember (by the reporter) 

(- 1. 

NOTE.-A~~~~ the record is read : 

LO (PRES) : The proceedings having been read to date, the trial 

counsel (defense counsel) may proceed. 

NO~E.-when the $rosecution has completed its case: 

TC: The prosecution rests. 

DC: The defense has (no) (an) opening statement. 

NOTE.-The defense presents an opening statement, if desired, and 

introduces stipulations, witnesses, and material evidence in a manner 

similar to that followed by the TC, except the TC administers the oath 

to all witnesses and asks the flrst formal questions; DC then takes 

over direct examination, the prosecution has cross-examination, etc. 

NOTE.-The accused may take the stand as a witness in his own 

behalf, but only at his om request; if he elects to remain silent no 

comment can be made upon his silence. If he testifies concerning certain 

specifications only, cross-examination of TC and the court must be limited accordingly. Counsel should announce: 

DC: The rights of the accused as a witness have been explained 

to him and he (elects to remain silent) (wishes to take 

the stand as a witness). 

Norn.-Unless there is an affirmative showing of record that the accused understands his rights as a witness, the court should assure itself 

through the LO (president of a special court-martial) by questions 

addressed directly to the accused that he understands his rights. The 

following explanations may be used : 

LO (PRES): - , as the accused in this case you have these 

rights : 

First, you may be sworn and take the stand 

as a witness. If you do that, whatever you say 

will be considered and weighed as el-idence by the 

court just as is the testimony of other witnesses, 

and you cad be cross-examined on your testimony 

by the trial counsel and the court. (TL~ following 

may be used if there is more than one specificstion: If your testimony should concern less than all 

of the offenses charged against you and you do not 

desire to or do not testify concerning the others, 

then you may be questioned about the whole snbject of those offenses concerning which you do 

testify, but you will not be questioned about any 

offenses concerning which you do not testify.) 

Second, you may remain silent, that is say nothing at all. You have a right to do this if you wish, 

and if you do so the fact that you do not take the 

witness stand yourself mill not count against you 

in any way with the court. It will not be con- 
GUIDE-TRIAL PROCEDURE 

sidered as an admission that you are guilty, nor 

can it be commented on in any way by the trial 

counsel in addressing the court. 

Take time to consult with your counsel and then 

advise the court whether you wish to testify or 

to remain silent. 

DC: The aecused 

No~x.--Should the accused elect to take the stnnd as a witness, the 

TC will administer the oath and ask the following preliminary questions, after which the procedure follows that of other defense witnesses : 

TC: State your full name, rank, organization, and station. 

ACCUSED : 

TG: Are you the accused in this case? 

ACCUSED: Yes, sir. 

No~0.-When the defense has completed its case: 

DC: The defense rests. 

No~t4.-The TC may call or recall wltnesses in rebuttal ; thereafter, 

the DC may call or recall witnesses in rebuttal. Upon completion of 

any rebuttal testimony, the should announce: 

TC: The prosecution has no further evidence to offer. Does the 

defense have any further evidence to offer? 

DC: It does (not). 

TC: Does the court wish to have any witnesses called or recalled? 

LO (PRES) : It does (not). 

N0Tn.-If any member deslres that any witness be called or recalled 

the president of a special court-martial may direct such nritness to be 

called, mbject to objection by any other member, or close the court and 

determine its wishes by majority vote. In a trial by general court-martial 

the LO will rule &ally as to whether the witness mill be called, escept 

that as to a witness expected to testify in relation to the sanity of the 

accused the LO will rule subject to objection by any member. 

The procedure in the case of a witness called by the court is the same 

as outlined above ; the court may, if it wishes, take over the questioning 

of the witness at any time after the two formal questions. In the absence 

of directions from the court to the coutrary, however, the TC conducts 

the examination of a witness called by the court in the same manner 

as if the witness had been called by the prosecution. 

TC: The prosecution waives opening argument. (- .) 

NOTE.--See 72. The TC has the right to make the opening argument, 

and if any argument is made on behalf of the defense, the closing argument. Arguments are not required ; they may be oral 05 written. Either 

the TC or DC may call to the attention of the court any matters likely 

to be overlooked by it, and make any reasonably pertinent argument on 

the law or the facts of the case. Oral arguments are recorded verbatim. 

A written argument wlll be attached as an exhibit for the side which 

presented it. 

After arguments or waiver thereof: 

LO (PRES): Has the prosecution anything further to offer? 

TC: It hiw (not). 

LO (PRES): Has iAe defense anything further to offer? 

DC: It has (not). 

 NOT^.--%^ 73~12) as to preparation of additional instructieus in general courts-martial. After both sides have rested and before the court 

App. 80 

-preliminary questions 

Defense rests 

Rebuttal 

Witness called 

by court 

Arguments by ' 

counsel 

Conelnsion 

of case 
App. 8a 

Chstge to courb 

Voting on findings 

APPENDIX 8 

retires into closed session, the LO (president of a special court-martial) 

will, In open court, instruct the court (Art. 51c) : 

LO (PRES): The court is advised that the elements of the offense(~) a r e a s folIows : -. 

Nor&-As to each offense charged, a reading 00 the elements of proof 

from the discussion of the punitive article ihyolved ordinarily will su5Ce. 

LO (PRES) : The court is further advised : 

First, that the accused must be presumed to be 

innocent until his gnilt is established by legal and 

competent evidence beyond reasonable doubt ; 

Second, that in the case being considered, if there 

is a reasonable doubt as to the guilt of the accused, 

the doubt shall be resolved in favor of the accused 

and he shall be acquitted ; 

Third, that if there is a reasonable doubt as to the 

degree of guilt, the finding must be in a lower degree 

as to which there is no reasonable doubt; and 

Fourth, that the burden of proof to establish the 

guilt of the accused beyond reasonable doubt is upon 

the Government. 

*Conchding Nor~~See 73c(l). The LO of a general court, following his advice 

charge bylaw to the membelx of the court and any additional instructions he may have officer given, should conclude by stating : 

LO: In addition to the instructions I have given you, you should 

observe the rules set forth in paragraph 74a, Manual for 

Courts-Martial. The final determination as to the weight 

of the evidence and the credibility of the witnesses in this 

ease rests solely upon you members of the court. You must 

disregard any comment or statement made by me during the 

course of the trial which may seem to indicate an opinion as 

to the or innocence of the accused, for you alone have 

the independent responsibility of deciding this issue. Each 

of you must impartially resolve the ultimate issue a s t o the 

guilt or innocence of the accused in accordance with the law, 

the evidence admitted in court, and your own conscience. 

Court LO (PRES) : The court will be closed. for findings 

Closed sesaion NOTE.-All persons including the LO now leave the room except the 

members of the court. Neither LO nor counsel may consult with the court 

in closed session. Advice of the LO may be sought whenever necessary, 

but the court will be opened and the advice will be obtaihed in open court 

in the presence of counsel for both sides and the accosed. Such proceedings shall be made a part of the record. See 74e and Articles 26b and 39. 

For example, request for such assistance properly may be mnde in regard 

to additional information concerning the weight which may be given 

a certain presumption (1385) ; lesser included offenses ; reference to the 

evidence or the rereading of portions of the record; and other matters 

of lam and fact which will enable the court to reach a fair and proper 

concluslon. 

When the court has been closed the members vote on the findings. For 

the method of voting, see 74d and Article 52. A two-thirds vote is essen- 

*Not applicable in special courts-martial. 
GUIDE-TRIAL PROCEDURE App. 8a 

tial to a Bndibg of guilty of any offense (except spying whlch carries a mandatory death penalty and the vote must be unanimous). 

In determining the number of votes requfred, fractions are counted as 

one--- thus, it requires Uve votes of a seveh, or six votes of an eight, member 

court for a two-thirds vote. See 74d(3). 

When there is more than one accused, separate findings will be made 

as to each accused. 

Voting is by secret written ballot and is obligatory. Normally, a Voting 

vote Is first taken upon the specifications under a charge, and then upon 

the charge. The members normally vote upon a specification or charge 

by marklng on their ballots : "Gullty ;" "Not guilty ;" or "Not guilty, 

but guilty of -." The junior member of the court shall in each 

case count the votes; the count shall be checked by the president, who 

shall forthwith announce the result of the ballot to the members of the 

court. The court may reconsider any finding before It is announced. 

See 74d (3) as to reconsideration of findings of guilty after announcement. 

Members of the court may discuss the case freely in closed session before 

and after voting, hut the particular vote of any member shall not be 

disclosed. 

Norm.-When a general court-martial has finally voted on the findings, *LO called 

it mny request the LO and reporter to appear before it and assist in :sefinding

putting the court's findings (Art. 39) in proper form. The reporter 

records these proceedings (74f(l)). Advice should be requested in open 

court at any time before a final vote is taken on findings in any case of 

doubt which may arise, as for example, from an apparent variance between 

the evidence adduced and the offense charged. In this connection, see 

74e. 

If the LO did not assist the court to put the flndings in proper form, 

the president, before announcing the findings, should present them to 

the LO to permit him to examine them for defects in form. If it appears 

to the LO that the court has made an ambiguous or inconsistent finding, 

he may give the court appropriate instructions and advise it to close 

and deLiberate and vote further. If the court is in doubt as to whether 

it intended to find in accordance with the form of a finding prepared 

by the LO, the court may close and deliberate and vote further. 

PRES: The court will come to order. Findings 

announced : TC: All parties to the trial who were present when the court 

closed are now present (except - 1. 

Norn.-If the accused is found not &ty of all specillcations, the 

president announces : 

PRES: - , it is my duty as president of this court to advise -ac4nitta1 

you that the court in closed session and upon secret written ballot has found you not guilty of (the) (all) SpecScation(s) and Charge(s). The court will adjourn to 

meet at my call. 

NOTE.-If the accused is found guilty of any specification, the president announces : 

PEES: - , it is my duty as president of this court to inform --conviction 

you that the court in closed session and upon secret written ballot, (two-thirds) (all) of the members present at 

the time the vote was taken concurring in each finding of 

guilty, finds you: [Of (all) the SpeciJication(s) and (itemized) 

Charge(s) : Guilty] [Of Specification - , Charge 

-: (Gmty) (Not guilty). Of Charge -: 

(Giillty) (Not gWty). 

*Not applicable in special courts-martial. 
App. 80 APPENDIX 8 

(with excep- tions and 

substttuttons) 

Presentence 

procedure 

Personal data 

from charge sheet: 

-verified by 

accused 

Evidence of prevtous 

convictions 

-verified by 

accused 

Matter in 

aggravation, 

mitigation, or 

cxtenuation 

Rights of 

accused 

Of Specification - , Charge -: Guilty, except 

the words "-" and "- " (, substituting therefor, respectively, the words "-" and "-," of the 

excepted words, not guilty, of the substituted words, 

guilty). Of Charge -: (Guilty) (Not guilty, but 

guilty of a violation of Article - )I. 

etc. 

No~e.-For further instructions as to the forms of findings, see 74b 

and c; for examples of proper findings, see the pertinent portions of 

158 end appendices 10a and 15a. 

NOTE.-Announce only the required fraction of votes, not the actual 

number of members who concurred in the findings of guilty. 

LO (PRES): The court will now hear the personal data concerning the accused shown on the charge sheet, and 

, will receive evidence of previous convictions, if any. 

TC: The first page of the charge sheet shows the following data 

concerning the accused : -. 

TC: Are these data correct? 

DC: (They are correct.) (The accused objects to -.) 

NOTHI.-If in error, corrections should be made. Errors claimed by 

the accused which the TC is not able readily to verify will, if of minor 

importance, be noted in the record and no further action taken upon 

them by the court; if of material importance the court may direct veriflcation of tbe error claimed before proceeding to vote upon the sentence. 

TC: I have evidence of (no) (- ) previous convictions of 

(an) offense(s) committed [during the current enlistment 

(current voluntary extension) and within three years preceding the commission of an offense of which the accused has 

been convicted at this trial] [- 1 to submit (as follows : 

1. 

TC: Has the accused any objection to the evidence of previous 

convictions read? 

DC: (No objection.) (The accused objects to - .) 

No~a.-See 75b(2). The accused may object, on proper grounds, and 

require production of proper evidence of such convictions, or the rejection 

of improper evidence offered. Admissible evidence of previous convictions should be oE'ered in evidence, marked, and admitted as an exhibit in 

the usual manner. 

No~n.-This is the proper time for counsel to introduce evidence in 

aggravation (758(3)), extenuation, or mitigation, and for accused to 

make a statement if he desires (75~). 

NoTE.-U~~~SS there is an amrmative showing of record that the accused understands his right to make an unsworn statement in mitigation or extenuation of the offense8 of which he stands convicted, advice 

will be given substnntially as follows: 

LO (PRES) : - , you are advised that you may now present 

evidence In extenuation or mitigation of the offenses 

of which you stand convicted. You may, if you 

wish, testify under oath as to such matters, or you 

may remain silent, in which case the court will not 

draw any inferences from your silence. In addition, you may, if you wish, make an unsworn state- 
GUIDE--TRIAL PROCEDURE App. 8b 

ment in mitigation or extenuation of the offenses 

of which you stand convicted. This unsworn statement is not evidence, and you cannot be cross-examined upon it, but the prosecution may offer evidence to rebut anything contained in the statement. 

The statement may be oral or in writing, or both. 

You may make it yourself, or it may be made by 

your counsel, or by both of you. Consult with your 

counsel and advise the court what you desire to do. 

DC: The accused 

No~s.-Any statement made by the accused or his counsel will be 

recorded verbntim, even though submitted in writing. 

LO (PRES): The court mill be closed. 

No~~.--Before closing, the LO may advise the court of the maximum 

punishment whicll mny he itnposed (76b(l) ). For procedure in rehearings and new trinls, see 81d. A11 present including LO leave the mom 

except the members of the court. 

NOTE.-Customarily members propose sentences after which the court 

votes on each sentence beginning with the llghtest untll one proposed 

sentence receives the required number of votea. A sentence of death 

requires n unanimous vote; a sentence of imprisonment in escesa of 10 

years requires the concurrence of three-fourths of the members present. 

Any other sentence requires eoncurrence of two-thirds of the members 

present (Art. 52b). 

If all the proposed sentences are voted upon and none adopted, further 

cliscussion may be had and either new proposals sought or the sentences 

already proposed plus any new ones, again put to vote. 

NOTE.-The sentence must be within the maximum limits prescribed in 

chapter XXV and mithin the jurisdiction of the court to adjudge. As to 

reheailngs and new trials, see 81d nnd Article 63. The court will adjudge 

a single sentence for all the oEenses of which the accused was found guilty. 

A separate sentence must be adjudged for each accused. 

For approved forms of sentences see appendix 13. 

PRES: The court will come to order. 

TC: All the parties to the trial who were present when the court 

closed are now present (except - ). 

PRES: - , it is my duty as president of this court to inform 

you that the court in closed session and upon secret written ballot, (two-thirds) (three-fourths) (all) of the members present at the time the vote was taken concurring, 

sentences you : -.

NOTE.-It is customaw for the accused to stand irmnediately before the 

president when the sentence is pronounced. 

NOTE.-As in the case of findings, announce only the required fraction 

of votes, not the actual number of members who concurred in the sentence. 

LO (PRES): Has the prosecution any other cases to try at this 

time? 

TC: I have nothing further. 

PRES: The court will adjourn to meet at my call. 

b. CONTEMPT PROCEDURE. 

NOTE.--When it become8 necessary for a court to take summary action 

on a contempt I118a1, an example of its proceedings would be: 

Court closed 

for sentence 

voting 

procedure 

Limitation on sentence 

Court opens 

Sentence 

Adjournment 
App. 8c APPENDIX 8 

Advising 

offender 

Opportunity to show cause 

Preliminaw 

ruling 

Voting on preliminaw 

ruling 

Closed 

session 

Holding of 

contempt and 

punishment 

Proceedings in 

revision: 

LO (PRES): The proceedings in the case now before the court 

will be suspended. - , you (have used menacing words and gestnres in the presence of this 

court) (have disturbed the proceedings of this 

court by (riotous and) disorderly conduct) (- ). 

As the record will show, you (have been warned 

repeatedly about your conduct) (have persisted in 

disturbing the proceedings of this court) (- i. 

For example, you (have threatened the court with 

action you will take against it because of its rulings ;) (have been contemptuous and insolent in your 

objections and arguments ;) (- 1 - 

You now have an opportunity to show cause why 

you should not be held in contempt. 

Norm.--Mter hearing pertinent argument and evidence, if any, the 

following ruling will be made : 

LO (PRES) : Subject to objection by any member of the court, it 

is my ruling that you should (not) be held in 

contempt. 

Norm.-If, as a result of a ruling of the LO (president of a 

special court-martial) that is not objected to, there has been a preliminary determination that the person involved not be held in contempt, 

the court will resume its regular proceedings. 

If any member objects to a ruling of the LO (president of a special 

court-martial), the court will close and determine by majority vote 

whether the ruling shall be sustained. See 118h. A tie vote shall be a 

determination aqninst the person involved. 

If, as a result of the vote of the court, or a ruling of the LO (president 

of a special court-martial) that is not objected to, there has been a preliminary determination that the person involved be held in contempt, 

the court will determine in closed session whether the person involved 

should be held in contempt, and, in the event i t s o determines, will assess 

a punishment. See 118a. Thereafter, the eourt opens and: 

PRES: It is my duty as president of this court to inform you 

that the court, in closed session and upon secret written 

ballot, [has held you not guilty of contempt of this 

court] [two-thirds of the members present at the time 

the vote was taken concurring, holds you guilty of contempt of this court. And also in closed session and 

upon secret written ballot, two-thirds of the members 

present at the time the vote was taken concurring, adjudges the following punishment: (To pay to the United 

States a fine of $50 and to be confined at hard labor for 

10 days) (- 1. 

LO (PRES) : Proceed with the case. 

G. REVISION PROCEDURE. 

LO (PRES) : The court will come to order. 

TC: A11 parties who were present when the court adjourned are 

now present (except - 1. 

NOTXI.-No mention need be made of th0~e who were not preaent at 

the close of the previous session. No member will sit In revision proceedings who was not present at the close of the last session in the 
GUIDE-TRIAL PROCEDURE App. 8c 

case, but all members who were present at the last session should be 

there. See 80 and Article 29a. 

TC: These proceedings in revision have been (directed by the -4irectedby 

following communication: - which will be inserted at 

this point in the record) (undertaken by the court on its 

own motion in order to -). 

Norm.--When appropriate, the court rang request the TC or LO to 

glve it further advice in regard to the matters before it. The case will 

not be reopened by calling witnesses or otherwise. 

LO (PRES) : The court will be closed. 

NOTEL-After such deliberation and action as is appropriate, the 

proceedings continue. 

PRES: The court will come to order. 

TC:' All parties who mere present when the court closed are now 

present (except - ) 

PRES: The court in closed session and upon secret written ballot, Court votes 

a majority of the members concurring, revoked its former 

(&dings) (and) (sentence). Further, in closed session 

and upon secret written ballot, (two-thirds) (all) of the 

members present at the time -. 

NOTE.-The proceedings continue and are recorded as before indicated New findings 

with reference to findings and sentence. and sentence 

PRES: The court mas closed and upon secret written ballot, (a 

majority) (two-thirds) (three-fourths) (all) of the 

members concurring, the court respectfully adheres .to 

its former -. PRES: The court will adjourn to meet at my call. Adjournment 

NOTE.-The record is authenticated in the same manner as the record 

of trial. See appendix 9b. 
Appendix 9 

GUIDE FOR PREPARATION OF RECORD OF TRIAL BY 

GENERAL COURT-MARTIAL AND BY SPECIAL COURTMARTIAL WHEN A VERBATIM RECORD IS PREPARED 

a. RECORD OF TRIAL. 

Erasures No~~.-EraSureS or interlineations will be initialed by those who 

authenticate the record. 

Margins Pages will be numbered at the bottom; margins of 2% inches will be 

left at the top to permit blnding, and 1 inch at the bottom and left side 

of each page, using legal size paper. 

~~~~i~~l notes Words on the left margin of this appendix are not part of the form - of record. 

Record to be UnIess othemise provided in this manual (e. g., 57g(2) ; 73c(2) r, all 

complete proceedings in the case will be recorded verbatim, including oral arguments, subject to the instructional notes and examples shown in appendix 

8 and herein. 

Use of guide This appendix is not a complete record of trial. It is to be used by the 

reporter and trial counsel as a guide to the preparation of the completed 

record of trial in all general court-martial cases, and in all special courtmartial cases in which a verbatim record is prepared. See 82for instructions pertaining to the preparation of a record of trial by general 

court-martial, and 83 for instructfons pertaining to the preparation of 

a record of trial by special court-rnartlal. The reporter and trial counsel 

should also consult appendix 8, as it shows the manner in which mny 

items of procedure should be recorded. 

Title RECORD OF TRIAL 

of 

(Last name, Brst name, middle initial) (Service number) (Rank or grade), 

(Organization ad armed force) (Station or ship) 

by 

COURT-MARTIAL 

Index 

appointed by 

(Title of convening authority) 

(Command of convening. authority) 

Tried at 

on 19 

(Place or plaees of trial) (Date or dates of trial) - - 

INDEX 

Page 

Introduction of counsel- _ _ _ - _ -- - - -- - --- -- --- - -- --- - --- 

Proceedings in revision- - - - - -- - ---- ------------ ------- 
GUIDE-VERBATIM COURT-MARTIAL RECORD App. Pa 

TESTIMONY 

BIXHIBITS ADRIIlTED IN EVIDENCE Exhibits 

Name of Witness 

-- 

Prosecution 

-------------------------------------------------------- 

-------------------------------------.-------

------------------------------------.--------

........................................................ 

Defense 

........................................................ 

.--------------------------------------------

................................................ 

Court 

........................................................ 

copy of record furnished the accused as per attached cer- Copies of rccord 

tificate or receipt. 

- copies of record forwarded herewith. 

Diroct 

and 

redirect 

-- 

Number or Lettor 

-- 

-------- 

RECEIPT FOR COPY OF RECORD Receipt for 

record 

I hereby acknowledge receipt of a copy of the above-described 

record of trial, delivered to me at - this - day of 

, I$--. 

Cross 

and 

recross - -- 

Description 

................................................ 

------------------------------------.--------

-------------------------------------------------------- 

(Signetnre of accused) 

Court 

- 

-------- 

-------- 

CERTIFICATE 

Page where 

t 19- 

(PIace) (Dnte) 

I certify that on this date delivery of a copy of the aboredescribed record of trial, including all exhibits admitted in 

evidence or descriptions thereof, was made to the accused, 

Offered 

, at I 

(Name of accused) (Place of delivery) 

-- 

sdmitted 

Certificate in 

lieu of receipt 
App. 9a APPENDIX 9 

Appointing 

orders 

Accounting for 

personnel 

Presence of 

accused 

Swearing 

reporter 

Time of session 

Administration 

of oaths 

Acconnting for 

personnel during trial 

3 

(Means of effecting delivery, i. e., mail, messenger, etc) 

and that the receipt of the accused had not been received on the 

date this record was forwarded to the convening authority. The 

receipt of the accused will be forwarded as soon as it is received. 

(Signature of trial counsel) 

Proceedings of a - court-martial which met (at) (on 

board) -, at - hours, - I%--, pursuant to the following orders : 

NOTE -Here insert a literal copy of the orders appointing the court 

and copies of any amendihg orrlers. Any request of an enlisted accused 

for enlisted court members will be inserted immediately following the 

appointing orders, together with any declaration of the nonavailability 

of such enlisted persons. 

PERSONS PRESENT 

PERSONS ABSENT 

NoTE.-L~s~ LO, if any, and all members of the court, prosecution, and 

defense as present or absent, as announced by the trial counsel. Only 

rank or grade and name will be shown unless service number is necessary 

to distinguish between two persons. 

The accused, , was present. 

The appointed reporter, , was sworn. 

hTo~~.-The -remainder of the record of trial follows the actual proceedings had in court. The reporter records all the proceedings verbatim, 

subject to the instructions set forth in appendix 8 and herein. 

NOTE.-T~~ reporter will note and record the time and date of the beginning and ending of each session of the court, including the opening 

and closing of the court during' trial. For example : 

The court was called to order at - hours, - 1%. 

The court (adjourned) (recessed) at - hours, - 19-. 

The court (closed) (opened) at - hours, - 1%. 

NoTE.-I~ is not necessary to record verbatim the oath actually used, 

whether it be administered to a witness, a challenged member, the law 

ofllcer, counsel, or the court. By whatever form of oath, afirmation, or 

ceremony the conscience of the witness is bound (1122; app. Sa), only 

the fact that a witness was sworn (or afflrmed) is to be recorded. Homever, if preliminary qualifying questions are asked a witness prior to the 

administration of an oath (e. g., 148b), the questions and answers will 

be recorded verbatim. Note that such preliminary questions and answers 

do not eliminate the requirement that an oath be administered. There 

follow examples of the recording of the administratlon of various oaths : 

The appointed interpreter, , was sworn. 

The members of the court (, the law officer,) and the personnel 

of the prosecution and defense were sworn. 

The challenged (member) (law officer) was sworn to testify 

concerning his competency to act as a (member) (law officer) of 

the court, and testified as follows : 

NOTE.--After the reporter is sworn, he will record verbatim the statements of the trial counsel with respect to the presence or absence of 

personnel of the court, counsel. and the accus'ed. The reporter will note 

whether, when a witness is excused, he withdraws from the courtroom or, 
GUIDE-VERBATIM COURT-MARTIAL RECORD App. 9a 

in the case of the accused, whether he resumes his seat. Similarly, if 

a challenged member withdraws from the collrt while It votes on a challenge, is excused as a result of a challenge, or resumes his seat after 

the court has voted on n challenge, the reporter toill note this fact in the 

record. Examples of the mnnner in which such facts should be recorded 

are as follows : 

The witness (withdrew from the courtroom) (resumed his seat 

at the counsel table). 

, the challenged member, withdrew from the court. 

resumed his seat as a member of the court. 

No~n.--The testimon.~ of a witness will be recorded verbatim in the Refording 

following form (assuming the witness to have been called by the prosecu- testimony 

tion) : 

was called as a witness for the prosecution, was sworn, 

and testified as follows : 

DIRECT EXAMINATION 

Questions by the prosecution : 

Q. State your full nnmP, (etc.) -. A. -. Q. - ? 

A. -. 

CROSS-EXAMINATION 

Questions by the defense : 

Q, -? 

A. -. 

REDIRECT EXAMINATION 

Questions by the prosecution : 

Q. -? 

A. -. 

Questions by the defense : 

Q. -? 

EXAMLNATION BY THE COURT 

Questions by (the law officer) (a court member) : 

Q. -? 

REDIRECT EXAJTINATION 

Questions by the prosecution : 

Q. -? 

A. -. 

Questions by the defense: 

Q. - ? 

A. -. 
App. 9d APPENDIX 9 

b. AUTHENTICATION OF RECORD OF TRIAL. 

(1) By gelzeral m3fbrP.t-martial. 

President (Captain) (Colonel), *- , President 

[or (Commander) (Lieutenant Colonel), *- , a member in lieu of the 

president because of his (death) (disability) (absence) .I 

Law o5cer 

(Commander) (Lieutenant Colonel), *- , Law Officer [or 

(Lieutenant Commander) (Major), *-, a member in lieu 

of the law officer because of his (death) (disability) (absence).] 

President 

(2) By special cozlrt-martial. ' 

(Commander) (Lieutenant Colonel), *- , President [or (Commander) 

(Lieutenant Colonel), *- , a mem- ber in lieu of the president because of 

his (death) (disability) (absence).] 

Trial Counsel (Lieutenant) {Captain), *- , Trial Counsel [or (Lieutenant, 

jg) (First Lieutenant), *- , Assistant Trial Counsel, because 

of (death) (disability) (absence) of the trial counsel.] [or (Lieutenant Commander) (Major); *-, a member in lieu of the 

trial counsel and the assistant trial counsel because of (death) 

(disability) (absence) of the trial counsel, and of (death) (disability) (absence) of the assistant trial counsel.] 

*NOTE.--The further identification of members, LO, or counsel as to 

grade, organization, etc., mill be as indicated in the orders appointing 

the court. If there is any change therein, the identification should 

shorn the present grade and organization followed by "formerlg 

c. EXAMINATION OF RECORD BY DEFENSE COUNSEL. 

NOTE.-When the defense counsel has examined the record of trlal 

prior to its being forwarded to the convening authority, the follOwing 

form is appropriate : 

Form "I have esamined the record of trial in the foregoing case. 

( Captain) (Lieutenant) - , Defense Counsel" 

d. CERTIFICATE OF CORRECTION. 

United States 

9. 

The record of trial in the above case, which was tried by 

the - ceurt-martial appointed by - , dated - 

(at) (on board) - , on - 19-, is corrected by the insertion on page - , immediately following line - , of the 

following : 

Correction "The appointed reporter, , was sworn." 
GUIDE-VERBATIM COURT-MARTIAL RECORD App. Pa 

This correction is made because the reporter was sworn at 

the time of trial but a statement to that effect was omitted, by 

error, from the record. 

Nom.--The certificate of correction is authenticated as indicated Authentieatien 

above for the record of trial in the case. 

Copy of the certificate received by me this - day of - Accused's ' receipt f~r 

1%. certi6aate 

(Signature of accused) 

NoT~.--yhe certificate of correction will be bound at the end of the Disposition 

original record immediately before the action of the convening authority. in 

e. ARRANGEMENT OF ORIGINAL RECORD WITR ALLIED PAPERS. 

When forwarded to the appropriate Judge Aclvocate General, a record of trial by 

general or special court-martial will be arranged in the sequence shown below. 

The record should be bound within protective covers. The arrangement shown 

may be used by the reporter and trial counsel as a guide to the preparation of 

a verbatim record of trial for forwarding to the convening authority. 

1. Chronology Sheet. 

2. Court-~Lrtial Data Sheet. 

3. Court-Martial Orders; 10 copies promulgating the result of trial as to 

each accnsed. See appendix 150. 

4. Signed review of staff judge advocate or legal officer, in duplicate (85; 

Art. 61). 

5. Charge Sheet. 

6. Report of investigating officer, required by 34 and Article 32, followed 

by any other papers which accompanied the charges when referred for 

trial, unless included in the record of trial proper. 

7. Advice of staff judge advocate or legal officer, required by 35 and Article 

34. 

NOTE.-Items 6 and 7 need not appear with a special court-martial record. 

8. Records of former trials. 

9. Record of trial proper in the following order : 

(a) Index sheet. 

(b) Receipt of accused, or certificate of trial counsel, shewing delivery 

of copy of record to accused. 

(c) Record of proceedings in court. 

(d) Action of convening authority and, if appropriate, action of officer 

exercising general court-martial jurisdiction. 

(e) Exhibits admitted in evidence. 

(f) Clemency papers. 

(g) Offered exhibits.not received in evidence, but which are attached at 

request of counsel. Pages of record where offered and rejected mill be noted in 

front of each exhibit. 

(I,) Appellate'exhibits, such as proposed instructions (73c (2) ) , preliminary evidence, and, when directed by the LO, written or oral arguments or briefs 

of counsel heard outside the presence of the members of the court (57@(2)). 

10. Briefs of counsel. 
App. 9f APPENDIX 9 

f. ADDITIONAL COPIES OF RECORD. 

A copy of the record of proceedings in court, including copies of all exhibits 

received in evidence or descriptions thereof (items 9 (a), (c) , and (e) , app. 9e), 

will be prepared for each accused. In general and special court-martial cases in 

which the sentence adjudged affects a general or flag officer, or extends to death, 

dismissal, dishonorable or bad conduct discharge, or confinement for one year 

or more, two additional copies of the record of proceedings in court, including 

copies of all exhibits received in evidence or descriptions thereof (item 9 (a), 

(c), and (e), app. Se), will be prepared. In this connection, see 49b(2), 82, 

and 83. A11 copies of the record, except that delivered to the accused, will be 

bound separately and inclosed with the original record .of trial when it is forwarded to the convening authority or to the appropriate Judge Advocate 

General. In this connection, see 829 (2). 
Appendix 10 

GUIDE FOR PREPARATION OF RECORD OF TRIAL BY 

SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD IS NOT PREPARED 

a. RECORD OF TRIAL. 

NoT~.-$ee first three marginal notes at beginning of appendix 90. If a verbatim record 

is not prepared (see 7 and 83b), a summarized report of testimony, objections, and other 

proceedings is permitted. Either party may, however, submit his arguments in writing to 

be attnched as exhibits, appropriate reference being made at the proper place in the record. 

The procedure in court will follow appendix 8. This appendix is to he used as a general 

guide; the actual record may depart from it in numerous particulars. The manner of 

sunlmarizing several items of procedure is shown in appendix 9a. 

RECORD OF TRIAL Title 

(Last name, first name, middle initial) (Service number) (Rauk or grade) 

(Organization and armed force) (Station or ship) 

by 

SPECIAL COURT-MARTIAL 

appointed by 

(Title of convening authority) 

(Command of convening authority) 

Tried at 

on 19- 

(Place or places of trial) (Date or dates of trial) 

The court met (at) (on board) -, at - hours - Appointing 

1!9-, pursuant to the following orders : orders 

NOTE.-Here insert a literal copy of the appointing orders and copies 

of any amending orders. Any request of an enlisted accused for enlisted 

court members, together with any declaration of the nopavailability of 

such enlisted persons, will be inserted immediately following the orders. \ 

PERSONS PRESENT 

PlORSONS ABSmT 

Membera of the court and conn- sel present and 

absent 

The accused and the following (regularly appointed defense Accusedand 

counsel and assistant defense counsel) (counsel introduced by $~~~ 

him) were present : 

The appointed (reporter) (interpreter), - ,mas sworn. Swearing 

reporter: . . N0Tm.-Applicable only when a reporter or interpreter is used. interpreter 

The trial counsel stated that the legal qualifications of all Qualification of 

prosecution members of the prosecution were correctly stated in the appointing counsel 

orders (except that - ). 
App. lea 

Prier participa- tion of prosecu- tion counsel 

QualiGcation 

of defense 

counsel 

Prior participa- tion of defense 

counsel 

Enlisted 

membership 

Court and 

counsel sworn 

Challenges 

Arraignment 

APPENDIX10 . 

rP 

The trial counsel further stated that no member of the prosecution hail acted as investigating officer, law officer, court member, 

or as a member of the defense in this case, or as counsel for the 

accused at a pretrial investigation or other proceeding involving 

the same general matter. 

NOTE.-If a member of the prosecution is disqualified because of prior 

participation in the same case, the disqualifying fact mlll be shown, and 

the record will reflect the withdrawal of disqualified counsel from the 

court. 

The defense counsel stateSt that the legal quamcations of all 

members of the defense were correctly stated in the appointing 

orders (except that - 1. 

NOTE.-Legal qualifications of all counsel for the defense not shown 

in the appointing orders, including individual counsel, will be shown. 

The defense counsel stated that no member of the defense had 

acted as the accuser, a member of the prosecution, investigating 

officer, law officer, or member of the court in this case. 

Norm.-If a member of the defense has acted as a member of the 

prosecution, the record will show that he mas excused and withdrew 

from the court. If a ~nernber of the defense acted in another capacity, 

the record will show that the president explained to the accused that 

such counsel could represent him only at his express request, and that 

the accused so requested, or that suitable action was taken, either by 

escuslng the particular counsel or by adjournment pending the procurement of a counsel satisfactoiy to the accused Appendix En shows the 

procedure to be taken. 

The trial counsel announced that the accused had (not) made 

a request in writing that the membership of the court include 

enlisted persons. 

Norc.-This announcement will not be made if the accused is not an 

enlisted person. 

The members of the court and the personcel of the prosecution 

and defense were sworn. 

The following members of the court were excused and withdrew for the reasons stated opposite their respective names: 

Captain - (excused without challenge as being the accuser). 

Lieutenant - (excused upon challenge for cause by the 

accused). 

Lieutenant - (excused upon peremptory challenge by the 

accused). 

There was no contest with respect to the challenging of any 

of the members for cause (except as follows:). 

Nmar -Insert a summary of the proceedings had with respect to each 

contest. For example, if a member was challenged for cause, but was 

not excused from the court, the record will shorn the grounds for the 

challenge, a summary of evidence presented, if any, and the action of 

the court. 

The accused was then arraigned upon the following charges 

and specifications : 
GUIDE-SUMMARIZED COURT-MARTIAL RECORD App. 100 

No~e.-Here ineert the Charge Sheet (using in the accused's copy of 

the record, the copy of the charges furnished to him) ; if sufficient copica 

of the Charge Sheet are not available, copy verbatim from pages 2 and 

3 of the Charge Sheet the charges and specifications and the name and 

description of the accuser, the affidavit, and the reference to the court 

for trial. 

Norn.-The substnnce of any motions made by the accused will be Motfons 

recorded, together with the ruling of the court thereon. 

No~n.-The pleas of the accused mill be entered in the following form : Pleas 

The accused pleaded as follows : 

To all the Specifications and Charges : (Not guilty) (Guilty). 

To the Specification of Charge I : (Not guilty) (Guilty). 

To Charge I : (Not guilty) (Guilty). 

etc. 

NOTE.-When the president explains the meaning and effect of a plea Explanation ef 

of guilty, the record should show : plea of guilty 

The president of the court explained to the accused the meaning 

and effect of his plea of guilty, after which the accused answered 

that he understood (but persisted in his plea of guilty) (and 

stated that he desired to change his plea of guilty to not guilty) 

(- 1. 

The trial counsel made (an) (no) opening statement. Opening 

statement 

NoTE.-T~~ record mill contain a summary of the testimony presented. p,sentation ,,f 

411 example of the manner in which testimony may be summarized fol- prosecution case 

lows : 

The following witnesses for the prosecution were sworn and Testimony 

testified in substance as follows : 

Sgt Richard Roe, Co C, 31st Inf, Fort Sill, Oklahoma. 

DIRECT EXAMINATION 

I know the accused, Sam Snooker, who is in the military service 

and a member of my company. -We both sleep in the same barracks. When I went to bed on the night of October 17, 1951, I ' 

put my wallet under my pillow. The wallet had $7.00 in it; a 1 

$5.00 bill and two $1.00 bills. Sometime during the night something woke me up but I turned over and went to sleep again. 

When I woke up the next morning, .my wallet was gone. 

CROSS-EXAMINATION 

I don't know the serial numbers on any of the bills. One of 

the $1.00 bills was patched together with scotch tape and one of 

the fellows told me that the accused had used a $1.00 bill just 

like that in a poker game the day after my wallet was missing. 

Upon objection by the defense, so much of the answer of the objection 

witness as pertained to what he had been told was stricken. and 

The prosecution offered in evidence a duly authenticated extract Introduction 

copy of the morning report of Campany 0, 31st Infantry, which O* exhibits 

contained entries pertaining to the accused for the dates 20 and 

24 October 1951. The defense objected to the admission of tBis 
App. 100 APPENDIX 10 

Presentation of 

defense case 

Testimony 

Explanation of 

accused'rr rights 

Stipulation 

Closing 

arguments 

Instructions 

Findings 

Datn as to 

service, etc. 

Evidence in 

extenuation or 

mitigation 

Sentence 

document on the ground that the reporting officer had no personal 

knowledge of the facts reported therein. after argument by 

counsel for both sides, the extract copy was admitted in evidence 

and marked Prosecution Exhibit 1. 

The defense counsel made (an) (no) opening statement. 

The following witnesses for the defense were sworn and testiEed 

substantially as follows : 

The rights of the accused as a witness were explained to him 

by the president of the conrt. The accused elected to take the 

stand as a witness. He was sworn and testified in substance as 

follows : 

The defense offered in evidence a stipulation entered into 

between the trial counsel, defense counsel, and the accused. There 

being no objection, the stipulation was admitted in evidence and 

marked Defense Exhibit A. 

The prosecution made (an) (no). argument. 

The defense made (an) (n'o) argument. 

The prosecution made (a) (no) closing argument. 

Pursuant to Article 51c, the president instructed the court as 

to the elements of each offense charged, the presumption of innocence, reasonable doubt, and burden of proof. 

Neither the prosecution nor the defense having anything further 

to offer, the court was closed. Thereafter, the court opened and 

the president announced that, in closed session and upon secret 

mitten ballot, (the accused was found not guilty) (two-thirds of 

the members present at the time the vote was taken concurring 

in each finding of guilty, the accused was fonnd : 

Of all the SpeciEcations and Charges : Guilty. 

or 

Of the Specification of Charge I: Guilty. 

Of Charge I : Guilty. 

Of the Specification of Charge I1 : Not guilty. 

Of Charge 11: Not guilty). 

etc. 

The trial counsel read the data as to age, pay, service, and 

restraint of the accused as shown on the charge sheet. The trial 

counsel (stated that lie had no evidence of previous convictions to 

submit) (read the attached evidence of previous convictions, 

Prosecution Exhibit - 1. 

After the accused was advised by the president of his right to 

present evidence in extenuation or mitigation, including the right 

to make an unsworn statement, (the defense counsel stated that 

he had nothing further to offer) (the accused made an unsworn 

statement, in substance as follows :) (- ). 

Neither the prosecution nor the defense having anything further 

to offer, the court was closed. Thereafter, the court opened and 

the president announced that in closed session and, upon secret 

writteu ballot, two-thirds of the members present at the time the 

rote was taken concurring, the accused was sentenced : 
GUIDE-SUMMARIZED COURT-MARTIAL RECORD App. 10c 

The court adjourned at - hours, - 19--. Adjournment 

N!3~8.-'I!he record wUl be authenticated as prescribed in 83c and as Authentication 

shown in appendix 9b(2). 

I have examined the record of trial in the foregoing case. Examination 

by defense 

(Captain) (Lieutenant) - , Defense Colinsel 

b. ARRANGEMENT OF ORIGINAL RECORD WITH ALLIED PAPERS. 

When forwarded by the convening authority, such a record of trial by special 

court-martial is arranged in the sequence shown below. See 83b. The record 

should be bound within protective covers. The arrangement shown may be used 

b$ the trial counseI as a guide for the ~rrparation of a record for forwarding to 

the convening anthority. 

1. Chronology Sheet. 

2. Court-Martial Data Sheet. 

3. Court-Martial Orders; four copies promulgating the result of trial as to 

each accused. See appendix 15a. 

4. Charge Sheet (unless inserted in record of trial proper). 

5. Any papers which accompanied the charges when referred for trial unless 

included in the record proper. 

6. Records of former trials. 

7. Record of trial proper in the following order : 

(a) Receipt of accused, or certificate of trial counsel, showing delivery of 

copy of record to accused. (For form, see appendix 9a.) 

(8) Record of proceedings in court (summarized). 

(G) Action of convening authority. 

(d) Exhibits admitted in evidence. 

(e) Clemency papers. 

(f) Offered exhibits not received in evidence, but which are attached at 

request of counsel. 

8. Briefs of counsel. 

c. ADDITIONAL COPIES OF RECORD. 

A copy of the record of proceedings in court, including copies of all exhibits 

received in evidence or descriptions thereof (items 7(b) and (d), app. lob), will 

be prepared for each accused. 
Appendix 11 

FORM FOR RECORD OF TRIAL BY SUMMARY 

COURT-MARTIAL 

Pill im bbnt with nmbebers of prtinenr ctarses aad apecificatianr or 'all apcitisario~ and ctarpes," as may be 

a~~rooriate. POI me maleas depdrtmsntal replat ion8 prevent slc b e hcliw. .. - 

THE ACCUSED HAS BEEY PCRHITTED AND HAS ELECTED TO REFUSE PUNISHENT UNOER ARTICLE 15 AS 16 

I CONSENT 0 OBJECT TO TRIAL BY SUW8'f COURT-HARTIIL 

TO BE PIUSD IN BY wMUARY WURI IP APPLICABLB 

Xbea as accaad has been semitree rrd bas elected to rel~se pupL;bnent under lrlisle IS. trial by svnmarp courrRANKANDORGAHIZATIPH OFOFFICER EXERCISIYGJURISOlCllOH UNDER ARTICL S!GNATUIC 

1 

I 

2. WAS THC ACCUSED lDVlSED IN ACCORDANCE WITH PARAGRAPH 7%. KH. IPS17 YES 

SPECIFICATIONS LND CHARGES I PLEAS 1 FINDIHGS 1 SLITf.I#E OR REHA2KS 

I I I. 

RECORD OF TRIAL BY SUHHARY COBRT-HARTIAL CASE ws. 42 

(i"...,.d by CO""."i"( .ulh.rit,) 

TO BE FILLED IN BY THE ACCUSED 

I SIGNAlUlf OF ACCUSE0 

-. 

martial mr groceed deaplte bin oblect~on. 

1. THE ACCUSED. HAVlHD REFUSED TO CONSEII'I IH WRITING TO TRIAL BY SWHARI COURT-HARTIAL AND NOT HAVING BEEN 

PERMITTED TO REFUSE PUNISHWNT UNDER ARTICLE IS. THE CHARGES ARE HEREWITH RCILUWED TO 1HE COYVLNING ALITHORITY. 

RANK AND ORGAWIIAIIOY OF SUYPART COURl OFFICER SIGNlTURE 

Sp. 1: Ch. I 

sp. 2: ~h. I . Ch. I 

Sp. : Ch. I1 

Ch. 11 

Approved and ordered executed. The Post Guardhouse, Fort Dix, W. J., is 

designated as We place of confinement. 

HUYBER OF PRIOR CGiIYICTIONS CDNSIOERED 

1 

PLACE DATE 

Fort Dix, N. J. 31 0ctober 1951 

RAY* AND ORGAYlZAllOH OF SUYMARI COURT OFFICER SIGNATURE 

CHARLES B. FOSTER, Yaj, 181st Inf I Cl^lwB.YS Inter after eignature. .Only ollicer )resent virb cornand." it such is the case. 

TU BS F1LL.W IN BY CONVSNINO AUTHDRltY 

- RAHI'1NO 0RGA~lzAllqN Oli CONVEHlllG A(llHORll7 

TILPAM H. ~Icmrnon, CO~, l8lst Inf 1pz ~&DY9uDlV3 

68T#EEU ON APPIOP#lATS ?EISONNBL ISCOEDS IN CASE OP CONVICTION. 

C 

NG 

G 

NG 

NO 

hX &YO OEIIGIAIION OFOFFICER RESPOHSI8IE FOR~HEACCUSED'S'RLCDROS SlGNllURE 

WENCE F. SMITR, Cdpt, 181st Inf 

personnel Officer Jctb-h~~p

Ndlllr Sur..ry of evldenc.. 11 r.qolr.dbllb. conv.nlnl or hf(b.r aurhorlly. .II!b..lr.rl.d on m.p.r.1. p.4.p. 

ORGA~lZA1ION DATE 

G 

13 

C 

NG 

NG 

Hq l8lst Inf Fort Dix, N. J. 6 November 1951 

ICTIOY Of CONVCHlNO AUlRORlTV 

PLACE 

TO be confined it hard labor for one month and to forfeit $50. 
Appendix I2 

TABLE OF COMMONLY INCLUDED OFFENSES 

No~~.-This table contains a list of certain principal offenses and, opposite them, certain 

offenses xvhich are generally held to be lesser included therein. It is not an all inclusive 

list, nor can it be applied mechanically in every case. The rules with respect to lesser 

included offenses are stated in 158. This table is intended as a general guide and must 

be used in all cases with cautio?~. 

Attenlpts nre not listed in the table as lesser included offenses, for an attempt to 

commit nn offense is necessarily included in an offense charged unless the offense charged 

is itself an attempt (such as an assault by attempting to do bodily harm) or unless the 

offense charged is one which is incapable of being intentionally committed (such as 

involuntary manslaughter). In this connection, see 159. 

The table does not include those offenses which properly may be found by means of 

exceptions or exceptions and substitutions (74b(2)), but which differ from the offenses 

charged only with respect to the elimination or reduction of words of aggravation. For 

example, depending upon the proof, desertion terminated by apprehension properly may 

be found as desertion terminated in a manner not specified ; similarly, larceny of property 

of a value of more than $50 properly may be found as larceny of property of a vdlue 

of $50 or less and more than $20, or of a value of $20 or less. In such a case, although 

the offense found vould be the same offense 'as that charged, a lesser punishment mlght 

be authorized. In this connection, see 127c (Section A). 

Article Principal Offense Article Lesser Included Ogense 

85 Desertion with intent to re- 86 Absence without proper authormain away permanently. ity. 

85 Desertion with intent to avoid 86 Absence without proper authorha~ardous duty or shirk im- ity. 

portant service. 

87 Missing movement through de- 87 Missing movement through negsign. lect. 

90 Striking his superior officer in 90 Drawing or lifting up a weapon 

the execution of his office. or offering violence to his superior officer in the execution 

of his office. 

128 Assault; assault and battery. 

134 Assault upon e oommissioned 

officer. 

90 Drawing or lifting up any weap- 128 Assault. 

on or offering any violence to 134 Assault upon a commissioned 

his superior officer in the ex- officer. 

ecution of his office. 

90 \Villfully disobeying a lawful 92 Failure to obey lawful order isorder of his superior officer. sued by the member of the 

a.rmed force alleged. 

91 Striking a warrant, noncom- 91 Assaulting a warrant, noncommissioned, or petty officer in missioned, or petty officer in 

the execution of his office. the execution of his office. 

128 Assault; assault and battery. 

134 Assault upon a warrant, noncsmmissioned, or petty officer. 
App. 12 APPENDIX 12 

Adicle Prkncipol Offense Article Laser Included Offense 

91 Assaulting a warrant, noncom- 128 Assault. 

missioned, or petty officer in 134 Assault upon a warrant, nonthe execution of his office. commissioned, or petty officer. 

91 Willfully disobeying the lawful 92 Failure to obey lawful order 

order of a warrant, noncom- issued by the member of the 

missioned, or petty officer. armed force alleged. 

94 Mutiny. 92 Failure to obey lawful order 

issued by the member of the 

armed force alleged (when 

mutiny by refusal to obey 

orders alleged). 

116 Breach of the peace (when 

mutiny by violence or creating 

disturbance alleged). 

94 Sedition. 116 Breach of the peace (when sedition by violence or creating 

disturbance alleged). 

95 Breach of arrest. 134 . Breach of restriction. 

96 Suffering prisoner to escape 96 Suffering prisoner to escape 

through design. through neglect. 

99 Running away before the 86 Absence without proper authorenemy. ity; goes from appointed place 

of duty. 

99 Quitting place of duty to plun- 86 Goes from appointed place of 

der or pillage. duty. 

99 Endangering safety of com- 92 Failure to obey lawful order, as 

mand through disobedience alleged. 

of orders. 

108 Willfully damages military 108 Through neglect, damages miliproperty. tary property. 

108 Willfully suffers military prop- 108 Through neglect, suffers military 

erty to be damaged. property to be damaged. 

108 Willfully destroys military 108 Through neglect, destroys miliproperty. tary property; through neglect, 

damages military property; 

willfully damages military 

property. 

108 Willfully suffers military prop- 108 Through neglect, suffers military 

erty to be destroyed. property to be destroyed or 

damaged; willfully suffers military property to be damaged. 

-8 wiuully loses military prop- 108 Through neglect, loses military 

erty. property. 

108 Willfully suffers military prop- 108 Through neglect, suffers military 

perty to be lost. property to be lost. 

538 
COMMONLY INCLUDED OFFENSES App. 1.2 

Article Principd Ofinse Article Lesser Included Offmts 

108 Willfully suffers military prop- 108 Through neglect, suffers military 

ertv to be sold. ~rouertv to be sold. - 

108 Willfully suffers military prop- 108 Through neglect, suffers military 

erty to be wronqfully dis- property to be wrongfully disposed of in a certain alleged posed of in the manner alleged. 

manner. 

110 Willfully and wrongfully haz- 110 Negligently hazards s vessel in 

ards a vessel in a certain al- the manner alleged. 

leged manner. 

110 Willfully and wrongfully suffers 110 Negligently suffers a vessel to be 

a vessel to be hazarded in a hazarded in the manner alcertain alleged manner. leged. 

11 3 Found drunlr while on post as a 112 Drunk on duty as a member of 

sentinel. the guard. 

116 Riot. 116 Breach of the peace. 

' 134 Disorderly (under the circumstances alleged). 

116 Breach of the peace. 134 Disorderly (under the circumstances alleged). 

118 Murder, with premeditated de- 118 Murder. 

sign to kill; or murder, while 

engaged in perpetration of 

offenses listed in Article 

118 (4). 

118 Murder, as defined in Article 119 Volilntary or involuntary man11s (11, @), (31, or (4). slaughter. 

128 Assault; assault and battery; aggravated assault. 

134 Assault with intent to commit 

murder. 

134 Assault with intent to commit 

voluntary manslaughter. 

134 Negligent homicide. 

119 Yolt~ntzry manslsughter. 119 Involuntary manslaughter. 

128 Assault; assault and battery; 

aggravated assault. 

134 Assault with i~tent to commit 

, voluntary manslaughter. 

134 homicide. U" 

119 Involuntarv rnanslailphter. - 128 Assault: assault and batterv. 

134 ~e~li~ekt homicide. 

120 Rape. 128 Assault; assault and battery. - 

134 Assault with intent to commit 

rape; indecent assault. 

121 Larceny. 121 Wrongful a~arowiation. 
App. 12 APPENDIX 12 

Arllch Principal Offense Article Lesser Tncluded Ornse 

122 Robbery. 121 larceny (when proof shows t,aking); wrongful appropriation 

(when proof shows taking). 

128 Assault (when force and violence 

alleged). 

134 Assault with intent to rob (when 

force and vjolence alleged). 

124 Maiming. 128 Assault; assault and battery; 

aggravated assault. 

126 Aggravated arson. 126 Simple arson. 

128 Assault intentionally inflicting 128 Assault; assault and battery; 

grievous bodily harm. assault likely to produce grievous bodily harm by means of 

dangerous weapon, or any 

other means or force, as alleged. 

128 Assault with a dangerous 128 Assault. 

weapon, or any other means 

or force likely to produce 

death or grievous bodily harm. 

128 Assault and battery. 128 Assault. 

129 Burglary. 130 IIousebreaking. 

134 Unlawful enlry. 

130 Housebreaking. 134 Unlawful entry. 

131 Perjury. 134 False smearing. 

134 Assault with intent to murder. 128 Assault; aggravated assault. 

134 Assault with intent to commit 

\,oluntary manslarlghter. 

134 Assault with intent to commit 128 Assault. 

voluntary manslaughter. 

134 Assault with intent to commit 128 Assault. 

rape. 

134 Indecent assault. 

134 Assault with intent to rob. 128 Assault. 

134 Assault with intent to commit 128 Assault. 

sodomv. .- - 

134 Assault and battery upon a 128 Assault; assault and battery. 

child under the age of 16 

years. 

134 Discharging a firearm wrong- 134 Discharging a firearm through 

fully and willfully, under carelessness. 

such circumstances as to endanger life. 

134 Making and uttering a worth- 134 Making and uttering a wortllless 

less check with intent to de- check and thereafter wrongceive and thereafter wrong? fully and dishonorably failing 

fully and dishonorably fail- to maintain a, sufficient baling to maintain a sufficient ance. 

balance. 
Appendix 13 

FORMSOFSENTENCES 

A sentence adjudged by a court-martial shauld follow substantially one of the 

following forms or any necessary modilicntion or combination of such forms. 

Forfeitures, fines, and detentions wlll be espressed in dollars or dollars and cents. 

Periods of confinement should not be expressed in terms of months in excess 

of 11 ; for example, a period of 12 months 1s properly expressed as "one year," and 

a period of 1% years is properly expressed as "oue year and six months." 

1. To hare $-.- detained.' 

2. To hare $-.- per month for - months detained.' 

3. To forfeit $-.' 

4. To forfeit $-.-per 111onth for - months? 

5. To perform hard labor for - (days) (ruontl~s) .8 

6, To be confined at hard labor for - (days) (months) (years).' 

7. To be confined at hard labor for - mollths4 and to forfeit $-.-a per 

month for a like period. 

8. To be confined [in solitary confinement] [in solitary confinement on bread 

and water wit11 a full ration every (second) (third) day] [in solitary confinement on diminished ratious, to wit: two full meals per day, with a full ration 

every (second) (third) day,] for - 

.9. To be dishonorably discharged from the service, [(and) to forfeit all pay and 

nllowances '1, [and to be confined at hard labor for - (months) (years) 1. 

10. a. To be discharged from the service nit11 n bad conduct discharge, [ (and) 

to forfeit $-. per month for - months 'I, [and to be confined at hard 

lnbor for - months]. 

b. To be discl~arged from the service with n bad conduct discharge, [(and) to 

forfeit all pay and allowances '1, [and to be confined at hard labor for - 

{months) (years) 1.' 

11. To be reduced to the grade of (corporal) (mdioman, second class) 

(- ." 

12. To be admonished. 

13. To be reprimanded. 

14. To be restricted to the limits of - for - months." 

1 Authorized in the cnse of enllsted persons only. See 14Gh(4) and 1277. 

'For limitntions in the cnse of enlisted persons, see 126h(2) and 127b. 

Not to exceed three months if adjudged by n general or speclul court-martlal; and not 

to exceed 45 dngs if adjudge[l by n sunimary court-m~rtial. See 126c nnd k. 

*A single sentence adjudged npnlnst an enlisted person of an armed force of the United 

States which does not include dishonornble or bad conduct discharge shall not include confinement at bnrd labor for n period grenter than six months (127b). See also 1361. 

Not to be imposed by courts-martin1 ns punishment agnlnst Army or Air Force personnel. See 125 as to general limitations upon the imposition of this kina of punishment. 

'As to the meaning of the ~bhrnse "to forfeit all 11np and allownnces." see 1267r(2). 

TA special court-rnartlsl mng not acljudge forfeiture of more tllan two-thirds pay per 

month for six months. ercn t1long-h n bad conduct discharge Is adjudged (Art. 10). 

&See 127c: Article 18; Article 10. 

Osee lPOc(P) nnd e. 

*ONot to exceed two months (19Gg). 
App. 13 APPENDIX 13 

15. To be suspended from duty for - months.= 

16. To be suspended from command for - months." 

1'7. To be suspended from rank for - months.' 

18. To [lose - unrestricted numbers) (be placed at the foot of the 

's list of present date and to remain there until he shall have lost - 

unrestricted numbers) (lose - mrestxicted line officer running mate 

numbers) .u 

19. To lose - month's seniority In the date of his warrant (as machinist) 

(- ) , and to lose carresponding rank in the list of (machinists) (- of 

the (Navy) (-).= 

20. To be dismissed from the service," [(and) to forfeit all pay and allowances], [and to be confined at hard labor for - (months) (years) ]. 

21. To pay to the United States a fine of $-, [and to be confined at hard 

labor until said fine is so paid, but for not more than - (months) (years) 1.'' 

22. To pay to the United States a fine of $- , [(and) to be confined at hard 

lsbor for - (ruonths) (years) 1, [and to be further confined at hard labor 

until said fine is so paid, but for not more than - (months) (years) in adclition to the - (months) (years) hereinbefore adjudged] ." 

23. To be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for the term of his natural life. 

24. To be put to death. 

11 See 126i. Authorized in the case of personnel of the Army and Air Force only. 

l2 Not an authoriged punishment In the case of Army and Air Force personnel (1260. 

Officers of the other armed forces may be sentenced to a 10% of numbers. The sentence 

placing the officer at the foot of the list, with the proviso that he is to remain in that position until he has lost the required nombcrs. Is to be used when his position on the list mill 

uot permit of his losing the adjudged numbers in grade at the time the sentence is adjudged. 

IJNot an authorized punishment in the case of Arm.v and Air Force personnel (1204). 

In the case of warrant officers of tile other armed forces, when promotion is based upon 

length of service in grade, loss of seniority far a specified period of time should be adjudged 

in lleu of a loss of numbers. 

1'Applicable in the case of commisuioned oWcers only (125d). 

"See 126h(3) ; 12'ic, Section B. 
Appendix I4 

FORMg FOR ACTION BY CONVENING A.UTHORITY 

Show headquarters or ship, place, and date of action. Signature is followed by 

rank, unit, and the words "Commanding" or "Offlcer in Charge." The use of these 

forms is not mandatory and they are not intended to provide for every case ; but 

whenever appropriate, these forms, or a combination or modification of them, 

should be used. 

The place of confinement should be designated only after consulting pertinent 

departmental regulations. See 89c(5). 

a. SUMMARY COURTS-MARTIAL 

Forms 1-10 may be used by the convening authority who takes 

action on the record of trial by summary court-martial : 

1. Approved and ordered executed. (- is designated as Approval 

the place of confinement.) , -Execotion 

2. Finding of guilty of Specification 2, Charge I, is disapproved. -Partial 

Only so much of the sentence as provides for - is approved 

and ordered executed. (- is designated as the place of confinement.) 

3. Approved and ordered executed. The accused will be credited -Of rehearing 

with any portion of the punishment served or executed from - (see 89c(7)) 

19- to - IS-- under the sentence adjudged at the former 

trial of this case. 

4. Approved and suspended for - months, at which time, Suspension 

unless the suspension is sooner vacated, the sentence will be re- !?it::!2)) 

mitted without further action. sentence: conditicnnal 

remlss~on 

5. Approved and ordered executed, but the (codnement) ( ) conditipnal is suspended for - months, at which time, unless the suspen- remlss~on 

sion is sooner vacated, the sentence to - will be remitted 

without further action. 

6. Approved and suspended. -Indefinite 

7. Disapproved. The charges are dismissed. Disapproval -Charges dismissed 

8. It appears that the following error mns committed: -. --Order of 

This error being materially prejudicial to the substantial rights 

of the accused under the circumstances of this case, the findings 

of guilty and the sentence are disapproved, and a rehearing is directed before a summary court-martial to be hereafter designated. 

NOTE.-T~~ reason for disapproval must be stated in the action if a 

rehearing is ordered (Art. 63a). 

9. Disapproved The charges are dismissed. All rights, privi- -Of rehearing; restoration of 

leges, and property of which the accused has been deprived by vir- rights (see 

tue of the execution of the sentence adjudged at the former trial 89c(l)) 

of this case on - 19- will be restored. 

NOTXI.-Under the provisions of Article 75a the authority setting aside 

or dlsapproving a sentence must order a restoration of all rights, privileges, 

nnd property afPected by any executed portion of a sentence which has 

been set aside or disapproved unless a rehearing is ordered and such 

executed portion is lncluded in the sentence adjudged upon a rehearing. 
App. 14b APPENDIX 14 

It follows that If a rehearing of a summnry court-martial case 1s ordered 

pursuant to 94a(P) after the original sentence has been ordered lnto 

execution, any rights, prlrileges, and property affected by the former 

sentence must be restored if the rehearlnp results in an acquittal or a disapproval of the sentence adjudged. 

If the rehearing results in an acquittal, the conrenIng authority should 

omit from the nction shown above the words, "Disapproved. The charges 

nre dismissed." 

Withdrawal of 10. In the foregoing case of - , the action taken by (me) previous nction 

(see 89~; 94a (my predecessor in command) on - 19- Is withdrawn and 

(2)) the following substituted therefor : ( ). 

b. SPECIAL COURTS-MARTIAL. . . 

Special court-martial sentences in cascs tckich do not invoice an approved 

sentence to bad condzcct discharge.-Forms 11-26 are appropriate for use in special court-martial cases in which the sentence, as approred, does not include 

a bad conduct discharge. They are also appropriate for use with respect to 

general court-martial sentences which, as approved, do not affect a general or 

flag officer, or extend to death or dismissal, or include a punitive discharge or 

confinement for one year or more. 

Approval 

-Execation 

-Partial; execution 

-Partial - 

disapprbval 

of findings 

-Partial: lesser 

included 

offense and 

substituted 

findings (see 

87a(4)) 

11. In the foregoing case of - ,the sentence 1s approved 

and mill be duly executed. (- is designated as the place 

of confinement.) 

12. In the foregoing case of -, only so much of the sentence 

as provides for - is approved and mill be duly executed. 

(- is desi~atetl as the place of confinement.) 

13. In the foregoing case of - , the finclings of guilty of 

Specifications 1 and 2, Charge 11, are disapproved. (The sentence 

is approved and will be duly executed.) (Only so much of the 

sentence as provides for - is approved and will be duly esecuted.) (- is designated as the place of confinement.) 

14. In the foregoing case of - , only so much of the findings 

of guilty of Charge 1 and its specification is approved as fintls that 

the accused abserited himself without proper authority from the 

(organization) (- ) alleged at the place and time alleged 

and remained so absent until - , in violation of Article 86. 

Only so much of the sentence as provides for - is approred 

and mill be duly esecuted. (- is designated as the place 

of confinement.) 

15. In the foregoing cme of -, only so much of the finding of guilty of Specification 1 with respect to ralue as finds 

some value not in cscess of - is approved. Only so much 

of the sentence as provides for - is approved and will be duly 

executed. (- is designated as the place of confinement.) 

16. In the foregoing case of - , only so much of the finding 

of guilty of Specification 1, Charge I, is approved as finds that the 

accused clid, at the time and place alleged, wrongfully appropriate 

the property describetl, of the ralue and omnership alleged. Only 

so much of the sentence as prorides for - is approred and 

will be duly executed. (- is designated as the place of con. 
17. In the foregoing case of -, only so much of the findings 

of guilty of Charge I and its specification is approved as finds 

that the accused did, at the time and place alleged, willfully and 

maliciously attempt to set fire to a haystack, the property of 

-, of some value not in excess of $20.00, in violation of Article 

80. Only so much of the sentence as provides for - is approved and will be duly executed. (- is designated as the 

place of confinement.) 

18. In the foregoing case of -, the sentence is approved -4f rehearing 

and mill be duly esecuted. (- is designated as the place (Bee 89F(7)) 

of conflnement.) The accused will be credited with (confinement 

from - 19- to - 19- and) any (other) portion of the 

punishment served or esecuted from - 19- to - 19- 

under the sentence adjudged at the former trial of this case. 

19. In the foregoing case of - , the sentence is approved, Suepension 

-indefinite; but the esecution thereof is (scspendecl) (suspended for - conditional 

months, at which time, unless the suspension is sooner vacated, ;~~is~~"e;2,, the sentence will be remitted without further action). 

20. In the foregoing case of - , the sentence is approved 

and will be duly executed, but the execution of that portion 

thereof adjudging (forfeitures of pay) (confinement) is (suspended) (suspended for - months, at which time, unless the 

suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action). 

21. In the foregoing case of - , the sentence is disapproved Disa~proval 

--Charges and the charges are dismissed. dismissed 

22. In the foregoing case of -, it appears from the record -Reason stated 

(see 89c(2) ) of trial that, although trial of the specification of the charge was 

barred under the provisions of Article 43, the accused mas not 

ad-iised of his rights in the premises. The findings of guilty and 

the sentence are disapproved and the charges are dismissed. 

Nore.-Under the provisions of 89c(2) the conrening nuthortty should 

stnte the reasons for disnpprovnl of the flndiugs nnd sentence In certain 

cnses even when he does not order a relteliring. Suclt statement of rensons for disnpprovnl is generallly nppropri;ite where the disnpprovnl of 

n finding of guilty mag nffect future ndmitiistmtive nctlon, for example, 

when n flndiug of guilty of desertion is disnpgroved : or where the reason 

for dlsnpprornl is the insnnIty of the nccused or the bnr of the statute 

of lintltntions. Additioilul reciuircntents for such statcruent mny Be prescribed by depurtmentcll regulations. 

23. In the foregoing case of - , the findings of guilty and -Of rehearing; restoration of the sentence are disapproved and the charges are dismissed. rizht, (see 

A11 rights, privileges, and property of which the accused has been s9c(7)) 

deprived by rirtue of the esecution of the sentence adjudged 

at the former trial of this case on - 19- will be restored 

NOTE.-See also note under form 9. 

24. In the foregoing case of - , it appears from the record 

of trial that (the confession of the accused was not shown to (see 92) 

hare been voluntarily made) (Exhibit 1, an improperly authenticated extract copy of a morning report, mas erroneously received 

in evidence over the objection of the defense) (the l~rosecution 
App. 14b 

Jurisdictional 

error (see 92) 

Withdrawal of 

previous action 

(see 89b) 

Ap rovnl 

-$orwarding under Article 65 b 

-Forfeitures 

and confine- ment 

Suspension 

-Of bnd con- duct discharge (see 

aBe(2) (b)) 

-Entire sentence 

APPENDIX 14 

erroneously cross-examlned the accused on the merlts after he 

had taken the stand for a limited purpose only) (the testimony 

of A as to the out of court identiflcation of the accused by B 

was erroneously received in evidence) ( ). Under the cFccumstances of this case, this error is materiaLly prejudicial to 

the snbstantial rights of the accused. For this reason, the sentence is disapproved and a rehearing is ordered before another 

court-martial to be hereafter designated. 

25. In the foregoing c"ase of -, it appears from the record 

of trial that (the person who signed the charges sat as a member 

of the court) (an enlisted person who is a member of the same 

unit as the accused sat as a member of the court) (the members 

of the court-martial who tried the case mere not sworn) (the 

specification of the charge fails to allege any offense) ( ). In 

view of the provisions of Article - the proceedings, findings, 

and sentence are invalid. Another trial is ordered before another 

court-martial to be hereafter designated. 

26. See form 10. 

Se?ztences ilaclrrding an approved sentence to bad conduct discharge.-Forms 27-33 are applicable to cases tried by special 

courts-martial conx-elled by an ofiicer who does not exercise general court-martial jurisdiction when the sentence as approved 

includes a bad conduct discharge. 

27. In the forexoing case of - , (the sentence) (only so 

much of the sentence as provides for bad conduct discharge and 

) is appro~ed. The record of trial is forwarded for action 

under Article 653. 

NOTE.-When confinement, not suspended, is-approved together with 

forfeitures, tie forfeitures apply to pay and allomances becoming due 

nn anit after the date of the action of the convening authority unless he 

defers such application for good cause (88e(2) (o) : Art. 57a). For the 

purpose of clarity, if confinement, unsuspended, and forfeitures are approved one of the following should be added to the form of action: 

"The forfeitures shall apply to pay becoming due on and after the 

dnte of this action,'" or 

"The application of the forfeitures is deferred until the sentence is 

ordered into execution." 

28. In the foregoing case of - , the sentence is approved and ' 

mill.be duly executed, but the execution of that portion thereof 

scljudgi~lg bad conduct discharge is suspended (until the accused's release from confinement or until the completion of 

appellate review, whichever is the later date) (for the period of 

conflnement and - months thereafter, at which time, unless 

the suspension is sooner racated, the bad conduct discharge shall 

be remitted without further action). (- is designated as 

the place of confinement.) The record of trial is forwarded for 

action under Article 66b. 

29. In the foregoing case of -, the sentence is approved, 

but the execution thereof is suspended (for - months, at 

which time, unless the suspension is sooner vacated, it shall be 
FORMS-ACTION BY 'CONVENING AUTHORITY App. 14r 

remitted without further action). The record of trial is forwarded for action under Article 658. 

No~a.-The officer evercislng general court-martial jurlsdictlon to Aetbn by officer 

whom the record of trial is forwarded udder Article 66b may, in general, exercising 

use the forms of actions indicated in forms 34-40 below except that, If E."$:i 

the convening authority has rndified or suspended the sentence, tho jurisdiction 

suporior should refer to the sentence as approved in the manner indicated 

in form 30. 

30. In the foregoing case of -, the (sentence) (only so -*pproval 

much of the sentence) as (approved) (suspended) (approved 

and suspended) by the eon~vening authority (as provides for 

) is (approved - 1( ). 

31. In the foregoing case of - , the findingx of guilty and -:;'":ezz,",l 

the sentence as approved by the convening authority are dis- ordered into 

approved and the charges are di9missed. The accused will be :~~~I;'~,"gbp released from Lhe confinemeut adjudged by the sentence in this authority 

case and all rights, privileges, and property of which the accused 

has been deprived by virtue of the findings and sentence so disapprovc-'d will be restored, 

32. See 24 above. -Disapproval : order of 

rehearing 

33. See 23 above. -Disappravnl of rel~earlng 

C. GENERAL COURTS-MARTIAL. 

Cases forwarded for escl,riinotiogr zt~rrlev .-lvticl(~ 69.-Por11~s of 

action 11-26 above are generally applicable to general courtmartial cases in which the &nlence as approved does not affect 

a general or flag officer, extend to death, dismissal, dlsl~onorable 

or bad collduct discharge, or collfinenzent for one year or more. 

Cases forwarded for rebiew by a board of reeicm. 

34 In the foregoing case of - , the sentence is approved. *ppreva' 

NOTE.--For the purpose of clarity, if contineruri~t. un~uspenrled. nnd -Confinement 

forfeitures are approved, one of the follolvlllg should be added at this ~,$n~~~-~see 

point : 88@(2) (c) 

(a) "The forfeitures shall apply to pay and allemances Becoming due 

on and after date of this action," or 

(b) "The application of fhe forfeitures is deferred until the sentence 

is ordered into execution." 

The record of trial is forwarded to the (Jndge Arlveente General -Bemarks as b fo~ward~ng of the - ) (General Connsel of the Treasury Departmefit) 

for redem by a board of review. Pending completion of appellate -Tempornry custody review the accused will be (retained in this command) (confined 

in -) (transferred to the command of -). 

NOTE -The command d~signatetl should be one eolamauded by an 

officer exercising general ~ouri-rn~tid~ jurisdiction. 

36. In the foregoing case - - of - ,only SO much of the sen- -Partial 

tence as provides for - is approved. (The forfeitures shall 

apply to pay and allowances becoming due on and after the date 

of this action.] (The app!ication- of the forfeitures is deferred 

uutil Be sentence is ordered into execution.) The record of trial 

is forwarded to the (Judge Advocate General of the - 1 

(General Counsel of ~e Treasury Department) for review by a 
App. 14c APPENDIX 14 

-Mitigation of dishonorable 

discharge 

-Recommendation for 

commutation 

--Of rehearing 

Snspcnsion 

-Punitive discharge: confinement for 

less than one yenr 

-Entin 

aentence 

board of reriew. Pending completion of appellate review the 

accused will be - (see form 34 above). 

MOTE.--S~~ forms 13-16 for other examples of pnrtial approval. 

36. In the foregoing case of -, only so much of the sentence 

is approved as provides for bad conduct discharge, confinement 

at hard labor for one year, and forfeiture of all pay and allowances. The forfeitures shall apply to all pay and allowances becoming due on and after the date of this action. The record of 

trial is forwarded to the (Judge Advocate General of the - 1 

(General Counsel of the Treasury Department) for review by a 

board of reriew. Pending completion of appellate review - 

(see form 34 above). 

37. In the foregoing case of -, only so much of the findings 

of guilty of Charge I and its specification is approred as finds 

the accused guil'ty of the specification in violation of Article 134. 

The sentence is approved, but it is recommended that the dismissal be commuted to -. The record of trial is forwarded 

to the (Judge Adrocnte General of the -) (General Counsel 

of the Treasury Department) for review by a board of review. 

Pending completion of appellate review the accused mill be - 

(see form 34 above). 

38. In the foregoing case of -, the sentence is appro~ed. 

The accused will be credited with (confinement from - 10- 

to - 1- and) any (other) portion of the punishment served 

or executed from - 1% to - 1% under the sentence 

adjudged at the former trial of this case. The record of trial 

is forwarded to the (Judge Advocate General of the - ) 

(Geheral Counsel of the Treasilry Department) for review by 

a board of review. Peuding completion of appellate review the 

accused will be - (see form 34 above). 

39. In the foregoing case of -, the sentence is approved 

and will be duly executed, but the execution of that portion 

thereof adjudging (dishonorable discharge) (bad conduct discharge) is (suspended until the accused's release from conflnement or until completion of appellate reriew, whichever is the 

later date) (suspended for the period of confinement nnd - 

months thereafter, at which time, unless the suspension is sooner 

vacated, the suspended portion shall be remitted without further 

action). - is designated as the place of confinement. The 

record of trial is forwarded to the (Judge Adrocate General of 

the -) (General Counsel of the Treasury Department) for 

review by a board of review. 

40. In the foregoing case of -, the sentence is approved, 

but the execution thereof is (suspended) (suspended for - 

years, nt mhlch time, unless the suspension is sooner vacated, 

the sentence shall be remltted without further action). The 

record of trial is for\rarded to the (Judge Advocate General of 

the -) (General Counsel of the Treasury Department) for 

review by a board of review. Pending completion of appellate 

review the accused will he (retninetl in this command) ( 1. 
Appendix 15 

FORMS FOR COURT-MARTIAL ORDERS 

a. FORMS FOR INITIAL PROMULGATING ORDERS. 

The following form Is applicable in promulgating the results of trial and the action of 

the convening authority in nll general and special court-mnrtlal cases. Omit the marginal 

side notes In drafting orders. 

General (Special) Court-Martial (Headquarters) (U. S. S.) - Heading 

Order No. - 1 19- 

Before a general (special) court-martial which convened at (on Anthorib 

board) (pursuant to 

(Place) (Description of nppolntlnp 

, (as amended by 

orders) 

11 

(Descrfptlon of amending orders, if any) 

was arraigned and tried [on a (rehearing) (new trial), the 

former proceedings having been published in --CAI0 No. -----, 

Arroimment 

: 

(Hq) (U. S. S.) 

(Rank or grade) ( Xame) (Serrlce No.) (Armed force) Accused 

(Unit) 

Charge I: Violation of the Uniform Code of 1Iilital.y Justice, 

Article -. Charges 

8pecification 1 : (Set forth specification rerbatim from the charge 

sheet-or as nmended during trial-unless it was withdrawn by 

the convening authority before arraignment. Such withdrawn1 

maybe shown as follows: 

Withdrawn by order of the conrening authority before arraignment.) 

Specification 2 : 

Charge 11: Vlolatlon of the Uniform Code of Military Justice, 

Article -. 

Bpecification: 

PLEAS 

To Specification 1, Charge I : Not guilty. 

To Specification 2, Charge I: Guilty. 

To Charge I: Guilty. 

To the flpecification, Charge I1 : Not gullty. 

To Charge I1 : Not guilty. 

To all the Bpecifications and Charges: Not guilty (Guilty). 

Plena 

iYm~.-If n l>l~a is not entered to n specification or charge owing, for Charges 

4xrunple, to the hct that the court sustained a motion to clismiss, the i,ed * 
App. 150 APPENDIX 15 

Acquittal 

\ 

Sentence 

Date 

Artion pf convening 

authority 

Action of the 

officer exer- cidng general court-mart,ial 

jurisdiction (if appropriate) 

fact will be briefly stated under "Pleas," as shown In the following example. In such a case the speci0cation or charge need not be listed 

under "Findings." 

To Specification 2, Charge I : Dismissed on motlon of defense on 

ground of former jeopardy. 

FINDINGS 

Of fYpedj%atton 1, Charge I : Guilty. 

Of Specificati09z 2, Charge I : Guilty. 

Of Charge I: Guilty. 

Of the Rpsciflcation, Charge I1 : Not guilty. 

Of Charge I1 : Not guilty. 

or 

Of all the Elpedfications and Charges: Guilty. 

NOTE -If a specification or charge is dismissed or withd~awn after a plea has been entered, the fact ail1 be stated under "Findings." If disnlissed on lnotion of the prosecution or withdrann by the convemng authority after evidence on the merits had been received, a natatlon to this 

effect should be made setting forth the reasons for such dismissal or 

withdrawal. Examples : 

Of Specification 1, Charge I : Motion for finding of not guilty sustained. 

Of Gpecificatlo?s 2, Charge I : Dismissed on motion of defense on grounds 

of res jrrdacata. 

Of the Bpeciflrution of the Chc~ge : Withdrama by order of the convenlng 

authority after evidence on the merits lind been received Because of 

milltnrp neceqsity occasioned by enemy action. 

In the el-ent of findi~lgs of not gu lty of a 11 charges anrl specifications : 

Of all the Specification8 and Charges : Not guilty. 

The findings were announced ou - 1:L. 

To be discharged from the service with a bad conduct discharge, 

to forfeit $- pay per month for six months, and to be confined at hard labor for - . (- previous convictions 

considered. ) 

The sentence wa8 adjudged on -, 

ACTION 

(Copy artion of cmvenfng authority verbatim, incIudtng heading, 

date, and signatnrc?. See appendix 14 for appropriate forms.) 

ACTIOFj OF TIIE OFFICHR EXERCISING GBINNRAL COURTJIARTZAL JURI~DICTION 

HEADQUARTERS 

In the foregoing case of - the sentence as approved (and 

suspended) By the convening authority is aDprove8. The record 
FORMS-COURT-MARTIAL ORDERS App. 15b 

of trial is forwarded to the Ji~dge Advocate General of the - 

for review by a board of review. Pending completion of appellate 

review the accused will be confined in 

Major General, W S - 

Commnnding 

Nm.---Orders promulgntinp the proceedings of special court-martial 

cases, which include an approved sentence to bud conduct discharge will 

be published by the offlcer who forwards the record of trial to the Judge 

Advocate General. If the record is so forwarded by an ofacez exercising 

general court-mnrtial jurisdiction to whom the record bas been forwarded 

pursuant to Article 85b, his action will be copied verbntim immediately 

after the action of the convening authority. 

NOT&-The order will be authenticated as provided in depnrtmental Authentication 

regulations. 

NOTs.-In the cnse of n jolltt or comn~on trial separate orders should Joint or 

be issued for each accused. Joint specificntions mill be copied verbatim cOmmontrials 

but only the pleas, findings, sentence, and action pertaining to the accused 

as to whom the order is promnlated need be shown. 

b. FORMS FOR SUPPLEMENTARY ORDERS PROMULGATING RESULTS OF AFFIRMING ACTION. 

NOT&-Court-martin1 orders ~ublishlng the final results of a nem trial and of proceedings in cases in which the Yresldent or the Secretary of a Department has taken final action 

are promulgated by departmental orders. In other cases the flnnl nction pursuant to 

a5rmntion by a board of review or the Court of Nilitary Aayeals may be promulgated. 

as may be appropriate under the circumstances, by the convening authority, or by an 

ofacer exercising general court-martlol jurisdiction over the accused nt the time of final 

action, or by the Secretary of the Department. See 107. The following forms ]nay be used 

where such a promulgating order fs published in the field. If a sentence as ordered intu 

execution or suspended by the convening authority is a5rmed without modification, no 

supplementary promnlgnting order Is required. 

See a above. Heading 

In the (general) (special) court-martial case of -, the Sentence -Affirmed sentence to bad conduct discharge, forfeiture of - -,

and confinement at hard labor for - , as promulgated in 

(General) (Special) Court-Xartial Order No. - , (Headquarters) (U. S. S.) - , dated - IS--, has been affirmed 

pursuant to Article (66) (67). The provisions of Article 710 

having been complied with, the sentence mill be duly execnted. 

(- is designated as the pIace of confinement.) (- .) 

NOTE.-As to the designation of places of conkement, see the applicable 

departmental regulations. 

In the (general: (special) court-martial case of - ,only so 

much of the sentence promulgated in (General) (Special) CourtMartial Order No. - ,(Headquarters) (U. S. s.) -. 

dated - I%--, as provides for - , has been affirmed pnrsuant to Article (66) (67). The provisions of Article 71c having 

been complied with, the sentence as thus modified will be duly 

executed. (- is designated as the place of couhement.) 

(-4 

-Affirmed In part 
App. 15c 

In the (general) (special) court-martial case of -, pnrsuant to ArtEcle (66) (Gi), the findings of guilty of Charge I1 

and its specification hare been set asicle and only so much of the 

sentence promuIgated in (General) (Special) Court-Martial Order No. - (Heaclquarters) (U. S. S.) - , dated - 

19-, as provides for - has been affirmed. Article 71c 

having been complied mith, tbe sentence as thus modified will be 

duly euecu ted. (- is designated as the place of confinement.) 

(-. 1 

or 

-A$irmed in In the (general) (special) court-martial case of - , the 

part; prior order of proceedings of which mere promnlgated in (General) (Special) 

execution set Court-Martial Order No. - , (Headquarters) (U. S. S.) --, aside in part dated - I#-, the findings of guilty of Charge I and its 

specification, and so milch of the sentence as is in excess of - 

have been set nside and the sentence, as thus modified, has been 

affirmed pnrsuaat to Article (66) (67). Article 71c having been 

complied mith, all rights, pririleges, and property of mhich the 

accused has been deprived b rirtue of the findings of guilty and 

that portion of the sentence so set aside will be restored. 

Findings and 

sentence set 

aside 

-Charges dismissed 

-Rights restored 

-Rehearing ordered 

Authentication 

In the (general) (special) court-martial case of - t PU~- 

suant to Article (G6) (67), the findings of guilty and the sentence 

as promulgated by (General) (Special) Court-Martial Order No. 

, (Headquarters) (U. S. S.) - , dated - 10-, mere 

set aside on - 1%. (The charges are dismissed. All rights, 

pririleges, and property of which the accused has been deprived 

by virtue of the findings of guilty and the sentence so set aside 

will be restored.) (A rehearing is ordered before another courtmartial to be hereafter designated.) 

See a abo-ie. 

c. FORMS FOR ORDERS REMITTING OR SUSPENDING UNEXECUTED 

PORTIONS OF SENTENCE. 

Heading See a above. 

- 

The unesecuted portion of the sentence to -, in the case of , promulgated in Special Court-Nartial Order No. -, 

(this headquarters) (this ship) (Headquarters - ) (U. S. 5. 

Remission: 

suspension I, - 19-, is (remitted) (suspended) (suspended for 

(see 97a) - months, at which time, unless the suspension is sooner 

vacated, the unesecnted portion of the sentence will be remitted 

without further action). 

Summary NoTEI.-A~Y order remitting or suspending the unerecuted portion of 

a sentence by summnrg court-martin1 or promuigntlng nny other action 

tnken on a summnry court-martial ense subsequent to the inltinl nction 

of the convening authority will be promulgated in such orders as may b6 

prescribed by departmental regulations. 

Authentication See a above. 
1 FORMS-C6URT-hllARTlAL ORDERS App. 150 

d, FORMS FOR ORDERS SETTING ASIDE ILLEGAL SENTENCE. 

See a above. Heading 

Pursuant to the authority of pargnraph 04, RICX, 1951, the End- setting aside 

ings of guilty and tlie sentence in the special court-martial case of 

-, as promnlgated in Special Court-Martial Order No. -, -BY omccr having (IIendquarters) (U. S. S.) -, - I&, are set aside. All supervisory 

rights, privileges, and property of which the accused has been nuthoriw 

deprived by rirtue of tho findings of guilty and the sentence so -,"::Em 

set aside will be restored. 

or 

Pursuant to the authority of paragraph 94, NCM, 1951, the -Inpa* 

findings of guilty of Charge I and its specification and so much of 

the sentence as is in excess of - ,In the special court-martial 

case of - , as promulgated in Special Court-Martial Order 

No. -, (Headquarters) (U. S. S.) -, - I&, are set 

aside. A11 riglkts, pri~ilcges, and property of which the accused 

has been deprived by virtue of the findings of guilty and that 

portion of the sentence so set aside will be restored. 

NOTE.-If, pursuant to 94rs (21, tlle convening authority n~ithdraws his -By convening 

previous nctiou, disapproves the findings of gullty and the sentence, and authority 

dismisses tlie charge or directs a rehenriug in a case in which n pronlulgating order of eiec~~lion has prerrriously been ptihlishecl. he shall publish 

a new promulgating order as shown in a above. The nction shall be 

followed by the following notation : 

Speclal Court-Martial Order No. - ,this (headquarters) -f~,"r";;t;~of 

(ship), - I&, is rescinded. 

See a above. Authentication 

e. FORMS FOE ORDERS VACATING SUSPENSION. 

NOTE.-Orders promulgating the vacation of the suspension of n dismissal will be 

published by departmental orders. Vacations of any other snspenslon of a general courtmartial sentence, or of a special court-martial sentence mhlcll as approved and affirmed 

includes a bad c~nduct discharge, will be promulgated by the officer exercising general 

court-martial jurisdiction over the probationer (Art. 727~). The vacation of suspension 

of any other sentence may he promulgated by the officer who took nction under Article 

7% See 97b. 

See a abore. Heading 

So much of the order published in Special Court-Xartial Order zs;2$yo;f No. - , this (headquarters) (ship), - I&, as suspends -Under 

execution of the sentence to (confinement) (forfeiture of pay) Artic'c 72c 

(- ) in the case of - is vacated. The unesecuted portion of the sentence to - will be duly esecuted. 

So much of the order published in General Court-Martial Order -Grn",~g; ;;;ftNo. -, this headquarters, dated - 19-, as suspends tenee forexecution of the sentence In the case of - is vacated pur- ~~$~~

suant to Article 72. The sentence will be carried into execution. "~2;;~ 69 So much of the order published in (General) (Special) Court- sentence 

Slartial Order KO. - , this headquarters, dated - including a punitive disI as suspends execution of the sentence to (dishonorable discharge) E:;;E;~~~ (bad conduct discharge) (- ) in the case of - is racated for one year 

pursuant to Article 72. Article 71c having been complied with, Or more 

the sentence to - will be duly executed. 

See a abore. Authentication 

553 
Appendix Id 

REPORT OF PROCEEDINGS TO VACATE SUSPENSION 

There is set forth below a bopv of the form for the report of proceedings to vacate sus- geosion required unaer .the pro~isiaus of Article 72. The -o;8ccr exercising special court- l~lartinl jul'isdiction over the prul~xtinuer ma)- either hold the entire hearing himself or designate a qualified officer to cond~uct a preliminary hearing subject to review by the 

ofiicer exercising special court-ulartinl j~?r,isdiction. If such a preliminary hearing Is held. 

the probationer mill be given an aplrortunity to examine the report of proceedings and to present any objections to the officer exercising special court-martiti1 jurisdiction. The 

i~robationer, If he so desires. sl~all be represented bj counsel at both the preliminary and ' final hearings. As a guide, nrlrnple entries pertaining ln a member of the Army bnve heen entered. Items 

1 to 14 inclusive inny be completed bg an oficer designated to held a prelin~inarg hezriiig who shill a& tihi; signature in space 16. 

REPORT OF PROCEEOIHGS TO VACATE SUSPEIiSlON 

FROM: (Title and ~r'anl..tl.-n 01 offis.r r.~rsi.ina mpci.1 court-n.rriai iuri.dictinn) 

Comma~ing Officer, 20th hfantry, APO 6 

TO: (rltla and a,a.n,znrion of orlic~r rn.rc;.inj gcn.r.1 c~u.r...rti.~ juri.d,sr;an) 

Cmmanding General, 6th Infantry Division, APO 6 

OR5llilZ~l10~ 

Co D, 20th Inf 

.. 

GRADE AND NAME OF PROBAIIONEI I SERVICE NUMOiR 

Private Morris L. Dice RA 371ll222 

1. oar& AS T@ RIAL BY iou~r-MAR~IAL a. TRILL WAS BT lo. COUYC~EO 01 (ritlc md ord.ni,.tion 01 sonv~n,na aulh~rirv) 

0 GENER*L COURI-HPRTIAL SPECIAL 

m, 20th Inf 

c. PLACE COURT 185 COWVEHCD d. OATE OF TRIAL 

APO 6 / 1Sep1951 

--- 1 

e. C~IIRGES AND SPiCIFlC4f IOYS (suso.r8zcCJ 

Absence without leave from 1 June 1951 to 2 Au&ust 1951 in violation 

of Article S6, Uniform Code of Yilitary Justl6e. f. FINDING1 

Guilty as charged. 

9. SEHTEYCE 

To be discharged the ser-gice with a bad conduct discharge, to forfeit 

$50.133 of his pay per month for six months, and to be cor~fked at hard 

labor for six months. 

h. ACIION OF COYVENIWG AUlRORlll 

The sentence =s approved as adjudged. The 6th Division Stockade was' 

designated as the place of confinement. 

-- CYO NO.. Hq , dsted 

I. AC~IOH OF IIIGHIL i"~"0RlIr 

On 10 Septemter 1951, CO, 6th In? Div, approved the sentence but suspended 

the execution of the sentence to bad conduct discharge until the soldier's 

release from confinement, and ordered tlle execution of the sentence as suspended. 

On 15 Octobsr 1951, the sentence, as suspnded, %a6 affhed by the board 

of review. 

j. FINAL MBROS OF PROMULGLTIOB 

, S CMO KO.&. nq 6th Inf Div , dated 10 Sep 1951 ca.hiarr1 1. 

k. ACTION IY MlTlGlTlON OR VIIlllON FOll hEw l'lAL 

None. 

NOTE1 If Preparad lor. 1. uaod mod additianai #pace 1. r.quired1or.n~ icrn. an!er rhr additional m.trr1.I on 

.eparaI. .hrmr. Bs aurr Io Idar~lily 8u;h matar irl .Irh the propar nuo,srlcal and. -hen .pproprlat.. 1.llrr.d headInd (bzan~la. '7~"). Sccur.1~ .tr.rhrn!~mdd~llanal .hast to rh. lormandadd . nora In the appropr1.r. Itamof rh. 

(om: "Scc addl~lon.1 shrot." 
REPORT OF PROCEEDINGS TO VACATE SUSPENSIOPI App. 16 

2. ALLEGED VlOLATlOh Ir PhGaPTION (8rl.l .Iar.mnnt 01 a1lal.d nraconduct and data) I 

Infomation indicates miscmduct en the part of Fvt Dice subsequent to tile 

foregoing sentence by special court-martial, viz., escap from confiemont on 

or about 1D Novemtar 1951, in violation of Article 95, as alleged in the charges 

attached hereta (-bit 2). I 

-- 0 inE =cDBNlOrER #AS PRESENT IS COUNSEL THROUGHOUT THE , 

1 A. a. lME PROB~T~OHER WISlFFDRDED THC OPPOSTUHITI 10 681hlW AVAILABLE WIIHESSES REVUESlED BY.HlU AtiD 1 , I I I 1 10 CROSS-EXAIIWE ALL 1YAILABlE WITNESLEI. A 

b. IN THE PRESEHCE OF THE PROBAII~WER ALL Avrrrrsic ~ITWESSES AND DOCUMENTARY EVIDENCE ON noin 

SIDES WERE EXAMIWEO. 
App. 16 APPENDIX 16 

Prior to hia escape and since his return to military control, the 

probationer's conduct dile in canfinemnt'has ken satisfactory. His 

escape my bve been attritutabls to the influence of a fellow prisoner. 

InPomation indicates that the probtioner is easily led, particularly 

in mtfers felaiing tward the beach of discipline ami viobtlcn of larr. 

3 
REPORT OF PROCEEDINGS TO VACATE SUSPENSION App. 16 

bptsr enlist- on 15 k1.ch 1%9, probatiom~ received basic training at Fort 

Jeckaon, 9.C. On 1 August 1969 ha mas assigned to the ZCRh %fantry. His BsmiOe 

racord contains nSsSatLfactory~ ratings bth as to efficiency ad character. At 

his Prial he testified tbnt he absented himself vlthout leave in order to be mar his mother ro aas seriously ill. This statemnt vas corroborated b affidavits 

of friends of the famil;y and the family pkysician. 
App. 16 APPENDIX 16 

16. HEARING DEFORE OFFICLR UERCISINC SPECIAL COURT-UPRTIAI, JUULFDlCTlOl 1 The foregoing report of proceedlnga of the prellmlnsry hearine has been submitted to the probetloner (and hi* soun.el>'. The p.robatioher rand hna counmel) ' appeared before me and sas (were) Eiren an opportunity to object to any item in 

the report and to submit any additions1 matter in extenuation. mitigation. or 

defense. Any objections and other matters #ubmltted by him ere ebC-2*.4&Cel- 

-6App.nd.d a. 8zhibIt!Xo. 9 &' 

17. RECOHPENDIITION OF OFFICER EXERCISING SPECIAL COURT-MARTIAL JURISDICTION 

11 15 PLCOMHENOED THAT THE FOLLOWING OISPOSITION BE 8AOE OF THIS CASE (Cneck a~~ropriaI# antry or enlrlai): 

a. m IllrT InE SUSPeHslQN Of rnr SENTENCE 10 bad Conduct discharge 

i I IE VACATED. 

b. IHAT IHE UNEXLCUlfO, PORllON OF IHE SENTENCE BE CARRIID IN10 fXECUIIOI. 

c. C3 TNA~ rnr PaocrEorxGs 70 vrcrrc rnt SUSPEHSIOW 8f DROPPED. 

a. 0 [srar. ors.~ eeoomo.md.d dimpo.ltlonJ 

- - -- 18. TYPE~ NAME. RANK. AN-RGPNIZ*TIOHOFFFICLR EXERCISING DATE 

SPECIAL COURT-MART ILL JURISOICTIOY 3 D90 1951 A 

ROBERT G. STROE, Colonel, 23th Inf, 

C-% 

l~ppllcabl. only If prol.mznary h.arIn# 1. conduc1.d by an 

2courl-m.rllrI )uvl.dlstion. In .fipreprlare r.,... anla, 101 a~~lJ~.bl..' 

Llne our II ooc appllcabl.. 

- 5 
Appendix 17 

Ic.".~.I..c..~.I. 0, 

*uuryrQurr.-ur'lal. 

t~l.c. .h,. pro ..a. i. I~.U.~. 

J~- ef.rrn.... 

:: 

d.aI4n.r.d. 

4m. w, .A,,. I"-. propr1.t.. 

- .fb.lor. d..l,n.,rd lo tab. your d.W.1. tlm far u..J.. 

6.n.r.1. .n.cr.r. .. *"-"~("r~-*~.'. 

'PI.=. .hr..~., I. to son,. 

9~ro..~u11m ., d.a 

I." a,.. .ppr.P.1.,.. 

'ON.". .,I.. 01 .Ccuaodw other aubI.cl illm 

I1~l". Wl. .b" in..DP.OPli.l*. .."d brin, 

.llh "0" .- man 

.P9r.P, I.,. d .,., jh 

, 

raqYiredloprd=.h10,. th. ceu,,. 

"TO be .ub#~rlb.d br tr1.1 coun..l,. ,.. cord.,. .(a. 

lJmon ..rr~.. 1, 81 "UL ,ha .it"... -111 

ba ,*."..led lo ."A. .crib. ,h,..shal.d* -n, 01 .... p,.nc. 0" 

oneewyand to ,.rum .a.. to Ih. Olllc., 

&luudth.-. 

14ml. ,-I 01 nr.l- I 

mi- 1.p..m.I. ad th - Ih -1.t-d 

-111 b r.lwn.d to th oftlcer 1-lndlh 6 pDnr 

.. . SUBPOENA FOR C lV l Ll AN WlTNESf 

Gewral I COU,~.II.,~I.I or thr u,~t.d state., U.S.S. Cow. 

I Sen Pedro. California, 

 he he ide en^ .r th..u?itcd stat.., to Claude 16. Riolrabvr J 

You are ha?-by .unmon*d and required to.pb..r on themday of .Ju~v. 

19 - 61. *' - 9. .'cl~Ckdn M.. (Ma- 

- ' 4.*im*d-b~*cj..r&c.r~4*~&.~~~)' befote 

am6 caurt-nar11.1 sl thc United state.. On bonrd the 

U.S.S. ca1ifo;niat tan Frmcisoo. California I 

by IIQ ord~r of the Canmulnder. ~attleshipa 

Battle Force. UnitsdBea Fleet 8 

dated 11 June 1951. 10 t..tiry... .itne.o lor the defense - 9 

in the esac or United States v. Tern T. Tucker. seaman npprentioe. 

U, S. Naw 10 (md-hb"-Wc~- -- 

-- ).I1 

Pmilurr lo ~PW.. and testily 1s punishsble by line of not more than $500 or 

impr l.bnm=nt lor I vrried net exceedin= six months. or both. 

&in. this ru-n. .itn ard do -1 drprt fro. thr =curt withwt wopr prmiaslon. 

Sub.crIh=don bwrd the 'J..S.S. Cdorad~A~.. thim day 01 

JU~Y , 1951. L&? c. m,& ,I 

. IIBuAils ZPlDr, ""0 0FIICI.L ST.TUI DANIEL C. Ot BRIEN 

Ca tain US!C ~r!al ~Aunsel TL. .Itn... 1. v.ou..j.d no aub.crln. on on. copy ottb. .ubpa.n. rh. IOII..I~~ 

I0 *.turn to 'A. P.'.D" ..r.dnd ah. .ubpo.a. lb. cosy Ib.r.al -0 nub.cr1b.d. 

PL.CT PIIC -19.- . 

I hereby msc.pt mel.Lce 01 th. .bewe .Ubpoen.. " 

IICMIIUIII or uIrxes 

Per.on.11~ .pp.rsdbfore m. th. underslcnad authority. "-2- P. 

Fox , vho. bein. 1lr.t duly .worn eecordlnq to 

I*..d.po~os.ndmmy~thrt.rM~~~~~vflle. Ohio . on 11 Julv 

19L he pernan.tlr dollvered to .Claude W. Rlckabv in person a 

dupllsmts of #ha within nubpwn.. 

arpsac~m m. incan re baler. w .I Fort Wilsan. Ohio . thb, 11th day 

at ,da0. -. l9L. 

VUITINE QUADE 

It Col, JAW .. . 
Appendix I8 

I 

INTERHOGATORIES AND DEPOSITION (See Note I) 1 UBITED STATES 3 

> 

v* ) 

) 

h.bh6-d > 

Private Olie 0. Olsen, 45932064, 

> 

> 

327th Air Polf ce Squadron .) 

> 

'~trlka 0.1 .ord. not 

u..d. I Deposit ion of Wilhelmina J. Olsea '(&a4isM.f).~retidlng> I I at Nyandotte, Montana, to be read in evidence before I 

] Base. Illinois. dated 2 July 1951 4 

'c.n.,r (.p.ci.t 

.u~.rr)courr.n.r,l.l. 

milit.., CD.~.~O. 

, , l.Ilito., bo.,d. 

a ' gene~.al 90urt-martial of the United Stater. appointed 

to meet et Scott Air For- by 

pamaraph 20, Special Orders No. 155, Headquarte:$&tt Air Foroe 

I m4 Conmanding General, Cody Air Force Base, Montana 

It is requested that yw cause to be taken on the .follwin. interrogatories I 

4~...l, ..C Or till. 

of MI.0" .ho I* rrquontedr~~au.. tha d.- 

p..iri.. ,. b. 

'rhe ottlrer tanin, the 

d.po.irlon.h.ll.d.:oi.lar the loltorln#oalh 

to Ih. d.W".t prior 

to lhlo daponlnl: 'You 

..*a, (arsllirn) fhal 

Il...ld.nc. lo" a,. 

.bout I0 diva .hall be 

ths #ruth. the whole 

truth. and norhinb but 

the truth. So help you 

and. " 

I 

Headquarters Scott Air Force Base, 111 , 3 July ,.1951 

'11 the mp,s., lor 

1.n.w.r. are not ~~rrl. ci.nl.c.lr.ahaelm map 

be In..,tod by th. or- 115.. ,.bin1 the depo. 

.Ifion. I" much c.... 

h*-4ll,..ri#. lh) In. 

I.r#o#atorleo. . rl tin( 

Ih .n.wrl drodi.l.1, 

b.1. rc.D.OIl.. 

 LOG^ H. SMITII. Capt.1827th Inatallations Sq 

IlPto 1.11. 60101, LID 016~11111101 

)kadquarters Cody Air Force Base. Montana 

. 11 July ,1951 

TO: laior Peter M. Milweed. Ha & Ha So. 1925th ABG # 

who a111 take or cause to be taken the deposltlon atove ~equosted.~ 

BY conaoand of Maior General Glass 

.d+ut*nt General SIC*AIURC I") OfltCIIl 11111 

Pirst interrog-tory: ' Are you In the military service of the 

United Ststcr? .If so. what is you full name. arade. orgeniratio~, 

and stst ion? If not, whsl I8 your full nsm. dccucatiom, ad residence? 

Answer: 6 My name is Wilhelmina J. Oleen. I Work as a mitress 

at the Bluebird Reetaurant on Clendenny Avenue ia Wyandotte. I 

live in Wyandotte, Montana. 

Second Interrogatory: Do you know tho accused?' If so. how lonr 

have you known him? 

Anarer: I have bown the aooueed for three years. 
FORM-DEPOSITION App. 18 

no c~~...,~. 

larro#.,orrr. .re pro- 

~nundrd ,hi. lac, rill 

bc r.rordcdd.ulhrnric.tad by the sidnafur. Dldchn~~ roun.ol 

.hen rha dcpo.ltion i. 

Iaksn by tha prosecut~on.andbr rh. trl.1 

counnol .hen the depe. 

sillonlo laken by the 

dele"*.. in s.u,t.mr. 

1,aI cane,. 

Third inlbrroestoryr 

Answer, 

rour th intarregstory) 

dnrrere 

First ~~~~a-lnterro~~tor~:~ 

Answert 

a' 

561 
App. 18 APPENDIX 18 

I!," "co"~,," -cam. 

, or , a* lh. Sd.. .Y be. 

First interrogdlory t# the t lo 

An61Vat) 

A.laA&&- SIOIIIlURC JW& OF 11r1101 

. . 

- \~fILHEUiI NA-J~. OLSZN IVQCO llYt 06 WITSCSS 

I certily that the above deposition was duly taken by me. and that 

the above-named witness. having been first duly ruorp by me. Rave the 

foregoing answers to the severel interrogatories and subscribed the 

f o r e g o i n g d e p o s i t i o n in my presence atwyalldotte, Montand 

this-day of Julv 19-L. &kspw4. SICXAIURC OF PCRSOM TLZI~G DIPPSI 101 

PETER M. MILWEED 

IlPEO l1.E 0~'tElSOl lllll0 bIPOSlll0l 

Maj, Bq dr Hq Sq, 1925th BEG 

011DC 110 OllOL11ZA110. ' 

- Slrmnurry Court 

01FlC1.1 CllAllClil. A$ SUY*... COYIT. 

*01.11 QULLIC. CTC. 
Appendix 19 

WARRANT OF ATTACHMENT 

WARRAHT OF ATTACHMENT 

General Court-asrtial of the United Stntos 

Fort Flilson, Ohio 

UNITED STATES ) 

v. 1 

Privata John T. Derrick, 35406324. ) 

) 

Company A, 113th Infantry f 1 

The Prenidenl ef the United States. to =or John At Gross, 16th Eeld &ti_-I*= 

- - -- - 

WHEREAS, Claude Y. Ricksby , .f Maryaville, Chio 

was on the 11th day bf July , 1961. 

at Marysvil!e, Ohio , duly aubpoensed to eppeer and attend 

at Fort Prilson. Ohio , on the =day of July ,1932, 

nt~~~c~oe~~.~..~c~oreee;eneral court-martial dulyappointedby para~raph17. 

SO Ho. 160, Beadquartera 60th Inrantry Divisian . dated 11 June , 19l. 

to testify c? the part or the defense in the nbove-enti tled ~ese: end vherees 

he has willfully nealected or.refused. fto appear and attend>' (ro-p-doou-s~)~r 

b~idmw€-wh+eClhr*r,-Ieg-s44~4~) bc fore said %enera1 court-martial. 

as bysaid subpocns required. althau~hsufficient time has elanred for that purpose: and 

wherans he. has offered no valid ereuse for his fsilure t0appee.r: and whereas he is a 

necessary andmuterial ritness In behalf ol the defense in tk ahove-entitled cese: 

NGV. THEREFORE. by virtue of the -cr vested in me, the unders-i~ned, as trL.1 

eounmal OI *said eeneral court-martial. by~rtlcic 46 of the Uniform Code of Military 

Justice (50 U.S.C. 621). youare hereby conmnded andempowered to apprehend end attach 

the said CleudeM. Rickaby wherever hemy be foundstthin theUnited States. 

Its Terrlt'orien and posstrsions. and forthwith bring himbefore the reid general 

&Il'HANIlE EMAW) BROWN, Capt, Inf 

7rr.r sewn..r or ..id3 general counr.wanr~rr 

Dated at Fort Wilson, Obio 

17 July l9 61 

L1.a out InaPPropriate r-nd.. UII r mu.-m.~r court-nartia~, line sun aha words .trial ~ouna~~ 01' and enter 

umarr'. 3 51. .....,, ... .,...rtl.,, 11.. em th, ~rd. - "r,i.r cmunmcl or *.ids and .ole? .summary.. 
INDEX 

References are to paragraphs and pages and to appelldices and pages. Consult 

specific, rather than general, headings. For instance, for the rules of evidence 

concerning official records, look under "Official records" rather than "Evidence." 

Abandoned property. See Captured or abandoned property. 

Abandonment of command, unlt, place, ship, or military property: Par. 

Discussion, proof, Art. 09 ........................................................... 178b 

Specification, form for, Art. 90. ....................................... App. 6c (44)-- ........ 

Abandonment of place, property, or command, subordinate compelling: 

Discussion, prcol, Art. 100 .......................................................... 179a 

SpeciEcation, form for, Art. 100 ....................................... App. 6c (53.. ........ 

Abettor: 

See obo Joint offenses. 

Liable as a principal, Art. 77-. ...................................................... 1E5 

Abbreviations, not used in preparing specitimtfons ....................... App 6a (2).- ........ 

Absence: 

AccusedDoes not affect action of convcning authority on record ......................... 845 

Jur~sdiction of court-martlal as aliecled by voluntary and unauthorized absence 

from trial ..................................................................... lle 

Convening authoritySuccessors; reference to departmental reguhtions ................................ 5a 

Who may act during, Art. 60.. ................................................ 84b 

Defense personnel during trial, when permitted, Art. 3% ............................ 46c 

Law omcer, procedure.. ........................................................... 39d 

Members of general or spoclal courts ................................................ 41c, d 

Prosecution personnel during trid, when permitted ................................. 44e 

Absence without proper authority (absence without leave): 

See alao Desertion; Depositions. 

Approval only of, on convletion of desertion; statute 01 Ilmitations .................. 87e 

Computation of number of days.. .................................................. 127c 

Discussion, proof, Art. 86 ........................................................... 165 

Enlistlug, or attempting to enlist, before discharge, as constituting .................. 164a 

In time of war; statute of limitations inapplicable, Art. 4a. .............. App. 7&-- ........ Joint offense; when not properly chargeable as ...................................... 26d 

Limitation on punishment suspended in time of wsr ................................ 127c 

Mornlng report entries, service record, or personnel diary entries, as proof oL ....... 164a 

Not mntinuing offense; date of commisslm- ........................................ 88c 

Officer dropped from rolls lor, Sec. 10 ...................................... App. 2.b. ........ 

Periods of, excluded In computing three-year period concerning previous convictions- 75b (2) 

Plea of guilty to, not basis for conviction 01 desertion ................................ 164a 

Presumption of continuance. ....................................................... 184a 

Protrcted; not minor offense ....................................................... lZ3b 

EpeciBcatlons, forms for, Art. 86 .................................. App, 6c (14-17)-. ........ Time lost to be made good. See. 6 ....................................... A. 2b.. ........ Trial for desertion after trial for, whcn not legal ..................................... W 

Abusing animal; speciflcatlon, form for. kt. 134 -.........-...----.--.---- App. 6c (118).. ........ Accessory after the fact: 

Discussion, proof, Art. '18 .......--,.--.-,---.-..-----------.---------------

167 

Gpeeiflcstion, form for, Art. 78 ......................................... A. BE (11.. ........ Accident; fleeing from scene 01; ~p~lfhti~n, form for, Art. 134 ........... App. Be (142)-. ........ Aaident or mkadventnre, as exensable kffling .......................................... 1Wc 

Page 

332 

478 
INDEX 

Accomplice: 

See also Conspiracy; Jogt offenses; Joint trial. Par. Page 

Admission of acts and statements ss evidence agalnst co-accomplice ................. 14Ob 252 

As witnessCompetency .................................................................... 14& 278 

Rules respecting- 

. Privilege of, against compulsory self-incrimination ....................... 14& 278 

Promise of immunity from rrisl.---.-. ...................................... 14Re 278 

Conviction of one as evidence against another ....................................... 1406 253 

Conviction on uncorroborated teslimony of. ........................................ 157a 289 

Witness for prosecution; as grounds lor mitigation of sentenee ....................... 88b 147 

Account, books of. See Bwiness entries; Otticial records; Documentary ev~dence. 

Accouterments. See Military property. 

Amation, dehined ..................................................................... Wa 28 

A-d: 

Absence durine trial, where voluntary and unauthorized, effect on jurisdiction ...... llc 16 

Affidavit of, may not be filed as statement .......................................... 75c (2) 120 

Appellate rights, duty of defense counsel to advise of ................................ 48j (3) 70 

AS witnessAttacking credibility of. ........................................................ 138J (2) 244 

Comment on failure to testily, forbidden.. .................................... 7% I I 1 

For prosecution; prohibited without his consent ................................ 26d, 148e 30,278 

General rules governing .................................................... 148e,149b (1). 278,280 

1605 283 

Right to testify generally or for limited purpose, explanation of rights by court..- 75a,140a, 119,2~0 

14% (1) 280 

A. a .. 518 

Subject to recall at any time. ................................................... 1490 278 

Attendance before wurtf reseuce essential; responsibility for attcndanca and for secufity ................. 60 84 

Uniform, insignia, dewrations, ribbons, ctc ..................................... 60 84 

Character of. See Chsracter evldence. 

Charges, advising of, prior to forwarding; duty of omcer exercising summary cnurtmartial jurisdiction- .............................................................. 32/ (1). 38,40 

33c 

Charge shect, serviw of copy on; effect of delay, Art. 35 ............................. 44h, 5Rc 65,82 

Common trial. accused's rights respecting-. ........................................ 63c, 69d 73,106 

Con~pulsory sell-incrimination. See &If-lncri~ination. 

Copy of record, receipt for ........................................................ 80 (1) 136 

App.'la ..---..-.. 625 

Counsel. See counsel for accused; Defense counsel; Individual counsel; Appellate 

defense counsel; Cirilinu e0un~el. 

Defenses and ohjections to trial. See Motions. 

Description of, in spcci~cation whcn not member Of arned loree ....... kpp. 60 (4).- ........ 469 

Discip1in:uy punishment. See Disciplinary punishment. 

Disposition of copy of record prcpered for; vhen delivery cannot bemade ........... Qla, b 156,167 

Effect of refusal of non-judicial punishment upon jurisdiction of summary courtmartial ......................................................................... lea. 10.127 

79d (1) 

Enlisted; right to have enlisted persons sit on court, Art. 26e; exceptions; prewdure. 4c, 41d (21, 3,69 

6lb 85 

Escape during trial-- 

Counsel should wntinuo to represent-. ......................................... 48i 70 

Effect ............................... 1 ........................................... llc 16 

Excusing, after administration of oaths ................................... A. & ........ 505 

Explailatlon of accused's right to testify or remaln silent ............................ 70d (3) 128 

Explanation of rights under Art. 31 before interrogation of .......................... 30a 34 

Extenuation and mitigation, matter in; rlght to present ............................. 75c 120 

Guilt; burden of proof, presumption of inr~ocenoe.. ................................. 73b 112 

Insanity. See Insanity of accused. 

Interview wlth counsel aud othen .................................................. 459 69 

Introduction of, at wurt-martial .................................................... 61e 

Investigation of charges, rights respecting. See Investigation. 
Acmsed-Continued 

Joint Ma& 

See also Joint trial. Par. Page 

Acrmsed's rights respecting- ..--.....-..----.-.----------------------------68c,60d 73,106 

Jurisdiction over sceused of one armed form by another, Art. 17 --......---.-...-.. 13 17 

Mental mpacity and responsibility, fsebrs to be found before approval of .sentence.- 86b (I), 142,204 

124 

Mental responsibility, e6ect of reasonnble doubt -----.------- 74a (3), 115.202 

122a. b. 203,204 

124 

Not required to msge statement, Art. al .--..............----------------------- 133 233 

Oflcer; rank of members of court. ...----............----------.--------------- 4c 3 

Presumptions 

Innocanoe, M. 51c .......----.....----------------------.------------73b, 138a 112,241 

Sanity ..--...-...-.-----------------------------.----.--------122a, 138a 201,241 

Reasonable doubt to be resolved In favor of, Art. 61c ...-.........------------------- 7 112 

Receipt for copy of record of trial -.......-....-------------------------------------829 (1) 136 

A. a .. 525 

Record of trial by general court-martial, copy to .....-.-...-.-.--------------------- 82g (1) 135 

Record of trial by special court-martial, copy to .-..........--.--------------------.- 83a 137 

Refusal or failure to plead, effect, Art. 45 ..--.----.......--------------------.------70a 107 

Rehabilitation of, FLS affecting sentence ta be approved .--.-..-...-----------.---.... 8m 147 

Revision proceedings. See Ravklon. 

RightsAppeal to Court of Military Appeals explained, right to petition for ... .-...-...- 48j (3), 71,170 

IOOe, 103 174 

Appellate defense counsel to represent before board of review and Court of Military Appeals, Art. 70 ........--..---------------.-------.--.--------------. 43j (3), 1Mb 70,173 

Assistance of counsel in 5eld with mwt to appellate review. .-..-.-..--------. 1026 173 

Civilian counsel in oonnection with appeal, Art. 70d ..---..--------.--------.---- 10% 173 

Confession introduczd, explained .._...._--------.--. .....-..--.-....--.--.--..-- 53h 75 

App. 8a.- .-.-.... 513 

Demand for lurthcr investigation, effect of. .. . . . . .-.--. . .----. ----------.-.---.- 33e (1) 4Q 

Explained by court, enumerated .----...---------.-------------------------.-- 5% 75 

Interpreter, to be provided upon request when accused does not understand 

English .--..........--.---.---------------------------------------

531 75 

Limiting testimony to circumstanms OE obtaining confession or admission-----. 63h 75 

Objection to trial an unaworn charges ....-..-----------------------------------2Qe 34 

Summary court, enumerated ..-..-..-----------------.--------------------- 79d(1),(2) 121 

Trial by court-martlal. where disc~plbry punishment proposed under Art. 16.. 132 232 

Trial; duty of co1~11.931 to explain.. --------.- ---- llllllllllllllllll..lllllllllll. 48f . 69 

Unsworn statement after bdigs, form of explanation ...--------.-.-.---------- 63h 75 

App. 80.- .--...- 520 

Witness, rights as, explained -..----------------------------------------63h 75 

App. Sa-- ..-...-. 616 

Eeating of, at court-martM .....-------------------------------------------6 85 

A. & .. 500 

Sentence of, affwted by mentd lmpahmwt or deficiency ....-.--..--.-.-.---.-.-... 123 204 

Service of notim as to decision of board of review on .--.-.-.-..--....-----------. lOOc (1) (a) 170 

Sickness of, grounds for aontinuancs ..---------------------------------------.-.5% 82 

Silence, when questioned. not ordinarily hated as 8dmfsslon -.-..----.---------.-.. 1400 251 

Statement ta oourt, rights and mles res-lng ..... . . . .--------------------.----..- 76c (2) 120 

Temporary custody pending appellate mview, rulss as to.. ----------------.-------- 89c (8) 153 

Warrant oflcer, rank of members of cuurt .--..-...,.-.-----------------------------4c 2 

Witnesses; right to mossexamheInvestigation .....-..--..-.-.--.-----------.--------------------------

34b 46 

Trial ................................................................... 7Qd (3), 149b (1) 128,279 

Written request lor enlisted members, :mooncament of in court; procedure -....... 619 89 

Accuser: 

See also Challenge: Charms and spednmtlans. 

-davit ol: form.. ...-....--------.-. .- .................................. App. L- ....-.-. 467 

Alteratkin of charges over signature of; *e8ect.. .....-....--.----.-.-.....------------ 33d 40 

As summary conrt when no other oi3cer present with command, Art. 24 .-.......-.. . L 9 

Basic ccinslderations. --------- -- ............................. 80 34 

Charw. Sec Cherges and spwiBCBt1~. 

~eflned; Art. 1 (11)* ..----.--.....---------------------..------------.Ed 7 
Aarnsm-C7ontinued Wr. Page 

Depositions, pretrial, mtiflcation by accaser afnms?.Ity for, Art. 18' .---..-.....---- 3Or 34 

Eligibility to appoint summary court-martial ...................................... 6c D 

Forwarding charges and specifications by; generaf rules. ............................ 81 &5 

Ineligible as member of defense unless expressly requested.. ........................ go 10 

Ineligible as member or convening authority of general or special court-martial, 

Arts. 22, 23.. ............................................................ 4a, 5a (3)' 5b (2) 4 7.8 

Investigation of charges by, prohibited .............................................. 34a 94 

Responsible for preparing statamant of axpeelad evidence- .......................... 316 58 

Acquittal: 

See also Findings. 

Action by commanding ofacer concemlng reslmmt of accused upoh ................ 211% 26 

~ction on, limited to questions of Jurisdiction .-.. --- - -. ------------- -- -- ------------ %3 (2) 1.W 

All charges and specifications-- 

No action required unless proceedings void Gnr lack of Jurisdiction ............... 88c (1) 152 

Review of record limited to question ollurisdiction ............................. 88 141 

Announced, Art. 53 ................................................................. 749 118 

App. !3a-. ........ 519 

Approval not required ........................ - .-------------- ---------------------- 865 (2) 143 

Disapproval does not a5ect validity of .............................................. 86b (2) 143 

Finding of not guilty results if no othel Bnding reached ............................. 74d (3) 117 

Not equivalent to withdrawal of specification ....................................... 664 79 

Of greater offense, by flndlng guilty 01 lesser inclnded offense ........................ 74b (3) 116 

Reconsiderstion after announcement 01, forbidden, Art. 6%. ........................ 74d (3) 117 

Required, if there is reasonable doubt as to guilt, sanity ....................... 74a (31, 1206 114,200 

Second trial after, forbldden, Art. 44 ................................................ 68d 1Q2 

Self-incrimination, right against, cannot be asserted alter ........................... 1506 283 

When available as res Judlcata --------.---- -- -- --- --------------- -- ----------------- 716 110 

Actingadjutant, authority to administer oaths, Art. 136 ...................... App. 2a-. ........ 450 

Acting std judge advocate, authority to admiai3ter oaths, Art. 136 ........... App. 2a-.. ........ 460 

Act of 6 May 1950 ......................................................... App. 2.- ........ 411 

Action by wnvenlng authority. See Convening authority. 

Action on record of trial. See Convening authorky. 

Active duty; certain articles to be read on entrance, Art. 137 .................. App. 2a.- ........ 461 

Additional charges. Sec Charges and speci~ieationa 

Additional instructions, request for, rulings on .......................................... 74e 117 

A & -- 618 

Adjournment: 

Accused left without legally qualMed counsel. ...................................... 61f (4) 88 

As result of vote on challenge. ...................................................... 62h (4) 84 

Court-martial, at conclus~on of case ................................................. 776 1IW 

Defense counsel not legally qualiflod, exception.. ................................... 61j (3) 87 

Law ofacer excused or court reduced below quorum via challenge ................... 6.2 90 

Member of prosecution is legally disqualified or hos acted In case .................... 6le 86 

President's powers with respect to; limitations ...................................... 406 (1) 57 

Procedure on ............................................................. A &-- ........ 515 

Reconvening after; trld counsel accounb for personnel .............................. 61e 85 

Adjutant: 

Notary public, powers of, Art. 138.. ...................................... A. 20.. ........ 4M) 

Oaths, authority to admtnlster, Art. 136 ................................... App. 2a.- ........ 450 

Admissions: 

Accused's testimony re involuntary nature ol; scope of moss-examhation-.----- 140a, 14Qb (1) 250,280 

Admissible only when made by accused, ord~narily ................................. 140a 252 

By one accused, when not binding on others jointly tried, pmdure as to ndmitting.- 14% 253 

Coercion, unlswful influence, failure to irarn under Art. 314 as affecting voluntariness 

and admissibility, Art. 31 ......................................................... 140a 249 

Corroboration, necessity of, examples. .............................................. 140a 261 

Court ruling on adm~ssibility of, effect on volunlarhess of .......................... 1400 250 

Deflnitlon; ooniessions distinguished; exnmplcs ...................................... 140a 248 

Inadmiss~hil~ty of,does not preclude admlsslb~lity of evidence diswvered by ........ 140a 251 

Involved in plea of guilty, when eflwtlve ........................................... 7 107 

Not Bdmlssible In evidonca unleas voluntarllp nude, rules lor determining voluntary nature ............................................................................ 140a 248 

Bllenes not ordinnrllp mne6rued.es .................................................. 140a 261 
INDEX 

Admonition: 

As disciplinary punishment under Art. 15, to be in writing as $0 ofecer or warrant Par. Page 

o8lcer of Army or Air Form ....................................................... 13311 233 

Authorized as disciplinary punishment, under Art. 15 .............................. 131b 231 

Court wlll not Bx terms of .......................................................... 126J 209 

Included in nction of convening authority, when ................................... 89c (8) 154 

May be adiudged in any case .............................................. r ........ 123f,lIn 209,228 

Not necessarily disciplinary; may be corrective .................................... 12Sc 230 

Summary court-martial may adjudge ........................................... 16b 20 

Adultery; specification, form for, Art. 134 ............................... App. 6c (119).. ........ 488 

Advice of staff Judgo advocate or legal omcer; contents; dieposition ..-.-----.-.-.--.-.-- 35c 49 

Amdavit: 

See also Oaths. 

Generally inadmissible In evidence; exceptions ..................................... 14Gb 373 

Of accused, not filed as his unsworn statement ...................................... 75c (2) 120 

To charges .......................................................................... Be 33 

App. 5.. ........ 467 

A5matlon: 

Me alao Oaths. 

Form ............................................................................... 11% . 184 

Included in term "oath," when authorfzed ......................................... 210 376 

Of sentenBy board of review, generally ............................................... L-- lOOa 169 

When required, Arts. 86, 67.71 .................................................. 88 168 

Age, testimony as to, adniisoibility- ................................................... 13Sd 242 

Aggravated arson: 

Discussion, proof, Art. 1% ..----.--..-.-.-------------------------------

205u 367 

Bpocitlcation, form for, Art. 126 ...................................... App. 6c (96).. ........ 485 

Aggravation: 

Evldence In, after Endings announcod -------.-------------------------------- 7Sb (3) 120 

Matter in, procedure ..................................................... A. 8a-. ........ 520 

Aggressor; may not assort self-dofcnse..----..-FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF 197c 352 

Agreement, in conspiracy. See Conspiracy. 

Aider, Abettor: 

See alao Joint offenses. 

Liable as a principal, Art. 77 ........................................................ 166 302 

Aiding the enemy: 

See also Enemy. 

Concurrent jurisdiction of eourt-martial and military tribunal, Art. 104 ............. 12 16 

Statute of limitations; no Ilmitation, Art. 4% .............................. App. 2a-. ........ 427 

Air Force; unit of, defined .............................................................. 4a 3 

Alcohol; time lost through Intemperate use of, to be made good, Sec. 6 ........ App. 2b.. ........ 453 

Alias: 

Identity in fraudulent enlistment case, how proved ................................. 162. 309 

Use of, in drawing specillcation ........................................ A 5 ....... 470 

Allowances: 

Forteited only when sentence includes total forfeitures .............................. lZgh (2) 210 

Forfeiture of, adludged only when dlsmisaal, dishonorable, or bad conduct discharge 

adjudged .......................................................................... 126h (2) 210 

Allowing prisoner to obtain liquor. See Intoxicating liquor. 

Alteration of document, effect on admissibility of document ............................. 1436 (1) 261 

Alternative; use of In pleading, improper ................................................ 286 31 

Amending charges, orders, etc. See the speciflc subject title. 

Amendfog specfaeatlon durlng trial ..................................................... 69b 105 

A. - -- 508 

Ammunltlon, casting awn% 

Proof, Art. 9B ....................................................................... 178d 332 

Specification, form for, Art, 69 .................. ..---................ App. 6c (46).. ........ 478 

Amnesty. See Pardon. 

Announcing Endings, sentence, etc. See the specific subject title. 

Appellate brief, action of defense counsel ................................................ 4Sj (2) 70 

Appeltdte counsel, appointment and quaiiflcatlons of, Art. 70 ........................... .10& 172 

Appellate defcnse counsel: 

Accused's right to ............................................ ............. 48j (3), 10% 70,173 

Appohtment, qualKlcaEionsi M.. 78a, ................. ,. ..... ,-,-.-i_._._._._.._. .. 102a 172 

Direct communication ~4tb~eOlbSeda~hed;.pEl&ged.~-.-~..~.~-..-.~ ....... 102h 173 
INDEX 

Appellate defense counsel-Continued Par . Duties. Art . 70c ..................................................................... 10% 

Notified ofDecision of board of roview, when: .............................................. lOOr (2) 

Reference by the Judse Advocate General to the Court of hlilitnry Appeals lOOb (2), 103 

Referen& of general court-marlial record to board of revlaw pursuant to Art . 69, 

when ......................................................................... 109 

AppeLlate review: 

See aka Board of review; Court of Military Appeals; Judge Advocatc General; Convening authority . Appe!late counsel, appointment and duties 01, Art . 70 ............................... 102 

Branch offices of The Judge Advocrate General, powers of, Art . 68 ................... 104 

Completed prior to termination of suspension of pilnitive disharge ............... 88e (2) (b) 

Court of Military Appeals, Art . 67 .................... ............,................ 101 

Final action on, as necessary to constitute a trlal, Art . 44.. ......................... 68d 

Finality of court-martial judgments, Art . 76.. ...................................... 8, 108 

. In general, Arts . 66, 67, 69 ........................................................... 98 

Mitigation, remission, suspension of sentence upon, Art . 71 ......................... 10% 

Of trial of memh6rs of another armed force, Art . 17b ................................ 13 

Procedure, generally, Arts . 66, 67 ................................................... lob, 101 

Records of trial, examination of under Art . 88 when examination not otherwise provided for by Art . 66 ............................................................... 103 

Right of accused tb assistance of counsel with respect to .............................. 48j. 1025 

Right to be represented by civilian counsel on . Art . 70d ............................. 102c 

Special court-martial records, where bad conduct discharge adjudged, Arts . 65b, 66, 

67 . 68 ....................................................................... 155, 940 (3), 100 

vacating of suspended sentence. Art . 72 ............................................. 97h 

Weighing evidence on . Art . 66e ...................................................... 100a 

hppointing authority . See Convening authority . Appointing orders: 

Amendments to he kept to minimum ............................................ 37c (1) 

Announcement 01, at trial .......................................................... 61c 

App . 8a . 1Do .......... 

Copied into record ....................................................... .Ap p. m. ......... 

Form and content .................................................................. 3% 

App . 4 .......... 

Oral orders, confirmed in writing, exceptions ....................................... 37c 

Power to appoint general and special coiub-martial shown ........................ 5a (2) . 51, (2) 

Prima facie evidence of active duty status .......................................... 36a 

Selection of personnel ............................................................... 36c 

Appointment . in armed service: 

Attempt to accept, as constituting absenec without authority or dmrtion ............ 164a 

Fraudulent, procuriugDiscu.ssion, proof, Art . 83 ...................................................... 162 

Specification, form for, Art . 87 .................................... 4pp . tic (5: .......... 

Unlawful, effectingDiscussion, proof, Art . 84 ....................................................... 163 

Specification, form for, Art . R4 ..................................... App . fic (8) ......... 

Apportionment of sentence, by summary wurt.martial ................................ 166, 127c 

Apprehension: 

After discharge, for prior offense, Art . 3 ............................................. llh 

Deserter again in service . what deemed ............................................ 164a 

DesertersSee also Desertion . By civil authorities, Art . S, Seo . 16 (App . Zb) .................................... 23a 

By civilians not civil officials ................................................... 23b 

Paramount right to custody in United States ................................... 230 

Unauthorized, not grounds for release ........................................... 23b 

Distinction in authority to apprehend, arrest, or confine, Art . 9e .................... 1l)d 

Jurisdiction having attached by, continues for purpose of trial, sentonce and punishment .............................................................................. lld 

Limitations on power of enlisted person to efXect; procedure; report ................. 1Da 

Offenders, by clvil suthorlties . See Civil authoritles . Personnel performing police.duttes, power to effect ................................. 19a 

Power.td sffect Includen ~WBI td.98(11l~~ OU8tody .............................. 19d 
INDEX 

Apprehension-Continued Par . Procedural steps to effect ........................................................... 19c 

Quarrels, frays, disorders; persons authorized to quell by effecting, Art . 7c. ......... 1% 

Resisting- . . 

Discussion, proof, Art . 95 ....................................................... 174a 

Specification, form for, Art . 95 ................................... App . 6c (36) .......... 

Scope of paragraphs in manual ...................................................... 17 

UnlawfulDiscussion, proof, Art . 97 ....................................................... 176 

Specification, form for, Art . 97 ................................... App . 6c (40).. ........ 

Who may effect, Art . 76 ............................................................ 19a, b 

Appropriating property . See Property; Lgrceny; Wrongful appropriation; Captured or 

abandoned property: Military property . Approval of sentence . See Sentence; Convening authority . Argument to the court: 

Accused's unsworn statement not to contain ........................................ 75c (2) 

Interlocutory questions, rules concerning argument on .............................. 639 

Matter 8s to which comment prohibited, may not be considered .................... 74a (1) 

Motions ............................................................................ 67e 

Opening and closing arguments ..................................................... 72 

Proposed instructions, court excluded during argument on .......................... 73c (2) 

Armed forces: 

Conduct tending to bring discredit onDiscussion, proof, Art . 134 ...................................................... 213 

SpeciFications, loms for, Art . 134 ............................. App. 6c (118-176) ........ 

Irrieildly foreign nation; jurisdiction over offenses by members of visiting ........... 12 

Reciprocal jurisdictiou, by one armed force over personnel of another, Art . 17a.-.-- 13 

Arm$: 

Casting awoyProof, Art . 99 ................................................................... 178d 

Specification, form for, Art. 99 .................................... App . 6c (46) .......... Army, unit of, defined .................................................................. 4a 

Arraignment: 

Absence of memberAfter; effect ................................................................... 41d(4) 

Before; effect ............................................................... 41d(3) 

Advice as to staiute of limitations at time of ........................................ 68c 

Charges and speoil3catioos, reading of may be waived by accused. .................. 65a 

Defined, procedure; additional charges ............................................. 65 

App . 6a.. ........ 

Delay in service of ehargaq as grounds for wntinnanm with respect to [urthar- ..... 65a 

Sunimary court, procedore ....................................................... 65a, 79d (2) 

Arrest: 

See also Apprehension; Confinement; Restraint. 

Breach ofDiscussion, proof . Art . 95 ....................................................... 174b 

Specification, form for, Art . 95 .................................... App . 6c (37)L- ........ 

civilian, who may effect in *r:e of .................................................. 21a (1) 

Definition; discussian .............................................................. 18u, ma 

Delay in preferring charges does not terminate ...................................... 22 

Deserters by civil authorities, Sec . 16 ..................................... App . 2. ......... 

Distinxuished from confin2ment, Art . Qa ........................................... 18.174b 

Enlisted person; how effected in ease of ............................................. 21a (2) 

Jurisdiction of court not affected by failure to etiect ................................. 18b (1) 

Killing to efiect. .................................................................... I97b 

Members of friendly foreign forces, regulntions for, Art . 7 (note) .......... App . 2a .......... 

Minimum restraint; to be exercised .................................................. 18(, 

Officer, who may effect in case of ..................................................... 21a (1) 

Person inIneligible as member of co\u.t.martial ... ....... ................................. 4a 

May prefer charges ............................................................. 296 

Must be tried promptly, Art . 10 ................................................. 25 

Persons rho may be placed in; general rules, Art . 10 ................................ 1% 

Placing accused on full duty termimteq ............................................ 20a 

Prior to trial; notific&ion and aqtion required. ...................................... 20d (4) 

Probable cause; gexsowl byledge of or Inatairy into ofPem, prerequisite to ....... ZOd (1) 
INDEX 

Arrest-Continued Par. 

Procedure to effect .................................................................. 20d (2) 

Proper authority to order release .................................................... 22 

Release or further restraint as result of trial ......................................... 21d 

Reportsrequired; Art. Ilb ................ 1 .......................................... 20d (5) 

Restriction In lieu 01, distinguished. --.-----.---.-..-------------------20b 

Status of person in, limits; Art. 9a. ................................................. 20a 

UnlawfulDiscussion, proof, Art. 97 ....................................................... 176 

Specification, form for, Art. 97. .................................. App. 6e (401.- ........ Warrant offi~r, who may effect in me of ........................................... 2la (1) 

Who may effect ..................................................................... 21a 

Arson: 

Aggravat~dDiscussion, prool, Art. 126 ...................................................... 203a 

Gpeciflcation, form for, Art. 126 ................................... App. & (96)-- ........ Simple-- 

Discussion, proof, Art. 126 ...................................................... 2055 

~~ecifi&tion, form lor, Art. 128 .................................... App. 6c (97).- ........ Articles of the code, certain articles to be read, Art. 137 ....................... App. Za.. ........ Assault: 

See also the specific kind of sssault indexed immediately below this title. 

Discussion, proof, Art. 128a ......................................................... 2078 

BpeciEcation, form for, Art. 128a ...................................... A. 6c (99).- ........ Wile may testify against husband accused of, upon her ............................. 14% 

Assault, aggravated: 

Grievous bodily harm intentionally inflictedDiscussion, proof, Art. 1286 ..---.-.-.------------------------.----

Z07b (2) 

Evidence of former assnult or prool of intent, when not admissible, example.-..- 138g 

SpeciEcation, form lor, Art. 12% ................................. App. 6c (1021.- ........ With a dangerous weapon or other means or force likely to produce death or grievous 

bodily harmDiscussion, proof, Art. 12% ..................................................... 20ib (1) 

Specification, form for, Art. 128b ................................. App. 6c (101).- ........ Assault and battcry. See Assault, consummated by a battery. 

Assault, consummsted by a bnttcry: 

Assault included In battery ......................................................... 207a 

Discussion, prool, Art. 128 .......................................................... 207a 

Specification, form lor, Art. 123 ..................................... App. 6c (loo).- ........ Upon female under 10 years of age; specilicntion, lorm for, Art. 134.- App. 6c (125).. ---.-.-- Assault, indecent: 

Discussion, proof, Art. 134 .......................................................... 213d (2) 

Lesser included offense oIassault with intent to commit rape ....................... 213d (2) 

Speciflcation, Iorm for, Art. 134 ..................................... App, 6c (120)-. ........ Assault on: 

Commissioned officer, not in execution of his oace; speciflcation, 

form lor, Art. 134.. ............................................... App. Rc (121).- ........ Person in execution of police duties; specification, form for, Art. la. App. Ck (123)- ........ Warrant, noncommissioned, or petty officer not in execution of his 

office; specification, form for, Art. 134 ............................. App. 6c (122)-. ........ Assault with intent to commit murder, voluntary manslaughter, rape, robbery, sodomy, 

arson, burglary, or housebreaking: 

Discussion, proof, Art. 134 .......................................................... 213d (1) 

Specification, form for, Art. 134. .................................... App. 6c (124)-. ........ Amulting superior officer: 

Discussion, proof, Art. 00 ........................................................... 1680 

Limitation on punishment suspended in time of asr ................................ 127c 

Specification, form for, Art. 90.. .................................. App, 6c (21-23.. ........ Assaulting wamt olficol., noncommissioned offlcer, or pebty officer: 

Discussion, proof, Art. 91 ........................................................... 17Ob 

Spcciflcation, form for. Art. 81 ....................................... App. 6c (25)- ........ Assistant adjutant; administratlou of oaths, etc., Art. 1360 ................... App. 2a.- ........ Assistant defensc counsel: 

6ee abo Defense Counsel. 

Absence of regularly appointed, with eonsent of eccosed, permittad ..,,.,.....-.-- 460 

Agpointmmt to such generdor spcylnl.eonrt, Art. ........ ....aIaIaIaIaI.aIaI~ &a 

Page 

24 

26 

26 

26 

23 

28 
Asistant defense counsel-Continued Par . Included in term "defense counsel" ................................................. 4- 

Perlorms such duties as counsel in charge of defense may designate .................. 47 

Powers and dutles h general, Art . 3% ............................................... 47 

Qualiflcatlons .................................................................... ... . 6d 

Assistant Judge Atlvocates General; branch offices, in charge 01; powers and duties, Art . 6S . 104 

Asslstant Secretary: power to remlt. suspend. unexecuted portion of caurt-martial 8entonecs when deslgnated by Socretary, Art . 76 ........................................ 870 

Asslstant trial counsel: 

See also Trial counsel . Authority to administer oaths ...................................................... 113 

Excuse fmm altendance, court may ................................................. 44c 

aeneral courts-martialLimitations on perlormance of duty when not legally qualiied ................. 6d, 45a 

Power to act when legally qualiicd: exceptions, Art . 38d ....................... 6c, d, 45a 

Presumed to act under direction of trial counsel ................................. M, 45a 

Included in term "trial counsel" .................................................... 42a 

Not available lo act ss individunl counsel for accused ............................... &I, 484 

Oaths; nuthority to administer . Art . 136~ ........................................... 113 

Powers and duties in general, Art . 38d .............................................. 45 

Quallfleatlons... .................................................................... ed 

Special courts-mbrtiak may perform duties of trial counsel .......................... 6d, 456 

Assoc~ate counsel . See Defense counsel . Attachment: 

See Wltnesscs . Warrant of; issuance, service, force used ............................................. 115d (3) 

Attempt: 

See also the speclflc offense attempted . Dkcusslon, proof, Art . 80 ........................................................... 159 

kr included offense .............................................................. 159 

A . 12 ... 637 

GpeclEeatlon. form for. Art . 80 ......................................... App . 6c (2). ......... 472 

Attorney . communleations between client and; privileged ........................... 102b 151b (2) 173, 285 

Authen tiation: 

Slc aho Documentary evidence . Bmslness entries ................................... ... ............................... 144c 266 

Depos~tion, Art . 4Dc ................................................................. ll7a, 1450 193, 269 

Olliclal records ...... : ............................................................... 143b (2) 261 

Record of triaE, duty of law o5cer and president .................................... 39f , 40e 67, 58 

Writings In general ................................................................. 14% (1) 260 

Authority 01 naval omcers after loss of vessel or aircraft, Sec . 7 (a) ............. App . Zb. ........ 454 

AuthorLty ofofficecsof separate organization of marines, See . 7 (h} ............. App . Zb .......... 454 

Autborlzed punishment under Art . 15 ................................................... l3lb 231 

Autopsy report, admissibility 01, in evldence .................... ... .................... 144d 267 

Avlstiw cadet;not triable by summary court, Art . 20 ................................... 1Ba 19 

Avoiding work or duty . See Malingering . Dad conduct dlscharge: 

,998 duo Discbarge . Action of oflcer exercising gened court-martlal jurisdictfon ...................... 84d, Ha (3) 140, 163 

Adrninlstrative discharge substituted lor, Art . 75; Sec . 12 (App Zb) .................. 109j, llOa 179. 180 

Anlhorlzed in an9 cam where dishonorable discharge authorize. . 760 (7), 127c 123, 217 

Convktion of tivo or more offenses authorizing conlhement lor six months or more as 

authoriztng . Sec . B ............................................................... 127e 228 

Court-martiat jurkdiction of prisoner after, lor offense while in service ............... 11 14 

Court-martial order promulgating approval; by whom hued ....................... 90b (1) 155 

Execution of, appellate review required, Arts . 66, 71c ................................ 98 1E8 

Forms lor sentence to ................................................ A . 13(10).. ........ 641 

Oeeeral court-rnarlhl may adjudge . Art . 18 ......................................... 12% 207 

Offlex or warrant officer may not be sentenced to ................................... 126d 208 

Review or record by staff judge advocate or legal officer before approval of, Art . 65b .. 94a (3) 163 

Bentence lcProper in ew. oE prisoner under suspended sentence to pmltlve discharge ....... 1% 208 

Reduoes enlisled person to lowest enlisted grade ................................ 126c 208 

Bpdal arurts.martlal, adjudged byActlon By ommr exercising general court-martial jwlsiliction ................ 84d, Ma (3) 140, 163 

AppeUats =dew, requtred, Arts . W, 88 ........................................ 98, 1OOa 188, 169 

533 

.. 
INDEX 

Bad canduot discharg~Continued 

Bpecial courts-martial-Continued Par. Page 

Authority to adjudge, Art. 19 .................................................... 1% (1) 2W 

Complete and verbatim record required wbep adjudged by, Art. 19 .---..-..--..- I%, 83a 19,137 

Total forfeitures with bad conduct dwharge not authorized ..................... 12Be (1) 207 

Summary court-martial arnnot adjudge. Art. 20 ..................................... 164 U) 

Suspension of, when sentence also involves mnflnement .......................... 88e (2) (6) 150 

Two or more previous convictions ss author~zing. Sec. B ........................... 127c 228 

When appropriate as punfshment ................................................. 78a (7) 123 

Bar, members of State and Federal. See Trial counsel; Defense counsel; Law officer. 

Basic quarters allowance; contribution to, deducted when conlputing forfeitures unless 

punitive discharge adjudged- ......................................................... 1% (8 210 

Battalion: 

DetachedAuthority of commanding officer to appoint special court-martial, Art. =------- 6b 8 

Dehed ......................................................................... Sb (3) 8 

Bettery: 

See also Assault. 

Assault and. See Assault, consummated by a battery. 

Assault. included in.. .............................................................. 2Ma 371 

Discussion, examples ............................................................... 207a 371 

Behaving in contemptuous or dismpectlul manner to wsrrant, noncommissioned, or 

petty officer: 

Discussion, proof, Art. 91 ........................................................... liOd 323 

Specification, form for, Art. 91- ........................ L..............App . 6 () ..... 475 

Belligerence local civil authority superseded as incident of jurisdiction of militnry 

tribunals ........................................................................... 14a 18 

Belligerent, occupying enemy territorg; esercise of military jurisdiction by; agencies 

enumerated.-. --. -.-- - - - ---.--. - - -- - - - .. - - -. - - -. -- - - - - -. -. - - - - - 2 1 

Best evidence: 

See also Documentary evidence. 

Copies, when admissible as. ........................................................ 143a (1) 257 

Failure to object to secondary evidence, constitutes waiver.. ....................... 143a (I) 2% 

Exceptions to rule for producing original writing ng proof bf contentsCertificate of chief custodan of personnel records and officials as to Bngerprlnt 

comparison. ................................................................. 143a (2) 259 

Certificate of cnstodian of official records ss to "no such record on entry" ......... 143a (2) 259 

Classi5ed military and Government documents, records, etc .................... 143a (2) 259 

Lost, destroyed or unavailnble documents ...................................... 143a (2) 258 

Numerous or intricate writings. ................................................ 143a (2) 258 

Official records .................................................................. 1430 (2) 258 

Writing in possession of accusod. ............................................... 143a (2) 258 

Proper method of proving cantents of wrltlng when best evldence rule appli c!i.-....... 143a (1) 257 

Bias, hostility, etc.: 

Challenge, ground ffir ................. .... .......................................... 621 92 

Defense wwel may be excused because of. ........................................ 465 66 

Of witness does not disqualify but may be ground for impeachment --.--.-.---------- 14&, 277,296 

15% (0, 284 

15% (2)(d) 

Trial counsel disqualified by, proeedunr ............................................. hlb 61 

Blgamy: 

BpeciBcation, form for, Art. 134 ...................................... A. Bc (I26).- ........ 488 

Wife may testify against husband aocused of ........................................ 148e 277 

Birth certmcates: 

See also Ofeclal rowrds. 

Presumption of competency as evidencs ............................................. 144b 255 

Blood test, requlrlng person to undergo ................................................. 160b 284 

Board of investigation; findings may be bask lor dlsclpl~ punlahment under Art. 16, 

in Navy or Coast Guard .............................................................. lab 234 

Board of medical officers, report of, in Insanity matters .---.-.-.-.. -- ------------------ -- lZ2c 204 

Board of review: 

Action byIn eases ?nvolvlng a general or flag ofecer, or a death sentenca, Art. BB. ......... lOOc (2) 171 

In dw involving dismissal, dishonorable or bad conduct discharge, or Con8nement lor one year or more, Art. 66 .......................................... 1000 (1) 170 

Limited to Bndings and sentences aa approved by proper authority, Art. Me.... 1OOa 160 
INDEX 

Board of revlew-Continued 

Action by-Contlnued .. . Par. 

On petition for new trial, when, Art. 73 ..-.-....----.-----------.-------.---... lWc, f 

When appellate review not provided for, Art. 69 ..-..-.-.....-...--------------- 103 

When approval by President required. ....-...-.-.-.--..-...-..---------------- 1M)e (2) 

When sentelice is set aside ....--. ........--------------------------------------- 1M)b 

Additional boards, provisions for, Arts. G6, 68 .--.....----.-.---.-------------------- 104 

Affirmation by, discretion. Art. R6c .....--.....-.-.--------------------------------- lOOa 

Appelkate defense couusel beforeRepresents accusod, when, Art. 7oc .............-..-----.- -.------------------ 10% 

Waiver of right to, Art. 70 .---..-.--...-..--.--.---.------------------------- 48j (3), 10% 

.4ppellate Government counsel represent Government before, when, Art. ?Oh. .--.- 10% 

Branch offices, establishment, powers and duties, Art. 68 .-......----.-.------------ 104 

Cases refemd to, Art. 66b ...---...-.....------------------------------------lOOa 

Credibility of witnesses judged by, Art. 6Be ...-.---.-.--...------------------------lOOa 

Dismissal of charges by, Art. 6% .----...---.....------------------------- App. %I- .-.-..-- Further proceedings in accordance with decision of Court of Military Appea ls.....- 101 

How constituted, composition, Art. 66 .----...-......-------------------- App. 2a-- ..----.- Ordering rehearing, when, Art. G6d .....------.-..-----------------------------

92,1001, 

Petition of accused for want of review from decision of ..-.--..........-.---.- lOOc (1) (a), 101 

l'owers and dctics of, Art. 66. .-.--..-----.-..--.----------------------------100 

Rules of procedure to be unilorm, Art. 66j -.-...----.-...---------------------------lOOd 

Weighins evidence, power of, Art. 66c. .. . ..----..-.-.-...-----------------------.-- 1M)a 

Board to inquire into sanity of accused .------...-----------------------------------121 

Boarti to investigate injuries to property, Art. 139 ...-..--..--....--------------- App. 2a -..----- Bodily harm: 

Assault intentionally inflicting grievous ....---.-.--------------------------------a07b (2) 

Assault with weapon or other means or force likely to produce grievous.-- ------------ 207b (1) 

Branding prohibited as punishment, Art. 55-. -. ---. - -- .------ -....--- ---- - - - - - 125 

Great, defined .-...----...-----------.---------------------------------107e 

Grievous, defined ........--...--.--.------------------..-.-.--------------..-----207b (2) 

Intent to inflict great, aq element of murder, Art. 118 ....-...........----.....--.-.-- 197e 

Wife may testify against husband accused of inacting bodily ham upon her .--..... 14& 

Books. See Documentary evidence. 

Breach of arrest. See Arrest. 

Breach of quwantine, medieal; speciflcntion, form for, Art. 134 -.....-.-.. .App. 6c (163) .. . ..----- 

Breach of nstriction: 

Discussion, proof, Art. 134 .......................................................... 20b 

Specification, fo~m for, Art. 134 ....-.-......-...----------------...-- App. 6c (166)-- -------- Hreach of the pexe: 

Discussion, proof, .Art. 116- -; ---..-.-.--.------ ----------.-----. - --. ------- ----- ---- 19% 

Riot includes. .-....-.---------.-.----.--...... 195a 

Specification, form for, Art. 116 ..---...---...-.-..------------------- App 6c (83).. ----..-. 

Bread and water: 

As authorized punishment, under Art. 15, for person attached to or embarked in 

vessel --.----...-....~.~.--.-----~--...~.... 131b 

Conlkement on; discussion ..-..--..-----.-.--------------------------------125 

Breaking and entering. See Burglary; Housebreaking. 

Breaking parole. See Parole. 

Bribery and graft; specifications, forms for, Art. 134 -....---..-_-_-.-- App. €% (In, I%).- ----..-. Burden of prooi: 

Insanity of accused ................................................................. 122a 

Maintaining challenge, burden on challenger .... .-.--.-- - - - - - - - - ------- ---.------.-- 62h (2) 

On prosecutionNever shifts.. . . ... .-.---------. -- -. .......................................... 441 (3) 

To establish guilt ....-----.--..-----....----------------------------730 

Raising defense or objection by motion, burden rests on accused, exceptions ...-.---- 67e 

Statute of limitations; accused need not prove excepted periods ...-----.-.----------- 6& 

Burglary: 

lldmissibility of evidence showing commission of another burglary, example.-..---- 138g 

, I)iscussion, proof, Art. 129 .-.--..--..-...------------------- : ....................... 208 

Housebreaking distinguished ..--..-------------------------------------------Mg 

Bpedestion, form for, Art. 129 -.--.-..-......----------------- i ----- A. 6c (1031.. ....---- ~king buildings; vessels, stores, etc. See Arson 

B.winexr entries: 

. AdmlssihiUty, general rule ..-.--.-.--.-.-----------------------------144c 

575 
INDEX 

Business entrie+kmtinued Par . Authentication ...................................................................... 144c 

Copies 01, admlasibilit~y ............................................................. 144c 

Limitations on admissibility oi .................................................... 144d 

Opinion entries in, admissibility of ................. ........................... 144d 

Use when insanity an Issue ......................................................... IT& 

Cadet; definition, Art . 1 ....................................................... A . 2a.. ........ Capital offenses: 

Convening authority, directions mcernlng, as affecting death penalty, Arts . 19 and 

............................................................................. 

49 150 (3) , 1280,45a 

De5ed; when mpitnl under speciflc article ......................................... 15a 

DepositionsCross-interrogatories in ......................................................... 117b 

Use of, in trials for, Art . 49 ...................................................... 145a 

Enumerated; in time of war; at dl times ............................................ 15a (2) 

Former testimony . when admissible in trial for ...................................... 145b 

Maximum punishment Axed by President rls affcctine cl:~ssificatiou of ............... 15a (3) 

Plea of guilty not to be received a= to offense punish$ble by death . Art . 45b.--.---.- 70a 

Records of proceedings of courts of inquiry: when admissible In trials for, Art . 50 .... 145b 

Special courts.martia1, jurisdiction of mjth respect to, Art . 19 ........................ 15a 

Stipulation in we of, closely scrutinized ......................................... I546 (11, (2) 

Trial 01, by summarg courtmartial, probibiled, Art . 20 ............................. 16a 

Captured or abandoned property: 

Dealing in, etc.- 

Discussion, prool, Art . 103 ...................................................... 182c 

Specification, form lor, Art . 103 .................................... A . 6c (58) ......... Destruction, abandonment, etc., ol; prohibited ............ : ......................... 182c 

Faillng to report and turn over, etc.- 

Discussion, proof, Art . 103 ...................................................... 187.4 

Bpeciflcation . form for, Art . 103 ................................... Ap . 8c (57)- ........ Failing to secure.. 

Discussion, proof, Art . 103 ...................................................... 182a 

Specification, form for, Art . 103 ................................... App . 6c (56) .......... Public property; belongs to United States, Art . 103 ................................. 18% 

Carnal knowledge: 

As violation of Art . 134 ............................................................. 199b 

Character of victim on question of credibililg .................................... 153b (2) (b) 

Discussion, proof, Art . 120 .......................................................... lQ9b 

Specification, form lor, Art . 120 ....................................... A . 6c (RS) .......... Carrying concealed woapon; specification, form lor, Art . 134 .............. App . Be (175)- ........ Casting away arms or ammunition: 

Proof, Art . 99 ....................................................................... 178d 

Bpeciflcation, form for, Art . 99 ........................................ APD . 6c (46) .......... Causing false alarms: 

Discussion, proof, Art . 99 ........................................................... ' 1780 

Specification, form lor . Art . 99 ........................................ App . 6c (49) .......... Ccrtiflcate in lieu of receipt by accused for recard .............................. 4pp . BE .......... Certificate of correction, as to omission or erroneous stntements in record .............. 8OC 

App . 9d.. ........ Certificate of discharge, necessity of, IOP separation ~[enlisted persons from service, Sec . 6 

App . 7.4 .......... Challenge: 

Action upon disclosure 01 certaln grounds lor, against law ofaoor or member ......... 6% 

Burden of maintaining, on challenger ............................................... 62h (2) 

By accused; procedure ......................................... .................... 62h 

By trial counsel decided before that by accused Art . . 41 ............................. 62a 

Common trial; each accused entitled to one peremptory ............................. 6% 62s 

Court 01 Inquiry; for cause only, Art . 135d ................................. App . 2a.. ........ Court reduced below quorum; procedure .................................. 4 (I), 62c . 62h (4) 

Court to be liberal In passing upon .................................................. 6% (2) 

Declslon announced by president; procedure ........................................ 62h (3) 

DIsclosare of grounds for; duty of law ofFlcer, rnirnber, trlal connsel; prmdu re.. .... Disqualification of counsel for prosecution; excusing; procedure ...................... 618 

Effect of erroneous failure to suslafn ................................................. 02h (2) 

Enlisted members; number reduced below one-third by; procedure .................. 6% (4) 
Ohallenge--Continncd F'ar. 

Examination of challenged person under oath -...-......-...------------..--------. 62h (2) 

Excusing law officar or member without closing court, wh permitted -...---.--.. 6%. 6% (2) 

For causeGrounds enumerated-. ...-..----.----.----------------..----.-...--.

. 821 

"Investigating offleer" deflned ........................................... 64 

Proeadure, Art. 41 ........................................................ 62u, h 

Reconsideration of advorse determination.. ..---- - - -- -....-... 62d 

Influence by superior affecting deliberation upon, prohibited .........--..----------- 62h (3) 

Inquiry Into grounds oI; procedure .--..--... ...-...-.-......-..-----.......-...- 6% (2) 

Inquiry permitted without challe~iging for muse .--.......-..----------------------- 6% 

Interlocutory questions &rising durlng, ruling upon. -....-...--..------------------ 62h (2) 

Joint trial; each accused entitled to one peremptory .....---.-------------------.--- 53c, 62e 

Law officer not subject to, except for enusa, Art. 41 ....-.--..----...----------------- 62a, g 

Limitations on inquiry of eligibility of law officer ..-...----...---------------------- 62p 

Member as accuser, witness for prasecution, investigating omcer, counsel, Art. 

25d (2) ....-..--.---------------------------------------------

62f 

Member may sugzest before trial that he should not sit .-....---.......------------- 41c 

Member or law oIficer becoming witness, for prosecution; procedure ..........------- 63 

New member or new law oflcer ...----.-.-..---------------------------.----6Z5, d 

Oath to challenged member ... .-----...........-.-------------------------.---

114 

App. &-- -------- PeremptoryAgainst whom utilized; when made -.--....-----...--....-.--------------------- 628 

Each accused entitled to one in joint &nd common trials. .-.-----.-....-....---- Bc, 62c 

May not he used again t law officer .........-------------------------------

62e 

No renson nced be stated- 6% 

Procedure .......... -. --------- -------------- ---.------------.--------- App. &-- -------- Trial counsel entitled to one ..-----..-......------------------------------

. 62a 

Ruling upon interlocutory questions does not include ..-......----------.----------- 67a, b 

Should be made before arraignment; exception .-----..-.-------------------------

62d 

Summary co~vt officer not sublect to -............--------------------------------

6c, 6% 

Voting uponProcedure, Art. 51 .-.....-.----------------------------.---------

62h (3) 

Minimum number of members required to pass on -.---..-..------.-----.*------ 41d (1) 

Who subject to; who may challenge, Art. 41.. ...-----.--....--..------------------

62a 

Withdrawal of, by challenger. ----------.--......----------------------------

63h (1) 

Challenge to duel. See Duel. 

Chaplains, communicstions between penitent and; prlvlleged .------..------------------ 151b (2) 

Character evidence: 

See also Witnesaes-Credibility. 

Character of persans other than the accused, in general ..-..------.------------------ 1381 (3) 

Character of the accused .-.....-------------------------------------------138/(2) 

Data concerning previous service, convictions, etc.: introduoed after conviction.---- 7% 

Evidence of acts or offenses not charged to show intent, motive, etc., distinguished 

from ...~-.~~.---...---.~~~~-~~~--~-~~~~

1380 

Former discharge; character given as matter in mitigation .-.----------....-.....-.- 75~ (4) 

Limiting number or character witnesses .-..-.-.----------.-----------------------137 

Proof olcharacter..-----iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii 138/(1) 

Victim in rape, etc., case, cbarncter as to chastity ...-....--.----------------------- 153 (2) (b) 

Witnesses, character as to truth and veraelty --------..--------------------------- la (2) (a) 

Charges and specifications: 

See also the specific title of a particular oflens. 

Accomplice: when not charged jointly -.-....._-....-...-------------------------

26d 

Accumulating or saving up of, prohibited: exceptions ..-.--------------------------- 25 

Accused; right to copy of substance of testimony when charges forwarded ---....---- 33f 

Action by commander exorcising immediate Jurisdictionover accused under Art. 15- 

Basic considerations. --.--.-~~-~~-......~~~-----30 

In general ....---~~...~~~~-~-~-~~------~32 

Preliminary idquiry. _- -- .. -------- -- - - - - - - -------- ---- ----------- -- -- 29b 

When empower& to convene carts-martlal. ................................... '2% 

Action by omcer exercising summary court-martial jurlsdictlonBrasic cansiderations -..------------------------------------

80 

In general ...---. .-..- - --------------- -. --- . -----. .- .---- - -- ------ ---- 33 

Suspected Insanity: action ----------..--.- - ------ ---- -- ----- ---------- -- 33% 121 

Action by ofawr havhg authority to convene general oourt-martla1.----.----------- 35 
Charges and speci0cations-Continued 

Action up6n idtiation of- . Par . Accused absent ................................................................. 31% 

Basic considerations ............................................................ 30 

Minor offenses involved- .......................... 1 ............................ 310 

Persons qualied to initiate ..................................................... 2% 

Preferred by persan not accused's cammanding ofllce.r ........................... 31 

Serious offenses involved ........................................................ 3lb 

Action when accused is in arrest or wnfinement, Art . 10 ............................ 25 

Additional; definition; when triable, numbering. ................................... 24b, 6% 

.4pp . Ga(3).. ........ Admission of offense by accused; not alone sufficient to support ..................... 26 

Against personnel directly under a Department; procedure ............. 31c 

AlterationAs basis for new investigation ................................................... 33e (2) 

By commander exercising immedlate jurisdictionunder Art . 15 ................... 32c 

By officer exercising summary eourt-martial jurisdiction ......................... S3d 

When specification withdrawn before court convenes ............................ j6d 

Amendirlg ofDuring trlal ................................................................. 69b, d 

App . 80.. ........ 

General ........................................................................ 33d. 69h. d 

Charge 

Effect of designatlng wrong article ............................................. 27, 69b (1) 

Findings as to; rules ............................................................. 74c 

How stated ..................................................................... 27 

Belection of proper article ........................................................ 27 

Charge sheetCertificate of service in; form ....................................... App . 5.. ........ 

Copies .......................................................................... 29d 

Copy-served on accused, Art . 35 .................................................. 44h 

Date of receipt by officer exercising summary court-martial jurisdiction to be 

shown ......................................................................... 3% 

Disposition when non-judicial punishment imposed ............................. 32e 

Errors; alterations, corrections, redrafts ........................................... 33d, 696 

Form .................................................................. App . 5.. ........ 

Form lor rewrding refusal of accused to accept punishment under Art . 15 

App . 5.. ........ 

Instructions, mismllaneous ..................................................... 27, 28 

App . 60 .......... 

Joint accused; copies ............................................................. 29d 

Receipt of charges by officer exercising summary court-martial ju~lsdiction, hour 

and date of to be entered iipon ................................................ 3% 

App . 5 .......... 

Recording refusal to accept non-judicial punishment ....-... ................... 32f (2) 

Servlce on accused, form of ............................................. A . 5 .......... 

Signing and swearing to- . . 

Before whom ............................................................... 29e 

Form .............................................................. App . 5 .......... 

Oommon trial; when directed; certain specifications may he withheld ............... 331 

Consolidation by commander exercising immediate jurisdiction under Art . 15 ......- 32c 

Copied into record ........................................................ App 8a.. ........ 

Copies prepared for personnel of court by trial counsel .............................. 44( (3) 

Defective 

May be stricken, when ......................................................... 896 

Procedure; relieL ............................................................... 334 6% 

When accused misled ........................................................... G9b (3) 

DeBned ............................................................................. 240 

Delay; avoidance by amendment 01 charges ......................................... 33d 

Delay Ln preferring- 

, Discussion, proof, Art . 95 ....................................................... 177a 

Responsibility ................................................................... 25 

Bpeciflcatlon, form for, Art . 88 ................................... .App . 6c (41) .......... Delay in &rvlee of, as gounds for continuanee with respect to further proceedings.- 66a 

Page 

34 

. 34 

36 

33 

35 

36 

28 

28. 95 

469 

28 

36 
Charges and specifications-Continued Par . Page. 

Dismissal of. by commander exercising immediat9 IurisdIctim under Art . I8 ........ 32d 37 

Disposition; effect of security considerutions, Art . 43e ............................... 33f 41 

Drafting of, general rules applicable to .............................................. 28.28 '29-3'2 

App . 6a ........... 409 

Errors; wrong offense charged; action by court ..................................... 65 77 

Failing to npprise accused 01 offense charged; prowdure ............................. 696 . 106 

Failure of, to allege offense-- 

Action by convening authority, Art . 59 ......................... 1 ............... 8711 (2) 144 

Another trial ordered because of, not subject to limitations as to rckiearing; exceptions ...................................................................... 92 158 

Motion to dismiss .......................................................... 67a, f18 96, 99 

Trial on, does not coi~stitute trial in sense of Art . 44 ........................... 88d 102 

Findings as to; permissible form, exceptions and substitutions, flndtng lesser included 

offense ........................................................................... 746, c 115, 116 

Forms lor specifications-. 

Prescribed ......................................................... A 6a (I).. ........ 469 

Set forth .......................................................... A . Be.. ... 472 

When used ..................................................................... 28d 32 

Forwarding ofAccompanying papersExhibits, etc ................................................................ 316 36 

Minor offense charged ...................................................... 32/ (3) 38 

Serious offense charged ...................................................... 321 (4) 38 

Inlorming accused prior to ..................................................... 32f(1), 33c 38, 40 

Letter of transmittal ............................................... : ............ 316 3fi 

Papers to accompany ........................................................... 33i 42 

Seroico of substance ol testimony on aocused prlor to ............................ 33i 43 

Without letter of transmittal, when authorized, effect .:. ........................ 31a 35 

Indorsement for trial, imtructlom with; form ....................................... 331' 43 

App . 6 .......... 467 

Initiated by anyone ................................................................. 29a . 33 

Investigntion . See Investigation . Joining serious and minor offense, not proper ....................................... 26c 29 

Joint; motion to sever, procedure ................................................... 69d 106 

Joint offenses in; when authorized ...................................... : ............ 26d 29 

. App . 6a (8) .......... 470 

Legal sufficiency of speciflcslion ..................................................... 8711 (2) 144 

Misnomer of accused; effect ......................................................... 70a 107 

Multiplication of. based on one aetEffect. on findings ............................................................... 74b (4) 116 

Effect on sentence .............................................................. i6a (8) . 123 

Needless; improger ............................................................. 268 29 

Oath, Art . 30 ....................................................................... 29e 33 * 

A . 5 . 467 

One offonse only should ?E allezed in specification.. ... ......................... ..:.... 28b 31 

Oral statements, how charged ...................................................... 2& 32 

Order to preter, when legal ......................................................... 296 33 

Person subject to code caunot be ordercd to prefer, when . he cannot truthfully 

swear to ............................................. : ......................... 5a (4), 29c 7, 33 

Preferred by anyone subject to code. ............................................... 29b 33 

Preferred bp immediate comaander of accused: when ............................... 2% , 3% 33, 37 

Preliminary inquirp; nature, by whom conducted .. ............................. ZBb. 32b, 33a 33,36, 39 

Principals; whe. n charged jointly ....................................*............... 26d 29 

'Reading of, on arraignment, may be waived by accused .............................. 65a 95 

Recornendation as to disposition on forwarding ..................................... 33i 43 

.. Recording, hour and date of receip t. ............ .:. .................... ............ 33b 40 ......... Same act or k3rnsaction, alleging more than one offense arising from.. ... L ........ i6b,.74b (4) 29, 116 

Service of- .............. ... Effect of failure to secum ............. 6Bc 82 ... Onaceused, Art 35 .................................................. .*..... . 44h 65 " . 

Signature to, 4rt . 30a ..... ......................................................... . 28e 33 . . Summary court; correctionof errors in charzes and specifications by . . 7% 126 

. Trial.coqnse1; porrgction of errors in charges and spt~i6catio?$ bq ,:.,,,. . ..:.. rr .. 44f (1) 62 

Unsworn: accused not triable over objection .................................. i ..... 28e 3-1 

Withdrewal of ..........,......... ........ 1 ....................................... 56 .. 78 
INDEX 

Charges and specifications-Continued Par. 

Words olcrimhality; e5ect of alleging .........------------------.--------%a (3) 

Charges; specimen .---.-.-..--.-----------.--------.--------.------ A. 6b-- .......- Charging the court. Sce Instructing the court. 

ChastIty,,lack of, not a defense In rape or carnal howledge ..........------------------- 199 

Check: 

Making and utterlng, when false pretense .-.-----.-.--------.---------.------

200a (5) 

Making wlth intent to deceive: specification, form for Art. 134 ---..... bgp. Be (129).. .----... Obtaining property by worthless. as larceny. See Larceny. 

Presumption of lack of intention to have funds in bank available to pay, from check 

being dishonored ------.-.---.-------------------- ------.--- -- -- --- -- - .--------- 139a 

Wrongful and dishonorable failure to maintain sufficient Funds in bank to pay; specification, form for, Art. 134 .......----..-.-----------------.--.------ A. 6c (129).- ---..... ChIef custodian of personnel records of armed force: 

Certificates concerning fingerprint comparison .-... ...--------. ------- ------- 143u (2) 

Records and Bngerprints In fraudulent enlistment me, certScation of.. ...---....-. 162 

Child: 

As dtil~; basis of competency --.---------------------------------

14% 

Idecent acts or liberties wlth. See Indecent acts with chid. 

Circumstantial evidence: 

See alao Evidence. 

As warranting inference property was military property _..-----.-.----------------- 187c 

As warranting inference that loss or damage of issued property caused by neglect--.. 187b 

Defined and explained .-..-...---------.-.------------------ -- -. - -.------- -- -- --- 1381, 

Reasonable doubt arising from insuffjciency of, rule ss to xeighing .......----------- 74a (3) 

Speciflc intent; premeditation, may be proven by .-.---..---.-.-..--.-----------~154a (1) 

CIvil authorities: 

Absence of member of armed forces as affected by detention by-- .-.--.---......-.-- 165 

Apprehension of deserters by, Art. 8 .....---.-.-....----------.------------

23a 

Arrest of deserters by. Sec. 10 ......-......---.-------------------------- A. %-- --...... Civil courts. Sec Civil courts. 

Delivery to and return of offenders from, Art. 14a ..----------....---------------

12, 23c 

Jurisdiction of, over persons subject to military law .----...-.-.-...----------------- 11,12. 

68d 

superseded in occupied territory by jurisdiction of military tribunals .--.----........ 140 

Ci\ U courts. 

Acquittal by, as res fudicatn, when.. ---.....---..-.-------------- -- -. ------------ 71b 

Conviction by, e5ect on court-martial sentence, Art. 14b .---.---........------------ 97c 

FederalGrounds for review of court-martial proceedh~m stated ..--.--.. . ...---------- -- 8,214c 

Removal to, of suits against member of military service, See. Q- ------. App. %.. -.----.. Former testimony in, when admissible in courts-martial ..-----...---------------- 143 

Former trial in, when bar to court-msrtial --...--.------------------ -.----------- 12,68d 

Habess corpus. See Habcas corpus. 

Jurisdiction of courts-martial to try dlschargod offenders not subjeet to trial by, 

Art. 3a .-.-.---------.---.------.-------------------.---11 

Jurisdiction of, over military persons and certain offenses, generally.. . .....-.---- - .- 1568d 

Civil lam: 

Dktrict of Colurnbla, law of, as a5ecting punishment ..-.------. ......-.----------- 127c 

Persons subject to code, generally subkct to ..-.-.-.--..-.--.-------------------12 

Title 18 U.8.C. as basis for llmitatlon on punlshnlent ..---..--------------------- 127~ 

Violstions ofBasis for prosecution by both mllilary and civil authorities ........------------- 12 

Jurisdiction of courts-martial to try, Art. 134 ..-...---.......----------.-------- 12,21b,c 

Oivfi offenses. be Civil authorities; Civil conrts; Civil Iarv. 

Civil suits, removal, 8Bc. 9 ......................................... App b-- -------- Civlllan counsel: 

See abo lndivldual counsel: Defense counsel; Appellate defense cound. 

Accused; right to be representad by-' 

In court-martial. Art. 3Sb -...............----.------------------------

48a 

Invesdigation of charges ..........-.------..--.- ..-.-.. -...-------.--..-------. 34e 

Not providud at government eqxnse .....-.-....---.--------.--------.-----

48a 

Right of accused to. in connection with appellate review, Act. 70d ....,.,-.......--.. 1024 

Page 

81 

471 
CiVnlans: Wr. 

Aidlng enemy, as offense under Art. 104 ............................................. 183a 

Apprehension of deserters by. Art. 8 ................................................ !a 

Arrest of desarters hy. Sec. LO. ............................................ A. %.- ........ Arrest of. See Arrest. 

Arrest of military persons by. Sce Apprehension. 

Arre9t or c~nflnement of ........................................................... 2la (1) 

Assault upon warrant, noncommissioned, or petty olllcer by civilian subjecl to milltary law chargeable under Art. 134 ................................................ 170a 

Initiation of wurt-martiill chnrges by.. ............................................. ZQa 

Sentence; fine Instoad of forleilure, as penalty for .................................... 126h (3) 

Subject to military Irtrv, when; Art. 2 (App. 2a, notes); Art. 3 ....................... 9,llb 

Table of Maximum Punishments applicable as guide In cases of ..................... 127a 

When subject to provisions of Art. 80. .............................................. 169a 

When triable under law of war, Arts. 21,104,108 .................................... 12 

Claims. See False claims agoinst United States. 

Clemency: 

Recommendations forAction of defense counsel .................................................... 48j (1) 

Attachment to record of trial- .................................................. 8% (5) 

In generni.. .................................................................... 77a 

Clergymen, communications between penitent and: privileged .......................... 151b (2) 

Clerks, detail of, to assist otXcon and members of court.. ............................... 61 

Closed sessions. See Courts-martlal. 

Slosing argument to wurt by trlal counsel; genernlly llmited to matters argued by defense. 7% 

Coast Guard: 

Actlon on petition for ncw tridOffenses commlt.tcd after 30 May 1951, Art. 73 --.------.--..-------------------

109c 

World War I1 oflenscs; See. 12 (App. b) ........................................ llOc 

No right by personnel of, to demand trial by court-martial inlieu of discipllnnry 

punishment .................................................................. 132 

Coast and Geodetic Survey: 

Personnel ofAs members of coiats.marllal ................................................... 4a 

When subject to codo, brl. 2 (8) ...................................... A. 2a-- ........ Code of District of Columbia: 

As basis for limitation on punishment ............................................... 127e 

Crimes and offcnses not capital, Art. 134 ............................................ 213c (2) 

Code. penal. See Title 18 U. S. C.. "Crimes and Criminal Procedure." 

Coercion, use ol; effrxt on statement, confesslon, admislon, Art. 31 ..................... 140a 

Collusion or coercion of witnesses; provention by hstructlon ............................ 63f 

Command: 

Abandoning, surrendering, delivering up 

Discussion, proof. Art. 99 ........................................................ 1786 

Specification, form for, Art. P3 .................................... A. 6c (44)-)_. ........ Compellin surrender or abar~donment ofDiscussiou, proof. Art. LW ...................................................... 179a 

Specificstion, form for, Art. 100.. .................................. App. & (521.- ........ Detabhud; commanding officer may appoint special or summary courts.martis1, .Arts. 

23, 24 ............................................................................. j6 (31, C 

Devolution of; refercncs lo depmlmantal regulations ................................ ha (5) 

Endangering safety ofDiscusslon, proof, Art. OD ....................................................... 178c 

Specification, form for, Am.W ................................... App. 6c (45).- .... ;..- 

Rank and precedence among ~Wcers, See. 6-- ........................... -App. Zb.. ........ Separate; commanding oficer may appolnt special or summary courts-martial, Ark 

23, 24 ............................................................................. Sb. C 

Suspension from, included In suspension from rank, eht of. ....................... 1261 

When different corpsor commands loin. See. tl (note) ..................... App. 26.. ........ Commander's duties of example and correction, SCC. 7 (c) .................... -App. Zb.. ........ Commatiding another to commit an 06m, liablo as a principal ........................ 156 

Commanding offloer: 

See aLo Convening aulhority. 

Arrest of enlisted person by ......................................................... 2la (2) 

Arrest of officer, warrant omcer, clvllian, niust be ordered by; power not to be 

delegaled .... .................................... :--...-.~-..--........,.--....21~ (I) 
INDEX 

Commanemg officer-continued Par . An accuser. effect of being. when. Arts . 22.24 ............................. I .......... 50 (3) (4) 

As convening authority of courts.martia1, Arts . B24 ............................... 6 

As summary-court of his command, Art . 24 ......................................... 5e 

Charges forwarded to; procedure in general ......................................... 31 

Complaint of wrongs may be made to . .4r t. 138.. ......................... dpp . 20 .......... 

Court of inquiry may be ordered by, Art . 135 .............................. kpp . 2a ..-..--... 

Death on post; powers and duties rrsp~xting inquest of, Sec . 6 ............ App . 2b .......... 

Deceased persons, powers and duties respecting disposition of effects of, Sec .. 6 

App . %.. ........ 

Delegation of power to appoint courts-martin1 forbidden- ........................... 50(5), 

b (2), e 

Denositions; duty on receipt of .................................................... Ilid, g 

Disciplinary power under Art . 15; defined and discussed generally. ................. 129135 

Exercising immediate iwisdiction under Art . 15- 

Action on charges when also empowemd to convene courts-mart lal .............. 83a 

Action on reccipt of information of offense, and on receipt of charges, Ingeneral .. 52 

Infiuencing or coercing action of murt-martial members, etc., prohibited. Arts . 37,98.. Fxr(S), 

... 38 

Injuries to property, duty in connection with, Art . 139 ................... App . 2Q.. ........ 

Non-judicial power under Art . 15: as ngeney of military jurisdiction ................. 2 

Notiflcation'of result of trial, action upon receipt ofAction to release or restrain accused ............................................. 21d 

General ......................................................................... 44e (2) 

Of Navy or Coast Guard, authority to administer ostbs, Art . 136a ....... 4pp . %. ....... 

Power to remit, suspend, unexecuted portion of court-martial sentence when designated by Secretary of Department . Art . 748 ....................................... 97a 

Remission, setting aside. or suspension of disciplinary punishments md restoration 

of rights; powers of, Art . 15 ........................................................ 135a 

Responsibility for furnishing personnel for courts-martial ............................ 36c 

Subordinate compelling swrenderDiscussion, proof, Art . 100 .................................................... 179a 

Specificrttion, form for . Art . 100 ................................. App . 6c (52).. ........ 

summiry court records flled in o5ce of ............................................. 91c 

Surrender of command, unit, place, ship, or military propertyDiscussion, proof, Art . 99 ....................................................... 1786 

Specification, rorm for, Art . 99 .................................... App . 6c (a).. ........ 

Suspension of punishments imposed under Art . 15, power of ........................ 136a 

Commission, military . See Military commission . Commissioned officer . See Officer . Committing nuisance; specification, form lor . Art . 134 .................. .App . Be (156) .......... 

Committing riot . See Riot . Committing waste or spoil: 

Discussion, proof, Art . 109 ........................................................... 18Ba 

Specification, form for, Art; 109 ....................................... App . Bc (66).. ........ 

Common trial: 

AccusedEnlisted persons as members, right to ........................................... 6% 

Rights and privileges ........................................................... Be 

Challenge; one peremptory for each aceusad ......................................... 62e 

Members of different amled forces, ases Involving should not be referred for ........ 13 

Motion to sever .................................................................... 69d 

Procedure if enlisted members are requested ........................................ 61g 

Reference for .................................................... .................. 331 (1) 

When authorized ................................................................... 331 

Communicating, corresponding, holding intercourse wlth the enemy: 

Discussion, proof, Art . 104 ........................................................... 183d 

Bpeciflcation, form for, Art . 104 .................................... A . Bc (60,61).. ........ Bommunicating threat to another: 

See also Extortion . Specfflcation, form for, Art . 134 ...................................... App . Be (170.. ........ Communications Act of 1934, evidenm obtained as a result of violation of, lnadmlssible.. 152 

Oommunications, privileged . Bee Privileged communication9 . Oommunlcation with the enemy: 

See also Enemy; Spying . Citizehs of heutrsl powers, laws relating to ................. ,., .................... Wd 
INDEX 

Communication with the enemy-Coptinued P8r . .Page 

Discussion. proof. Art:104 .............. L ............................ :......: ....... 183d . 339 

Specification, form for, Art . 104 .. ..........................-........ App . OF (61) ........... 479 

Commutation: 

Convening authority's action may recornmend, In certain cases. .................... 89c (4) -153 

Defined .............................................................................. 105a 174 

Distinguished from mitigatlon ...................................................... 88c 148 

Exercise of, by President . Secretary of a Department, Art . 71a, h .................... 105a 174 

Of sentence as incident to power to appmve, Art . 71 ...................... App . 2a .......... 437 

Of sentence to dismissal to reduction to enlisted grade, Art . 71b ..................... 126d 208 

Compelling commander to surrender, etc . . . . 

See Surrender . Discussion, proof, Art . la0 .......................................................... 179 334 

Bpecificatlon, form for . Art . 100 ...................................... App . 6c (52).. ........ 478 

Complaint, fresh; by victlm of sexual offem as evidcace ............................... 1428 256 

Complaint of wrongs to commanding officer, Art. 138.. ..............., ...... App . 2a.. ........ 451 

Compulsory self.incriminatLri . See Eelf.hcrimlnation . Concealed weapon, carrying . See Carrying concealed weapon . Concealing, destroying, etc., publicrewrds; specifieaiion, form for, Art . 134 ..AD p.6c (162) ......... 493 

Concurrent jurisdiction: ... ... 

Civil and military courts ............................................................. 12, 68d 16, 103 

Crimes and offenses not cspitll uxder Art . 134 ...................................... 213c (2) 383 

Other military tribunals with courts.martial, Art . 21 ..................... .4pp . 2a .......... 420 

Condonation of desertion . Se Motions . Conduct of a nat. ure to brinl d!scred it upon the armed forces: . . Discussion, proof, Art . 134 .......................................................... 21 382 

Specifications, forms for, Art . l2I ................................ .4pp . 6 (118-176) ....---. 488 

Conduct prejudicial to good order and discipline: 

Discussion, proof, Art . 134 ......................................................... 213n 381 

Specifications, forms for, A* . 13.1 ............................... App . Rc !118-176) ......... 484 

Conduct unbecoming an oEcer snd gcntleinan: 

Discussion, proof, Art . 133 ............................... ................. 212 380 

Failure to pay debts . discussioir ..................................................... 212. 21% 381, 382 

Olficers of either sex, cadets, and midshipmen, subjeet to trial for .................... 212 380 

Speciflcations, forms lor, Art . ua ................................. App . Gc (11+117) ........ 488 

aonfessions: 

See also Admissions . 

Admissibility ol evidenct! discovc.red throu~h ....................................... 140'1 251 

By one accused, whennot binding on othersjo3ntly tried; procedure as to admitting . 1406 263 

Coercion, uniswful in8urnre, failure to warn under Art . 31h: examples; eflect on 

admissibility of ..................... .-........................................... 140a . 249 

Corroboration, necessity of: cxamp!es ............................................... 140a 251 

Defined; gencral rules applicahk Lo .................................................. 140a 248 

Must hc voluntary; rules lor delermininc voluntary character ...................... 140a 249 

Ordinarily admis?ible anly \%-hell mndr by accatsed .................................. 140a 252 

Iiestrictio11 of testimony to involuntary nature o(; scapc of cro&?xamination ..... 53h, 1401% 75, 250 

1498 (1) BO 

Roling on admissibility of, not wnlclusire as to v~luntariuess oL .................... 140a 250 

Silence not ordinnrily to be wwtroed as. ........................................... 140a 251 

Confidential relations . See Privileged commonications . . Codnement: 

See also Apprehension; Anest; Sentence; Punishment . Any person subject ta the code map h placed in; exception, Art . 10 .........-........- 153 21 

Apportionment; when summary court adjudgm restriction with .................. 1&,12(1c(3), 20, 208 

215 

Deenition, character, and (lwation of; niioimum under the circwnstanm ............ 18a,.b, 21, 24 

mc, 22 26 

Delay in preferring or prortcufing charzes, effect upon, Art . 98 ...................... 22 .. 26 

Ilischarge as effecting icmissiw 01 suspended sentence to ........................... 97a . 165 

. Distinguished from arrest ........................-.................................. I&, l74b 21. 327 . . 

Effective date of; periods excluded .................................................. ~. 1281 212 ' 

Escape froin- . . . . 

Diswsion, proof, Art . 95 ...... .. 174c .. 328 

Specification, form for, hf . 95 ............- : ...................... App Bc (a).. .....,.. 477 

Erceediqg one .month. pot-aul ho:ized by s-j court-martial ..........; ......... 1% . : 20 
INDEX 

Conflncmmt-ConlInned Par. Page 

Failure to restrato scmsod In, prlor to trial, does not affect jurisdiction of courtsmartial-. -- -............- - -.-------- ----- ----------..-----------------------

18b (I) n 

For one year or mom, appellate review required before execution of .-.......-.....---- 93 168 

For period up to 7 da.ps: aulhorlzed a9 dlsciplinsry punLshment on person attached to 

or embarked h vwsel .----.-..--...--------------------------

131b 232 

Hard labor, oonflnernenl at. Sce Hard labor. . In excoss 01 ID years; sentence requires three-fonrths vote, Art. 5% .-....-..--------._ 766 (3) 124 

Limitations in cases 01 offlwrs or warrant offlcen -.-----.-.-..---------------------- 1261 212 

Maximum imposable-- 

By special courts, Art. 19 ..---..........----------------------------15b, 128c 19,207 

By summw oaurts, Art. M .-..........--..-.-------------------------164, 126c 20.208 

For various offenses; prescribed .-.......---------- ----------- I I.IIIIIIIIIIIII 126d, 127c 205,219 

Military prtmners wllh enemy prisoners, hrelgn nationals, prohibited unless segregated. Art. 12 .---.---..-----.----------------------------------

1Sb (2). 125 21.205 

Minor offenses do nat ordinarily require. Art. 10 ..---....-.......-----.------------- 1% (1) 21 

Offense for whlch over one year authorized, not minor ..--..-.-....----------------- 12Sb 229 

ORiepr in prison or ~mltentiary, when dropped from rolls. Sec. 10 ....... App. 2b.- -.-.--.- 455 

Offieer or warrant offleer; sentence to must Include dismiwai or dishonorable discharge .-.-------...-...-..----------------------------------

126d. j 20", 212 

Offleer, wamnt officer. civilian: how effected ..-.-.---..oeoeoeoeoeoeoeoeoeoeoeoeoeoeoeoe.oeoeoeoe.oeoe..oeoe 210 (1) 25 

On bread and water oe diminished rations; disonssion, medical wrtificate required. 

not imposed by courts-martial against Army or Air Force personnel ...---..------- 326 206 

Other punishments or wualties, when prohibited, Art. 13 ...-...-.....-.--------- 18b (3), 125 22,205 

Pending trial: as b& for mitigation or remlsslon ..---..--.--------------------

886 147 

Place ofChange in, wh~n authorized by departmental regulations .-----...-.-..----.-.-- 97d 167 

Designated by authority ordering execution, Art. 685 .--......-....-.-------- E9c (5), 93 153,161 

Not designated by courts-martial. ...-------------------------------1201 212 

Temporary custody in lieu of designation of -..-.....-...-.-------------------- 89c (6) 153 

Prior to trialNotification and wtlon required. .....-.-...-.-.-...-------------------

20d (4) 24 

When efleeted .......--...-----------------.-.-.----.-----------.--.. 20c 24 

Probable cause: personal knowledge of or inquiry into oRense, a prerequisite to. .. .. 20d (1) 24 

Procedure to cRect .-.....----.--------- --------- ................................ -- 20d (3) 24 

Punishment for contempt --......------------------------.-----------11Pb, c 197, 199 

Release from. or further restraint, as result of trial ................................... 21d 26 

Remission of sentence to, as affected by discharge .-.--.....----------------.---97a 165 

Sentence to, continuous; exceptions .--.--.-.---.---------. ..-..-.-..-.-..---.------- O7c 166 

Sentence to, does not automatically result in fine or forfeiture .....------------------ 126f 212 

SolitaryDiscussion ..-----..------------------.-----.-----.----------

121 2U6 

Not imposed by courts-martial agaimt Army or Air Force personnel.-..-..-..-- 125 208 

Snspenslon of, intempts servicc of term of, Art. 676 ...-..-..-.-..------------.---.-- 97c 166 

Time lost by, when ta be made good, Sec. 8 ..-.-.-.-.--.....-------------- App. 2b.. --....-. 453 

Unauthorized release ImmDiscussion, proof. Art. 96 .--....-....-.-..-.-----.--------...--.-------

22, 175a 26,129 

Specification, lorm for. Art. 96 .....-..-.-......--------.---------. App. 6c (391.. -....-.- 477 

Who may effect .............................................................. : -.-... 21a 26 

Without hard labor; sentence to will notbe adjudged ....--..-.-------------------

120j 212 

Congress: 

&% aka Contemptuous words against President, Congress, etc. 

Constitutional ~wer over armed forces, source of court-martial ]urLdiction..--.--.. 8 13 

Powers granted to. es source of military jutlsdictlon ..-.-.-------------------------- 1,s 1,13 

Rules of procedure lor military tribunals to be reported to, Art. 3G5. ..-.- App. 2a.- ....-.. 425 

Confunctlve, use of in pleading, improper .....-......--------------------------28b 31 

Consent: 

See ah Stipulations; Waiver; R~pc. 

Of accused to be tried by summary court-- 

Discussion ..-----..---------.------------------------79d (1) In 

Form ...............------------------------------------Appall .--..-..-. 538 

Consequences, foreseenhle, contrasted with probable consequences .~-~.~ILSILSILSILSILSILSILSILSILSILSILSILSILSILSILSILS 1986 a54 

Consequences, natural and probable. In homicide .....-.------------------------1978 852 

Oonsplracy: 

Acts and stntem$mts of pwmphtors; when evldenoe against each other.---.,.., 140b 252 
Conspiracy-Continued Par. Wge 

Competency ofm-wnsplrators a8 witnesses against each other ...................... 1- 278 

Conviction of one coconspirator not evidence against another ....................... 141% 253 

Discusslon. prwf. Art.81 ........................................................... 160 305 

Bpeciflcstion, form for, Art. 81 ........................................ App. 8c (31.. ........ 472 

Constitution of the United Stnt~s: 

As source of military jur~ctlon ................................................ 1,s 1.13 

App. 1.. ........ 397 

FUth amefidment-- 

Protection against self-incrimination ............................................ 15ob 283 

Source of military Jurisdiction .................................................. 1.8 1,13 

Constructive breaking, dlscusslon ....................................................... 206 374 

Constructive condonation of desertlon. See Motions. 

Constructive knowledge of re~ulation or directive -.--.--.-.--------------------.---1644 (4) a85 

Consul, authority to admlnister oaths, Art. 136 (note) ......................... App. 2a.. ........ 451 

Contempts. 

Confinement of penon held in. ..................................................... 1186, e 188,199 

Deflnod; direct disting~iished from indirect or cnnstructive .......................... 1184 197 

Fine lmposed as punishment lor, Sec. B ............................................ 12% 228 

Maximum punishment for .......................................................... ll& 197 

Persons subject to punishment for; general provisions, Art. 48 ....................... 10,118a 14,197 

Procedure with respect to .......................................................... 1186 197 

App. 86-. ........ 621 

Contemptuous or disrespectful language or conduct toward warrant, noncommissioned. or petty officer: 

Discussion, proof, Art. 81 ........................................................... 170d 323 

Specification, form for, Art. 91 ......................................... A p 6c(27)-. ........ 476 

Contemptuou words against President, Congress, etc.: 

Discussion, proof, Art. 88 ........................................................... 167 318 

Specification, form for. Art. 88 ....................................... A. 619 ........ 475 

Continuance: 

Courts-martial may grant for reasonable cause; discussion, grounds, procedure, Art. 

40 ................................................................................. 68 82 

Defective specification as ground for ................................................ 6% 105 

Granting when accused arraigned on additional charge .............................. 65b 95 

Continuing condition, presumption of .................................................. 1384 240 

Continuing offenses; absence xithout leave, desertlon, fraudulent enlistment do not eon- stitute for purpose of statute 01lirnitatIons.. ........................................... 13% 101 

Convened, when court-martial Is .-------.---.-..---------------------------App. 84-- --.--..- 601 

Convening authority: 

Accused leaving command of, does not divest of right toact on record. ................ 84a 139 

Action byCases returned to court &a a rcsult of ruling on motion ........................... 07f, 12!2b 98,233 

Correction of .................................................................... R5 164 

When evidence indicates an offense not charged ................................. 55 77 

Action on charges. See speciflc subtitle. 

Action on record of new trialUnder Art. 13 ................................................................... lO9h 179 

Under 8ec. 12 (.4pp. 2b) ......................................................... llOf 182 

Action on record of trblAbsence of accused, effect of. ................................................... 84a 139 

Accused; temporxy custody pending appellate review; rules .................... 8% (6) 163 

AcquittalMay require adminlstmtive action .......................................... 86b (2) 14.3 

No action required unless proceedings void for lack ofj udsdiction .......... BBb (Z), 143 

896 (1) 162 

ActlonMay be rec~lled or modified befop publication or official notlce to accused.- 89b 151 

Simed in own h?nd with rank and commmd ............................... 894 151 

Adding to punishment by, illeg~l ............................................... 147 

Admonition; when included In .................................................. 88c (8) 154 

Advisory instructions as b consideration of flqdings. ........................... 87 144 

Approval, in part, of sentence in excess of legal limit, Art. 64 .................... 863 142 

Approval of flndings and proceedings, not required ............................. Sk 142 

Approval of lesser included offense barred by statute of limitations; rule as to.--. 87e 148 
Convening authority-Contlnued 

Action'dn record of trial-Continued ... 

. Approval of seutene Par . Page 

C. onstitutes approval of findings. exceptions .............................. 8% 89c (3) 142.152 

. Qeneral considerations .................................................... 866 (I), 886 142, 147 

Must be express ............................................... 1 ............ 86a 142 

. Approval or dis3ppror+lof sentence to be explicit ................................ 1147 

Censure of court or members prohibited, .$r t. 37 ................................ 866 (2) 143 

Clemency; exercise of by approval of part of sentence ............................ 88c 148 

Commutation of sentence, action may contain reoommendstion for ............. 89c (4) 153 

Correction 01 clerical crrors ...................................................... 86c 143 

Diszgreement ailh opinion of staff judge advocate or legal officer, prowdure .... 85c 141 

DisapprovatOf sentence, constitutes disapproval of findings, exception ................... 86a 142 

Puts end to sentence as basis of punishment ......... .. ..................... 88a 147 

Reasons therefor, when stated in action, Art . 63a .......................... 89c (2) , 92 152.159 

Discharge suspended until release from confinement, il appellate revica complete ...................................................................... 8se (2) (b) 150 . Dismissal of chmges; when sentence disapproved and rehearing not ordered .... 89c (2) 152 

Disposition of records .......................................................... 91 156 

Evidence, may be 13-eished ...................................................... 870 (3) 145 

Evidenoe 01 guilt to be established beyond reasonable doubt ..................... 87a (3) 145 

Execution of senteuee, general rules as to ........................................ 88d 149 

Findings of guilty, consider8 tion of ............................................. 87 144 

Forfeiture; date of applicability to he stated in action in certain cases; suspeosiou 

or deferment of. rules ........................................................ 88 (2) (c) 151 

Forms of action in appendix 14 to be used ....................................... 89a 151 

Insanity or accused, action to be taken in casc of ..................... : .......... 86e 144 

Irregularities in tri?.l. consideration to be given, Art . 59 ......................... 87c 146 

Lesser included offense, finding as to may be spproved .......................... 870 (4) 145 

Miscell~neous powers as to ...................................................... 86 142 

Mitigation of sentences ......................................................... 88c 148 

Orders and rcluted matters ...................................................... 90 154 

Place of confinement, when designated ......................................... 89c (5) 153 

Power to take, may not be delegated, vested in office ........................... 740, 846 139 

RehearingAccused credited with execute? portion of Iormer sentence .................. 89c (7) 153 

. .Accused's rights restored if acquitted, eto .................................... 89c (7) 154 

Reprimand; when included In .................................................. 89c (8) 154 

Revision, retwn of record for, Hmitation on power . Art . 62 ...................... 86d 144 

' GentenceAction on, goners1 rules ..................................................... 88 147 

. If an7 part approved, only disapproved findings mentioned ................. 89c (3) 152 

If dimpproved, no action on findings required; exceptions .................. 89c (2) 152 . Involving bad conduct discharge adjudged by special court.marlin1 .......... 84d 140 

May not hc cnmmuted except by President, Secreh~y ofDepartment, etc ... 88c, 105a 148, 174 

Gupplementary or corrective action si~med by ................................... 896 152 

Unable to act.Cor my reason, action when ....................................... 84c 139 

Void, incomplete, inacewale, or amhi~ous action modified as required by higher 

authority .................................................................... 8% 151 

Advice of staff judge advocate or the Jud:e Advocate Qcoeral on record of trial ..... 85a 140 

Appointment ofCour~el and assisL?nts; power exmot be delegst.~d . Art . 27 ...................... 6 10 

Defense counsel, if requested, for accused at pretrinl investigation, Art . 32.. ..... 34C 45 

Lnw officer; rules for qualificrations, Art . 26 ...................................... 4e 4 

Members of courts.martial ..................................................... 4,36, 37 2,61, 62 

Reporter and interpreter, Art . 28 ................................................. 7, 33k 12.44 

Approval of sentcuce, necessity oL .................................................. 98 168 

As accuser: discussed, procedure .................................................. 6a . b, c 7,8, 9 

Authority to appoint courts-marti;d hased on comm!m? not rank ................ 6a (6) 8 

Certiscate of, xhen accused's copy of record expur:~ted I m. security protection ...... 82g (1) 138 

Chmges in personnel of court may be made by ..................................... 37 52 

Charges, action on, in general, Art . 30 .......................... ..... 30 84 

. Contempt, approval OF punishment for .............................................. 1186 198 

Continuance; action 01, In cases oi unreasonable denial of .... : ....................... 68d 83 

Control of wurt.mnrtial, llmitation upon ........................................... 5a (6) 8 
INDEX 

Ooavdng authority-Continned Par. Page 

. Copies of record to be prepared as directed by ....................................... 496 (2) 71 

Correction of errors in special and summary courts-martial procmdings. ............ B4a . 162 

Dehed; who is authorized to act on record of trlal, Art. 60 .......................... 84a 130 

Dalegatton- .... 

Of authority to appoint courts-martial, illegal ............................. Sa (5), b (2), c 8,0 

Of review functions, forbidden .................................................. 84a 130 

Devolution of command; referenm to departmental re~ulations ...................... 5a 8 

Directing trial iu absence of enlisted members ....................................... 61g 89 

Discretion in directing common trial ................................ : ................ 331 . 41 

Dismissal of charges hyIf rehearing ordered by board of review or higher authority is impracticable, 

Art. 67f ................................................................... 92, lOOb (3) 159,170 

Restoration of accused's rights upon ............................................ lOOb (3) 170 

Disposition of records ............................................................... 91,94b 156,183 

Forms for action by ...................................................... A 14.- ........ 549 

Individual defense counsel. action when accused requests.. ...... ! ...... .I-.-. ...I.- 4@ 68 

Influencing or coercing action of court-martial, prohibited, Art. 37 ................... 5a (6) 8 

Information copy of decision 01 board of review transmitted to, when.. ............. lOOc (1) 170 

Insanity of accused, action .. ...........*...................................... : ..... 1226,124 203,204 

Invalidity of proceedings, action in case.of.. ......................................... 92 160 

Judge Advocate General to adsise whpn sentence set aside by-board of review.. .... lOOb (3) 169 

Record of trial forwarded to, by trial counsel ........................................ 82g (2) i3fi 

RehearingOrdered by board of review. Art. 66d ............................................ lOOb (3) I69 

Ordered by Court of Military Appeals, Art. 67e ............................. I-.- 101 li2 

Ordering of, by, Art. 63 ......................................................... 92 159 

Report toCases pending. ................................................................. 44e (1) 62 

If member of prosecution is legally disqualified and has acted ................... 61e 86 

Upon adjournment after vote on challenges ..................................... 62h (4) 94 

Special court-martislApproval of superior authority required in bad conduct discharge cases, exception. Art. 656 ................................................................. 84d 140 

Power to withdraw action, order rehearing ...................................... 94a (2) 162 

Who may appoint, Art. 23 ...................................................... 6b S 

Gtaff judge advocate, direct communication with .................................... 35b 49 

Bummary court-martialOflicer in charge of Navy or Coast Guard unlt as, Art. 24 ....................... 5c 9 

Only o5mr present with command; for review purposes. ....................... 79e 129 

Power to withdraw action, order rehearing ...................................... 94a (2) 102 

Procedure when only one ozeer present with command, Art. 24-. .............. 6c 0 

Who may appoint. Art. 24 ......................................... I--: ...... :- 6c 9 

Withdrawal of specification, ody on order of ................................. 2-;55555 56a 76 

Conveniag of court, when eomplete ............................................. ,---1 -... 611 69 

Convening orders. See Appointing orders. . . 

Conviction: ... . . 

By civil court as interrupting court-martial senteoce, Art. 14h ....................... 97c 1W 

1,esser included offenses. See Lesser included offeuse. 

Of accomplices or co.conslirato,rs; uot evidence ~gainst each other ................... 140b 2.53 

Previous, evidence of. See Evidence.; Previous conviction. 

Self.inmiminationafter;, privilege ceases when conviction final ....................... 150b 2R1 

Votmg on. See Voting; Findii~. 

Witness not disqualified by conviction of crime, but certain conrictions may be shown 

to affect credibility ................................................................ 1486 477 

Copies. See Documentary evidenpc. 

Copying examination paper; specifimtion, form for, Art. 133 ............. App. 6c (114).. ........ 488 

Correctional or penal institution, as l~lace ofconhement, .4rt. 58a ...................... 93 161 

Correction of action by convening aid higher authority ................................. 95 lf4 

Correction of record: 

: See also Revision; Records of mnrt-martial. ... : .. 

By ccrticate of authenticating officers .............................................. 86c 153 

Procedure; ................................................................ A. 9d.- ........ 528 ..... ...... 

Correspondence; takI&, o&hing, e:tc.; speciRcations, forms for, Art. 134 

App. 6c (151.152)-. ........ 4% 

~ai-tespon~g with the enemy. &i ~nerny. . , 
Corroboration: Par. Page 

Accomplice's testimony, necessity for--- ----------... - ---.- - --------.-.-..---.- 153~ 288 

Complaint by victim of sed offedse, reeejved a8 -.......-----.-----.-.--.--------- 142c 268 

Confession, corroboration of, necessary to wnvictioo ....-.-----------.--.--------1401s - 251 

Of single witncss, to convict of perlury- -----.------------ .---------------------- 210 376 

Prior statements; when admissible as ..------.- ----------- --------.---..------- 153a 289 

Testimony of alleged victim of sed off ens^, nedty for --------... ......NalNalNalNalNalNalNalNalNal m 289 

Cornsel: 

Appointment fromCommands of other -& forces--- -.-- -.--- ----------. -.---------- -------- & 10 

Other commands of the same armed force.-- ------. -..-- ---.------------------- &I 10 

Within jolnt commands -.-.....--.---......---------....------------.& 10 

Before court of inqulsy, right to, Art. 13-55 -......------------. .--.-.-hA--- App. 2a.. .--... 449 

Entitled to present and support contentions-- ......------.......-----------------639 74 

Form of oath. -.--.-.----------------.----------------------114 186 

General rules of oonduct --------....----------------------------42b 80 

Interview of witnesses by, beforeitrial -..-.----------------essessessess essessessessessessessessessessessessessessessessessessessessess 42c 60 

Legal qmliflcations must be shown in appointing order -...........----------------- 611 (2) 87 

A 4 -- 462 

Procedure when defense counsel 1s not legally qualinea ...........---------------..-. 61/(3) 87 

Qualifications.-. .. . - - - - - - - - ---- -- -- - - - - - - - - - - -- - - ---------- -- - - - - - - - - ---------- --- - - 6 0 

Suspension of, for mlseonduct, rules .........-..---------------..-----------43 61 

Counsel for the accused: 

See also Appellate counsel; Appellate dcfenae counsol: Assistant defense counsel; 

Civilian wunsel; Counsel; Defenso counsel; Individual counsel. 

At investigation of charges; limitations. Art. 32-.. .-......-....-------------------34c 48 

At proceedings to vsute suspenslon. Art. 72 ........................................ 976 165 

Cid counsel. See Civilian counsel. 

Communicstjons with accused, privileged.. ...--------------- --------------------- 1516 12) 285 

Fees; not to be accepted by eertaln personnel for duty as ...--------......----------- 48a 67 

General duties ........---------------------------------------48c 68 

Individual counsel. See Individull counsel. 

Meaning 01 phraq 8s used in WCM. 1951 ....----------.----------------

42a 80 

Revision proceedings; presence required ..--..--------------:------------ 1111111111 80b 130 

Right of accused to seleet wd to be represented by. Art. 386 -.......--_---.------.-- 48a 67 

Right to examine papers accompanying charges and record .-....-.-..--------------- 44h 65 

Stipulations. See Stjpulotions. 

Trial counsel deals with accused through ......-------------.....--------...--...44h 65 

Counseling, commanding, procuring another to commit an oflense, llabiilty as a principal 158 302 

Counterfeiting: 

See ako Forgery. 

Admissibility of eddence showlng commission of other similar offense; example ....- 1338 245 

Statute denouncing: example of statute OF unlimited bpplication- ------------------- 213c (1) 383 

Countersim; disclosing or giving different, ete.: 

Discussion. proof, Art. 101 .....-.--------.-----------------------

180a 335 

SgeciEcations, forms for. Art. 101 ......--------.....--------------- App. 6c (53, 54).- ..--.--. 479 

Court-martial orders: 

Acquittal; bears date of publiution; date acquitted included ---.-.-...-------.---- -- BOo 1.55 

By whom issuedInitial orders by couveniup aulhority: crceptlon -...-.-----.---.......---------- 90b (1) 1% 

When action taken on flndings or sentence subsequent to Initial aclion........-- 9Ob (2) 155 

Classifled mattcr, how treated ..-..----------------------------------90c 155 

Copies required to be forwarded with record of trldGeneral court-martin1 ......-----------------------------------

9la 158 

Gpecial court-martial .-....---. .---------------. ............................ 91b 157 

Date of order is date convcnine authority took initial action; exceptlous ....-....---- QOo 154 

Distribution, in accordance with departmental regulations .------,--.-----.--------- 9Od. 97e 156,167 

Initial promulgation, lorms for ........-...---------------.--------------- A 15a.. .--..... b49 

Matter unflt lor publication. how treated .-..........-----------------------BOc 155 

Previous convictions may be shown by ...--............---------------.-- 7% (2), 1634 (2) (b) 119.201 

Promulgation ofAfter appellate mvlow. --.-..............----------------------

10%. e, 169 

107 li0, I76 

ByDepartment ------...----------------------------.--107 175 

For general or spaclal courts-martial ...----.-----------; -------- 90 I54 
INDEX 

Court-martial orders-Continued Par. Page 

Promulgation of flnal action on new trial by departmental orders ..-.-.-...--.-..... lWk 180 

Restoration of rights, etc., affected by executed portion of sentence as set aside, promulgated in I IIIIIIIIIIIIIIIIIII.IIIIIIIIIII 108 174 

Sentence: date adjudged shown in -...-...--.-,-...--------------------- 90a 156 

Summary court-martial cases: not issued in ..-......--.----.-----------.------------ 9Oe 166 

Bupplementary promuigatlon, forms for.. ....-...-.---..--.-------------- App. I%-. ..-.--.. 651 

Court of Military Appeals: 

Acmieed's right to appeal to, explained ....-.-.-.--------------------------------48j (3) 70 

Action by Judge Advocate General with respect to docision of- -.............-.-.. .. 101 172 

Action on petition lor new trial, Art. 73 ......----..---..--------------------- lmc, f 176,178 

Appeal period, 30 days after notice of decision by board of review. ..-.-...--------- 101 172 

Appellate defense counsel reprwents accused balore, when, Art. 70c ..........-...... 102b 173 

Appella e government counsel repre ents Oovcrnment hefore, whcn, Art. 7Ob..-.-.. 102b 172 

Judge Advocate Oeneral may forwnrd decision of board 01 review to, xvhen, Art. 87b- lOOb (2). 169,171 

101 

Powers and duties. Art. 67 -.---.........------.----------------------------

101 171 

Review by, when rerluired, Art. 67 ......---..-+---.----...----.---.---..-..-----.-- 98,101 108,171 

Courts, civil. See Clvil courts. 

Con- 1s-martial: 

For a apccifrc kind. or nroredurr before, see the specific title, as Qeneral courts-martial; 

Challenge; Findings; Motions; New trial: eta. 

Accounting for personnel aftcr recess or adjournment -.-.....------------- App. 8a.. .....--- 616 

Action byDefect arising out of prctrinl Invesligation .---..-----------------------------

69a 104 

Defective specifleation; examples -...---.--.------------------ ..-..-.---.----.--- 60b 104 

Evidence indicates no offense charged -..---.------..----------- 55 77 

Inadmissible evidonce .---------.......-_-.----------------------------

54c 76 

Adjourn or proceed to other business at conclusion of case ...-.....-.---------------- 77b 1% 

Appellate review ofrecnrds See Appellate review. 

Arraignment. See Arraignment. 

Assembling; conference as to time of, may be held out of court -.-.-...-.-.---------- 39c 56 

Attendance of accused, rrsponsibiliby for --..-..-.----.--.- GO 84 

Attendance of witnesscs. powers concerning, Art. 40 .---....--.----..--------------- 1150 188 

Both sides entitled to opportunity to present case; limitation.. -..........-..--...--- 639 74 

Censure by action or convening authority prohibited, Art. 37-. ........-......------ 86b (2) 143 

Challenge. See Challenge. 

Changes in personnel, how and when mada ......-..-----------------------.------ 37 62 

Changing membership after arraignment, rules --..-..-...-..-...-...-....-.--.- 37 62 

Charges. See Charges and speciGcations. 

Charplng court. See Instructing the court. 

Classified; general, spcial. and summary, Art, 16 ....-...--.-..--------------------- 3 2 

Closed for Gndings, procedure ..--.-....---------------------------------- App. 8a.- ....-... 618 

Closed srssionAttendance of law offiwr to phrase findine -------.------------------------- 63d 74 

Clearlng and closing of court, in gencral, Arts. 39, 51a .-..-.--.--.---.----------- Wd, 74, 117 

74d (I), 123 

76b (2) 

Closing rourt at requrst of president, prior to ruling.- ..----..--.--------------- 67g (3) 82 

Closing of court, In geneml, Art. 516 ----.-.---.--.-.-----. ----.-.-......-...---- 672, d 79.80 

Procedure Ln ..-.------..---.---------------------------------. App. 80.. ...-..-- 618 

CompositionIn another trial ordered bemuse prior proceedings are Invalid. --.-.....--.-.-..- 92 161 

New trial ...-.--...-...--------------------------------------------

1G9g (2) 178 

Number ol members- ...----........--.-...--...--------------------------4b 3 

Rehearing ------....-----------------------.-----------------92 159 

Trial of memhers olanothcr armed form ....-.-----..--------------------------- 13 17 

Contempt procedure ---.--....----.-----------------------------------

118b 197 

App. 8b.- ..--.--. 521 

Contempts may be punished by, Art. 48 ....-...-..-...,---------------------- 10,118 14, 197 

Contlnuanoe. See Continuanoe. 

Convening authority. See Concenlng authority. 

Convening of court; when complete ..---.-.. l-----------------------------61f 8B 

Counsel for the amused. See Counsel for the accused 

Defense counsel. Sec Defense wunsel. 

Evidenoe. See Evidence. 
Courts-martial-Con tinued 

Excluding membets. procedure ...... r........... ....................... A . &.. 

Excusing attendance at, by oral orders .............................................. Expenses; reference to departmental regulations ..... l ............................... Explanation of rights to accused.-. ................................................. General . See General com.ts.martial . Il~structiug wurt . See Instructing the court . Interpreter . See Interpreter . Judgments, hality of, Art . 76 ...................................................... Judicial notice . See Jndiclal notice . JurisdictionAbsence of acoused during trhl, where voluntarg and unauthorized, does not 

divest ......................................................................... 

Agency for exercise of military .................................................. 

Concurrent with other military tribunals under Arts . 21,104 . 106 ................ 

Constitutional source of power of Congress over thud and naval forces ............ 

App . 1 .. 

Contempts . See Contempts . Discussed by Supreme Court oi United States .................................. 

Does not exclude jurisdictio~~ of other military tribunals, Art . 21 (notcs) ......... 

Effect of discharge, honorabie or otherwise ...................................... 

Essentials of .................................................................... 

Exclusive, as to purely military offenses ........................................ 

Lack ol; motion to dismiss ...................................................... 

Legal constitution of court necessary to ......................................... 

Not divested because lacking as to some of offenses tried ......................... 

Not generally territorial in nnture; ih'ceptions ................................... 

Only question involved in case oi acquittal ..................................... 

Over dishonorably discharged priso~er for oEem while h service ............... 

Over persons no longer in servire not subject to trial by civil courts, Art . 3a ..... 

Penal or disciplinary; cannot adjudge damages or collcct debts .................. 

Persons subject tc?- 

Enumerated, Arts . 2, 3 ...................................................... 

Generally also subject to municipal law ..................................... 

Place where court sits does not oflect ............................................ 

Termination by separation Lrom service; exceptions ............................ 

Trial void because of lack of, not a trial In the sense of AT^ . 44 ..----............. 

MembersAbsence-- 

As a result of physical disnbility ............................................ 

From trisl; procedure ....................................................... 

Announament of presence, sbsence, or chanze .................................. 

AppointmentCommands of other wmed forces; mutujl coosent of Secrekaries required ... 

Other commands of same armed force; concmrence requircd ................. 

Within~oint command or joint task force ................................... 

Availability of olficers lor detall; regulations ..................................... 

Challenge . See Chdlenge . Changes in personnelAnnounced ................................................................. How effected ............................................................. 

Clemency recornmendatlon; rules .............................................. 

Coast and Geodetic Survey personnel, when elig[ble ........................... 

Demeanor during trial .......................................................... Detail of best quzlified, Art . 25d ................................................ 

Disclosure of vote on findings by recommendation or clemency, prohibi te ...... 

, Duties, in general ............................................................... 

Enllsted membersProcedure upon announcement of request for. .............................. 

Unavailability of; procedure ................................................ When eligible ............................................................... 

Equal voice and vote .......................................................... 

Excluded by law omcerfrom hearinppreliminnry epidenw or argument; rules ... 

ExcusingBy oral order ....................................................... ..;..... 

From future attendance in particular case ................................... 

Par . 

8 

12 

11 

8 

12 

67a . Ma 

86b (1) 

Sic 

8 

86h (2) 

llb 

116 

8 
INDEX 

Oourts-martial-Continued 

Memben-Continued Par. 

Lmpeaching flndings by clemency recommendation, not permltted .............. 77a 

Influcncing or coercing action of, prohibited, Arts. 37, 98. ....................... 8S 

Instructing. See Instructing the court. 

New member after trial begun; procedure- ..................................... 41e, / 

Objection by, to ruling of president or law officer.. ............................. 67c, 57d 

Papers not in evidence not sho\r,n to^ ..................... .'....... ............ 419 (1) 

Persons in arrest, conthement, or under suspmsion from rank. ineligible as... 4a 

Policy as to membership of same armed forco as wcused- ....................... 49 (1) 

Public Health Service personnel, when eligible .................................. 4a 

Punishment ol; court lacks authority to order ................................... 41b 

Quorum, absence oI; procedure .................................................. 41d 

Quorum, less than one-third enlisted persons may affect ......................... 41d (2) 

Rank of ............................... ..-.; ..................................... 4c 

Reserve personnel, when elizible ................................................ 4a 

Retired personnel, when eligible. ............................................... 4a 

Selection ........................................................................ 362 

Senior member to be lieutenant of Navy, Coast Guard or captain of Army, Air 

Force, or Marine Corps, whcn practicable .................................... 4e 

Sit according to rnnk ............................................................ 616 

Warrant officer, when digible ................................................... 4a 

Witness for prosecution, ercused as membcr.. .................................. 63 

New member; prooedure ................................................. App. 80.. ........ OathsOf personnel; forms ............................................................. 114 

Personnel sworn in presence of accused ......................................... 112e 

1frhen administered during trial; procedure. .............................. .. 61d, h 

App. &-- -------- Of one armed force; jurisdiction over personnel 01 another, Art. 17a .................. 13 

Ordor appointing. not to be rescindtd or revoked .................................... 37c 

Post trial matters ................................................................... 77c 

Freconvening procedure: duties of law oscer or president ........................... 61c 

Procedure iI member of prosecution is lcgally disqualified ........................... 618 

Proceedings may not be photographed or broadcast; exmptions.. ................... 63e 

Reciprocal jurisdiction: composition of courts for exercise 01 .......................... 49 

Report as to cases pending before. .................................................. 44e (1) 

Revision proceedings.. ............................................................ 80.86d 

App. 8c-- -----.-- 

Sentence; reasons for may be included in record ..................................... 765 (4) 

SessionsUsually open to public: exceptions ......... ................................... 53e 

Witnesses ordinarily may not attend, except to testily .......................... E3f 

Special. See Special courts-martial. 

Standing in courtSummary. See Summary courts-martial. 

Defeuso counsel, in addressing court.. .......................................... 489 

During swearing of certain personnel ............................................ 11Zd 

Trial counsel, in addressing court ............................................... 449 (1) 

Trial counsel. See Trial counsel. 

Views and inspections of premises, articles, etc ...................................... 54e 

Voting. See Voting; Findings; Sentence; Challenge. 

WitnessesSee also Witnesses. 

Law oacer or member as witness for prosecution; procedure.. .................. 63 

Courts of inquiry: 

Appointment, composition, powers, and procedure, Art. I35 ............... App. 2a.- ........ Exercise military jurisdiction; purposes; Art. 135 ................................... 2 

Findings may be basis for disciplinary punishment under Art. 15 in Navy or Coast 

Quard ....................................... 4 ..................................... 1536 

Interpreter, authority to appoint, duties, Art. 28 .................................... 7 

Limitation on punishment when proceedings of, read in ,evidence in courts-martlsL- l28a 

Oaths-- 

duthoiit~ to administer, Art. 13f% (2) ......................................... . 113 

Of personnel, Art. 135e ... ............................................. App. 2a.- ........ 

... 

Page 

135 

63 
Courts of inquiry-Continued 

Record of proceedings- Par. 

Admissible before courts-martial, Art. 50 ....-.-.---..,..-------. -.---- App. 2a.. ---..-.- Keeping, authentimtion, Art. 135h .........---.----------------------- App. 2a.. --.--... Refusal to appear or testify before; penalty, Art. 47 ....--...-.......------ App. 2n-. ....-..- Reporters and interpreters; autharity to appoint, Art. 28 ..........---.--..-.-------- 7 

Cowardly conduct: 

Discussion, proof, Art. V9(5) ..-.......--.......--.--------------------.--

17& 

SpeciEcation. form $I, Art. 996) .--.-.--.---.--.--------------.-..---A. 6c (47)-. ........ Credibility of witnesses. See W~tnesses-Credibilip. 

Crimes and offenses: 

See also the specific offense by name. 

Act or omission may be chargeable before both military and civil court. -----.-..--. 12 

Altbough not chargeable under Federal, State, etc., law, may beehargeable under 

Art. 134 ~-..--..-.---.-~-----------

2l3c 

Attempt. See Attempt. 

Capital. See Capital oflenses. 

Jurisdiction. See Courts-mrtial-Jurisdiction. 

Limitation on prosecution. See Former jeopardy; Statute of limitations. 

Maximum punishments -.-....----------------------.-----------.-

127 

Not capital, Art. 134- 

Based on Federal law of unlimited or of local application .-.....-......-----.-... 213c 

Discussion, examples; chargeable under Art. 134.. - ..-.-.---. . . . ---- ------------ 2138 

State and foreign law not included in; exception ..-.-.---.-------------.-------- 213c 

Punishment. See Disciplinary punishment; Punishment. 

Criminal responsibility, as aEected by ignorance or mistake of fact --...........-.------- 154a (3) 

Cross-exsminatlon. See R'itnesscs. 

Cross-interrogatories. See Depositions. 

Cruelty and maltreatment: 

Discussion, proof, Art. 93 ...-.-..-.-.--..---------------.-.--------

172 

Specification, form for, Art. 93 ----...-----.--.----------------.----- A 6c (31)-. ...-.--. Culpable tnefliciency in the performance of duty -.....-...-.--------------.------

171c 

Culpable nedlgenco, defined .~.--.~~..~~-~-~-----~--- . -- 1986 

Custodian of fingerprint records of depsrtment, bureau, or agency of United States: 

Certificates concerning fingerprint comparison .-..-...--------------- -............. 143a (2) 

Fingerprints in fraudulent enlistment case, certiEcation of. -. -.---.....-...------.-. 162 

Custody: 

See also Apprehension: Arrest; Contlnement. 

Alleged offender, securing, Art. 9e .-.--..--.-----.-----------------

19d 

Escape fromDiscussion, proof, Art. 95 .-..........--....----------------------

174d 

Bpeciflcation, form for, Art. 95 ...-..--------.----.---------------- App. 6c (38).. -------. 

Pol:ce, personnel perfomlng duties of, securing- .--------.------------------- 19d 

Prisoner before court, responsibility for --..-..----.-..---------.----------216, c. 50 

Temporary, of accused, pending appellate review in certain eases- -..-.---.-...--... 89c (6) 

Custom: 

Deflned ...-. .. -. -.- - ---.-- - - - .-. - - - . . -- - - - -- . - - -- 213~ 

Military; judicial notice may bc taken of ...--..-.-..------.-----------.------147a 

Of service; breach of, as violation of Art. 134. ----..--.-....... .. .------------------- 213a 

Damages, courts-martlal cannot award -.-.-..-......---------------------.-.8 

Damaging: 

Military propertyDiscussion, proof, Art. 108 ...-.-....-.....-------------------------

187t 

Speciflmtion, form for. Art. 108 ..-.-.-...--.-..------------------ App. 0c (67).. ........ Private property; reparation for damages, Art. 139 -..-...-.---.--.------ App. 2a.. : .....-- Property other than mllitaryDiscussion, proof, Art. 108 ......--..-....----.---------------.-------

l8Sb 

Speciflcatton, form for. Art. 109 .---......-.....------------------ App. Be (BQ).. -....-.. Dangeroils weapon. See Assault. 

Data us to service; introduclion of In evidence ........................................ 75b (1) 

Dates: 

Allegaticns of, In ~Dcciflcations .-...----------.---------------. A. 60 (7)-. ........ Substitution In Bncilng, eflect oL ...- -...-........--....-------------------. ...-..-. 746 (2) 

Dealing in captured or abandoned property. See Captured or abandoned property. 

Death: 

Authmtiartlon ofrewrd In case of, president or law omcer ....-...........-..-. * g2J 

Page 

430 

450 

428 

12 
INDEX 

Death-Continued Par. Page 

Devolution of command powers for courts-martial purposes .....-.---.-------------- 50 (5) 8 

Disposition of effects of deceased persons, Sec. 6. .. .. ..........-.---------- App. 26.- ..--.--. 453 

Investi?ation of, when required, procedure. Sec. 6 .-....-.....---.-.---- App. 2b.. ........ 453 

Remission of suspended sentence, death operatcs as .................---------------- 97a 165 

Death certiflcntes: 

fee also OWcial records. 

Preaumpt,ion of competency as evldcnce .....-.....---------------------------.--- 1448 265 

Death sentence: 

Appellate revlew in mes of, Arts. 60, 67, 7la -.-....-.--....--------------------- lDOc (2), 101 171 

Approval of, by President required, Art. 71a ........-.--.-..------------------------ 98 168 

Capital offenses defined ............................................................. 150 (2) 18 

Conscientious scruples agalnst imposiug, ground for challenge- .--..........-...-.-- 026 90 

Discretionary at dl times, iuMurder in violation of Art. 118 (I), (4).. . ......------.--- - --.--- -App. 2a-- . ..----. 446 

Mntiny or sedition, failure to suppressor rcport same,or attempted mutiny, Art. 

64 . -. . . . . . . . ..---- -- -- - - - - - - - -- - ---- - - - - - - - - - - - - - - - - - -- - - - - - - -- -A %. . -- -- -- 442 

Rape. Art. 120 ...-_----.-..-.------..---.--------.-...---------------- A 2 -- 440 

Willfully hazarding or suffering to be hazatded a vessel 01 the armed forces. Art. 

110a ....-.. .. .. .----- . . .. .-.--.-.-------- ----.-.-------------------- 4 24%. .. -.-..- 445 

Dlscr~tionary in time of war, InAidingor attempting to aid, harhoring, protecting, communicatingor correspondfng with, or holding intercourse with the enemy, Art. 104 .-......-. App. 2a.- ...----- 444 

Assaulting or willfully disobeying superior officer, Art. go..- .--...-..- Agp. 2a.. ..--..-- 442 

Desertion, attempted desertion, Art. 85. App. 2a.. ...-.-.. 441 

Forcing a saleguard, Art. 102 ..-.-....------.--.---------.---.--..-.... A 20.. .---.... 444 

Improper use of countersign, Art. 101- ---..-..-...-.. ..-.. App. 24.- -..---.- 444 

Misbehavior before the enemy. Art. 99 ------.....-..-. ...--_-_.-. .--.App. 2a.- --.-.... 443 

Misbehavior of sentinel or lookout. Art. 113 ......-.....-.-..---.---.-. App. 2a.- -..--... 445 

Gnbordinato campelling or attempting to compel commander to surrender, Art. 

100 .-.-.. --.---.-_--. . --- -- -- ---. -----.. - Po-.. ----.-.- 443 

Dishonorable discharge included in by implication ..-.------------- ----------------- 128a 208 

ExecutronAppellate rerlew; preliminary actfon .-.--_-_-_._--.--------------.----- 1 -.-.---. 98 168 

Authority ordering to prescribe rncthod of .--..-_-_.-.-.-.------------.-.--..--. 88d 149 

Convening authority with1 ut power to order- ---.---.-.---.-.---------.--.-..._ 88d 149 

Mandatory for spy in^ in time ol war. Art. 106 ......-..-.---.-------------- App. 2n.. --_---.. 445 

May he adjudged only when speciEcally authorized, Arb. 18. 525 (1) --....-.-......- 126a 207 

Prohibited if court of inauiry procc~dings are read in evidence by prosecution, Art. 50. 126a 207 

Speclal court-martial. cannot adjudqe, Srt. 19. .........-..._--------.------.-.-...- 156 19 

Summary court-martial, cannot rtdjudpe, Art. 20 -.....---------..--------------.-.-- 11% 20 

fiuspension of, not permitted. .4rls. 71, 740. ...-....--------.----------------------- 97a 165 

Voting on, concurrence of all members present required. Art. 52b -...-..-..--..-.... 7eb (3) 124 

When appointinz anlhority directs case treated as not capital, not authorized, Arts. 

19,49 .--~.--~.~...~~~~~-----~-~-.~~126a 207 

When limit of punishment flaed by President Isless than death, not authorized, Art. 

56 .---......-.----.---------------------------------------.126~ 207 

Debts: 

Disputed. private; not mntter for court-martial action, when .-----.---.-.-.-...-..-- 213b 383 

Failure to Keep promisr to gay: specification. form for. Art. 133 -------- App. & (117)-. -----.-- 488 

Failure to pay; specifications, forms for, Arts. 133.134 ---...-.- App. Ge (116), (130)-- ---.---- 488,490 

Nonpayment of, by officer, as offense under Art. 133 or Art. 134 -.-..-.-.--.-.-.-...- 212, 213b 381,382 

Private; not collecllble by sentence oIeourt.martia1. .------------------------------- 126h (1) 209 

Decectsed persons: 

Disposition of effects of, See. 6 ..... .----------........--------------------- App. 2b-- -----..- 463 

Former testimony. See Former testimony. 

Defects: 

Ailslng out of pretrial investigtrtfon. See hTotlons. 

In ebarees and spec~cations. See Charges and specifications; Motions. 

Defmse counsel: 

See also Appellate coun8el: Appellate defense, counsel; Assistant defense counsel; 

Couasl; Coilnsel For the aemsed: Individual wunsel; Civilian counsel. 

Absence of regularly appointed. with consent 01 accused, permitted 46c 68 

Accused; esmpe during trial, effect on ......---------..----------.-.----------------481 70 

Accused may expressly request wunsel not legally qualied -..--.-...-. -----.-- 61j (31, (4) 88 

Accused'~ right to be re~~esented by,Art. 38 ..........--.....------------., APD* 2a-. .... .... 426 
INDEX 

Defense cornel-.Continued Par . Page 

Acts es associate counsel; excused; when .......................................... 46d, 611.~3) 67 . 88 

Advises aceused of appe late rights .................................................. 48j (3) 70 

Announcement of chROge in, or new, counsel ........................................ 61f (5) 88 

Appointment, qualifi~ation?, Art . 27 ................................................ 0 9 

Ascertaining leg81 qnslifical.ions at trial ............................................. Blf (2) 87 

Assistant . See Assistant defense munsl . Certificate of legal quaiiflcation, when required.. ................................... 61 f(1) 8G 

Clemency recammendations of, in general ......................................... :- 77a 125 

Clerks and orderlies to assist ........................................................ 51 '72 . . Consultation with acous'd .......................................................... 48f 6 R. 

Court may assume accused advised 01 his rights by ................................. 53h 75 

Court need not volunteer advice to-; ....... : ....................................... 5Bh 75 

DisquaIjRcatlon, grounds of, procedure, Art . 27a ................................... 6a . 43,46b . 9.61.66 

611 86 

Duties arter triul- . ' ' ' 

Appellate brieL ................ ' ............................................ 48j (2) 70 

Clemency recommendation ..... I ............................................... 48j (1) 70 

Duties dming trialGeneral, Art . 38 .............................................................. 46d, 48, 48c 66,67. 68 

Rehuttal of matter in aggravation ............................................... 75d 121 

Enlisted members of court; action to obtain ........................................ .. 48e 69 

Examination and correction of record of trial ........................................ 82e 135 

App . 9c ........ 528 

Excused from attendance during ttial, when ........................................ 46c 66 

App . 8a ........ 504 

Form of oath ....................... 1 ............................................... 114 186 

General rules of conduct .................... -1-1 .. ........................ 42b 60 

Instructions to court; may be requested-to submit .. . 73c (2) 113 

Joint trial; accused to be advised of conflicting interests. ............................ 4% 68 

Prior participation in same eas$ disqualification by; procedure .................... Ba, 61f (4) 9.88 . . App . 8a ........ 502 

Procedure when not legally qualiflad ................................................ 61f(3) 87 

Qualifications . legal; when required, Art . 27 ...................................... 6b. c, 6lf(l) 10,lI . 86 

App . 8a .......... 502 

Report to wnveninp authority of bias . prejudice, etc., oL ........................... 46b 66 

Stipulations . See Stipulations: 

Term"counsel" includes dolenm $ounsel and trial counsel ........................... 42a 60 

Witnessa; action to obtain, Art . 46 ................................................. 48d, 115a 09, 188 

Delcnses and ohjections . See h4otions . Definitions: . . 

Abandon, Art . 100 .......... ...~.i..r r.. ............................................ 179a 334 

Absence without, leave, Art . 66 .. L.. ............................................... 165 315 

Accessory after the fact, Art . 78 ..................................................... ' ' 157 303 

Accusation .......................................................................... 24a 28 

Accuser, Art . 1 (11) ............. r- .................................................. 5a 7 

Active duty, Art . 25 ................................................................ 4a 2 

Additional charges ... ............. .l.r~~ .... r ................................... 1- . 246 28 

Adn~issions by accuscd .............................................................. 140a 246: 

Aider, abbetor, Art . 77 .............................................................. 156 302 

Aiding the enemy, Art . 104: ........................................................ 183a 338 

Any prisoner, Art . 96 .............................................................. 175 329 

Apprehension, Art . 7u. ............................................................ 18a 21 

Armed force, Art . 1 .................. :-::-: ............................. .App . 2a .......... 412 

Arraignment ....................................................................... 65a 95 

Arrest, Arts . 9a and99 ....... ~.i ..... 1.1: ... z.. ........ L .......................... 18a, 20a, 21, 23 

174b 327 

Arsou, Art . 126 ..................................................................... 205 367 

AssaultAggravated, Art . 128b ........................................................... 2076 371 

Indecent . 213d (2)- 3% 

Undcr Art . 123a ....................................................... .. ..... 2070 ' 369 

With intent to commit rape ................................................. 213d (l)(c) 3S.5 

With intent to commit sodomy .............................................. 213d (1) (c). 385 

With intent to commit voluntary kanslaughtcr .............................. 213d (1) (b) 385 

With intent to murder::: ... .... ............................................ 213d (1) (a) 2-34 

Wia ii~terlt mrob . l.r.x. .... .1~:1. .............. iL--I ................ 2136 (1) (d) 385 

594 
INDEX 

Deildtlons-Oontlmued Par . Assaulting warraut. nonwmmissloned. or petty oficer. Art . 01 ....................... 17C4 

AttemptUnder Art . 85 (desertion) ....................................................... 164b 

Under Art . 94 (mutiny) ......................................................... 173e 

Under Art . 100 (compelling surrender) .......................................... 179a 

Under Art . 104 (aiding enemy) .................................................. 1% 

Under Art . 128 (BSFU~~) ........................................................ 207a 

Attempts, Art . SO ................................................................... 159 

Basic pay ............................................................................ 126h (2) 

Battalion . when "detached" ........................................................ 55 (3) 

Battery . Art . 1230 ......................................... .. .......................... 2070 

Before the enemy, Art . !49 ................................................... 178a 

Liehaving in contemptuous or disrespectful manner to warrnnt . nOnc(~mini~sioned, or 

petty oficer, Art . 91 ............................................................... 170d 

Bodily harmQreat . Art . 118 ........ : ......................................................... 197e 

Grievous, Art . 125 ................................................... I .......... 207h (2) 

Breach of arrest, Art . 95 ............................................................ 1746 

Breach of the peace, Art . 118 ..................................................... 1966 

Breaking, .4rt . 129 (burglary) ....................................................... 208 

Burglary, Art . 129 ................................................................. 208 

Burning, Art . 1% ................................................................... 205a 

Business entries .................................................................... 144e 

Cadet, Art . 1 ............................................................. App . .......... 

Capital offenses ..................................................................... 15a (2) 

Case not capital, Arts . 19, 491, 50 ............................................... 15a (3), 131a , 

145a 

Causing [also alarms, Art . 99 ....................................................... 178g 

Oharges ............................................................................ 24a 

Circumstantial evidence ............................................................ 1386 

Claim, Art . I32 .................................................................... 211a 

Commanding omcer (for purpose of ordering arrest or continemalt) ................. 21a (1) 

Common purpose, In riot ........................................................... 195a 

Commutation ...................................................................... me, 1050 

Concealment, Art . 83 (of enlistmeat, appointment, or separatioa) ................... 162 

Concerted action, Art . 116 (riot) .................................................... 195a 

Conduct unbecomiug an ol8oer and a gentlemm, Art . 133 ........................... 212 

Confession ... .....,................................................................ . 140 a. 

Contlnement, Arts . 90, 95 ........................................................... 18a . 174c 

Gonhement on bread and water or diminished rations ............................. 125 

Conspiracy . Art . 81 ................................................................. 160 

Contempt toward officials, Art . 89. ................................................. 167 

Contemptuous words ag'ai~st President, Congress, ete., Art.% ..................... 167 

Convening authority ............................................................... 5, 84a 

Counsel lor accused ................................................................. 42a 

Countersign . Art . 101 ............................................................... I80a 

Court; when question to be decided by ............................................. 57b 

Cowardice, Art . 99 .._ ............................................................... ... 178c ... 

Credibility pl witness .... ............................................................... 168a . . 

Crimes or offenses, not capital . Art . 184. ............... 213c 

Criminal offense, Art . 130 (housebreaking! .......................................... 2OD 

Cruelty and maltreatment . Art . 03 .................................................. 172 

Culpable inefficiency, Art . 92 ....................................................... 171c 

Culpable negligence, Art . 119b.. .................................................... 19% 

Custodian of official reeard ................................................... .. 143b (2) (a) . . 

Custody ............................................................................ 174d 

Custom ............................................................................. 2130 

Defense counsel ..................................................................... 42a 

Delay, .4rt . 94 L................................... :- -:--: ....................... 173d 

Deliver up, Art . 99 .................................................................. 178b 

Department, Brt . 1 ....................................................... A . 2a ......... Depasition .......................................................................... 117a . ~~ 

. Derelictionin the perEormanooe~duties, Art . 92 ...................................... lnc . . . . 

Dessrtion, Art . S5 ................................................................ 164a ........ .... . Design, Art . 96 ...................................................................... 175c ....................... Destroylug, Art . 1DD ................................................................. 188b 

595 . 

Page 

322 
INDEX . . 

Detlnitions-Continued Par . Detaohed unlt. Art . '23 .............................................................. 56 

Direct evidence ..................................................................... 13% 

Dlseredit, Art . 134 .................................................................. 213b 

Disloyal statements, Art . 134... ..................................................... 21% (5) 

Disobedience of lawful order of one not a superior, Art . 92 ........................... 171b 

Disobeying warrant, noncommissioned, or petty omcer, Att . U1 ..............-.. .... 170a 

Disorders and neglects. Art . 134 ..................................................... 21% 

Disrespect towards superior omcer, Art . 89 .......................................... 168 

Drawing or lifting up a wmpon, Art . €10 .., ~....................................... l69a 

Driving while drunk or in s reckless or \vrsntoi~ manner, Art . 111 .................... 190 

Drunk, Art . 112 ..................................................................... 191 

Drunkenness, as affecting responsibility for crime and intent ........................ 154a (2) 

Duel, Art . 114 ....................................................................... 193a 

Duly committed, Art . 96 ........................................................... 175a 

Duty. Art . 112 ...................................................................... 191 

Dwelling, Art . 126 (arson) ........................................................... 205n 

Dwelling, Art . 128 (burglary) ........................................................ 208 

Dyin~declaration ................. I ................................................. 142a 

Effecting unlawful enlistment, appointment, or saparation, Art . 84 .................... 163 

Enemy. Arts. 99. 104 .............................................................. 178a, 183a 

Enlisted person, Art . 1 .................................................... A 2a. ......... Entry, Art . 129 (burglary) .......................................................... 209 

Error. prejudicial ................................................................... 87c 

Escape.. 

From confinement . Art . 95 ...................................................... 174c 

From custody, Art . 95 .......................................................... 174d 

Under Art . 90 ................................................................... 175b 

Exceptions and substitutions .................................................... 74b (21, 158 

Excusable homicide ................................................................. 197c 

Expert witness ..................................................................... 13% 

Extenuation, matt~r in ............................................................. 75e (3) 

Extortion, Art . 127 ................................................................. . 206 

Failing to do u'most to enmu-ter, engaer, or destroy enemy troops. etc., M . 99. ..... 178h 

fail in^ to ?ewe captured public property. Art . 1M ................................. 1820 

Failure to give Information of mutiny or sedition. Art . 94 ........................... 173d 

Failure to obey general order or rcculstion. Art . 02 .................................. 171a 

Failure to prevent or suppress mutiny or seditlon, Art . 94 ........................... 17% 

False oftlclal statements, Art . 107 ................................................... 186 

Fdso pretense, Art . 121 (Iarceny) ................................................. 2008 (5) 

False representation, Art . R3 (on enlistment, appointment, or separation)......... ... 162 

False swearlug, Art . 134 ............................................................. 213d (4) 

Federal law, Art . 134 ................................................................ 213~ 

Final disposition upon initial apcllata review . See . . 12 (App 2b) ....................... llOa 

Forfeiture of all pay and allowanoes ................................................. l26h (2) 

Forgery ........................................................................ 202 

Forges or counterfeits. Art . 132 (2) (c) ............................................... 211e 

Former testimony. ................................................................. 14% 

Fraud . Art . 132 ..................................................................... 211a 

Fraud on the court ................................................................. 109d (3) 

Fraudulent enlistment. appolntment, or separation, Art . 83 ............. 162 

General order. Art . 92 ............................................................... 171a 

aenernl owner, Art . 121 (larceny) ................................................... 2000 (3) 

aenernl regulntion, Art . 92 .......................................................... 171a 

Give up, Art . 100 ................................................................... 1790 

arievous bodily harm .............................................................. 207b (2) 

Habeas corpus ...................................................................... 214a 

Harmless error ...................................................................... 87C 

Hazardous duty, Art . 85 ............................................................ 164a (2) 

Hearsay ............................................................................ 139a 

Housebreaking. Art . 130 ............................................................ 209 

Impeachment of witness ............................................................ 153b (1) 

Important service, Art . 85 ........................................................... 164a (2) 

Improper hazarding of vessel. Art . 110 ............................................. . 189 

lndeoent acts with a chlld, Art . 134 ................................................. 213d (3) 

Indecent assault, Art . 134 ........................................................... 21% (2) 
INDEX 

DeBnltions-Con1 lnued Par . Indirect and constructive Wntempts ............................................... 113a 

Indlvidunl counsel ................................................................. 42a 

Insanity ............................................................................ 120a 

Insubordlnatc conduct towards nonwmmlssloned oIEcsr, Art . 91 .................. 1700 

Intelligence . Art . 104 .............................................................. 183c 

Interlocutory question .............................................................. 67b 

Inte~~ogatories ..................................................................... Il7a 

In the execution of his offlw, Arts . 90.91 .......................................... 169a, 170d 

In the Reld, Art . 2 (note) ................................................. App . 2a .......... Investigating officer. Arts . 25,% . 27 ................................................ 64 

Involuntary manslaughter, Art . ll9b .. ............................................ 16% 

Joint offenses ....................................................................... 26d 

Judge advocate ..................................................................... Bb 

Judge Advocate General, The, Art . 1 .................................... App . 2a .......... Judicial notice ...................................................................... 147a 

Judicial proceodlng or course of Justice, Art . 131 [porlury) ........................... 210 

Justifiable homicide ............................................................... 197b 

Killing, unlawful ................................................................... 107a 

Knowingly and intentionally faillng to enforce or comply with provlslons of code, 

Art . 98 ............................................................................ I77b 

Knowledge; actual, constructive, Art . 92 ............................................ l7lb 

Larceny, Art . 121 ................................................................... 2M)a (1) 

Lawful. Art . 91 ..................................................................... 170a 

Law offlcer, Art . 1 ........................................................ App . 2a.. ........ 

Law specialist, Art . 1 (13) ........................................................... 65 

Leading questions ................................................................ 149c (1) (a) 

Leaving post, Art . 113 .............................................................. 192 

Legal onicer, Art . 1 ....................................................... App . %I.......... Lesser includcd offense, Art . 79 .................................................. 158 

Liberty, Art . 112 .................................................................... 191 

Lookout, Art . 113 ................................................................... 192 

Looting or pillaging, Art . 103 ........................................................ 182d 

Maiming, Art . 124 .................................................................. 203 

Making Mse or fraudulent claim, Art . 132 .......................................... 211a 

Malingering . Art . 115 ............................................................... 194 

Maltreating prisoners, Art . 105 ...................................................... 184b 

Manslaughter ....................................................................... 198 

Martial law .......................................................................... a 

Material evidence ................................................................... 137 

Member of the Judge Advocate General's Corps .................................... 4e, 8b 

Memoranda ........................................................................ 146a 

Mental capacity .................................................................... 120e 

Mental responsibility ............................................................. 120b 

Midshipman, Art . 1 ............................................... 1 ....... A . 2a.. ........ Military. Art . 1 ............................................................... 20.. ........ Military duty ...................................................................... 191 

Military government ............................................................... 2 

Military law ......................................................................... 2 

Milltary property, Art . 108 ......................................................... 187a.b. c 

hlinor offense, Art . 15 ............................................................... 12841 

Misbehavior before the enemy, Art . 99 .............................................. 178a 

Misbehavior of sentinel or lookout. Art . 113 ......................................... 19% 

Misconduct as prisoner, Art . 105 .................................................... 184 

Misconduct, Art . 99 ................................................................ 178c 

Missing movement. Art . 87 ......................................................... 168 

Mitigation. matter in ............................................................... 75c(4) 

Mitigation of punishment ........................................................... 88c 

MotlonFor approurlatc relief ............................................................ 69 

For flndlng of not guilty ........................................................ no 

To dismiss ....................................................... - ........... 68 

To elect ........................................................................ 698 

To sever ........................................................................ 69d 

Municipal corporstlon as person, Art . 138 (note) .......................... App . 20. . ...-... Murder, Art . 118 .........................................................."...... . 197 
INDEX 

~efinikons-continued Par . Page 

Mutiny and sedition. solicitation of. Art . 82 ........ : ................................. 161 . 307 

Mutiny, Art . 94 .................................................................... 173a . 325 

Navy, Art . 1 .............................................................. A p. 2a .......... 412 

Neglect, Arts . 96.99, 108 .......................................................... 1756,178~ , 329, 332 

1876, c 342. 343 

Negligence, Arts . 90, 110b ............................................................ 1756, 189 329. 345 

Newly discovered evidence.. .......................................... I ............ lO9d (2) 177 

Nighttime, Art . 128 (burglary) ...................................................... 208 374 

Not affording all practicable relief and assistan@', .Art . 99 ............................ 1781 333 

Oath ................................................................................ 112 a 184 

Offense, separate .................................................................... 76a (8) 12'1 

Offers violence against, Art . 90 .. 168a 326 

Oliicer, Art . 1 ............................................................ App . 2a.. ........ 412 

Officer havhg supervisory powers ................................................... 94a (1) 162 

Official records ...................................................................... 144b 265 

On duty, Art . 112 ................................................................... 191 347 

On post, Art . 113 .................................................................... 192 348 

Oppressior., Art . 93 ................................................................. li2 325 

Oral deposition ..................................................................... 117a 192 

Order, Art . '31 ........................................................................ 170a 322 

Pardon ............................................................................. 68e 103 

Parcle , A 4rt . 101 ....................................................................... 180a 335 

Participation in same CB,W as counsel ................................................. 6a 9 

Peremptory ch?.llence ............................................................... 6% 91 

Perjury, 4rt . 131 .................................................................... 210 375 

Persons awompanyina or serving with, etc., Art . 2 (note) .................. 4pp . a.. ........ 418 

Persons subject to the code, Art. . 2 ....................................... App . 2a.. ........ 412 

Place of duly, Art . 99 ................................................................ 178f 333 

Place of restraint. Art . 97 ........................................................... 176 330 

Plunder or nillap. Art . 99 .......................................................... 1781 333 

Poaession, Art . 121 ................................................................. MOa (3) 357 

Post, Art. . 119 ...................................................................... 192 348 

Prejudicial error .................................................................... 87c 116 

Premeditated murder, Art . 118 ..................................................... l9id 352 

Presumptions ..................................................................... 138a 239 

Previous conviction ................................................................. 75b (2) 119 

Prir.cipals. Art . 77 ................................................................. 156 302 

Privileeed communication .......................................................... 151a 284 

Prope! . wut.hority, Art.s . 96, 103 ..................................................... 175a, 18% 329.337 

Proporly appoi!lted place of duty, Art . 86 ........................................... 165 315 

Provoking speeches or gestures, Art . 117 .......................................... 196 351 

Pnhllc law. Art . 134 ................................................................ 213c 385 

Quorum of court-martial ........................................................... 41d (1) 58 

Rap, Art . 1!20 ...................................................................... 199a 355 

Reaqonable doubt .................................................................. 74a (3) 114 

Reason to believe. Art . 94 ......................................................... 173d 326 

Reckless driving .................................................................... 198 345 

Relevant evidence .................................................................. 137 238 

Reproachful speeches . Art . 117 .................................................. 196 351 

Reputation ......................................................................... 13Sf (1) 243 

Resisting apprehension, Art . 06 ...................................................... 174a 327 

Restraint, Art . 97 ................................................................... 170 330 

Riot, Art . llG ...................................................................... 105a 349 

Robbery, Art . 122 ................................................................... 201 3% 

Safeguard, Art . 102 .................................................................. 181 336 

Sedition, Art . 94 ..................................................................... 1736 326 

Sentinel, Art . 113 ................................................................... 102 348 

separate offense ..................................................................... 700 (8) 123 

Sep~rate unit ............................. ......................................... . . 5b 8 

Shameful, Art . 99 .................................................................. 178b 3.12 

Shoal, Art . 110 ................................ ...................................... 189 345 

fiodomy, Art . 125 ................................................................... 204 307 

Solicitation . Art . 82 ... ............................................. ................ 101 307 

Solitary e~nfmernent .. ..,.... ....................................................... 135 208 

Gpedal owner, Art . 121 Oar-ny) .................................................... UHla (3) 368 
INDEX 

Definitions-Continued Par. Page 

Specl5cations .......................................... i ............................ 24a 28 

Spoil, Art. 109 ...................................................................... 188a 344 

Spy, Art. 106 ....................................................................... 185 341 

Squadron, when "separate" ......................................................... & 8 

Statutory rape. See Carnal knowledge. 

Strnnded, Art. 110 .................................................................. 189 345 

Strikes, Art. 90 ..................................................................... 169a 320 

Striking the mlors or flag. Art. 100 .................................................. 179b 334 

Structure, Art. 130 (housebreakiig) ................................................. 209 375 

Subject to orders, Art. 93 ........................................................... 172 325 

Subpoena ........................................................................... 115a 188 

Suffer, Art. 110-. ................................................................... 189 345 

Superior officer, Arts. 1, 89.90 ....................................................... 168 319 

169a. b 320,321 

Suspension from rank, command, duty ........................................... 1261 212 

Testimonial knowlodge ............................................................. 1386 241 

Test of legal sufficiency of sppcification .............................................. 87a (2) 145 

The Judge Advocate Oeneral, Art. 1 ...................................... A 2a.. ........ 417 

Through neglect, Art. 87.; ....................... .... ................................ 166 317 

To forfeit all pay and sllowanc acl .................................................... 126h (2) 210 

To the prejudice, etc., Art. 134.. .................................................... 213a 381 

Toward a warrant officer, a noncommissioned officer, or a petty officer, Art. 91.---.- 1706 323 

Towards superior officer, Art. 89.. .................. .. .............................. 168 310 

Trial, Art. 44 ....................................................................... 0Sd 102 

Trial counsel ....................................................................... 420 60 

True owner, Art. 121 (larceny) ...................................................... 2M)a (3) 368 

Unit, in sense of Art. 25c(2): Departmental definition ................................ 4a 2 

Unlawful detention of another, Art. 97 .............................................. 176 330 

Unlawful homicide, Art. 118 ........................................................ 197a 351 

Unnecessary delay in disposing of case, Art. 98 ...................................... 177a 331 

Utm6St endeavor, A] t. 94 ........................................................... 173c 326 

Vessels, seized or captured, Art. 103 ................................................. 182d 338 

Violation of general order or regulation, Art. 92 ...................................... l7la 323 

Voluntary manslaughter ............................................................ 198a 353 

Wanton. Arts. 111, 118 .............................................................. 190,197f 346,352 

Waste, Art. 109 ..................................................................... 18Ba 344 

Willful damage, destruction, or loss, Art. 108. ...................................... 187b 342 

Willful disobedience, Art. 90 ........................................................ 1691, 321 

Willful diobedience, Art. 91 ........................................................ 170a 322 

Willful or neglectful saerance, Art. 108 ............................................. 187c 348 

Witness for court. .................................................................. 153b (1) 281 

Witness lor prosecution ........................................................... 15% (1),63 291,04 

Written deposition .................................................................. 117a 192 

Written interrogatories.. ........................................................... Il7a 19% 

Degrading questions. See Self-incrimination. 

Delay: 

Alteration of charges to avoid ....................................................... 3314 40 

Charges, in preferring, when permitted ............................................. 25 28 

Unnecessary, in disposing of case of person acrmsed of offense-- 

.Discussion, proof, Art. 98 ....................................................... 1775 331 

Specification, form for, Art. 98 .................................... A. & 4 ........ 477 

Delegation: 

Appointing power of courts-martial, not permittad .................................. L 8 

Arrest or confinement of enlisted persons, to noncommissioned officers.. ............ 21a (2) 25 

Authority to arrest or conflne otEcer, warrant offleer, clviliao, not permitted-.------ 210 (1) 25 

By President, Art. 140 ................................................... A. 20.- ........ 452 

Disciplinary powers under Art. 15, not permitted ................................... 1280 228 

Delivering less than amount called for by receipt: 

Discussion, proof, Art. 132 (3) ...................... L ................................ 211f 379 

Specification, form lor, Art. 132 (3) ................................... App. 6c (1121.- ........ 487 

Delivery of offenders to cEvil authorities. See Civil authorities. 

Delusions, insane; effect of .............................................................. laOb !BO 

Department; deflnition, &. 1 ............................................... -A. Zu.. ........ U1 
Depasltiom Wr . Page 

~ction to take in cases of absence without leave ...................................... a06 3p 

Admissibility In evidence, generd .................................................. 145a 280 

Authentication; by civil ofiicers ..................................................... 117a 193 

Capital casus; when admissible; what ere capital cases, Art . 49 ...................... 1458 2~9 

Defense counsel; appointment, qualiflcstions for taking ........................... > 117a. g 193, 188 

Detail of officer to represent each side ............................................... 117a 193 

Express consont of defonse in capital cases, when required ........................... 145s xg 

Fees and mileage; vouchers ......................................................... 117c, e 104, 196 

For defense in capital cases; scope of cross-examination .............................. 145a 289 

Foreign countries, who may take in ................................................. 117a 193 

Form .................................................................. .A . 18 .... 560 

Incorporated in record .............................................................. 145a 271 

InterrogntoriesAnswers to, how recorded ....................................................... 117e. g 195. 197 

Leading questions . latitude .................................................... 1176, 145a 194. 270 

Name of deponent unknown, how desiguated in ................................ 117a 193 

Objections to, by either side .................................................... 1176. e, 194, 195 

145a 270 

Objections to, how recorded ................................................... 117b. e, 194, 195 

145a 270 

Papers to accompany ........................................................... ll7c 194 

preparation of . procedure ....................................................... 1176. c 193.194 

Return of; notice to accused or counsel, opportunity to esamine ................. 117f 196 

Intrdduction In evidence. procedure ................................................. 145a 270 

Limitations upon use of do not apply, when ........................................ 145a . '271 

Military of8cer; duty on receipt of .................................................. 117d 195 

New trial of capital w.. .......................................................... 145a 269 

Notice; to whom given .............................................................. 117a 193 

08th; authority to administer, Art . 136 ................................... App . 2a .......... 450 

0ath;form .......................................................................... 114 185 

Oral; definition, discussion, procedure .............................................. 117a . g 192. 198 

Pretrial; taking, use of .............................................................. 30e, 34d, 34, 47 

117a 193 

Qualifications of persons taking ..................................................... 117a, g 1%. 196 

Refusal to appear or testify beIors officer taking; penslty, procedure, Art . 47 

A ............ 428 

Rebaing of capital cams .......................................................... 145a 269 

Reddence of deponent, presumption of continuance of same ......................... 13& 240 

signing of, by deponent ............................................................. 117e 196 

Statutory provision, Art . 49 .................................. Ap 242.. ........ 428 

Submlsslon to law officer prior to taking... ......................................... ll7b, g 194, 196 

Subsequent trial, admissibility upon ................................................ 145b 272 

Summary courts, use in ............................................................. 79b 126 

Taking of. general .................................................................. 117a 192 

Through interpreter ................................................................ 141 & 

Written; definition, discussion ...................................................... 117a 192 

Deposits: 

Complllsory; illegal sentenm ........................................................ 126h (1) 210 

Not forfeitable, including interest on .......................... : ..................... 126h (2) 210 

Derangement, mental, defined .......................................................... 1206 200 

Dereliction in the performance of dutles: 

Discussion, proof, Art . 92 (3) ..................................................... l7lc 324 

Specification, form for, &t . 92 (3) .................................. A . & (30).. ........ 476 

Deserter: 

ApprehensionAuthority of civil offlmr ........................................................ 236 26 

Authority of private citizen .................................................... 23b 28 

Arrest of, by civil authorities, Sec . 16 .................................... Ap . 26 .......... 467 

Minors; right of parents and of United States ....................................... 23a 26 

Reaard for apprehenslon, effect of offer of ............................. .-. ..... 23b 26 

Unauthorized apprehension; not grounds for dischsrge from military custody ........ '27 

Dew tlon: 

Advising. Sed 8olicitatlon . Arrest of desertera . Ses Appmhenslon . 
INDEX 

Dasartlon-Continued Par. 

AttemptedDiscussion. proof, Art. 85 ....................................................... 164b 

Specificotlon, Iorm lor, Art. 85 .................................. App. 6c (13)-. ........ Attempt to desert; evidence of motive, admissibility; example ...................... 138g 

Condonation, constructive, in bar of trial ......................................... .. @f 

Discussion, proof, Art. 85 ........................................................... 164a 

In time of war; statute of limitations Inapplicable, Art. 43a .......................... inc 

Not continuing offcnse .............................................................. 68c 

Plea of guilty to, when changed by court ............... : ............................ 7Db 

Reward as authorizing civilion to apprehend deserter- .............................. 23b 

Right of Unlted States to apprehend and try a deserter, paramount ta control by a 

p~rent ........................................................................... 23a 

Solicitation of. See Solicitation. 

Specifications, forms for, Art. 85 .................................. App. 6c (Q-12)-. ........ Time lost to be made good, Sec. 6 ......................................... A. Zb-- ........ Trial lor, barred by trlal for absence without leave for same absence ................ Gad 

Destruction of property: 

MUitaryDiscussion, proof, Art. 108 ...................................................... 18ih, c Speciflwtion, form for, Art. 108 ................................ App. 6e (67, 68)-- ........ Non-militaryDiscussion, proof. Art. 109 ...................................................... 188b 

Bpeciflcation, form for, Art. 109.. ................................. Ap 6e (69). ......... Redress for: duty of eommsnriing offlcer, stoppnzcs, brt. 139 .............. App. 20.- ........ Destruction of public records; s~aciflwtion, form for, Art. 184 .......... -.App. 6c (162)-- ........ Dctached battalion, dcEineh ......................................................... :-- 5h 

Detached unit: 

Appointment of courts-marthl lor, Arts. 23, 24. ..................................... 8, e Term defined and discussed ...................--.................................... b$ 

Detachment: determioation of, by flap or general officer in commaud of Navy or Coast 

Guard commanl, con?lusiv~. Irt. 23 .................................................. 6b 

Detention 01 pay: 

ERcctivo on promulption of sentence ............................................... 128h (5) 

General limitations concernInpppppppp ............................................... 127b 

Imposed only on enlisted mons ................................................... lZGh (4) 

Maximum limit of punishment ..................................................... 127b 

Delonlion, unlawlul: 

Discussfon, proor, Art. D7 ........................................................... 20e, 176 

Specification, form lor, Art. 97 ....................................... App. 6c (40)-- ........ DEerent armed forces: 

Members of should not be referred to Joint or common trial- .......................... 13 

Reciprocal jurisdictionover personnel of one armed force by another, Art. 17 (a) ...... 13 

Diminished rations: 

As authorized disciplinary punishment for person attached to or ambarked In vessel- - 131b 

Conflnernent on; dlscussinn ......................................................... 126 

Dlrect evidence. See Elildenca. 

Direct examination: 

See Witnesses. 

Formal questions on- .................................................... A. 8a.. ........ Discharge: 

Arrest after, A1.t. 3 ....................................................... App. 2a-- ........ As terminating courbmartial jurisdiction; exceptions. .............................. 11 

Bad conduct. See Bad conduct discharge. 

Before expiration 01 term, when permissible, Sec. 6 ...................... App. 2b-- ........ Certificate of, to be given enlisted person, Scc. 6 ........................... App. 26-- ........ . Dishonorable. See DIsbonorable discharge. 

Does not release from oflenses in other subsisting enlIstmmtsSSSSSSSSSSSSSSSS . llb 

Former; character given on., may be introduced by accused in mitigation. ........... 75c (4) 

From custody; deserter not entitled to bewuse of unbuthorized apprehension ........ 2% 

Honorable; as remission of suspended sentence, Art. 74 .................... App. 2a.. ........ Liability to trial by court-martial after; cases enumerated, Arts. 2 (7), a, b, c, 83 (2)-. llb 

Obtained by fraud8ee aEso Fraudulent separatbn; EEwtlng unlawful enlistment, appointment, QZ 

separation. . ... . 

Emt an J?a~~tlon, Arb. ab ,--.,.,.,-.,,,... ,. 11 
INDEX 

Disciplinary punishment under Art . 15: Par . Page 

Administered for minor offenses only; defined ....................................... 1286 229 

Administrative admonitipns, reprimands . eta., distiiishcfrom .................. 128c 230 

Appeals; procedure in general, Art . 15 ............................................... 134 234 

As defense in bar of trial for same offense, Art . 15 ................................... 68g 104 

Authority to impose, cannot be delegated ............................................ 128a 226 

Baais for, when resorted to .......................................................... 128, 129 229, 80 

Communications concerning, how transmitted ...................................... a 229 

Defense, matter of, may be submitted to commander ............................... 133 233 

Execution of, who is aharged with- ........... 1 .................................... 131c 282 

Forms, record .............................................................. App . 3 ......... 459 

Imposed without intervention 01 court-martid ...................................... l28a 229 

Irregularities in imposition of; effect on validity of .................................. 130 230 

Limitations on, by regulations of Secretary of Department .......................... 131a 231 

Noncommissioned or petty officers; limitation on ...... ..........;.. ................ 131b 231 

No right to demand trial (Navy and Cost Guard) ................................. -132 232 

Officer or warrant officerForfeiture of pay; limit, who may impose, 4rt . 15a (1) .......................... 131 b 231 

Written communication, when required ........................................ 133 233 

Persons subject to .................................................................. 1Ba 229 

Procedwe .......................................................................... 133 232 

Punishments, authorized, Art . 15 ................................................... I.?lb 231 

Record of; contents, form ........................................................... 135b 235 

A 3 .. 459 

Right to demand trial (Army and Ah Force) ....................................... i32 232 

Suspension, setting aside, remission, and restoration ................................. 13% 235 

Who may impose .................................................................... 1Ba 229 

Discipline, conduct prejudicial to: 

Discussion, proof, Art . 134 ........................................................ 213u 381 

Speci5cntions, forms for . Art . 134 ................................. 4pp . 6c (llR.l76)! ......... 488 

Disclosing parole or countersign, ete . . Discussion, proof, Art . 101 ................................................... laOa 335 

Specifications, forms for, Art . 101 ................................... Ipp . lir (53 . 54) .......... 479 

Discredit, eonduct tending to bring, etc . . Discussion, proof, Art . 134 ....................................................... 2136 332 

Specifications, forms for, Art . 134 ............................... .Ap p. 6c (118-176) ........... 488 

Disease; tlme lost by, as result of own misconduct, to be made good, 8ec . 6 ... .Ap p. 2b .......... 453 

Dishonornble discharge: 

See a280 Dischmge . Administrative discharge, substituted for, Art . 75, Sec . 12 .............. : ........... 1091, 110a 179, 180 

Appellate review required, prior to execution of, Aits . 66, 71c ......................... 98 168 

As punishment, when proper ....................................................... 76a (6) 122 

~uthorized upon sentence of life imprisonment for premeditated murder.....:. ..... 126a 207 

Bad conduct discharge authorized in lieu 01 ...................................... 127c 217 

Considerations in approving sentence of ............................................ 76a (6) 122 

Court-martial jurisdiction as affected by ............................................ 11 14 

Death sentence; included by implication ............................................ 126a 206 

Final indorsement on service record as proof 01 ......-.-.............. -1- ............ 162 309 

Fine iulieu of forfeituresagainst enlisted person, when authorized, Set . B .......... 127c 228 

Forfeiture of all pay and allowances may be adjudged with ......................... 13h (2) 210 

Mitigation of, to bad conduct discbarge, permissible .................................. 88c 148 

Sentence of warrant oflicer to confinement at hard labor, must include ............ 126d . j ?08, 212 

Sentence to; proper in case of prisoner under suspended seutenco to ponitlv6.discharge . 12Ge 209 

Sentence to, reduces enlisted person to lowest grade ................................. 12Ge 209 

Rpecial court-martiel cannot adjudge, Art . 19 ............................. App . 2u. ......... 4'19 

Summary court-martial cannot adjudge, Art . 20 ..................................... 16b 20 

Suspension of, when senten& also involves confinement ............................. 88e (2) (6) 150 

Table of offenses for which authorized ................................?............. . 1Zc 219 

Disloyal statements: 

Discussion, proof, Art . 134 ......................................................... 213d (5) 387 

Specification, form for, Art . 134 ..................................... App . 6c (131) .......... 490 

DismissaL 

Cadet; approval required, Art . 71 ......................................... A . 2a .......... 437 

General and 5ag officer; afEmotion and approval by President necessary, ~rts . 866, 

676, 71a .....................~.................................. .......... 98, 100c (2) 168, 171 
bisrnissal-. continued Par . Page 

OffiearAdministrative discharge may be substituted for. by Secretary of Department. 

Art . 746 ....................................................................... 97a 165 

Afiirmatien by board of review, approval by Secretary of Department neeassaw . 

98, lOOe (I) (b) 188, 171 

How effected, 6ec . 10 ................................................. A ........... 455 

Reappointment by President as result of new trial, Art . 75c ..................... lO9j 179 

Reduction of, to enlisted grade by commutation, in lieu of, Art . 716 ............. 126d . 208 

Sentence to wnhement or total forfeitures, must include ....................... l2M, j 208, 212 

Specialcourt-martial cannot adjudge, Art . 19 ........................................ 15b 19 

Without trialBy orderof President, Sec . lo... ....................................... App . %. ........ 455 

Rights of officer so dismissed, Art . 4 ............................................. 111 182 

Dismissal of charges: 

Authorized, when; by officer exercising summary court-martial jurisdiction ......... 33j 41 

By board of review, when, Art . 66d ................................................. lOOb 169 

By commander exercising immediate jurisdiction under, .4r t. 15 ..................... 32d 37 

BY Court of Military Appeals, when, Art . 67e ...................................... 101 172 

Restoration of rights upon, brt . 75a.. ............................................... lOOb (3) 170 

Disobedience as endangering safety 01 command . See Command . Disobedience 01 orders . See Willful disobedience of superior officer; TVillful disobedience 

of warrant . noncommissioned, or petty officer; Failure to obey general order or regulation; Failure to obey lawful order . Disorder, as breach of peaee ............................................................. 195b 350 

Disorderly conduct consisting of assault; duplication of charges avoided ................. 266 29 

Disorderly in command, quarters, etc .. specification, form for, Art . 134. . App . 6c (132).. ........ 490 

Disorders and neglects to the prejudice of good order and discipline: 

Discussion, proof, Art . 134 ........................................................... 213a 381 

Specihications , forms for, Art . 134 ................................ App . 6c (118476) .......... 488 

Disposing, mongfully, etc., of military property . See Military property . Disrespect toward President, Congress, or other officials: 

Discussion, proof, Jzt . 88 ........ ...,.................................... ............ 167 318 

SpeciEcation, form for, Art . 88 ........................................ App . 6c (IQ).. ........ 475 

Disrespect towards superior officer: 

Discussion, proof, Art . 8 ............................................................ 168 319 

Specification, form for, Art . 89 ........................................ App . 6c (20) .......... 475 

Disrespect toward warrant, noncommissioned . or petty officer: 

I?iscussion, proof, Art . 91 (3) ........................................................ 170d 323 

Specihication, form for, Art . 91 (3) .................................... App . 6c (27).. ........ 475 

District attorney . See United States attorney . District court of the United States . See United States district courts . District of Columbia: 

Code; as basis for limitation on punishment ......................................... 127c 214 

Law of, not controlling to determine whether act committed elsewhere is crime or 

offense not capital, Art . 134. ...................................................... 213c 383 

Divine service . Bec . 7 (d) ...................................................... A . % .......... 454 

Documentary evidence: 

Affidavits; generally not admissible; exceptions... r ................................. 1466 273 

Authentication ..................................................................... 143b (1) 260 

Best evidence rnle . See Best evidence . Bukv; procedure as b ............................................................... 143a (2) 258 

' Business entries . See Business entries . Collection of documents not produced; testimony as to general result ................ l43a (2) 258 

Comparison with knoxn specimen of handwriting, proof of genuineness by ......... 143b (1) 250 

Copies, admissibility of- ............................................................ 143a (2) 258 

Depositions . See Depositions . Extract eopies .............................. : .................................. &Id, 143a (2) . 76, 259 

147a, b 275, 27fi 

Fingerprints, admissibility 01 ........................................................ 144e 269 

Foreign lams and reg.rlstions . See Foreign law . Former jeopardy; use of, as proof .................................................... 68d 103 

Former testimony . See Former testimony . Forwarded with charges, when .... 31b 36 

Glenuineness, proof 01 ............................................................... 143b (1) 260 

Hearsay rule . See Hearsay evidence . 
INDEX 

Documentary evidence.. Continued Par . Inadmissible; appended to record ................................................... MdIntroduction 01, procedure ................................................ A . 8a.. ........ Judicial notice of . Bee Judicial notice . Memoranda; kinds, use, admissibility .............................................. 140a , 149c (1) (b) 

Method of proving contents ......................................................... 143a (1) 

Military custody; producing at trial ................................................ 115c 

Official records . See OEicial records . Opinion entries in, admissibility of as to sanity, etc ................................ 122c, 144d 

Opinion evidence as to handwriting on .............................................. 143b (1) 

Previous conviction, evidence oL ................................................ ad, 75b (2), 

1536 (2) (b) 

Receipt of reply to prior message, rule as to ......................................... 1435 (1) 

Records of courts of inquiry; use of, Art . 50 ......................................... 1456 

Refusal to produce; penalty, procedure, Art . 47a (3) ...................... App . 2a.. .. 1. ..... Shown accused on investigation ..................................................... 34d . 

Stipulations;admissibility .......................................................... 154b . 

Subpoena 01; procedure ............................................................. 115d (1) 

Waiver of proof of authenticity. .................................................... 143b (1) 

Doubt . See Reasonable doubt . Drawing weapon, etc . . Against superior officerDiscussion, proof, Art . 90 (1) .................................................... 169a 

Specification, form for, Art . 90 (I) ................................. App . Bc (22) .......... Driving we drunk .................................................................... 190 

Dropping from rolls; officer absent three months, Sec . 10 ...................... App . 26. .------.. 

Drugs: 

Presumption as to wrongfulness of possession 05 .................................... 213a 

Time lost through intemperate use of, to be made good, Sec . 6 ............ App . 2b ..------.. 

Using, possessing; specifications, forms for, Art . 134 .............. App . 6c (136, 1371.. ........ 

Drunkenness: 

Definition, under Art . 112 ............ : ............................................. 191 

Drunk and disorderly; specification, form lor, Art . 134 ............... App . 6c (132) .......... 

Incapacitating oneself for duty through prior jndulgence; specification, form Ior, Art . 134- ............................................................... Ap p. 6c (135) .......... 

In command, quarters, etc .. specification, form for, Art . 134 .......... App . 6c (132) ...----.-- Prisoner, drinking liquor with; specification, form for, Art . 134 ...... App . 6c (133) .......... Prisoner, found drunk; specification, form for, Art . 134 ............... App . 6c (134) .......... 

Of officer in public place; speci6catiou, form for, Art . 133 ............ App . 6c (115) .......... 

OpGon as to, admissible testimony ................................................. 138e 

Premeditation, as affected by ...................................................... 154a (2) 

Punishment, as affected by ......................................................... 154~ (2) 

Specac intent, as affected by ....................................................... 154a (2) 

Voluntary; not a defense; exceptions ............................................... 154a (2) 

Drunken or reckless driving: 

Discussion, proof, Art . 111 .......................................................... 190 

Specification, form for, Art . 111 ....................................... App . 6c (741.. ........ 

Drunk on duty: 

Discussion, proof, Art . 112 .......................................................... 191 

Opinion as to drunkenness, admissible testimony ................................... 138e 

Specification, form for, Art . 112 ....................................... App. 13c (75).. ........ 

Drunk on post (sentinel or lookout): 

Discussion, proof, Art . 113 ......................................................... 192 

Speciflcation, form for, Art . 113 ....................................... A 6c (76).. ........ 

Duel, fighting, etc . . Discussion, proof, Art . 114 ......................................................... 193a 

Specifications, forms for, Art . 114 .................................. App . 6c (77.80) .......... 

Duty: 

Arrest, person in; limitation on performance of ...................................... 2017 

Drunk on . See Drunk on duty; Drunk on post; Drunkenness . Extra, as authorized disciplinary punishment under Art . 15 ......................... I316 

Hard labor without confinement, in addition to; discussion ........................ 126k 

Page 

76 

512 
INDEX 

Duty-Continued - Par. 

Justifiable homicide; acts in performance of ......................................... 197b 

Suspension from; discussed. ........................................................ 126i 

Duty of example and correction, commander's, Sec. 7 (c) ...................... App. 21-- ........ 

Dwelling house: 

Subject of arson ..................................................................... 205a 

Subject of burglary ................................................................. 208 

Dying declaration; as exception to hearsay rule in trials for unlawful killing.-.-.---.-.-. 142a 

Effecting unlawful enlistment, appointment, or separation: 

Discussion, proof, Art. 84 ........................................................... 163 

Specification; form for, Art. 84 ........................................ App. 6c (a)-- ........ Effects of deceased persons, disposition of, Sec. 6 ............................ App. 2b-- ........ Election: 

Motion to compel, not allowed ...................................................... 69e 

To accept disciplinary punishment under Art. 15 ................................... 132 

Elements of the offense, members of courts instructed as to ............................. 73a 

Embezzlement. See Larceny. 

Endangering safety of command, unit, place, or military property by misconduct, etc.: 

Discussion, proof, Art. 99 (3) ........................................................ 178c 

Specification, form for, Art. 99 (3) ................................... App. 6c (45).- ........ 

Enemy: 

Aiding, etc.- 

All offenders, military or civilian, subject to trial for violating Art. 104---.------ 9,181 

Discussion, proof, Art. 104 (1) ................................................... 181a 

Specification, form for, Art. 104 (1) ............................ App. 6c (60,61)-- ........ 

Citizens of neutral powers, laws governing communicatious with .................... 181d 

Concurrent jurisdiction of courts-martial and military commissions, Art. 104 

App. 2a.- -------- Corresponding, etc., withDiscussion, proof, Art. 104 (2) ................................................... 181d 

Specification, form for, Art. 104 (2) .-.-: .......................... App. 6c (61)-- ........ 

Enemy prisoners or foreign nationals; members of U. 9. armed forces not to be confined in immediate association with, Art. 12- ..................................... 1% (2) 

Giving intelligence toDiscussion, proof, Art. 104 (2) .................................................... 181c 

Speciflcation, form for, Art. 104 (2) ................................ App. 6c (61)-. ........ 

Harboring or protectingDiscussion, proof, Art. 104 (2) ................................................... 183b 

Specification, form for, Art. 104 (2) ................................ App. 6c (61)-. ........ 

. Military jurisdiction over territory of. ............................................. 2,14 

Misbehavior before 

Discussion, pro Art. 99 ....................................................... 178 

Specification, form for, Art. 99 .................................... Ap. 6c (43).- ........ 

Person residing in occupied territory, reporting to without dissimulation, is not spy; 

chargeable under Art. 104 ......................................................... 185 

Running away beforeDiscussion, proof, Art. 99 (1) .................................................... 178a 

Specification, form for, Art. 99 (1) ................................. App. 6c (43)-- ........ 

Spy&. See Spying. 

Witness; compet~ncy ............................................................... 14% 

Enemy prisoners: 

Member of U. 6. armed forces not to be conked in immediate association with ... 18b (2). 125 

Subject to be by court-martial sentence ............................................ 126h (3) 

Enlisted person; delinition, Art. 1 ............................................. App. 2a-- ........ 

Enlisted .persons: 

Accused may submit written request for, as members of courts-martial; timqliiit for 

submission; procedure; Art. 2% ................................................... 4c, 48e, 

53c, 610 

Appointment as members of courts-martial.. ....................................... 36c (2) 

Arrest or cohement of, prior to trial. ............................................. 21a (2) 

Authorized punishments by courts-martial .......................................... 126e 

Certain articles to be read to, Art. 137 .................................... App. 2a.- ........ 

Competency to serve on courts-martial, Art. 25c .................................... 4a 

Discharge; certificate of, issued before end of enlistment, Seo. 6 ........... App. 2b-- ........ 

Disciplinary punishment. See Disciplinary punishment. 

Fine inlieu of forfeitures against, when authorized ............................... 1268 (3), 1We 

Page 

351 

21 2 

454 
INDEX 

* 

Enlisted persons-Continued Par . Page 

nard labor without confinement. sentence to ....................................... 126k 213 

Limitations on maximum punishments applicable to ................................ 127a 213 

Oath of enlistment, Sec . 8 ................................................. App . 26. ......... 455 

Reduction to inferior grade as additional punishment, Sec . B ....................... 127c 214 

Reduction to lowest grade; authorized punishment; when nutomatic ................ 126e 209 . 

Separation of from service, when and how accomplishpd, Sec . 6 ........... .Ap p. ZL .......... 453 

Termination of enlistment as affecting trial by courts-nlartizl ....................... 11 14 

Time lost to be made good, Sec . 6 ......................................... A . .... 453 

Enlistment: 

Attempting, as constituting absence without proper suthnrity ..................... 164a (1) 311 

Certain articles to be read on, Art . 137 ................................... .Ap p. %. ........ 451 

Fraudulent . See Fraudulent enlistment . Oath of, Sec . 8. ........................................................... A . 2b.. ........ 455 

Offenses committed in previous, as affected by discharge ............................ 11 14 

Time lost to be made good, Sec . 6 ......................................... A . 2 ........ 453 

When deemed desertion, Art . 85 .................................................... 164a 310 

Enlistment, appointment, or separation; unlawful, e5ectig: 

Discussion, proof . Art . 84 ........................................................... 163 310 

Specscation, form for, Art . 84- ........................................ A . 6c (8). ......... 473 

Entry: 

As an element of burglary .......................................................... 208 373 

As an element of housebreaking ..................................................... 209 374 

Unlawful; specification, form for, Art . 134 ............................ App . 6c (1741.. ........ 494 

Equivalent Punishments, Table of. .................................................... 127c 215 

Errors: 

Clerical, in record of trial; certificate of correction .................. 2 ................ 86c 143 

Effect of, in punishment under Art . 15 .............................................. 130 230 

Not invalidating trial, Arts . 59, 59a ................................................. 87c, lOOa 146, 169 

Not presumed to be prejudicial ..................................................... lOOa 169 

Escape: 

Accused; counsel for accused unaffected by ......................................... 48i 70 

From confinement, not minor offense under Art . 15 ................................. 1!2@ 230 

From confinement or custodyDiscussion, proof, Art . 95 ....................................................... 174c, d 328 . 

Specification, form for, Art . 95 .................................. App . 6c (38).. ........ 477 

Killing to prevent.. ................................................................ 1976 351 

Sderlng prisoner to escape through neglect or designDiscussion, proof, Art . 96 ....................................................... 17% 329 

Specification, form for, Art . 96 .................................. App . 6c (39).. ........ 477 

Uncompleted; charaeable under Art . 80 ............................................. 174c 328 

Escort on views or inspections; form of oath ............................................. 114 187 

Espionage . See Spying . Ethics; general rules of, apply to w'wel ................................................ 4% 60 

Evidence: 

AdmissibilityLaw oWcer may examine proffered evidence to determfne ....................... 57d (2) 80 

Preliminary evidence and argument as to, in general court-martial .............. 570 (2) 81 

Ruled upon by law officer of general court, Art. 51b .............................. 57d 80 

Ruled upon by president of special court, Art . 51b ............................... 57c 79 

Admissions . See Admissions . Age, testimony ss to ................................................................ 138d 242 

Aggravation of offense; receipt of evidence in, after findings announced, when plea of 

guilty ............................................................................. 7% (3) 120 

Best evidence rule . See Best evidence . Character evidence . See Chamcter evidence . Circumstantial . See Circnmstantial evidence . Clemency matters; rules of evidence relaxed ......................................... 75c, Ra, 120, 126 

1466 273 

Comment uponIn argument to court ........................................................... 72 111 

By law o5cer ................................................................... 73c (1) 113 

Common trial; instructions to court and crounsel .................................... 53c 73 

Complaint by victim of sexual offense; admissibuty of .............................. 142 2% 

Confessions . See Oonfessions . Oonapiracy . See Oonspiracy . 
Evidence--Continued Par. 

Corrcrboration. See Corroboration. 

Cative limitation on aisibiit . 137 

Dspositions. See Depositions. 

Direct and circumstantial; defined and distinguished -----.--------------------- 138b 

Doementnry evidence. See Documentary evidence. 

Dying declarations. Sec Dying declarations. 

Error in admission or rejecti~n ol; effect, Art. 59- -.................................. 87c 

Exhibits. See Exhibits. 

Expected, preservation of ........................................................... 31b 

Extenuation, mitigation, and aggravation, evidence in, received after findings 

announced ........................................................................ 75b, c 

Failure of available, as former jeopardy- ............................................ 68d 

Former discharge; when admissible; purpose ........................................ 75c (4) 

Hearsay. See Hearsay evidence. 

Illegally obtained by unlawful search or seizure, inadmissible. ...................... 152 

Interpreter, statements made through, how proven.. ............................... 141 

Tnsufficient; duties of court ......................................................... 54b 

Introduction of, notwithstanding plea of guilty.. ................................... 70a 

Irrelevant; when admitted provisionally; procedure ................................. :37 

Joint trial; instructions to court and counsel ........................................ 53c 

Law officerAbsence prevents receipt of, Art. 39 ............................................. 39d 

May determine admissibility of, out of presence of members.. .................. 57g (2) 

Non-judicial punishment under Art. 15; when admissible in mitigation. ............ 7k (4) 

Of drunkenness. See Drunkenness. 

Of specific intent, when required, proof; examples ................................... 154a (1) 

Offer of proofMay be heard by law offlcer out of presence of members ........................ 579 (2) 

When authorized.. ............................................................. 154c 

On issue of insanity ................................................................. 12?c 

Opinion evidence. See Opinion evidence; Expert witness. 

Order of introduction by prosecution.. ............................................. 44j (3) 

Papers not in, not shown members of court-martial ................................. 44g (1) 

Presentation out of sequence; statement of counsel .................................. 

441 (3) 

Presumptions and inferences. See Presumptions; Circumstantial evidence. 

Previous convictionsFor purpose oi Impeachment; when admissible ............................... 153b (2) (b) 

On the question of the sentence to be adjudged.. ............................... 7% (2) 

Previous offenses as proof of guilt, prohibited; exceptions. ........................... 1380 

ProfferedLaw officer examines to determine admissibility ................................ 67d (2) 

Preliminary hearing as to admissibility of-.. ................................... 57g (2) 

Proof beyond reasonable doubtDefined and discussed.. ........................................................ 740 (3) 

Duty of law officer of general court to instruct as to, Art. 51c .................... 396 (1) 

Duty of president of special court to instruct as to, Art. 61c.. ................ 406 (Z), 736 

Real evidence ...................................................................... 138~ 

App. 8a-- ........ 

Rebuttal of -worn statement of accused and of matter in aggravation, extenuation, 

or mitigation ................................................................... 75c (2), 75d 

Relaxing rules of, on interlocutory matters, in general ........... 137 

Relevancy and materiality of; effect on admissibility.. ............................. 137 

Reopening case to receive additional testimony-. ................................... 1490 

Rules ofApplicable before military commission and provost courts, subject to international law, regulations of presideit, or other competent authority.--------- 2 

Application, in ~eneral.. ....................................................... 137 

Relaxed as to matters received after findings announced. --------.-------------- 7Se (1) 

Eecondary. See Best evidence. 

Service data on charge sheetIntroduced, when.. ............................................................ 755 (1) 

Objections to, by defense; action requixed ....................................... 755 (1) 

Purpose ........................................................................ 755 (1) 

Signingreceipt withoutknowledgeof contents; prima bcieevidenceolintenttodefraud. 2119 

Summary of, required as inclosure with letter transmitting charges .................. 31 

Page 
INDEX 

Evidence-Continued Par . Page 

Testimonial howledge. explained- ................................................. 138d 241 

Views and inspections by court ..................................................... 54e 77 

Weighing- . By board of review . Art . 6% . lOOa 169 

By nveng authori ....................................................... 87a (3) 145 

BY edurt ........................................................................ 74Q (2) 114 

Witnkes . See Witnesses. 

Example and correction; wmmander's duty of, Sec . 7 (c) ..................... App . 2b.. ........ 454 

Exceptions and substitutions: 

Findings, form ..................................................... ..App . a ........ 519 

Guilty by, of offense barred by statute of limitations; procedure ..................... 74h 118 

In findings on specifications; limitations and restrigtions as to ....................... 74b (2) 115 

Exclusive and concurrent jurisdiction; in eases of crimes and offenses not capital under 

Art . 134 ............................................................................... 11, 12 14, 16 

ad, 213c (2) 103, 383 

Execution of punishment under Art 15; immediate commanding officer of accused 

charged with .......................................................................... 131c 232 

Execution of sentence . See Sentence--Execution . Executive order promulgating manual .......................................................... IX 

Exhaustion of remedies . See Habeas carpus . Exhibits: 

"Appellate" ............................................................. .4pp . 80 .......... 515 

Copies to be prepared by reporter ................................................... 49b (2) 71 

Description of, if not attached to record .................................. App . 8a .......... 513 

Description or extract may be substituted for bulky ................................. 54d, 138c 76, 241 

E~cluded; marking and attaching to record- ........ ! ............................... 54d 76 

Introduction in evidence ................................................. A . a ... 512 

Marking of .............................................................. App . 8a .......... 512 

Expenses of wurts.martia1 .............................................................. 119 199 

Expert witness: 

Defined, qualifications, waiver of proof of qualificatlons, how testimony adduced .. 138e 242 

Employment of; procedure .......................................................... 116 192 

On fingerprints ................................................................ 143a (2), 144e 259.269 

On insanity ......................................................................... I2%, c 203, 204 

Value of stolen property established by ............................................. zOOa 361 

Explanation to accused: 

By wunsel, as to rights ............................................................. 46d, 48f 66, 69 

By court, as to pleas and defenses ................................................... 63h, 7W 75, 108 

By investigating officer, as to rights ............................................. 346 45 

A . 7 .. 496 

By sum-mary court, as to rights .................................................. 79d (I), (2) 127 

Of rights when confession offered ......................................... App . 8a.. ........ 513 

Extenuation: 

Affidavits concerning ............................................................... 146b 273 

flrunkenness, as a matter in ........................................................ 154a (2) 295 

Evidence in, after 5ndings announced .............................................. 75 118 

Failure to read certain articles to recently enlisted persons- ......................... 154a (4) 295 

Right to submit matters in, with respect to disciplinary punishment under Art . 15.- 133 233 

Extortion: 

Discussion, proof, Art . 127 .......................................................... 206 369 

Specification, form for, Art . I27 ...................................... App . 6c (Og).. ........ 485 

Extra duties; authorized disciplinary punishment under Art . 16 ........................ 1316 2.31 

Failing to afford relief: 

Discussion, proof, Art . 99 ........................................................... 17% 333 

Specillcation, form for, Art . 99 ....................................... Apg . 6c (511.. ........ 478 

Failing to do utmost to encouuter enemy, etc . . Proof, Art . 99 ....................................................................... 178h 333 

Specification, form for, Art . S9 ....................................... App . 6c (50).. ........ 478 

Failing to enforce or comply with wde: 

Discussion, proof, Art . 98 ........................................................... 177b 331 

Specification, form for, Art . 98 ...................................... Apg . 6c (42)- ........ 477 

Failing to obey orders . See Failure to obey, etC . Failing to report, etc., a duel . See Duel . Failing to report, secure, etc., captured or abandoned property . See Captured or abandoned property8 

608 
INDEX 

Failure to allege an offense: Par. 

See also Charges and specifications; Motions. 

Disapproval required ................................................................ S7a (2) 

Motion to dismiss ................................................................... 68b 

Not waived by failure to assert. .................................................... 67a, b 

Failure to expedite trial or investigation: 

Discussion, proof, Art. 98 ........................................................... 177 

Specification, form for, Art. 08 ....................................... App. 6c (41).- ........ Failure to go to appointed place of duty. See Absence without proper authority. 

Failure to keep promise to pay debt: 

Discussion, proof, Art. 133 .......................................................... 212 

Specification, form for, Art. 133. .................................... App. 6c (117).. .......- Failure to obey general order or regulation: 

Discussion, proof, Art. 92. .......................................................... 171a 

How alleged ......................................................................... zsc 

Speciflcation, form for, Art. 92 ........................................ App. 6c (28).. ........ Failure to obey lawful order: 

Discussion, proof, Art. 92 ............................................................ 171b 

Specacation, form for, Art. 92 ........................................ App. 6c (29).- ........ Failure to pay debts: 

Discussion, proof, Art. 134 ........................................................... 213b 

Officers; may be offense under Art. 133 .............................................. 212 

Specification, form for, Art. 133 ...................................... App. 6c (116).. ........ 

SpecXcation, form for, Art. 134 ...................................... App. 6c (130).. ........ 

I Failure to place or maintain sufficient funds in bank for payment of check; specification, 

form for. Art. 134 ...................................................... App. 6c (129)-- ........ Failure to plead, treated as plea of not guilty, Art. 45a ................................... 700 

Failure to suppress or report mutiny or sedition: 

Discussion, proof, Art. 94 ............................................................ 173c 

Specification, form for, Art. 94 ........................................ App. 6c (34).. ........ 

False alarms, causing: 

Discussion, proof, Art. 99 ............................................................ 1789 

Specification, form for, Art. 99 ......................................... App. 6c (49).. ........ 

False, as used in forgery, refers to making or altering .................................... 202 

False claims against the United States: 

False oath in connection mithDiscussion, roof, kt. 3 ....................................................... 211d 

Specbloation, form for, Art. 132 .................................. App. 6c (log).. ........ Forgery. etc., of signature in co~ection withDiscussion, pcoof,Art. 132 ..................................................... 1.- Zlle 

Specification, form for, Art. 132 .................................. App. 6c (110).. ........ 

MakingDiscussion, of At. 1 .................................................... 2lla 

Specification, form for, Art. 132 .................................. App. 6c (106).. ........ Making or using false writingDiscussion, proof, Art. 132 ...................................................... 211c 

Specification, form for, Art. 132 ................................... App. 6c (log).- ........ Presenting for approval or paymentDiscussion, proof, Art. 132 ...................................................... 211b 

Specification, form for, Art. 132 ................................... App. 6c (107)-- ........ 

False official statement: 

Discussion, proof, Art. 107 .......................................................... 186 

Effect of lack of warning under Art. 31b ............................................. 140a 

Specifloation, form for, Art. 107 ..................................... App. 6c (65).- ........ 

False or unautherized pass; possessing, makiig, selling; specification, form for, Art. 134 

App. 6c (138).. --.----- False ~rearing: 

See &o Oaths; Perjury. 

Discussion, proof, Art. 134 .......................................................... 213d (4) 

Specblcation, farm for, Art. 134 ....................................... A 6c (139).. ........ 

Falsification of accounts; evidence of motive for falsi6eatior1, admissibility; example..--. 1389 

Family allowance, excluded in~eomputing pay subject to forfeiture, when. .............. 126h (2) 

Federal court: 

See also United States district court; Habeas corpus. 

Former trial for same offense in, bars subsequent court-martial prosecution ......... 68d 

Habeas corpus; courts-martial proceedings; jurisdiction exclusive .................... 8,215 

Page 
INDEX 

Federal court-Continued Par . Member of bar of. appointments counsel 01 special court.martW. Art . 27. ......... 6c 

Member of ba~ of, mrry be qualified as counsel of general court, Art . 27 .............. 6lf (1) 

Return to writ issued by ............................................................ 217 

Rules 01 evidence recognized in hial of criminal cases in Federal courts applimble unless otherwise prescribed .......................................................... 137 

Federal penal code . . See Title 18 U . 6 . C., "Crimes and Criminal Pmcedure." 

Fees and mileage: 

Depositions . See Deposilions . Expert witness: compensation ...................................................... 116 

Witnesses . See Witnesses . Felony: 

Definition .......................................................................... 213d (6) 

Misprision ofDiscussion, prool, Art . 134 ...................................................... 213d (6) 

GpeciBcation, form for . Art . 134 .................................. App . 6c (154) .......... 

Finality of court-martial judfments, Art . 76: 

See New trial . Discussion .......................................................................... 8, 108 

Findings: 

Acquittal; approval or disappro~al of improper ..................................... 86b (2) 

Additional instructions by law officer as to .......................................... 74e 

Announcement ofForm of ............................................................... App . 8a.. ........ 

In open court as soon as detetmined ........................................... 749, 79d (4) 

Matter inconsistent with plea ol guilty received alter ........................... 75 

Basis ofDiscussion ...................................................................... 74a (1) 

Reasonable doubt as to sanity; disc~rssed ...................................... IZ2a 

ChargesAttempts properly found mder Art . 80; exceptions .............................. 74c 

Basic considerations ............................................................. 74c 

Closed session reqhired in arriving at ............................................... 59d 

Convening authority's action when findings are inconsistent ........................ 87b 

Court may only consider matters properly before it in making ...................... 74a (1) 

Courts of inquiry, Art . 135g ................................................................. 

Finality and conclusiveness of.. .................................................... 8. 108 

Form of ................................................................... 4 8a .. 741 

General courts-martial may request law officer to put findigs in proper form; procedm .............................................................................. 741 (1) 

General rules ....................................................................... 74a 

GulltYAction on not required if sentence disapproved; exceptions ...................... 89c (2) 

Consideration of by convening authority ........................................ 87 

Disapproval ol; reasonsneed not be stated; exceptions ........................... 8Qc (2) 

Disapproval to be stated, when any part of sentence approved ...- .............. 8Qc (3) 

ImpeacMng, recommendation for clemency may not be considered as ................ 77a 

Influencing, coercing, or censuring action of court or members on, prohibited, Arts . 37.98 ....................................................................... 44g (I), 866 (2) 

Invalidity; declaration of, to include reason for ...................................... 89c (2) 

Irregularities in proceedings, efiect on Art . . 59 ....................................... 87c, lOOa 

Law omcerDo@ not vote upon ............................................................. 396 (1) 

Instructions . See Instructing the court . Lesser included offense; convening authority may approve .......................... 87a (4) 

Not guiltyMotion for; rulings ............................................................. 57% 71a 

Required when reasonable doubt as to mental respoasihility exists ............ 1%b 

Of guilty of two or more offenses aridngout of the same act or transaction ........... 746 (4) 

Preliminary instruction given to oourt before voting on, Art . 61c ................ 39b (I), 73b 

Reasonable doubt; effect on ........................................................ 740 (3) 

Ressons for; how indicated when proper .............................. 1 ............. 74f(3) 

Beconsideratlon ofSee also Rehearing; Revision . By court on own motion ........................................................ 74d (3) 

Procedure; limitations on ....................................................... 80 
Findlngs-Continued 

Reconsideration of-Continued Par . When forbidden. Art . 62 ........................................................ 86d 

Requesting additional instructions re appIiesble law or effect of certain evidence; 

pmmdure ......................................................................... 74e 

App . &.. ........ Special court-martial; findings put in proper lorm in closed session .................. 741 (2) 

SpecificationsConsistencyrequied .......................................................... 74b(1) 

Exceptions and substitutions ................................................... 74b (2) 

Quilt, degree ol; reasonable doubt, how resolved ................................ 736 

Joint accused, rules respecting .................................................. 746 (1) 

Lesser included offenses ......................................................... 74b (3) 

Statute of limitationsDisapproval oftlndbgs required in certain cases affected by ..................... 87c 

Right to assert in bar of punishment ............................................ 74h 

Summary court; discussion ......................................................... 7Bd (4) 

Voting on; procedure.. ............................................................. 74d (2) 

App . 8a.. ........ Weighing evidence .................................................................. 74U (2) 

Fines: 

EBective on promulgation of sentence ............................................... 126h (5) 

General discussion ............................................................... 126h (I), (3) , Mitigation of, to forfeiture, not authorized .......................................... 88e 

Ordinarily not adjudged against military personnel except in case of unjust enrichment, Sec . B ...................................................................... 127s 

Prisoner of war subject to ........................................................... 126h (3) 

Punishment for contempt ........................................................... 118, 127c 

Sentence to confinement does not automatically result in ............................ 1261' 

Fingerprints: 

Certificates of certsii officials concerning comparison of ............................. 143~ (2) 

Evidence of, admissibility .......................................................... 144e 

Pmf of, in fraudulent enlistment csses ............................................. 162 

Self.incrimination, reqwiring witness to .give ......................................... 15Ob 

Firearms. . 

Careless discharge; specificatipn, form for, Art . 134 .................. App . 6c (140).. ........ 

Willful discharge; specillcation, form €01, Art . 134 .................... App . 6c (140.. ........ 

Fleeing scene of accident; specification, form for, Art . 132 ................ App . 6c (142.. ........ 

Flight. as resisting appreh~ension ........................................................ 174 

Flogging, as punishment, prohibited, Art . 55 ............................................ 125 

Force and violenoe, in robbery .......................................................... 201 

Forcing a safeguard: 

Discussion, proof . Art . 162 ................................................. L ........ 181 

Spscification, form lor, Art . 102 ...................................... App . 6c (55).. ........ 

Foreign country; military jurisdiction by klligerent occupying ......................... 2 

Foreign: friendly nation: 

Authority for arrest 01 members of, Art . 7 (note) .......................... APP . 2a.. ........ 

Jurisdiction over offems committed by members of own armed forces within terrim of end nati ......................................................... 12 

Foreign law: 

Admissibility, authentication, proof ................................................ 1476 

Not included within "mimes and offenses not capital" under Art . 134 ........-...... 213e 

Ree0-q ition of, by general courts-morlial in occupied enemy territory ............... 14a 

Foreign nationals; pson subject to military law not to he confined in immediate association Mth, Art . 12 ..................................................................... 186, 125 

Foreseeable consequences; rule css applied to involuntary manslaughter ................. 198b 

Forfeiture: 

See &o Fines . Adjudged with life imprisonment ................................................... 126a 

Appljcability; date of, to be stated in convening authority's action in certain cases.- 88e (2) (c) 

Civilian's pay: fine is prcr!ar penalty ................................................ 126h (3) 

ConGnement, sen8mce to, daes not automatically include ........................... 1261 

Conrenin~ uuthority may suspend or defer cflcctivedate ............ 88e (2) (cj, 126h (5) 

EBwtive date of, Art . 57 ................................................. 18b (31, 8Re (2) (c), 

126h (5) 

Eukted person'spap,, n~t anthorized as disci.plinarr punishment . Art . 15 ........... 131b 

Page 

144 
INDEX 

Forfelture-Continued Par . Form for imposinq under. Art . 15 ......................................... App . 3b.. ........ 

General discussion .............................................................. 126h (I), (2) 

Maximum limitationSpecial eourt.martid, Art . 19 ................................................ 196, 12Bc (1) 

Specific offenses .................................................................. 127c 

Summary court .martini, Art . 20 ............................................. 186, 126c (2) 

Without dishonorable or bad conduct discharge ................................. lnb 

Not to he adjudged for period in excess of con6nement in certain cases, Sec . B.---.-- 127c 

Officer's and warrant officer's pay, as disciplinary punishment, Art . 15a (I) ......... 131b 

Power of remission or mitigation extends to uncollected, Art . 74 ........... App . 2a.. ........ Suspension of portion of sentence pertaining to; effect .............................. We (2) (c) 

Table of Equivalent Punishments .................................................. 12ic 

Under Art . 15; to be imposed in writing ............................................. 133 

Forgery: 

Jliscussion, proof, Art . 123 .......................................................... 202 

Of evidence, as ground for a new trial ............................................... 109d (3) 

Of signature in claims against the United StatesDiscussion, proof, Art . 132 (2) (c) ............................................... 211e 

Specification, form for, Art . 132 (2) (c) .......................... App . 6c (110).. ....... 1 

Specifications, forms lor, Art . 123 ................................ App . 6c (92,93) .......... 

Using forged signature in claim against the United StatesDiscussion, proof, Art . 132 (2) (c) ................................................ 211e 

SpeciEicatiou, form for, Art . 132 (2) (c) ....:....................... App . 6c (1111.. ........ 

Uttering of forged instrument is offense under Art . 123 ............................... 202 

Wife may testify against husband if she is person injured by ........................ 148e 

Former punishment under Art . 15, may be interposed in bar of trial for same offense; 

exoeptions ............................................................................ 68g 

Former jeopardy: 

As defenseHow raised- .................................................................. 67a , 68d 

Legal suJ3ciency of specification affected by whether accused may raise con- 

. viction ........................................................................ 87e (2) 

Deflned; discussed; what constitutes, in sense of Art . 44; proof of .................... 68d 

Rehearing of offense of which found not guilty, prohibited, Art . 63a ................. 92 

Withdrawal of specification after evidence on issue received, may constitute ......... 56b 

Former testimony: 

Admissibility of, in subsequent trial, how proven ................................... 145b 

Before court of inquiry, record of; admissibility ..................................... 1456 

Limitations upon use of, do not apply, when ........................................ 145b 

~hrough interpreter ................................................................ 141 

Former trial . See Forme; jeopardy . Forms: 

Accused, description of in specification ................................. App . 6a (4) .......... 

Accused's refusal to accept punishment under Art . 15 ...................... App . 5 .......... 

Action on sontence by convening authority .............................. App . 14 .......... Authentication of record of trial by general and special courts.martial .... .Ap p. 9b .......... 

Challenge, ballot on ................................................................ 6% (3) 

Charges and speciflCationsDates in .......................................................... App . 6a (7) .........- 

Grade, change 01, since offense, how shown ........................ App . 6e (6) ..----.... 

Specimens oL ...................................................... .A . 6b .......--. 

Use of specimens prescribed ..................................................... 28d 

App . 6a (I).. ........ 

Charge sheet ............................................................... A . 5. ......... 

Contempt proceedings .................................................... App . 8b .......... 

Court-martial ordersInitial, trial and convening authority's action promulgating .......... App . 15a.. ........ Remitting unerecuted portion of sentence .......................... ..Ap p. 15c .......... Supplementary . promulgating affirming action ....................... App . 15b .......... 

Vacating illegal sentences ..................-...............-------.. .Ap p. 15d .......... 

Vacating suspensions ................................................ Ap p. 15e .......... 

Deposition ................................................................ 'App . 18.. ........ 

ExphnationOf accused's rights us a witness .......................................... App . 8a.. ........ 

Of plea of guilty ......................................................... App . 8~- ........ 

Pam 

459 

209. 210 . 
. 

INDEX 

Forms-Continued 

Findings- Par . Charge- ........................................................................ 74c 

Law officer to assist court ....................................................... 741 (1) 

Specification .................................................................... 74b (1) 

Habeas corpus; return to writState court; for prisoner, Forms B and C ....................................... 218 

Stale court. . for witness, Forms A and B ........................................ 218 

U . S . court; for prisoner, Form C ............................................... 218 

U . S . court; for witness, Form A ................................................ 218 

Imposition of non-judicial punishment upon officers and warrant officers under Art . 15 ....................................................................... App . 3b.. ........ 

Interlocutory question; ruling of president or law officer on ......................... 67e 

App . b.. ........ 

Investigating ofllcer's reportFormal, use of .................................................................. 34e 

App . 7.. ........ 

Informal, when proper .......................................................... 34f 

Joint offense, examples of how to charge ............................... App . 6a (S).. ........ 

Oath of enlistment, See . 8 ................................................. App 2b.. ........ 

Oaths, forms ........................................................................ 114 

OrdcrsAmending courts-martial .......................................... App . 4a (Z).. ........ 

Appointing a general court-martial ................................ App . 4a (I).. ........ 

Appointing a special court-martial ................................. ...App. &. ........ 

Petition for new trial .............................................................. 109e, llOf 

Proceedings to vacate suspension- ................................. I ...... App . 16 .......... 

Receipt of charges by officer exercising summary court-martial jurisdiction.App . 5.. ........ 

Record of punishment under Art . 15 upon enlisted persons ................ App . 3a.. ........ 

Record of trialGeneral court-martial ................................................ .Ap p. 9n.. ........ 

Special court-martial; summarized ................................... App . 10a .......... 

Special court-martial; verbatim ...................................... .App. 9a.. ........ 

Summary court.martia1 ............................................... App . 11.. ........ 

Sentences by court-martial ................................................ A . 13.. ........ 

Specifications ............................................................. App . 6c.. ........ 

Subpoena ........................................................................... 115d 

App . 17.. ........ 

Warrant ol attac!iment .................................................... A . 19 .......... 

Forwarding of charps, records, etc . See the sneciEc subtitles . Fraud against United States: 

See also False claims against United States . Certain frauds against the United States may be alleged under "crimes and offenses 

not capital" clause of Art . 134. regardless of where committed ...................... 213c 

Delivering less than anount called for by receiptDiscussion, proof, Art . 132 (3) ................................................... 211f 

Specification, form for, Art . 132 (3) ............................... App . 6c (112) .......... 

Making or delivering receipt without knowledge of its truthDiscussion. proof, Art . 132(4) ................................................... 211g 

Specification, form for, Art . 132 (4) ............................... App . 6c'(113) .......... 

Fraud, discharge secured by; jurisdiction to try by court.martia1, Art . 83 (2) ............. llb 

Fraud on the court, as ground for a new trial, Art . 73 ................................ lWa, d. llOe 

Fraudulent enlistment, appointment, or separation; offenders subject to kial by courtmartial irrespective of military status, Art . 83 ......................................... 9 

Fraudulent enlistment or appointment: 

See also Enlistment . As constituting absence without proper authority from earlier enlistment ........... l04a 

Discussion, proof, Art . &3 ........................................................... 162 

Effecting . See Effecting unlawful enlistment, etc . Not continuing offense; date of commission ......................................... 68c 

Specition, form fort 83 ............................ A . 6c (6) .......... 

Fraudulent separation: 

Discussion, proof, Art . g? ........................................................... 162 

Specification, form for, Art . 83 ......................................... A . 6c (7).. ........ 

Gambling; specification, form for, Art . 134 ............................... App . L (143) .......... 

Psge 

llfi 

118 

115 
General and flag 05~13: , 

Sentence aflecting- Par. 

Appellate procedure, Arts. 66,67,71e --.----------.-------------......-.-

98,100~ (2),101, 

Approval by President, Art. 7la --------..-.--------------------------98,10Oc(2) 

General article'(Art. 134): 

See also Specific offcoses. 

Discussion, proof, Art. 134 ......................................................

213 

Specifications, forms for, Art. 134 .....-..------_.-----------.--- App. 6c (11&liS).- --_---.- 

Statutorg offenses not elsewhere covered may fall under., .._..------.--------------- 213c 

General courts-martial: 

See also Courts-martial, and other specblc titles.throughout index. Here are indexed 

matters relating specifically to general courts-martial. 

AddiMonal inshuctionsMay be requested during deliberation on Endings ............................... 74e 

To members; preparation, procedure, recording ...----. - -. ---------- ----.---- 73c (2) 

Challenges; law ofecer rules upon interlocutory questions.. .. . . . .....-_-.-.-... . --- 62h (2) 

Closed session; duties of law officer with respect to form of Endings ....--.-.-.-.....- 39b (I), 

741 (1) 

CompositionCounsel.. ... -. . . . - - - - - - --- --.--- -- - -- - - - - ------ - -- - - - - - - - - - - -- ------ -- -- -- - - --- 6 

Law officer and members.- ..--.--.-------------------------------

4 

Convening authoritiesSee also Convening authority. 

Enumerated. Art. 22 ..---..-----.---------..------------.....---

App. 20-- ----.--- Convening of court; when complete ....--.-----------------------------

611 

Defense counsel. See Defense munsel. 

Findings; law officer to put in proper form ----------.--- .- -- -- ------------ 1 .llllllll 74j (I) 

Instructions to court; given by law oBcer in open court ...........-----.---.-------- 73c (1) 

Interlocutory questions. See Interlocutory questions. 

Investigation under Art. 32; irregularities in, reported by trial counsel ...... --....-- 44j(5) 

JurisdictionSep also Courts-martial-Jurisdiction. 

Persons and offenses. Art. 18 14a 

Persons suhject to trial by military tribunals, Arts. 18, 21 (notes) .-.-. App. 2a.. -------- Law of8cer. See Law officer. 

Law of war, offensesagainst; triable by, Arts. 18.21 (notes) ... .........-- App. 2a-- ---.---- MembersSee ako Members of courts-martial. 

Any number, not less than 5, Art. 16 (1) .----.--........-......-.-------------- 4b 

Challenges, Art. 41 ..........................................................

62 

Excluded during presentation and argument of proposed instructions .-...------- 73c (2) 

Law officer is not one of ....--...--.....--------------------------.---39b (1) 

May be excluded during hearing of preliminary evidence or argument- - --.. ..- 57g (2) 

New member alter trial begun; procedure ...----.------------------.--.---

41e 

Punishment of by court; power Iacklng. ....-----...-.-...---- 1 .l...llllllllllll 41b 

Who may serve as; limitations, Art. 25 4a 

Oaths; when administered during trial; procedure .-.-...--.--------------. App. 8a-- ----..-- Occupied territory, offenses against laws of, triable by .-..-.......-.-..-..----------- 14a 

Order appointingSee also Appointing orders; Convening authority. 

Assistant counsel, quali5cations, expressly stated in .......------.-.-. ..-.-..-.-- 6d 

Convening authority e4pecially authorized, authority cited in ..--. .. . . ---. . . .-- 6a (2) 

Defense counsel; qualifications expressly stated ..-....--.--------. .-....---.. .-- a, 36b 

First meeting, time and hour, how worded ..---.--...-.-------------------

59 

Form for; instructions .......-------------.-------.--------.-.-.--- App. 4a (I)-- -------- Form of order amending; instructions ....--.-----------.-.-------- App. 4a (2)-- -----..- 

Law officer, qualifications, expressly stated ...-----..-..---------..--------.--..- 4e, 36b 

Prima facie evidence of iaw officer'sstatus and quali0cations ....... .-- -- ---- -...- 629 

Trial counsel, qualiflcations expressly stated .-..---.---..------------ --- --------- Bb, 36b 

Personnel; changes in, how effected .-..--....-------------------------- App. 4a (3.. -.------ 

PresidentSee alao President of court-martial. 

Authenticates record ----- ---- .......................... -- . -- 40c 

Duties, in general ..-.--.---..----------------------------40b (1) 

Page 

188,171 

188.171 
INDEX 

General oourts-martial-Contmued 

President-Continued Par. Page 

Interference with law officer's rulings prohibited ..................... .-. .......... 406 (1) 57 

Vote of; same weight as any membor ............................................ 41b M1 

Proceedings-- 

Chronological order ............................................................. 5% 73 App. 8a.- ........ 500 

Complete in each me ......................................................... 63b 73 

App. 8a.. ........ 500 

PunishmentSee abo Punishment; Sentence. 

Limitations, Arts. 13, 526,55,&3,W .......................................... 81d,126a, b 132,206 

May adjudge any punishment not forbidden by code. ......... 14b, 1266 18,207 

Record of trialSee also Records of court-martial. 

Accused entitled to copy including documentary exhibits and rcvision record; 

receipt for copy; deletion of classified matters therefrom ....................... 829 (1) 135 

All jurisdictional facts will be shown ............................................ 82.5 (1) 133 

Reporter. See Reporter. 

Seating of personnel and accused .................................................... 6lb 85 

A. a . 500 

Sentence. See Punishment; Sentence. 

Trial counsel. See Trial counsel. 

Who may appoiut. See Convening authority. 

General issue. See Pleas. 

General order or regulation, violating: 

Discussion, proof, Art. 82 ........................................................... 171a 323 

Specification, form for, Art. 92 ........................................ App. & (28).. ........ 476 

Gentleman, conduct unbecoming. See Conduct unbecon~inp an ofnoer, etc. 

Gestures, reproachful or provoking: 

Discussion, proof, Art. 117 .......................................................... 196 350 

Specification, form for, Art. 117 ....................................... App. 6c (841.. ........ 483 

Giving different parole or countersign, etc.: 

Discussion, proof, Art. 101 .......................................................... 1806 335 

Specification, form for, Art. 101 ..................................... A. 6c (54)- ........ 419 

Oood order: 

See also Breach of the peace. 

Conduct prcjddicial teDiscussion, proof, Art. 134 ...................................................... 213a, d 381,384 

Specifications, forms for, Art. 134 ............................ -App. 6e (118-17% ........ 488 

Oovernment, frauds against. See False claims against United States; Fraud against 

United States. 

Grade: 

Change of, how described in speciflcation .............................. A 6a (6).. ........ 470 

Reduction in, of officer, or to cnlisted grade, not authorized ......................... 126d 208 

Reduction of enlisted person by sentence o# court-martialTo inferior, as additional punishment, See. B ................................... 127c 228 

To lowest or intermediate. ...................................................... 126e 201) 

Reduction of officer to enlisted grade by commutation, Art. 716 ..................... 126d 208 

Orafton v. United States, quoted on question of jurisdiction ............................ 8 18 

Oreat bodily harm, in murder.. ........................................................ 197e 352 

Qrievous bodily harm. See Bodily harm. 

Grounds for challenge, disclosed by court members ..................................... 62b 90 

A. a . 505 

Guard or watch duty, not imposed as punishment ...................................... 125 20.5 

Guard report, as official recold .......... !.-- .......................................... la, d 265.268 

Quide for preparation of record of trial: 

Summarized, special court-marrid .--.-......--.......................... A IOU-. .......- 531 

Summary court-martial. ............................ : ..................... App. 11.. ........ W6 

Verbatim; special and general courts-martial.. ............................ A. a ...... 525 

Guide to procedure for trials before general and speeial courts-martial ......... App. 8a.- ........ 600 

Habeas corpus: 

Courts-martial proceedings; Federal courts have exeluslve]urlsdiction ............... 8,215 13,390 

Definition, purpose, discussion ...................................................... 214-217 388 

Forms .............................................................................. 218 392 

Papers to accompany warrant of attachment of civilian wibess for use in case of.. 115d (31,217 191,391 
INDEX 

Handwriting: Par . Page 

Opinion evidence as to .............................................................. 143b (1) 260 . Requiring person to make sample of ................................................ 150b 284 

Harboring or protecting the enemy . Enemy . Hard labor: 

Confbement atLimitations, when dishonorable or bad conduct discharge not adjudged; exception 127b 214 

Officer; sentence must include dismissal ......................................... 126d, j 208, 212 

Warrant officer; sentence must inclnde dishonorable discharge .................. 126d, j 208, 212 

Who subject to sentence of ...................................................... 126j 212 

Without imposition of fine or forleiture, unusual ................................ 126j 212 

Confinement without, unauthorized; effect of such sentence, Art . 58b ................ 126j 213 

Sentence to, reduces enlisted person ta lowest grade ................................. 126e 209 

Without con6nementAgainst enlisted persons, in excess of three months, unauthorized ................ 126k 213 

Against o5cers or warrant officers, prohibited ................................... 126d, k 208, 213 

Maxlmum limitation onSpecial court-martial, Art . 10 ............................................ 15b, 126c (1) 19, 207 

Smawt.martia1. A . 0 ......................................... 16b, 126c (2) 20, 208 

Performed in addition to other duties; discussion ............................... 126k 213 

Harmless error, test to determine ....................................................... 87c 146 

Hazarding of vessel: 

Discussion, proof, Art . 110 .......................................................... 189 345 

Specifications, forms for, Art . 110 ................................... App . 6c (70.72).. ........ 481 

Hazardous duty, absence to avoid . Set Desertion . Hearing: 

Conducted by law o5cer out of presence of court members .......................... 67g (2) 81 

To vacate suspension, Art . 72 ....................................................... 976 165 

Hearsay evidence: 

See also Evidence . Qeneral rule stated, illustrations .................................................... 139 247 

ExceptionsActs and statements of conspirators and accomplicesSSSSSSSSSSSSSSSSSSSSSSS ..... 140b '352 

Admissions . See Admissions . Affidavits as to character, ete., for defense ....................................... 146b 273 

Business entries, admissibility in general ....................................... 144c 266 

Certiacates authenticating certain documents... ................................ 143b (1) 260 

Complaint by victim of sexurtl o8ense .......................................... 142c 256 

Confessions . See Confessions . Depositions ..................................................................... 145a 269 

Dying declarations .............................................................. 142a 254 

Fingerprints .................................................................... 144e 269 

Former testimony .............................................................. 145b 271 

Limitations upon admissibility of certain documentary evidence ................ 144a, d 265, 266 

Maps, photographs, etc ......................................................... 144e 268 

O5cial records .................................................................. 144b 265 

Spontaneous exclamations ...................................................... 142b 255 

Statements made through interpreter ........................................... 141 253 

Statements of motive, intent, or state of mind or body .......................... 142d 256 

Hearsay rule; application in insnnity matters.. ......................................... 122c 204 

Hindering or preventing apprehension, trial, punishment of offender; accessory after the 

fact ................................................................................... 157 303 

Holding correspondence with the enemy . See Enemy . Homicidal tendencies; may be eonsidered in connection with sentence .................. 123 204 

Homicide: 

See also Manslaughter; Murder; Negligent homicide . Dying declarations; admisible In evidence in cases of ............................... 142a 254 

Eonorable discharge: 

See also Discharge . Certificate to be furnished enllsted person. Sec . 6 .......................... App . 2b.. ........ 453 

. Operates as remission of suspended seotence ........................................ 97a 165 

Housebreaking: 

See also Burglary . D$cussion, proof, Art . 130 .......................................................... 209 374 

Specification, form for, Art . 130 .................................. A 6 (1 .. 486 
INDEX 

Husband and wife: Par. 

As witness for or against each othsr ................................................. 14& 

Privileged communications between ................................................ 161b (2) 

Ideutiflcation: 

By hgerprints; requiring person to furnish .................................. 143a (3, 150b 

By voice; requiring person to utter words for purpose of ............................ 1506 

Depositions; name of desired deponent unknown, designated by once or 

position ...................................................................... 117a 

Marking of excluded exhibits for; for consideration of convening authority. ......... 54d 

Of accusedBy evidence of acts preceding or following otrense charged ...................... 138fl 

Distinguished from self-incrimination.-- ........................................ 1506 

In caTes involving fraudulent enlistment, appointment, or separation .......... 162 

Presumption of, from identity of name and person .................................. 138a 

Ignorance of fact, as defense---. ......................................................... l64a (3) 

Ignorance of law, as defense ............................................................. 1640 (4) 

Illegally obtained evidence, deflned and discussed ...................................... 152 

Immunity from trial: 

As defense in bar of trial ............................................................ 68h 

Promise ofTo obtain confession; effect oL ................................................. 140a 

When effectivg. ................................................................ 1488 

Witness; competency not affected by ............................................ 14% 

Self-incrimination; ~le against may be affected by .................................. 150b 

Impeachment of witnesses. See Witnesses-Credibility. 

Impersonating officer, noncommissioned officer, etc.; specification, form for, Art. 

134 .................................................................... App. 6c (145)-- ........ 

Important service, absence to shirk. See Desertion. ' 

Improper hazarding of vessel: 

Discussion, proof, Art. 110.. ........................................................ 189 

Specifications, forms br, Art. 110 .................................. App. 6c (70-73).. ........ 

Improper or unclean uniform, appearing in; speciflcation, form for, Art. 134 

App. 6c (173).. ........ 

Inactivation of unit of convening authority; action by officer exercising geqeral courtmartial jurisdiction.. ................................................................. 84c 

In-court conference, with law officer ..................................................... 570 (2) - App. 80-- ----..-- 

Indecent acts with a chitd: 

Discussion, proof, Art. 134 .......................................................... 213d (3) 

Specification, form for, Art. 134 ...................................... App. 6c (146).- ........ 

Indecent exposure; specifimtion, form for, Art. 134 ...................... App. 6c (1471.- -.----.. 

Indecent, insulting, or obscene language to a female; speciflcation, form for, Art. 134 

App. 6c (148).- ........ Individual counsel: 

See also Counsel for accused; Defense counsel; Civilian counsel. 

Accused; right to sele~tion of, in general, Art. 386 ................................... 48a, 611 

Charges, investigation of; right of accused to representation by, Art. 32 ............. 34b 

Duties and incidental matters. See Counsel for the accused; Defense counsel; Civilian 

counsel. 

Oath ............................................................................... 114 

Inducing misbehavior befox enemy, as solicitation: 

Discussion, proof, Art. 82 ........................................................... 161 

Specification, form for, Art. 82 ........................................ App. 6c (a_- ........ 

Induction; included in term "enlistment" .............................................. 162 

Inferences: 

See also Presumptions; Gicumstantial evidence. 

Consent to intercourse, arising from nonresistance in alleged rape.. ................. 1Wa 

Government ownership of military property ........................................ 187~ 

Intent to inflict hodiig harm ........................................................ 207b (2) 

Intent to steal, based upon circumstances ........................................... 200a (6) 

Negligence, from loss o'r damage of issued property.- ................................ 1876 

Ownership of government properly .................................................. 187c 

Value of stolen property.. .......................................................... 2W 

Influencing action of offioers of court, unlawful, Arts. 37,98 ............................. 38 

Informants; evidence of communications by, privileged -------..------------------------ 151b (1) 

Page 

277 

285 
INDEX 

4~: Par. Page 

Time lost by, as result of own misconduct, to be made good, Sec. 6 (a). -- App. %_- ._--.--- 453 

To military property. See Military proprty. 

To property; prooedure to obtain redress for, Art. 13D ........ .. ... App. 2n.. ........ 451 

Innocence, presumption of. See Presumptions. 

Inquests, Sec. 6 (note) ....................................................... App. 26.- ........ 463 

Inquiry, courts of. See Courts of inquiry. 

Insanity of accused: 

Action by convening authorityPower to return case to court for reconsideration of Bndings as to mental 

capacity .. 1!nb 203 

When further inquiry \vananted in interest of justice ........................... 124 204 

As grounds for not ordering trial. ................................................... 30. 120c, 34, 200 

121 201 

Charges; effect on referral for trial when insanity suspected. ........................ 30d, 33m 34,44 

Defense; responsibility regarding issue of ............................................ 122~. b 202 

Den .......................................................................... 120a 200 

Evidence; rules, weight of expert opinion. modes of proof ............................ 1Zc 203 

Finding of guilty; aisapproval, because ol: reason should be stated .................. 8% (2) 152 

Finding of not guilty because of; reason may be stated .............................. 741 (3) 118 

Inquiry before trial, when required- ................................................ 121 201 

Inquiry by courtDuty to raise issue at any time when warranted ..... ........................... 122a, b 202 

Findings, action; when issue sustaiued or not sustained ......................... 12% 2C3 

Interlocutory questions; rdmg by law o5cer or president of special court on; 

objections by members, finality, Art. 51b ..................................... 122b 202 

Rewnsideration of findings upon return of case from convening authority ....... 12% 203 

Rulings by law oWcer or president of special wurt on; finality of, abjections; 

Ms. 5lb, 52c .................................................................. 5ic, d, :T9, 82 

122b 202 

Sentence; consideration of eddence of mental deficiency in mitigation or aggravation ........................................................................... 1 204 

When issue of raised: action required, effect on reasonable dwbt, burden of proof- 1?2a 202 

When motion for inquiry into sustained ....................................... 1226 202 

Issue or defense of, raised at any time during trial .................................. 67d, 1226 97, 202 

Medical boardQualificntion of memhers, duties, findines, report ...... , ....................... 121 201 

Report of; actiorfauthorized as aresult of ....................................... 121 201 

Medical reports and opinions; admissibility ......................................... 122c 204 

Mental capacity at time of trial, lack of; definition .................................. 120c 200 

Mental responsibility, lack ofDefinition ...................................................................... 1206 200 

Mental defect, disease, etc., distinguished from defect in character, behavior, etc.- 1206 200 

Reasonable doubt as to; effect on flndlngsl ........................... 74a (3), 120b, 122a, 114, 200 

122b 202, 203 

Presumption of sanity as affecting proof of ........................................ 122a, 1380 201, 241 

Prosecution, burden of proof on issue of sanity upon ................................ 122a 202 

Report of medical examination; forwarding with charges ............................. 121 201 

Insanity of witness; not generally a disqualification ..................................... 148c 277 

Insignia, medal, badge, etc., unauthorimd wearing of; specitlcation, form for, Art. 134 

App. 6c (176)-. --.----- 495 

Inspectors General; reports ot as privileged commlmications ............................ 151h (3) 286 

Instructing the court: 

Additional instructions by law ot8cer; preparation .................................. 73c (1) 112 

Burden of proof on prosecution; Art. 51c ............................................ 736 112 

Convening authority, when authorized. ............................................ 38 53 

Deposition in non-capital case tried with capital case, as to .......................... 145a 269 

Duties of law officer or president of special court, Art. 51c ........................... 736, c 112 

Elements of each offense charged; procedure, Art. 61e .............................. 73a 112 

Expert testimony, as to ............................................................. 138e 242 

Form used in. ............................................................ App. 8a.. ........ 518 

Qeneral rules, as to .............................................................. 73 112 

Inconsistent statement used for impeachmont only, as to. ........................ 153b (2) (c) 293 

In open court ....................................................................... 3% 56 

1 aw offlce~. mag glve additional inst~ctions; preparation; procedure ................ 73c (2) 113 

Presumptlon of Innocence of accused, Art. ale .................................... 396 (I), 73b 55,112 
INDEX 

Instructing the court-Continued Par . Page 

Reasonable doubt resolved in favor of accused. Art . 5lc ............................. 73b 112 

Recording proposed instructions, arguments ........................................ 73c (2) 113 

Special court-martial; as to elements of offense, burden of proof, etc .................. 78 126 

Statement of accomplice in joint or common trial ................................... 140b 253 

Instruction in military Justice; use of review of staff judge advocate or legal oBcer ....... 85d 142 

Insubordination: 

As misbehavior before the enemy, under Art . 99 (3)- 

Discussion, proof, Art . 90 ....................................................... 178c 332 

Specification, form for, Art . 09 .................................... App . Cc (45) .......... 478 

Toward superior officerDiscussion, proof, Art . 89 ....................................................... 169 319 

Specifieatlon, form for, Art . 89 .................................... App . 6c (20). ......... 475 

Toward warrant, noncommissioned, or petty officerDiscussion, prool, Art . 91 ....................................................... 170d 323 

Speeiftcation . form for, Art . 91 .................................. App . 6c (m.. ........ 475 

In the fleld, within Art . 2 (notes) .......................... ...... App . 2a_- ........ 413 

Intelligence; giving to the enemy . See Enemy . Intent: 

Drunkenness, voluntary, as affecting ................................................ 154a (2) 294 

Essential element of offense, should be expressly alleged ............................. 28a (3) 31 

Evidenced by acts preceding or following offense charged ........................... 138g 244 

Ignoranceof fact to show absenceoicrirninel L.................................... 154a (3), (4) . 295 

Ignorance of law as atTecting ........................................................ 154a (4) 295 

Involuntary manslaughter; not an element ............................ ... ........... 19Rh 354 

Specific, how proven ................................................................ 154a (1) 294 

Statements of, when admissible ..................................................... 142d 256 

To defraud, in forgery .............................................................. 202 364 

To inlure, disfigure, disable, in maiming ............................................ 203 366 

To kill or inflict great bodily harm, in murder ...................................... 197e 352 

Interest: 

See also Usury . Witness, not disqualified by reason of ........................................ ! ...... 148e 277 

Jn terlocutory question: 

Closed session during voting on; statutory requirement concerning, Arts . 39, 51b ..... 53d 74 

General courbmartial, ruling by law officer on; 3inality, change, announcement, Art . 51 ................................................................................ 57 79 

Inquiry, preliminary to ruling on .................................................... 579 81 

Relaxation of rules of evidence on; when permitted... ........................... 41d (41, 58f . 59.83 

137 238 

Special court-martial; ruling on objections, procedure, Art . 516 ...................... 57c, e, f . g 79,80, 81 

Voting on; method; number required, tie vote, announcement, Arts . 516, 52c ........ 57f 80 

International conventions; limitations on punishment prescribed by- ................... 146 18 

International law: 

General court-martial may try cases under law of war, Art . 18 (notes) ............... 146 18 

Judicial notice of .................................................................... 147a 274 

Jurisdiction over members of visiting armed forces .................................. 12 16 

Law of mar, included in ............................................................. 1 1 

In Bpreter: 

Accused may be furnished; rule ..................................................... 63i 75 

Appointment, authority, Art . 28 .................................................... 7 12 

Courts of inquiry . Art . 135 .......................................................... 7 12 

Depositions through ................................................................ 141 254 

Duties, compensation ............................................................... EOb 72 

Former testimony through, when admissible ........................................ 141 254 

Oath ................................................................................ 114 186 

Statements made through, how proven ............................................. 141 251 

Sworn, when ...................................................................... 61d 86 

Testimony given through, when admissible, how shown in record ............... 82b (I), 141 133, 2% 

s of dug ti .................................................................. 506 72 

A . a .. 502 

Interrogatories . See Dewitions . Iniwmuption of execution . €sentences ................................................... WC 166 

lnairsicating liquor, allon'hg prisoner to obtain; speciflcation, form for, Art . 134.-.-.-.- 

App . 6c (1611.. ........ 493 

Lnltroduction of evidence . order of ....................................................... 54a 75 
INDEX 

Investigating officer: 

See also Investigation. Par. Page 

Defined, Arts.25,26,27------ ....................................................... 64 81 

Ineligible to act asMember of defense in same case unless expressly requested, Art. 3 .............. 6a 9 

Member of prosecution in same case, Art. 27 .................................... 6a 9 

Memper or law officer, Arts. 25,26 ..........................................-... M f (5) 91 

Investigation: 

See also Charges and speciflcations; Preliminary inquiry, etc. 

AccusedCopy of substance of testimony furnished, when ................................. 33i @ 

Rights at, explanation of ............................. 346 45 

Alteration of charges as basis for new investigation .................................. 33e (2) 41 

By court of inquiry. See Courts of inquiry. 

Certain privileged communications of a confidential or secret nature.. .............. 151b (3) 286 

Charges and speciflcationsAccused, right to wunsel at, Art. 32 ............................................. 34c 45 

Convening authority, duties .................................................... 33e 40 

Defect in, how raised by motion; relief; action by convening authority .......... 67b,69b, c 96,104 

106 

Effect of $vestigation prior to preferring ........................................ 33e (1) 40 

Preliminary to preferring- ..................................................... 3% 36 

Restraint of accused during ..................................................... ulb 23 

Confidential and secret, by Inspectors General; status of, in courts-martial .......... 151b (3) 286 

Injuries to property. See Injury to property; Military property. 

Non-compliance with Art. 32 to be reported by trial counsel._- ..................... 44j(5) 63 

Officer makingSee also Investigating officer. 

Appointment, qualifications, functions, Art. 31 ................................. 34a 44 

Depositions; preserving evidence of departing witnesses, duties, ht. 49.. ....... 30e 34 

Duties,procedure, etc., Art. 32 .................................................. 34a 44 

Formal report, when not required ............................................... 341 48 

Oaths, authority to administer, Art. 136b (n~tes)..~ ............................. 113 185 

Report of, contents, inclosures, form ........................................... 34e 47 

A. 7 -- 496 

When required under Art. 32 ................................................ 30b,33e, 34a 3440,44 

Oath of witness at .................................................................. 114 187 

Report of investigation of charges, Art. 32 ........................................... 33i 43 

Irons; use of prohibited except to insure sefe custody .................................... 125 205 

Irregularities; effect on court-martial proceedings, Art. 59. .............................. 87c, lOOa 146,169 

Irresistible impulse; effect on legal responsibility ........................................ lulb 200 

Jeopardy, former. See Former jeopardy. 

Joint command; jurisdiction of wmmander over personnel of other armed forces..-. ..... 13 17 

Joint offenses: 

See also Accomplice; Conspiracy; Aider, Abettor. 

Discussed ................................................................... 26d 29 

Preparation of charge sheet.. ....................................................... 29d 33 

Specifications alleging; forms for ...................................... App. 60 (a)-- ........ 470 

Joint task force; jurisdiction of commander over personnel of other armed for oes ......... 13 17 

Joint trial: 

See also Joint offenses; Accomplice; Conspiracy; Aider, Abettor. 

AccusedEach retains rights at ........................................................... 53c 73 

Right of enlisted accused to enlisted members; action of court ................... 6lg 89 

Challenge at, one peremptory for each accused ...................................... 62e 91 

Confession, admission of one accused; when not evidence against others; procedure as 

to admitting ...................................................................... 1406 252 

Findings at; consistency required ................................................... 746 (1) 115 

Members of different armed forces; cases involving should not be relerred for ........ 13 17 

Motion to sever by one or more joint accused. ...................................... 69d 106 

Orders promulgating result of ....................................................... 9la 156 

A. a .. 651 

Joyriding. See Wrongful appropriation. 

Judge advocate: 

See also Staff judge advocate or legal oftlcer. 

Defined ............................................................................. 6b 10 
INDEX 

Judge advocate--Continued Par. Page 

Oaths, authority to admuister, Art. 136a .......................................... 113 185 

Qualified for detail as trial counsel, defense counsel, when, Art. 27 ................... 6b 10 

Judge Advocate General: 

Action byOn petition for new trial under Sec. 12 .......................................... llOc 181 

A. 2 . 438 

With respect to Coast Guard petition for new trial, Art. 73 ..................... 109c 176 

With respect to decision of Court of Militnry Appeals. .................... L .... 101 172 

Additional boards of review may be constituted by, Arts. 66, 60.. ........ App. 2a+. ........ 434,435 

Administration of military justice in the field, inspection of, Art. 68 ..-_--- App. 2a.. -----.-- 415 

Appellate review duties generally, Arts. 66,67,69. ........................ App. 2a.- ........ 434,435 

436 

Appellate review in the office of ..................................................... 103 173 

Appointment of appellate government and defense counsel, Art. 70a --..---.-------. 102a 172 

Assignment of judge advocates and legal specialists, Art. 6a ............... App. 2a.- ........ 415 

Board of review, constituted by, compsition, Art. 66 ..................... App. 2a-- ........ 434 

Branch offices may be established by, Art. 68 ....................................... 104 174 

Certification of c0unsel of general and special courts-martial .......................... 6b, 10.86 

5V (1) 

Discretion of, as to forwarding decision of board of review to Court of Military Appeals, Arts. 676 (21, 67d .......................................................... 100b, c 169,170 

Habeas corpus, report of proceedings to. See Habeas corpus. 

New trials, procedure and action by, Art. 73; Sec. 12, act of 5 May 1950 .............. 109,110 176,180 

Notice to accused and appellate defense counsel by, when case referrred to Court of 

Military Appeals.. ............................................................... 1006 (2) 169 

Power of, as to remission or suspension of unexecuted portions of court-martial sentences; when designated by Secretary, Art. 74a .................................. 97a, 105b 164,174 

Qualifications, See. 13 ................................................... App. %- ...... 456 

Recommendations with respect to sentences requiring action of the President ....... 101 172 

Record of trial transmitted toGeneral courts-martial appointed by President by trial counsel. ................ 826 (2) 136 

General courts-martial; by convening authority after action, Art. 65 ............. -99 168 

General courts-martial; by convening authority for advico before action-------- 85c 141 

Review of records of trial by general courts-martial hi office of, when examination 

not otherwise provided for, Art. 69 ................................................ 103 174 

Suspension of counsel; announcement of rules for, by ................................ 43 61 

To prescribe uniform rules of procedure for pfoceediigs in and before boards of review, 

Art. 66f ........................................................................... lOOd 171 

Judge Advocate General's Corps, member of, defined .................................. 66 10 

Judgment of court-martial: 

See also Findiugs; Sentence. 

Finality of, Art. 76 ............................................................... 108,214b, c 175,388 

Judicial notice: 

Defined; principal matters for, enumerated .......................................... 147a 273 

Foreign law and regulations, excepted from; exceptions.. ........................... 147a, b 274,275 

Judicial power of the United States; courts-martial no part of. .......................... 8 13 

Juries, grand and petit; evidence of deliberations as privileged ........................... 151b (1) 284 

Jurisdiction: 

See also Courts-martial; Persons; and the specific court. 

Asserting lack of, as defense, effect of proceedings. See Motions. 

By one armed force over personnel of another, Art. 17a .............................. 13 17 

Concurrent. See Concurrent jurisdiction. 

Courts of inquiry. See Courts of inquiry. 

Crimes and offenses not capital, exclusive and concurrent, Art. 134 .................. 213c (2) 383 

Error affecting; form of action ........................................ A 14 (25).- ........ 546 

Lack of; another trial ordered because of, not subject to limitations as to rehearing; 

exceptions ........................................................................ 92 160 

Matters relating to pleading of, as defense. See Motions. 

Military commission. See Military commission. 

Military jurisdictionAgencies through which exercised ............................................... 2 1 

General notes as to, Art. 2 (notes) ..................................... Ap 2a-. ........ 412 

Persons subjeet to, Arts. 2.3 .................................................... 8 14 

Sources of ...................................................................... 1 1 

Must be found by convening authority to exist ..................................... 86b (1) 142 
INDEX 

Jurisdiction-Continued Par . Page 

Offenses committed within territory of friendly foreign nation ...................... 12 16 

Plea to charges; effect on ............................................................ 70a 107 

Review of record limited to questions of, when accused acquitted ................... 866 (2) 143 

Termination oQ when not affected by dismissal or discharge, Arts . 2 (7), 3, 83 (2) .... 11 14 

Justifiable homicide; dewition, discussion .............................................. 1976 351 

Lack of sufEcient evidence; disapproval of sentence beeause of, constitutes jeopardy 

under Art . 44 .......................................................................... 68d 102 

Larceny: 

Check, making and uttering, when constitutes false pretense ........................ 200a (5) 359 

Discussion, proof, Art . 121 ........................................................... 20Da 356 

Embezzlement included in .......................................................... MOa (1) 356 

False pretense.. 

Defined, discussed .............................................................. 200a (5) 359 

~resurnption of, from not having sufacient funds in bank available to meet payment of check ................................................................. 138a 240 

Identity of accused as thief as evidenced by previous fraudulent schemes ........... 138g 245 

Intent in, discussion ................................................................. UH)a (6) 359 

Intent of accused as evidenced by unlawful sale of proberty allegedly stolen ............ 138g 246 

Lost property, subject of ............................................................ 200a (7) 360 

Not a minor offense under Art . 15 ................................................... 1286 229 

Obtaining by false pretense included in .............................................. MOa (1) 356 

Ownership of property; discussed; how pleaded ...................................... 200a (3) 357 

Pawning property of another as constituting ........................................ 200a (6) 360 

Plan of accused as evidenced by similar acts of obtaining money by false pretense ...... 1389 215 

Presumption ofFrom failure to deliver or account .............................................. 138a 240 

From possession of recently stolen property ..................................... 138a 240 

Sale of stolen property; as evidence of ........................................... 138g.200~ (6) 246, 360 

Singleness of offense although articles belong to several persons ................ 266, 200a (7) 29, 361 

Specification, form for, Art . 121 ...................................... App . 6c (89) .......... 484 

Taking, obtaiding, withholdingDefined; examples .............................................................. 200a (2) 357 

Wrongful, when. ............................................................... 200n (4) 358 

Value of stolen property; proof of and inferences as to .............................. 200a 360 

Wrongful appropriation; as lesser included offense .................................. 200b 362 

Lawful order, failure to obey: 

Discussion, proof, Art . 92 .................. : ........................................ 171b 324 

Bpeciflcation, form for, Art . 92 ........................................ A 6 (29 .... 476 

Law officer: 

Absence from trial, effect on proceedings ............................................ 39d 56 

Additional instroctions to court ..................................................... 73c, 74e 112, 117 

Advises accusedOf rigbt to legally qualified counsel, when ...................................... 61 f (3) 88 

Of right to plead statute of limitations; procedure ............................... 74h 118 

AppointmentFrom command of other armed force; rules as to ................................ 4p (3) 6 

From other wmmands of same armed force; rules as to .......................... 4f 5 

From within joint command; rules as to ....................................... 4g (11, (2) 5 

General, Art . 26 ................................................................ 4s 4 

Prima facie evidence of active duty status as officer ............................. 628 92 

New law officer during trial; procedure.. ....................................... 39e 56 

Authentication of record of trial ..................................................... 39f, 82f 57, 135 

A % 1 .. 528 

Burden of proof, charges court concerning, Art . 51c ................................. 73b 112 

Certificate correcting record of general court-martial to be signed by ................. 866 143 

Certification of, shown in appointing order .......................................... 4e, 366 4, 51 

A a (1 . 468 

ChallengeDoes not rule on as interlocutory question, Art . 51b ............................. 57~ 70 

Rules on Interlocutory questions arising during hearing on ...................... 62h (2) 93 

Subject to, for cause only, Art . 41 ................................................ 62% g 89, 92 

Conducts examination of witnesses for court ........................................ 54a . 75 

Contempts; preliminary ruling by .................................................. 118b 198 

Oowt may request flndings to be put in proper form by; procedure ................. 741 (1) 118 
INDEX 

Law of8ccr-Oontinued Par. 

Depositions; inspection by --.-..-------...-----------------------------117b, g 

Determines whether his rulings are flnal ..------.......---------------------------57d (1) 

DutiesConcerning preconvening procedure. -- --.. -. . . . -- .----- -- - - - - - UIUIUIUIUIUIUIUIUIUIUIUIUIUIUI 616 

In general, Arts. 39, 51 ....--.--.----.-.--------------------------------39b (1) 

Examination of former record on rehearing or new trial, rules as to .--.-.-...-------- 81c 

Excluded from deliberation and voteCertain interlocutory questions ---.---.-.--..-.------.-..-------------.------

57d (1) 

Challenge ...-...._-------.---------------------------.--------6Zh (8) 

Findings ........................................................................ 74d (1) 

Sentence ...-.-..--.----..------.-------.--.---------.-7-.--------------------.. 76b (2) 

Excused via challenge, court adjourns when -.-....-.-----.--.-.----------------- 62c 

Explanation to accused of inconsistent or improvident pleas. - ..--..--...--.-..----. 70b 

Failure to appoint, renders proceedings void-. ..-.-. .------------------------------- 4e 

Findings; putting in proper form -----------.. .----------.-.-.---------------------

741 (1) 

App. 8a-- --.----. 

InqSy before ruling; as to facts and law; procedure .---.-....---------------------- 579 

Insanity of accused, need of further inquiry into, action by .-..-----..-._--.------- 57d, 1224 c 

Instructs courtAs to elements of each ofiense charged; procedure ..--..-.-.-------------------- 73a 

As to interlocutory questions; when submitted to vote .--...---..-----.--------- 57d (1) 

Interlocutory questions, rulings by, Art. 51b ..-......--..-..-------------------- 67d, e, f, g 

Investigation of charges by, prohibited .--.-.-.- .. --...-...-....--.-.------..----- 34u 

Limitations on inquiry concerning eligibility; procedure re challenge--..--------.- 62g 

Maximum authorized punishment; advises court of, before it voteson sentence------ 76b (1) 

Motions for ftndings of not guilty; rules on; procedure ....-.....-------------------- 57d, 71a 

Oath of; form ...------.-..-.--.----------.--------.-.--------....-------------114 

Oaths, authority to administer ....--.-.----...--------.--.-...---------.-------113 

Peremptory challenge, not subject to. --.-.--.-........-.-~-----.------ 028 

Preconvening duties with respect to legal constitution of court ..---..-.------------- 61a 

Presumption of innocence, charges court concerning, Art. 51c ....--.---.----.------- 73b 

Prior participntion In case, when disqualifying, Art. 26a ......---.-.--.------------- 46 

Proof, burden of, charges court concerning, Art. 51c ... ... .-.---.-_------..--------- 73b 

QualificationsIn general, Art. 26. ...--.--.---.----..------..------------------------

46 

Recital of, in appointing orders as pi-ima facie evidence oL -----..-..-.-.------- 62g 

Reasonable doubt of accused's guilt, charges court concerning, Art. 51e ---.-.---.--. 73b 

Revision proceedings; presence, dutles ...--...-.-.-------------..------------..--80 

Seated apart from court ...------.--.-----..-------.------------.--------.61b 

App. 8a- .----.-. SentenoeAdvises court as to maximum ...---.-.-----..--------------------------

39b (1) 

Procedure in case of ambiguity or illegality in.. . ...-.-...---------------.-.--- 76c 

Undue interference in trial improper ..-.----.--------..---- --...------------------ 39b (2) 

Witness for prosecution, to be excused when ....-.....----.----------.-....----.--- 63 

Law of nations. See International law. 

Law of war: 

Alleging violation of ............-.-..--.-.------.--------------------. App. 6a (12)- -------- Enforcement of, as exercise of militmy jurisdiction .------_..-.-.---..--------.-.--- 2 

General court-martial may try case under, Art. 18 ..-...-.........--------..------.- 2,14 

Judicial notice may be taken of .....-...-..-----.--.-------...-.------...-..------- 147a 

Jurisdiction of courts-msrtial, military commissions, provostcourts,orothermiUtary 

tribunals, concurrent %-ith respect to provisions of, Arts. 21, 104,106. .---.--.-..- 12 

Persons subject to trial by military tribunals by law of war may be tried by general 

courts-martial, Art. I8 ........................................................... 9,14 

Punishments authorized for violation of-.. .. .- .....---.-.----------..-------------- 14b 

Source of military jurisdiction found in. .-.......---_.---------.---------------.--- 1 

Law specialist: 

Authority to administer oaths, Art. 136a -..-.--- ....-----.----.-- -.--.--.-.---..-- 113 

App. 20- --...--. 

DeBned. Art. 1 --....------..-.-.--.---.-....----..-.---------...-------..-..-66 

Qualified for detail as trial counsel, defense counsel, Art. 27 ....-.----. --------....- 6b,c 
....... 

-. INDEX 

Leading questions: Par. Page 

Ambimous, misleading, and suggestive; de as to ............................... 14% (2), (3) 282, m 

Court, duty of, respecting ........................................................ 149~ (1) (b) 282 

Cross-examination; may be freely used .............................................. 1496 (1) 279 

Deflned; examples; exceptions to rule against.. ..... I ............................... 14Qc (1) 281 

Depositions; wide latitude allowed in ................................... I ....I..-.. ll7b, 145a 184,270 

Types of questions not considered as .............................................. 149c (l)(b) 231 

Leave or liberty, entitlement to in connection with hard labor without confinement ..... 126k 213 

Leaving post before being relieved: 

Disc.ussion, proof, Art. 113 .......................................................... 19% 347 

Specifleation, form for, Art. 113 ....................................... bpp. 6c (76) .......... 452 

Legal documents: 

See also Documentary evidence. 

Acknowledgment of, authority to execute, Art. 136 ........................ App. 2a.- ........ 450 

Attestation of, authority to execute, Art. 136 ............... 1 .............. App. 2a.. ........ 450 

Legal efficacy, of writing, in forgery --.--.---_------------------------------202 366 

Legal officer: 

See ako Staff judge adroate or legal o5mr. 

Definition, Art. 1 ......................................................... A2 ........ 412 

Legal research by counsel; may contact convening authority for aid in .................. 441 (4) 63 

Legislature of State, Territory, or possession of United States, contempt toward. See 

Contemptuous words against President, Congress, etc. 

Lesser included offense: 

Additional instruction as to, by law officer .......................................... 73c (1) 113 

Approval of, by convening authority; to be set forth clearly in action.. ............. 87a (4) 145 

Attempt as ......................................................................... 74b (3) 116 

A2 .. 537 

Convening authority may approve so much of hding of guilty as involv es-.......-. 87a (4) 145 

Discussion; test of, Art. 79 .................................................... 746 (3), 168 116,303 

Explanation of effect of plea of guilty to, form of .......................... App. 8a.- ........ 509 

Plea of guilty to non-capital offense included in a capital offense may be received..- 70a 107 

Punishment for both principal and lesser included offense, prohibited -.------------. 76a (8) 123 

Statute of limitations as affecting Bndigs as to ................... L ................. 74h 118 

Table of ............................................................................ 74b (3) 116 

A 2 -- 537 

Letters: 

See also Documentary evidence. 

Method of authentication of; general rules .......................................... 143b (1) 260 

Presumption as to receipt of, when properly mailed .................................. 138a 240 

Lewd, lascivious aets; as elements of indecent assault or indecent acts with child ..-.- 213d (2),(3) 386 

Liie imprisonment: 

Dishonorable discharge and forfeitures may be adjudged with ....................... 126a 207 

Or death, when mandatory for murder, Art. 118 (I), (4) ............................. 126a 206 

Sentence requires three-fourths vote, Art. 52b. ...................................... 766 (3) 124 

Limitations: 

Qeneral, on punishment ............................................................ 126 205 

. Maximum, on punishment, Art. 56 ................................................. 127 213 

On gunishmentQeneral courts-martial, Art. 18: ............................................... 126b 2437 

Special courts-martial, Art. 19 ................................................... 126c (1) 207 

Summary courts-martial, Art. 20 ............................................... 126~ (2) 208 

Punishments under Art. 15; may be prescribed by Secretary of Department-..-.--- 13111 231 

Time. See Statute 01 limitations. 

Trials. See Former jeopardy. 

Lineal position, loss of; sentence, to whom applicable-. ................................. 126i 212 

Loml civil authority; superseded in occupied territory by jurisdiction of military 

tribunals ....................................................................... 14a 18 

Local criminal law; included in law of occupied territory ................................ 140 18 

Logs, as official records .................................................................. 144b, d 265,268 

Lookout, under Art. 113. See Sentinel. 

Looting or pillaging: 

Discussion, proof. Art. 103 ................ ... ........................................ 182d 338 

Specification, form for, Art. 103 ....................................... App. 6c (59).. ........ 479 

Losing military property: 

Discussion, proof, Art. 108 .......................................................... 187a, b 342 

BpeciBcation, form for, Art. 108.. ..................................... App. 6c (68). ......... 481 
INDEX 

Par . Loss of notes or devlces whereby proceedings of trial were recorded. procedure in event of.- 821 

Loss of rank or promotion; sentence of. not authorized .................................. 1261 

Loss of vessel or aircraft, authority of naval officers in event of, Sec . 7a ......... .Ap p. 2b. ......... 

Loss or destruction of record of trial before action of convening authority, procedure in 

event of ............................................................................... 82h 

Lost property; as subject of larceny ..................................................... 200a (7) 

Mail: 

Depositing obscene mattor in; specifleation, form for, Act . 134 ........ App . 6c (153).. ........ Presumption as to receipt ........................................................... 138a 

Taking, obstructing, destroying, opening, etc . . specifications, forms for, 

Art . 134 ........................................................ App . 6c (151, 152).. ........ Maiming: 

Discussion, proof, Art . 1% .......................................................... 203 

Specification, form for, Art . 124 ........................................ App . 6c (94).. ........ 

Major; commanding officers below grade of, in Army, not authorized to reduce noncommissioned officers as punishment under Art . 15 ................................... 131b 

Making check with insu5cient funds . See Check . Making, etc., receipt without knomledge of facts: 

Discussion, proof, Art . 132 (4) ....................................................... 211g 

Signing without knowledge, prima facie evidence of intent to defraud ............... 2110 

Specincation, form for, Art . 132 ..................................... ..App . 6c (113) .......... Making false claims . See False claims against United States . Making false oath . See False claims against United States . Making false official statement . See False official statement . Making false returns . See False official statement . Making false writing . See False claims against United States . Making known parole or countersign, etc . . Discussion, proof, Art . 101 .......................................................... 180a 

Specification, form for, Art . 101 ........................................ App . 6c (53). ......... 

Making, selling, etc., false pass, furlough, etc . . specification, form for, Art . 131 

App . 6c (138) .......... Malingering: 

Discussion, proof, Art . 115 .......................................................... 194 

Limitation on punishment of, suspended in time of war ............................. 127c 

Speciflcation, form for, Art . U.5 .................................... App . 6c (81). ......... 

Maltreating prisoners: 

Discussion, proof, Art . 105 .......................................................... 1846 

Specification, form for, Art . 105 ................................. App . 6c (63) .......... 

Maltreatment of person subject to orders: 

Discussion, proof, Art . 93 ........................................................... 172 

SpeeUlcstion, form for, Art . 93 ........................................ App . 6c (30.. ........ 

Mandatory punishment: 

See also Desth sentence . Offense involving, not triable by special court-martial ............................... 16a 

Offes requiring, Arts . 06 8 (I, 4 ............................................ 14b 

Return of record involving, for reconsideration, Art . 62 .............................. 86d 

Manifest necessity; termination of trial because of, not former jeopardy ................. 66b, 68d 

Manslaughter: 

See also Homicide; Murder . Discussion, proof, Art . 119 .......................................................... 198 

Dying declarations, when admissible in trial for ..................................... 142a 

InvoluntaryDiscussion, proof, Art . 119b ..................................................... l98b 

Specification, formfor, Art . 119b .................................. App . 6c (87).. ........ 

Trial for, interposed in bar of trial for murder ....................................... 68d 

VoluntaryDiscussion, proof, Art . 119a ..................................................... 198a 

Specification, form for, Art . 119a .................................. App . 6c (%I.. ...... 

Manual for Courts-Martial: 

-4vailable to any person on active duty, .4rt . 137 .......................... App . 2a .......... Reading of pertinent parts to court.martia1. ........................................ 44g (3 

When to be supplemented by decision, precedents, etc .-......... ................... 44f (4) 

Maps, photographs, sketches, etc .. rules as to admissibility ............................. 144e 

INDEX 

Military commission-Continued Par. 

Refusal to appear or testify before; penalty, procedure, Art. 47 ............ App. 2a.. ........ 

.Reporter. See Reporter. 

Who may appoint, Art. 21 (notes) ........................................ A. 2a.- ........ 

Military dutios; not imposed as punishment ......................................... 125 

Military exigencies: b 

Excusing member of court-martial after arraignment, because of ..-.--..-.----------- 376 

Unavailability of court members because oL ........................................ 4c 

Vilitary government by belligerent occupying enemy territory. ........................ 2 

Military jurisdiction: 

Agencies through which exercised ................................................... 2 

Not ordinnrily territorial; exceptionsl ............................................... 8 

Persons subject to, Arts. 2,3 (notes)- ............................................... 9 

Sources of, enumerated. ............................................................ 1 

Military law: 

Defined ............................................................................. 2 

Persons subject to, Art. 2 (notes) .................................................... 9 

Military prisoners. See Prisoners. 

Military property: 

See also Property. 

Damaging, destroying, or losingDiscussion, proof, Art. 108 ...................................................... 1876 

Specification, form for, Art. 108 .................................. App. 6c (67).. ........ Selling or wrongfully disposingDiscussion, proof, Art. 108 ...................................................... 187a 

SpeclfIcation, form for, Art. 108 .................................. App. 6c (64%- ........ 

Suffering to be lost, %tc.- 

Discussion, proof, Art. 108 ...................................................... 187c 

Gpecification, form for, Art. 108 .................................. App. 6c (68)-- ........ Military tribunals: 

See also the specilk kind of tribunal. 

JurisdictionConcurrent with courts-martial, Art. 21 (notes) ...................... App. 2a-- ........ 

In occupied territory ............................................................ 14a 

Kinds of, enumerated ............................................................... 2 

Militia: 

See also National Guard. 

Rank, precedence, and command among regulars, vollmteers, See. 6 ...... App. 2b-- ........ Minor: 

Competency of child as witness.. .................................................. 1486 

Deserter, rights of United States to apprehend and try are paramount to rights of 

parents ........................................................................... 23a 

Minor offenses; deflned, for purpose of punishment under Art. 15.. ..................... 128b 

Misbehavior before the enemy; abandonment of command, as constituting: 

Din proof, Art W 2 ........................................................ 178a 

Specification, form for, Art. €3 (2) .................... ............... App. 6c (44)-- ........ 

Soliciting or advising offense of, Art. 82b ............................................ 161 

Misconduct as prisoner: 

Acting to detriment of another for purpose of securing favorable treatmentDiscussion, proof, Art. 105 ....................................................... 184a 

Specification, form for, Art. 105 ................................... App. 6c (62).- ........ 

Maltreating prisoners held by enemy while in position of authorityDiscussion, proof, Art. 105 ....................................................... 1846 

Specification, form for, Art. 105 ................................... App. 6c (63).. ........ 

Misconduct of counsel: 

Generally ........................................................................... 4% 

Grounds for suspension as couns?] ................................................... 43 

Misnomer in charges and specifications; basis for motion for appropriate relief- - - - - - - - - - - - - 69b (1) 

Misprision of felony: 

Discussion, proof, Art. 134 ............................................................ 213d (6) 

Specification, form for, Art. 134 ...................................... App. 6c (I&-&)-- ........ 

Misrepresentation, as in fraudulent enlistment, appointment, or separation .............. 162 

Missing movement: 

Discussion, proof, Art. 87 ............................................................ 166 

Limitation on punishment suspended in time of war--. ............... I27c 

S~ecWation, form for. kt. 87 ........................................ App. 6c (la)-- ........ 

Page 

428 
BNDEX 

Par . Page 

Mistake or ignorance of fact as exempting accused from erirninal responsibility_-------.--- 154a (3) 295 

Mitigation, evidence in: 

Received after findings announced .................................................. 75 119 

Rixht to suhmit, prior to punishment under Art . 15 ................................. 133 233 

Statement of accused to court may include .......... ............................... 71jc (4) 121 

Mitigation of sentence: 

See also Remission of sentence . Definition, discussion ............................................................... 88c 148 

Limitation on exercise of power of, by apppellate authority, Arts . 66, 71 .... App . 2a .......... 434.437 

Non-judicial punishment, Art . 15 ................................................... 135a 215 

Mixed courts; policy; rules for composition; appointment ............................... 49 5 

Model specifications ....................................................... ...A. 6 .. 471 

Money: 

Forfeiture of, applies only to that paid by Government .... 1 ........................ 126h (2) 210 

Loaning at usurious rate . A"3e Usury . Obtaining by check with insufficient funds, etc . See Check; Larceny . Obtaining under false pretenses . See Larceny . Moral turpitude: 

Conviction involving, sentence ordinarily not suspended ............................ 8& (1) 149 

Offense involvhg, not minor under Art . 15 .......................................... 128b 229 

Morning report: 

Absence without proper authority; usual proof hy .................................. 161a 313 

An official record ................................................................... 1446, d 265, 268 

Motions: 

See also Pleas . Action by court and convening authority when motion to dismiss, etc., sustained to 

all charges and specifications ...................................................... 671 98 

Action by court when available defense or objection not asserted by accused ........... 67c 97 

Defenses and objectionsOrdinarily asserted by motion to dismiss; cnumcrated .......................... 67a 96 

Raised before trial by plea of not guilty; promdure ............................. 66, 67a 96 

Waiver of, when effected by failure to assort; exceptions ..... 1 .................. 67a 96 

Denial ofDoesnot prevent entering another to same matter ................................ 67f 98 

Plea required in case of ......................................................... 67j 98 

Form and content; should contain all known defenses and objections .................. 67c, 69a 97, 104 

For a hding of not guilty; procedure ............................................... 71a 109 

For appropriate reliefAdmits nothing as to jurisdiction or merits ..................................... 69a 104 

Aspects of insanity- ........................... -: .............. 69e 107 

Defects arising out of pretrial investigation ...................................... 69c 106 

Defects in charges and speciEcations. ........................................... 69b 104 

Defenses and objections required to be raised by, prior to plea .................. 676 96 

Enumerated .................................................................... 69a . 104 

Failure to present, goneraIly constitutes waiver; grounds for relief from waiver- ... 67b, 69a 96, 104 

Motion to sever, purpose, common qoouds 101 .. procedure ...................... 69d 106 

Requiring prosecution to elect betwecn chnrpes and specifications, not granted .... 69e 107 

Hearing on; procedure; burden of proof- ............................................ 679, 67e 81, 97 

How presented; substance, not form or designation, controls. ....................... 67c 97 

Inadmissible defenses and objections not proper subjects of motion; enumerated .... 670 99 

In bar of trialConstructive condonation of desertion .......................................... 68f 104 

Failure to allege offense ......................................................... 68b 99 

Former jeopardy ................................................................ 68a, d 99, 102 

Former punishment ............................................................ 688 104 

Lack of jurisdiction. ............................................................ 68b 99 

Reconsideration of ruling onBy court as long as case is before court .......................................... 67f 98 

When convening authority disagrees with court's action ........................ 67f 98 

Res judicata raised as defense by; procedure ........................................ 71b 11? 

Ruling on, as an interlocutory matter ............................................... 67e 91 

App . 8a .......... 508 

Time for making .................................................................... 66, 67a 96 

Motive: 

Evidence of. distinguished from character evidence ................................. 138g 244 
INDEX 

Motive-Continued Par . Statements of. when admissible ..................................................... 142d 

Motor vehicle: 

Drunken or reckless driving . See Operation of a vehicle, etc . Joyriding . See Wrongful appropriation . Municipal corporation; deemed a person lor civil purposes . Art . 139 (note) .... A.p p. 2a.. ........ Municipal law . See Civil law . Murder: 

See also Homicide; Manslaughter . Capital offense at all times except when not premeditated or when not committed 

while engaged in perpetration of certain offenses, Art . 118 ......................... 15a 

Discussion, proof, Art . 118 .......................................................... 197 

Dying declnrations, when admissible in trial for ..................................... 142a 

Specification, form for, Art . 118- ..................................... .Ap p. 6c (85) .......... 

Trial for, which includes manslaughter already tried; not proper .................... 68d 

Mutilate, in maiming ................................................................... 203 

Mutilating, etc., public records; specification, form for, Art . 134 .......... App . 6c (162) .......... 

Mutiny and sedition: 

Attempted mutiiyDiscussion, proof, Art. Q4 ....................................................... 173e 

Speciflcation, form for, Art . 94 .................................... App . 6c (351.. ........ 

Fnilure to prevent or suppressDiscussion, proof, Art. 94 ....................................................... 173c 

Specification, form for, Art . 94 .................................... App . 6c (34) .......... 

Failure to reportDkcussion, proof, Art. P4 ....................................................... 173d 

Specification, form for, Art . 94 .................................... App . 6c (341.. ........ 

MutmyDiscussion, proof, Art.94 ....................................................... 173a 

Specification, form for, Art . 94 .................................... App . 6c (32).. ........ 

SeditionDiscussion, proof, Art . 94 ....................................................... 1736 

Specification, form for . Art . 94 .................................... App . 6c (33)- ........ Solicitation OF . See Solicitation . Mutiny or riot; killing in suppressing, when justifiable ................................. 197b 

Name: 

Alias, use of, in preparing charges ...................................... App . 6a (6). ......... 

Ideptity ofIn cases of fraudulent enl!stment, appointment, or separation ................... 162 

Raises presumption of identity of person ...........,........ .................... 138a 

Of accused, in preparing charges ....................................... A . 60 (41.. ........ 

Narcotic drug or marihuana . See Drugs; Marihuana . National Guard: 

Personnel, when competent to sit on courts-martial ................................. 4a 

Personnel, when uot subject to tode, Art . 2 (note) ......................... App . 2a .......... 

Rank, precedence, hmmand, when serving with Army, Sec . 6 ............. App . 2b .......... 

Naval officers: 

Authority of after loss of a'ese1 or aircraft, See . 7 (a) ....................... App. 2b .......... 

Duties of example and comeetion, See . 7 (c) ............................... App . 2b .......... 

Navy: 

Dehition, Art . 1 ........................................................ App . 2a- ........ 

No right of personnel of, to demand trial by court-martial ........................... 132 

Neglect: 

Endangering the safety oi any command, unit, place, or military propertyDiscussion, proof, Art . 19 ....................................................... 178c 

Specification, form for . Art . 99 .................................... App . 6c (451.. ........ 

Injuring, etc., property iaucd fur use in the military service, throughDiscussion, proof, Art . 18 ...................................................... 187b 

Speci6cration, form for, Art . 1DB ................................... App . 6c (671.. ........ 

Suffering to be lost, etc., military property, throughDiscussion, proof, Art . 18% ...................................................... 187c 

Speciliation, form for, kt . 108 ................................... App . 6c (68.. ........ 

Negligence: 

Culpable, dehed ................................................................... 198b 

Under Art . 110 ...................................................................... 189 

Page 

256 
INDEX 

Negligent homicide: 

See Homicide; ~anslaugdter. Par. Page 

cifltio form for I A 1 - 491 

Neutral powers, citizens of, laws governing communication with the enemy ............. 1W 339 

Newly discovered evidence, as ground for a new trial, Art. 73. ......................... lWd, llOe 176,181 

Newspapers; use of, by counsel to publicize pending case, prohibited .................... 60 

New trial: 

Application for, only one authorized, Sec. 12- ............................. App. 26-. ........ 456 

Case not capital if no death sentence at earlier trial. ................................ 15a 18 

Composition of court-martial- .........................................-............. 1090 178 

Convening authority for, designated by Judge Advocate General-. ................. 1099 178 

Deposition, admissibility in capital eases upon ...................................... 145a 268 

Disposition of record ................................................................ 109i 178 

Filing of application for, period of limitation, Sec. 12 (App. 2b) ...................... llOa 180,455 

Finality of court-martial proceedings subject to, Art. 76 ................. --ikpp. 2a-- ........ 439 

Finality of proceedings on, Art. 76.. .................... A. 2a.- ........ 438 

Former recordmay be examined by law officer to decide questions of admis3ibility, etc. 81c 131 

Former testimony, admissibility .................................................... 14 . 271 

Members of previous court ineligible as members ................................... 4a 2 

Offenses committed after 30 May 1951- 

Action of convening authority-- ................................................ 109h 179 

Basis for determining sentence .................................................. l09g 178 

Grounds for, Art. 73 ............................................................ lWa, d 176 

PetitionForm ...................................................................... 109e 177 

Who may act on .......................................................... lO8c 176 

Who may submit, Art. 73 ................................................... LOlJb 176 

Restoration ofrights, privileges, property, Art. 75a ........................ >-.. lDgj 179 

Offenses triable on .................................................................. lO9g 170 

Petition for, does not operate to stay execution ..................................... lWa, llOa 176,181 

Powers granting, other remedies vested in the Judge Advocate General, Sec. 12---- 

dpp. %.- ........ 455 

Procedure in general ................................................................ 81 131 

Regulations governing granting of, prescribed by President, Sec. 12 ....... kpp. Zb-- ........ 455 

Senten* 

court to be advised 01 original .................................................. 81d 132 

Limitations on; general considerations-- ........................................ 81d 132 

World War I1 offenses-- 

Applicability of Sec. 12 (App. 26) to; inclusive dates ............................. llOa 180 

Convening authority, action by ................................................. llOi 182 

Final disposition upon initial appellate review, Sec. 12 (App. 21) dehed..------ lOOa 169 

PetitionForm ....................................................................... llOf 181 

Grounds for, Sec. 12 (App. Zb) .............................................. 1101% e 180, 181 

Only one to be entertained, Sec. 12 (App. 26) ................................ llOd 181 

Procedure, Bee. 12 (App. 2b) ................................................ llOg 182 

Who may act on, 8ec. 12 (App. 26) .......................................... llOc 181 

Who may submit, Sec. 12 (App. 26) ......................................... 11Ob 181 

None prosequi. See Withdrawal of speciflcation. 

Noncommissioned officers: 

See also Enlisted persons. 

Acting, not within provisions of Art. 91 ............................................. 170c 3% 

Arrest or conflnemont of enlisted person ............................................. 210 (2) 25 

AssaultingDiscussion, proof, Art. 81 ....................................................... 170b 322 

Specification, form for, Art. 91 .................................. App. 6c (25).. ........ 475 

Conklnement or hard labor, not to be adjudged upon by summary court, iI above 

fourth grade ...................................................................... 166 20 

Contemptuous or disrespectful language or conduct towardDiscussion, proof, Art. 91 ....................................................... 170d 323 

Specification, form for, Art. 91 ................................. App. 6e (27)- ........ 475 

Disciplinary punishment under Art. 15, types authorized ........................... 131b 231 

DisobeyingDiscussion, proof, Art. 81 ....................................................... 1mc 323 

Specification, ferm for, Art. 91 ................................... App. BE (28)-. ........ 475 
INDEX . \ 

Noncommissioned opcers-Continued Par . Impersonation of. etc .. speci0cation. form for. Art . 134 ............... App . 6c (145) .......... 

ReductionAbove fourth grade, not authorized by summary court-martial except to next 

inferior grade ................................................................ 16b 

Punishment under Art . 15 ...................................................... 131b 

Summary courts-martial; limitations on punishment ................................ 128e (2) 

Non-judicial punishment: 

Sce also Disciplinary punishment undrrr Art . 1.5. 

Action by commander exercising immediate jurisdiction under Art . 15 .............. 33e 

Action by officer exercising summary court-martial Jurisdiction ..................... , 330 

As evidenm in mitigation in trial f(~r same act, Art . 15 .............................. 75c (4) 

Disposition of charges, when imposed ............................................... 32e 

Imposed in lieu of trial by comt.martia1, authority .................................. 33g 

Officer or warrant officer, written communicatio~~ required; form .................... 133 

App . 36. ......... 

Record of refusal to accept .......................................................... 32f (2) 

App . 6.. ........ 

Nonprivileged communications; dehed, examples, admissibility ........................ 151c 

Notary public: 

Administration of oath, Art . 136 and notes ................................ App . 2a.. ........ 

Persons empowered as, enumerated, Art . 136a ............................. App . 2u.. ........ 

Seals of, foreign and domestic, judicial notice ......................................... 147a 

Not guilty . See Acquittal; Pleas; Findings . Notice: 

Of decision of board of review .................................................... lOOc (1) (a) 

To accused and appellate defense counsel, of reference of general comt-martial record 

to board of review under Art . 69 .................................................. 103 

To accused and appellate defense counsel, of reference to Court of Military Appeals 

by the Judge Advocete General .................................................. lOOb (2) 

To accused as to right to petition Court of Military Appeals for grant of review.-.- lOOc (1) (a) 

Numbers, loss of; sentence, to whom applicable ......................................... 126i 

Oaths: 

Aclmowledgment of legal instruments . See Legal documents . Administered at each trial or at first session of court ................................ 1124 

AdminiisteringDuring trial; procedure ......................................................... 61h 

In court-martial ...................................................... App 8a.. ........ In presence of accused, required ................................................. 112e 

Procedure ...................................................................... 112d 

Who a autod A . 3 ................................................. 113 

AI3rmation, included in ............................................................ 11% 

Challenged member, form .......................................................... 114 

Challenge, inquiry as to ground for, member need not be sworn ..................... 62b 

Charges and specifications ...................................... ...........A. 5 .......... 

Civilian officials, when authorized to administer, Arts . 49c, 136 ...... App . 2a (136) .......... 

Commanding oscers ol Navy and Coast Guard; authority to administer ............ 

App . 2a (136) .......... 

Court of inquiry; members, counsel, reporter, interpreter, Art . 135e ....... App . 2i .......... 

DepositionsWe ate ............................................................... 117e 

Who may administer ........................................................... 113, 117a 

Witness, form .................................................................. 114 

Escort on views or inspections, form ................................................ 114 

Examinatiou under, upon challenge ................................................ 62h (2) 

False . See False claims against the United States; False swearing; Prxjury . Forms ofLiteral following of, not essential ................................................ 210 

Not rewrded in record of trial ........................................ App . 9a .......... 

Particular purposes ............................................................ 114 

Personnel of courts-martial ...................................................... 114 

TO charges ....................................................................... 114 

Lnvestigation; witnesses ordinarily swear to statements .............................. 34d 

Of enlistment; form; who may administer, 6ec . 8 (note) ................... App . %. ........ 

Order to subordinate to preler charges under, not legal .............................. 29c 

Persons required to be sworn, Art . 42 ................................................ 11% 

President of wurt administers to counsel ............................................ 4Ob (1) 

921786 0-51---41 63 1 

Page 

491 
INDEX 

0 aths-Continued Par . Procedure when several accused present only for swearing of court. etc .... App . 8a .......... 

Record in each case to show administration of ....................................... 63b 

Witness recalled; reminded of, but not resworn ........................................ 149a 

Objection . As to particular kind and matters relating to pleading of, in courts.martial, 

see Motions . Objections: 

Summary court-martial may not try offender, if he objects, where was no opportunity 

for refusal of non-judicial punishment, Art . 20 ..................................... 16a 

To ruling of law officer or president, procedure ............................ App . 8a .......... 

Obtaining by fake pretense . See Larceny . Occupation of territory of enemy as exercise of military government ..................... 2 

Occupied territory; laws of, violations triable by general courts-martial ................... 14a 

Off duty, me kt . 112 ............................................................. 191 

Offenders, delivery of, to civil authorities . See Civil authorities . Offense directly affecting person- ....................................................... 198b 

Offenses: 

See also Crimes and offenses . Basic considerations ................................................................ 30 

Capital . See Capital offenses . Civil nature; sentence must be appropriate ......................................... 76a (5) 

Common trial, when justifled ....................................................... 331 

Included offenses, table ................................................... App . 12.. ........ 

Joint; discussed ..................................................................... 26d 

App . 6a (a).. ........ 

Jurisdiction over, not terminated in certain cases by discharge or dismissal, Arts . 2 (7) ,, 3 83 (2) ..................................................................... 11 

Knowledge ofReported to commanding officer .................... : ........................... 31 

Reported to military authorities ................................................ 29a 

MinorCommanding officer, action by ................................................. 31e, 128 

Defined ......................................................................... 128b 

Dispositionof, by convening authority of summary courts-martial ................ 33h 

Not to be joined with serious .............. .: ................................... 26c 

Moral turpitude involved; policy.... ............................................... 33h 

ProofSee also the specific offense . Elements, essential ..................................................... 441 (3) 

Separate; test applied in determining ............................................... 76a (8) 

SeriousAction by accuser .............................................................. 31b 

Policy as to disposition of charges involving ..................................... 33h 

Visiting armed forces of friendly foreign nation, member of, jurisdiction over ........ 12 

Offering violence to superior officer: 

Discussion, proof, Art . 90 ........................................................... 1690 

Specification, form for, Art . 90 ........................................ A 6c (23) .......... 

Offer of proof: 

Law officer may hear out of presence of members .................................... 579 (2) 

When authorized ................................................................... 154c 

Officer: 

Affirmation and approval of sentence necessary, Arts . 660, 67b, 71a ................... 98 

Arrest or confinement of ............................................................ 21a (1) 

Assault upon, when not in execution of office; specification, form for, Art . 134 

App . 6c (121) .......... 

Competency to serve on courts.martia1, Art . 25 ..................................... 4a 

Conduct unbecoming . See Conduct unbecoming an oficer, etc . Couhement or total forfeitures, sentence to, improper unless dismissal included.. .. 126d 

Conhement, sentence to, not to exceed maximum prescribed for enlisted persons ... 126d 

Disciplinary punishment under Art . 15, may be imposed on ........................ 1316 

DismissalSee also Dismissal . Without trial, Sec . 10 ................................................. App . 2b- ........ 

Eligibility for court-martial duty . See Courts-martial; Members bf murts.martia1 . Executlon of sentence, action necessary, Arts . 60b, 71b ............................. 98, lOOC (1) 

Impersonation of; specification, form for, Art . 134 ................... App . 6c (145).. 1 ..-.... 

Page 

505 

73 

. 2% 
INDEX 

Officer-Continued 

Punishment . See Punishment . Par . Reserve . See Reserve officers . Sentences., See Sentences. 

Separation from service, method. Sec . 10 ................................. App . 2b.. ........ 

Summary courts.martia1, not triable by, Art . 20 .................................... 16a 

Trial ofBy courts-martial as affected by termination of emergenoy commission; exceptions 11 

Rank of members of court, Art . 25d (1) .......................................... 4c 

Officer commanding for the time being; defined, example, Art . 60 .................... 846 

Officer exercising court-martial jurisdiction . See Convening authority . Officer exercising general court-martial jurisdiction: 

See also Convening authority . Accused to be retained in custody of in certain cases, pending appellate rcview ..... 89c (6) 

Action byOn proceedings to vacate suspension... ......................................... 976 

On record of trial ............................................................... 84c 

On spccial court-martial senlence involving bad conduct discharge, Art . 656 ..... 94a (3) 

With respect to sentence as affirmed ...;...... ............................... lOOc ( 1 ) ( a ) 

Appointment of counsel, for accused at investigation, Art . 32 ........................ 34c 

Charges, action upon receipt of ..................................................... 35a 

Complaint against commanding officers, redress of, by, Art . 138 ........... App . 2a .......... 

Disciplinary punishment of officers; power to impose under Art . 15 ................. 131b 

Report rendered when command hrtving temporary custody is changed.. ........... 96 

Special court-martial proceedings; review by, if bad conduct discharge adjudged .... 15b 

Successor to, who may be, Art . 60 ................................................... 84b 

Supervisory powers over special and summary courts ............................... 94a 

Officer exercising special court-martial jurisdiction; hearing to vacate suspension ........ 97b 

Officer having supervisory power: 

Defined ............................................................................. 94a (1) 

Power with respect to special and summary court-martial sentences ................. 94a, 97a 

Officer in charge: 

Convening authority of summary court-martial in Navy and Coast Guard when 

empowered by Secretary of a Department, Art: 24 ................................ 5c 

In Navy or Coast Guard, may be authorized to impose disciplinary punishments on 

. enlisted persons under Art . 15 ..................................................... la8a 

Non-judicial power under Art . 15; as agency of military jurisdiction ................. 2 

Officer preferring charges . See Accuser; Charges and specifications . Officers' Reserve Corps . See Reserve officers . Official communications; evidence of, when privileged .................................. 151b (1) 

Official documents: 

See also Official records . Authentication . See Official records; Documentary evidence . Best evidence . See Best evidence. 

Hearsay rule, exceptions to- ........................................................ 144a, b 

Production in court . See Documentary evidence . Waiver of objections to . See Waiver . Official records: 

Admissibility, gcneral rule .......................................................... 1446 

Attesting and authenticating certificates; delined and distinguished ............. 143b (2) (a) 

AuthenticationForeign records, copies ....................................................... 143b (2) (e) 

In general; waiver ........................................................... 143b (2) (a) 

Military records, copies ...................................................... 148b (2) (b) 

Miscellaneous matters ........................................................ 143b (2) 0 

Staterecords, copies ......................................................... 143b (2) (d) 

United States records, records of Territories and possessfons, copies .......... 1436 (2) (c) 

Compiled from notes or memoranda or other oficial records, not inadmissible because . 144b 

Extract copies... ................................................................... 143a (2) 

Lack of entry in, as proofofnoneristence of fact not recorded ........................ 143a (2) 

Limitations on admissibility ........................................................ 144d 

Official publications treated as ...................................................... 1476 

Presumptions applying to ........................................................... 144b 

R&um& of, generally inadmissible, exception ....................................... 143a (2) 

Testimony of witness as toauthenticity .......................................... 143b (2) (f) 

Use when insanity in issue .......................................................... 122c 

Page 
. INDEX 

OfEcial statement. false: Par . Discussion. proof. Art . 107 ......................................................... 186 

Specification, form for . Art . 107 ....................................... App . 6c (65) .......... 

Omissions: 

Hard labor, from sentence, effect, Art . 58b- .......................................... 126j 

In records; certificate of authenticating officers as to ....... 1 ......................... 86c 

Open court: 

See also Courts.rnartin1 . Interlocutory questions except chnllen?es: rulings in special eourt.martia1 .......... 57c 

Rights of seeused explained ......................................................... 53h 

Trial counsel, conduct and duties ............................................... ... 44g 

Opening argument to court, by trial cormel ............................................. 7% 

Opening statement to court: 

Defense counsel ..................................................................... 48h 

Trial counsel ........................................................................ 440 (2) 

Operation of a vehicle, drunken or reckless: 

Discussion, proof, Art . 111 .......................................................... 190 

Specification, form for, Art . 111 ....................................... A 6c (74).. ........ 

Opinion evidence: 

See a180 Expert witness . Admissibility in inssnity matters ................................................... 122c 

As to character ..................................................................... 1381 (1) 

As to handwriting .................................................................. 1436 (1) 

De6ned and explained; admissibiIity ................................................ 138e 

Illness feigned, Art . 115 ............................................................. 194 

Oppression,Art.93 ..................................................................... 172 

Orderlies to assist members and officers of court ......................................... 51 

Orders: 

Appointing court, must show legal qualiflcstions of counsel ......................... 6U (2) 

Appointing courts-martialSee also the specific court . Courts-martial; appointing orders ..................................... A . 2a.. ........ 

Discussion ...................................................................... 59 

Disobedience of . See Disobedience of orders . . 

Qeneral, violation of .......................................................... 171a 

Lawful, failure to obeyDiscussion, proof, Art . 92 ....................................................... 171 

Specification, form for, Art . 92 .................................... App . 6c (29) .......... 

To show cause . See Habeas corpus . Out-of-court hearing, with law officer ......................................... App . 8a ......... 

Overt act, necessary element of conspiracy .............................................. 160 

Pandering; speci5cation, form for, Art . 134 ............................... App . 6c (1%) .......... 

Pardon: 

Deflned; evidence of ................................................................ We 

Pleading of, as defense . See Motions . . Self-incrimination cannot bo claimed after .......................................... 150b 

Withdrawal of specification, not 'quivalent to ...................................... 56c 

Parole: 

Disclosing or giving different, etc.-- 

Discussion, proof, Art . 101 ...................................................... 180a 

Specifications, forms for, Art . 101 .............................. App . 6c (53, 51) ....-...-- 

Violation of; specification, form for, Art . 134 .......................... App . 6c (158) .......... 

Pass, false or unauthorized possession, etc . . specification, form for, Art . 134 

App . 6c (138) ....-... 

Password: 

Disclosing, giving improper, etc .. discussion, proof, Art . 101 ......................... [ROa 

Speciflcatlons, forms for, Art . 101 .................................. App . 6c (57, 54) ..--...-.. 

Patients; statements to medical oflcers or civilian physicians not privileged ............. 15lc (2) 

Pawning another's property, as constituting larceny .................................... 200a (6) 

Pay and allowances: 

Court-martial cannot order assignment, deposit, or contribution.. .................. 126h (1) 

Detention . See Detentlon of pay . Forfeitures . See Forfeiture . Paying amount less than receipt: 

Discussion, proof, Art . 132 (3) .................................... : .................. 211j 

Specillcation, form for, Art . 132 (3) .................................... App 6c (112).. ........ 
INDEX 

Pew: Par. 

Dismissal of omcer In time of, only by sentence of court-martial, Sec. 10 .... App. 2b.- ........ 

Judicial notice of condition of. ...................................................... 147a 

Penal Code of United States. See Title 18 U. S. C., "Crirr~es and Criminal Procedure." 

Penal or correctional institution; as place of confinement, Art. 58a ....................... 03 

Penalties: 

Accused awaiting trial, limitations upon.. .......................................... 1% (3) 

Other than conbement, not to be imposed prior to promulgation of sentence----.. 125 

Penitentiary; oaicer confined in, may be dropped from rolls, Sec. 10 ............ App. 2b.. ........ 

Peremptory challenge, procedure ............................................. A. 8a.- ........ 

Period of enlistment; termination of, as aflecting trial by courts-martial, Arts. 2 (I), 3-.- 11 

Perjury: 

See also False swearing. 

As ground for a new trial- .......................................................... 1Ogd (3) 

Discussion, proof, Art. 131 .......................................................... 210 

Distinguished from false swearing and statutory perjury.. .......................... 213d (4) 

Falseswearingandstatutory perjury; specillcation, form for, Art. 134.App. 6c (1F;9)-. ---.---- 

Specification, form for, Art. 131 ...................................... App. 6c (105).. ........ 

Subornation of; specification, form lor, Art. 134- ..................... App. 6e (160).- ........ Person against whom offense committed; description in specifiation .......... App. 6a-- ........ 

Personal data on accused, presentation of .................. L-- ............. ---App. 8a-- ........ 

Personnel adjutant; authority to administer oaths, Art. 136a ............................ 113 

Personnel for courts-martial. See Courts-mar tjal. 

Persons: 

Accompanying, or serving with. anarmedlorce, distinguished, Art. 2 (note)App. 2a-- -------- Description In specification of persons accompanying, etc., an armed force 

App. 6a (4).- ........ 

Examples of civilians subject to code, Art. 2 (note) ........................ App. 2a-- ........ 

Subject to military law; afforded opportunity to attend courts-martial as spectators. 53e 

. Subject to the codeChnrgea and specifications must be signed by, Art. 30a ......................... 2Qb 

Who are, Art. 2 ................................................................. Q 

Termination of employment with armed force as affecting jurisdiction of courtsmartial, Art. 2 (note) ................................................... App. 2a.- ........ 

Petition for grant of review: 

Action, when timely .............................................................. lOOc (1) (a) 

Appellate defense counsel to assist and advise accused as to. ......................... 10% 

Court of Military Appeals shall act on, within 30 days, Art. 67c ......... :. .......... 101 

Procedure- ....................................................................... 100c (1) (a) 

Right of accused to, by Court of Military Appeals, when ......................... lOOc (l)(a), 

101 

Petition for ncw trial. See New trial. 

Petltion for writ of habeas corpus. See Habeas Corpus. 

Petty officer: 

AssaultingDiscussion, proof, Art. '31 ....................................................... 170b 

Specification, form for, Art. 91 ..................................... App. 6c (25).- ........ 

Confinement or hnrd labor; not to be aaudged upon, by summary court, if above 

hurth grade ..................................................................... 16b 

Contomptuous or disrespectful language or conduct towardDiscussion, proof, Art. 81 ....................................................... 170d 

Specitication, form for. Art. 91 ..................................... App. 6c (27)-- ........ 

Disciplinary punishment under Art. 15, types authorized as to ...................... l3lb 

DisobeyingDiscussion, proof, Art. 91 ................ ....................................... 170c 

Specification, form for, Art. 91 .................................... App. 6c (26)-- ........ 

Reduction; as punishment under Art. 15 ............................................ 131b 

Summary court-martial; limitations on punishment ................................. 126c (2), 

16b 

Photographs, maps, etc., rules as to admissibility ....................................... 144e 

Photographs of court-martial proceedings, prohibited, exceptions ------ ---.-. 63e 

Physical conditions a4 grounds for unavailability of enlisted wurt members ............. 4c 

Physical examination; compulsory submission lo, not self-incrimination ................. 150b 

Physicians; statements to, not privileged ------.l ....................................... 151e (2) 

Page 

455 

273 
INDEX 

Piage: 

See also Looting and pillaging . Quitting place of duty to plunder and- Par . Page 

Discussion. proof. Art . 99 ....................................................... 178f 333 

Gpecik?ation, form for, Art . 99 . ......................... ........ App . 6c (48).. ........ 478 

Place: 

Description of, in specification ........................................ App . 6a (7) .......... 470 

Jurisdiction of courts-martial not generally territorial; exceptions .................... 8 13 

Law of; amenability to trial by courts.martia1, under ............................... 213c 384 

Of confinement. See Confinement . Of duty, what constitutes ........................................................... 165 315 

Of meeting of wurts.martia1 ........................................................ 59 84 

Of restraint, under Art . 97 .......................................................... 176 330 

Pleading . See Charges and specifications; Motions; Pleas . Pleas: 

See also Motions . Admit, except plea of guilty, nothing as to jurisdiction or merits .................... 70a 107 

Arraignment, pleas not part of ...................................................... 65a 95 

Change or modificabion of ........................................................... 70 107 

Court to explain effect of plea of guilty .................................... A . 8a .......... 549 

Defenses and objections generally raised prior to entry oL ........................... 67a 96 

GuiltyCase tried as though plea of not guilty entered, when, Art . 45a .................. 70a 107 

Effect of, as admission .......................................................... 70a 107 

Evidence may be taken under; aggravation or extenuation .................... 70a, 75b (3) 108, 120 

Explanation of, when made to accused ........................................ 706, 79d (2) 108, 128 

Improvidently entered, how treated, Art . 45 ................................ 70a, b, 79d (2) 107, 128 

Inconsistent matter received after findings announced .......................... 75a 119 

May be received as to a noncapital offense necessarily included in a capital offense 

charged, Art . 456 .............................................................. 70a 107 

Not to be received as to an offense punishable by death .............. :-I ........ 70a 107 

Statement by accused inconsistent with, effect, Art . 45a ........................ 70a, b 107, 109 

Statute of limitations, procedure when offense is barred by ...................... 68c 102 

To charge, but not guilty to specifications thereunder, effect .................... 70s 107 

Waiver of statute of limitations, when .......................................... 74h 119 ' 

Without criminality, equivalent to not guilty ................................... 70a 107 

Irregular, effect, Art . 45a ............................................................ .7 0a 107 

Kindd, enumerated ................................................................. 70a 107 

Not guilty- 1 

Constitutes waiver of objection based on misnomer, mhen ...................... 7Oa 107 

Right, legal and moral, to enter even it accused knows guilt ...................... 70a 108 

Refusal or failure to plead treated as plea of not guilty, Art . 45a ...................... 70a 107 

Single plea to all charges and specifications .......................................... 65a, 70b 95, 109 

Standing mute, not waiver of objections- ........................................... 70a 108 

Summary court, explanation of pleas to accused .................................. 706, 79d (2) 108, 127 

Time of entering .................................................................... 66 96 

Pleas . procedure on ........................................................... A. 8a .......... 509 

Plunder, quitting post to . See Pillage . Police: 

Duties, assadlt upon person in execution of; specillcation, form for, Art . 134 

ADD 6c (123) .......... 489 

Informants, communications by, as privileged communications ..................... 151b (1) . 285 

Personnel performing duties oi, authority to apprehend and secure custody of accused . 19a, d 22, 23 

Polygamy; one spouse competent witness against the other- ............................ 148e . 277 

Possessing, etc., false or unauthorized pass, etc . See False or unauthorized pass . Possession or use of drugs, wrongful; specifications, forms for, Art . 134 ..AD p. Gc (136, 137)- ........ 490 

Post, judicial notice of existence, location, etc., of ....................................... 147a 274 

Power to quell quarrels, frays, and disorders, Art . 7c .................................... 19b 23 

Prejudice, bias, etc., of witness as ground of irnpcachment. .......................... 153b (2) (d) 294 

Prejudicial error; definition, test ........................................................ 87c 146 

Preliminary court-marlial orders, promulgation of... .................. -:--- ............ 99 169 

Preliminary inquiry into charges or suspected offense; immediate commander of accused 

responsible for ....... L ................................................................ 32b 36 

Premeditation . See Murder . Preparation of charges . See Charges and specifications . Preparation of record of trial . See Guide for preparation of record of trial . 
INDEX 

Par . Page 

Preponderance of evidence; questions of fact determined by ............................. 670 81 

Presentencing procedure . See Sentence . a 

Presenting false claim . See False clai~lls against the United States . . President of court-martial: 

See General courts-martial; Special courts.martial . AnnouncesFindings and sentence in open court ............................................ 740, 76c 118, 124 

Result of challenge .............................................................. 62h (3) 94 

Authentication of record byDuty as to ...................................................................... 40c 68 

Effect of absence, death, or disability ........................................... 82f 135 

FormoL .............................................................. A ....... 528 

Certificate correcting record to be signed by ......................................... 86c 143 

Duties, in general ................................................................... 40 57 

Explanation to accused of guilty and improvident pleas, Art . 45a ................... 706 108 

Form of ruling ...................................................................... 67e 80 

Inquiry before ruling as to facts and law .......................................... 67g (11, (3) 81, 82 

OathsAdministers oaths to trial counsel and defense counsel ................ App . 80.. ........ 506 

May administer oaths necessary in the performance of his duty, Art . 136b ....... 113 185 

Order of voting on charges and specfications determined by; exceptions ............... 74d (2) 117 

Preconvening procedure, duties concerning .......................................... 61a 85 

Senior in rank present is ............................................................. 40a 57 

\President of special court; may examine report of board in insanity cases to determine 

admissibility .......................................................................... 122C 204 

Prcsident of the United States: 

Approval of sentences by, when required, Art . 710 ................................ 98, 1M)c (2) 168, 171 

Authority vested in, by Constitution, t~s source of military jurisdiction .............. 1 1 

Capital offenses as affected by maximum punishment order of, Art . 56 ............... 15a, 126a 19, 207 

Contempt or disrespect towardDiscussion, proof, Art . 88 ........................................................ 167 318 

Specification, form for, Art . 88 .................................... App . 6c (19) .......... 475 

Court of inquiry may be ordered by, Art . 135 ............................. App . 2a ........... 449 

Delegation of authority, Art . 140 ......................................... App . 2a.. ........ 452 

Different corpsand commandsjoinmg,determinationofcomandby, ec 8 A . 2 .. 455 

Executive order promulgating Manual ....................................................... IX 

General courts.martia1, power of appointment by, Art . 22 ........................... Sa 7 

Maximum Punishments, Table of, Art . 56 .......................................... 127~ 214 

May authorize certain commanders to exercise court-martial jurisdiction over mem- bers of other armed forces ......................................................... 13 17 

Mitigation, remission, suspension of sentence, powers of, Art . 71 .......... App . .......... 437 

New trial, regulations prescribed by, Sec . 12 .............................. App . 0.. ........ 455 

OfficersRank and precedence of, may assign command without regard to saniority in 

same grade, Sec . 6 ................................................... A 0. ......... 464 

Separation from service of, when and how may effect, Sec . 10 .......... App . 0 .......... 455 

Power to commute, Art . 71a ........................................................ 1D5a 174 

Procedure, including modes of proof, of court-martial prescribed by, Art . 36 ......... 137 238 

Reappointment of dismissed officer by, Art . 4 ....................................... 109j, 111 179, 183 

Right of officer dismissed by, to bin1 by court.martia1, 4rt . 4 ....................... 111 182 

Sentence approved or con6rmed by, may not be mitigated, remitted, or suspended 

by any authority inferior to,.4rt . 14 ..................................... App . 2a. .......... 438 

Presumption of innocence, explanation to court ............ : .........;........ App . BE.. ........ 518 

Presumptions: 

See also Circumstantial evidence . Absence without leave, as to continuing once having begun ......................... l64a 311 

Drugs or marihuana, presumption as to wrongfulness of possession of ............... 213a 382 

Generally mere justifiable inferencesDelivery of letter from mailing .................................................. 1380 240 

Deponent continuing t.0 reside where he resided at time deposition taken---.-.- Ila 240 

Identity of name and person .................................................... 138a 240 

Lack of intention to hare funds in bank arailable to pay check, from check being 

dishonored .................................................................... 1380 240 

Natural and probable consequences of act, intended ............................. 138a 240 

Past or future existence of fact or condition shorn .............................. 13.311 240 
INDEX 

Presumptions-Continued 

Generally mere justmable inferences-Continued Par . Page 

Public officer*; legality of ofece and proper performance of duties ................ 138a 240 

Theft, from failure of custodian to account or deliver ............................. 138a 2411 

Theft, from possession of stolen property., ...................................... ].%a 240 

Innocence of accused; general; charge to court concerning, in open session, Art . 51c ... 73b, 138U 112.241 

Legal publications of foreign law, as to authenticity ................................. 147b 275 

Military property, from type and kind of property ................................... 187e 343 

Neglect upon damage, destr~~ction, or loss of military property under A* . 108 ....... 1876 342 

O5cial records . presumptions applying to. ........................................ 144b 265 

Rebutting evidence, how presumptions affected by ................................. 138a 239 

Sanity and mental capacity of accused; general. ................................... IZa, 138a 201, 241 

Those relating to facts which courts are bound to presume.. 

Innocence of accused ............................................................ 1380 241 

Sanity of accused at time of trial and at time of offense= ........................ 1380 , 122a 241.201 

Warrant, noncommissioned, or petty officer's order, as to legality of ................. 170e 323 

Weight to he given to; basis .................................................... 13%, 74a (3) 239, 114 

Witnesses, as to competency of ...................................................... 148a 276 

Preventing apprehension, trial, punishment of offender; accessory after the facl ......... 1.57 303 

Previous conviction: 

See Sentence . Duty of commander exercising immediate jurisdiction under Art . 15 with respect to .. 32f (4) 39 

Evidence of, introduced when, purpose ................................. 1Mb (2) (b), 75b (2) 291, 119 

Impeachment of witnesses, including accused, by ....................... 1389, 153b (2) (b) 246, 291 

Proof of ................................................................ 7~ (21, 1,53b 12) (b) 120, 291 

App . 8o.. ........ 520 

Return of record to cowt for revision because of erroneous consideration of .......... 86d 144 

Summary court, consideration by ............................. I ..................... 79d (4) 128 

Twoor moreasauthorizinghad conduct discharge, forfeiture, and confinement, Set . B .. 127c 215 

Principal: 

Discussion, proof, Art . 77 ........................................................... 156 302 

Specification, charging person as ........................................ Xpp . 6a.. ........ 471 

Prior participation in same case, discussed and defined .................................. 6a 9 

Prisoner: 

See also Accused; Ad; Confinement . Ahseucs without leave; not chargeable if dismissal or dishonorable or baa conduct . 

discharge executed ................................................................ 165 316 

Allowances, transportation, Sec . 16 ........................................ 4 2b.. ........ 457 

Allowing to dounauthorized act; speciflcatiou, form for, Art . 134 ...... App . 6e (161).. ........ 493 

Allowing to obtain intoxicating liquor . See Intoxicating liquor . Assault by discharged or dismissed prisoner subject to Art . 90 ....................... 1690 321 

Assault upon warrant, noncommissioned, or petty officer by discharged or dismissed 

prisoner subject to Art . 13 4. ....................................................... 170a 322 

Con5nementMilitary, with enemy or foreign nationals, prohibited, Art . 12 ................ 1P& (2), 125 21, 205 

Of unsentencad, not subject to other punishments or penalties, exwptions, 

Art . 13 .................................................................... 1% (3), 125 22, 205 

Release from, who may authorize ............................................... 22 26 

Releasing from, withotit authorityDiscussion, proof, Art . 96 ................................................... 175 320 

Specification, form for, Art . 96 ................................ App . 6e (3R) .......... 477 

Custody and security of, in presence of court-martial ................................. 60, 21c 84, 25 

Desertion; not chargeable if dismissal or dishonorable discharge executed ............ 1Ma 311 

Drinking with . See D~nkeILness . Found drunk . See Drunkenness . Habeas corpus . See Habeas corpus . Jurisdiction of courts-martial overAs affected by discharge after commisslon of oflense ........... : ................. 11 14 

As affected by voluntary and unauthorized absence after arraignment ........... I1 1G 

While serving sentence, Art . 2 (7) ................................................ 11 15 

Killing, in preventing escape; when excusable ....................................... 1976 3.91 

Punishments authorized ............................................................ 1266, 127 209, 213 

Sentenced and unsentenced; eeect on accommodations, facilities, treatment, Art . 13 .. 18b (3) 22 

Subject to minor punishment for infractions of discipline ............................ 186 (3) 22 

SWerlng to escape through neglect or designDiscussion, pruof, Art . 86 ....................................................... l7&, c 329.330 

... 

638' 
" INDEX 

Prisoner-Continued 

Suffering to escape through neglect ordeslgn-Continued Par . Page 

Speciflcation . form lor. Art . 96 ................................... App . 6c (38). ......... 477 

Prisoners of war: 

Arts . 2.18 (notes) ......................................................... App . Zu.. ..... L- 413. 419 

Jurisdiction of wurts-martial over, Art . 2.. ............................... App . 20 .......... 413 

Limitations on punishment, how applied ........................................... 127a 213 

Persons subject to military law not to be conflned with, Irt . 12 .................. 186 (2), 125 21, 205 

Subject to he by court-martial sentence ............................................ 126h (3) 211 

Private claims . See Debts . Privatg property . See Property . Privileged communications: 

Civilian physician and patient, communications between, not ...................... 151~ (2) 287 

Client and attorney ................................................................. 151b (2) 285 

Communications between 'accused, counsel in field, and appellate defense 

counsel ....................................................................... 1026.151b (2) 103, 285 

Court not to permit answer to question relating to; exceptions ...................... 15111, b284, 285 

Defined ............................................................................. 151a 284 

Husband and wife . See also Husband and wife . Inspectors Qeneral, reports of ....................................................... 151b (3) 286 

Medical officers, information and statement obtained by, not ....................... 151C (2) 287 

Penitent and clergyman ............................................................ 151b (2) 285 

Police secrets ....................................................................... 1516 (1) 284 

State secrets ........................................................................ 151b (1) 284 

Telegrams not, and subject to usual process ......................................... 151~ (1) 287 

Waiver of objection to use oL ....................................................... 151a, 6 284, 285 

Privileges: 

Restoration of, where affected by punishment under Art . 15, procedure for .......... 135a 235 

Withholding of, as disciplinary punishment under Art . 15 ........................... 1316 231 

Probationer; entitled to counsel at proceeding to vacate suspension, Art . 72a ............ 976 165 

Procedure: 

For trials before general and special courts.martia1 ........................ A a ........ 499 

Rehearings and new trials ............. .... ................................?........ 81 131 

Rules of; applicable before military: commissions and provost courts subject to international law . Regulations of President or other competent authority ............. 2 1 

Proceedings: 

In revision by courts-martial .............................................. A . a .-. 522 

I Special wurt-martial; eompletereeardof, required if bad conduct discharge adjudged.. 15b 19 

Process . See Witnesses . Procuring another to commit an oliense; liable as a principal ............................ 156 302 

Prohibited punishments, Art . 55 ........................................................ 125 205 

Promotion: 

Loss of, sentence to, unauthorized .................................................. 126i 212 

Suspension from rank, wmmand, duty, does not affect ............................. 126i 212 

Promised immunity . See Immunity from trial . Promulgating orders . See Court-martial orders . Proof beyond reasonable doubt; general, Art . 51c ........................................ 74a (3) 114 

Property: 

As subject of larceny and wrongful appropriatign ................................... 200 356 

As subject of robbery ............................................................... 201 363 

Captured or abandoned . &c Captured or abandoned property . Captured public 

Belongs to United States, kt . 103 .............................................. 182 336 

Failing to secure, failing to report and turn over, dealing inDiscussion, proof, Art . 1W .................................................. 182 338 

Specification, forms for, Art . 103.. ......................... App . 6c (56.58) ..---..... 479 

Committing waste or spoilDiscussion, proof, Art . 109 ...................................................... 189a 344 

SpeciBcation, form for, Art . 109 ................................... Ap 6c (69) .......... 481 

Injury to . See Injury to property; Military property . Military property . See Military property . Pawning, as wnstituting larceny ................................................. 200a (6) 360 

Private; damage to er wrongful taking of, redresslor, Art . 13 ............. App . 2a .......... 421 

Lost; subject of larceny ............................................................. 20Oa (7) 360 

Restoration of, wbere affected by punishment unde; Art . 15, procedure for .......... 135a Z75 

V due, allegation of .................................... A . 6 1 ........ 471 

Value oI; how determined and established iularceny; court may make inference as to- 2000 361 
Property-Continued 

Willfully and wrongfully destroying private Par. Page 

Discussion, proof, Art. 109 --.-.--.------------------------------

188b 344 

SpecXcation, form for, Art. 109 .................................... A. 6 6 ........ 481 

Wrongftll appropriation of, as lesser included offense of larceny ..................... 2006 362 

Prosecution: 

Member ofDisqualified by prior participation in same me, when .......................... 6a 9 

Legally disqualified; procedure .................................................. 61e 86 

Prosecutor. See Trial counsel. 

Prostitution. See Pandering. 

Protecting or harboring the enemy. See Enemy. 

Provoking speeches or gestures: 

Discussion, proof, Art. 117 .......................................................... 196 350 

Specification, form for, Art. 117 ....................................... A. 6 8 ........ 4% 

Provost mts: 

Contempts msy be punished by, Art. 48 ............................................ 10,llaa 14,197 

Jurisdiction concurrent with other military tribuuals, Art. 21. ...................... 12 17 

Purpose, nature, rules of procedure, evidence-. ..................................... 2 1 

Publication: 

Action of convening authority may be recalled or modified before ................... 89b 151 

Admissihiity in evidence. See Evidence. 

Court-martial orders. See Court-martial orders. 

Public Health Service: 

Personnel of, as members of courts-martial .......................................... 4a 2 

When subject to code, Art. 2 .............................................. A. a ... 413 

Publicity: 

Counsel to relrain from as to pending case ........................................... 426 60 

Photographs or broadcasts of courts-martial, prohibited; exceptions .................. 53e 74 

Public officers; presumption as to legality of office and performance of duties ............ 13Sa 240 

Public property. See Captured public property; Military property. 

Public records: 

See also Documentary- evidence; OEcial documents; Official records; Records of 

courts-martial. 

Mutilating, concealing, etc.; specification, form for, Art. 134 ........ App. 6c (162).. ........ 493 

Punishment: 

See al~o Disciplinary punishment; Sentence. 

Bad conduct discbarge 

Authorized in lieu of dishonorable discharge.. .................................. 127c 217 

When appropriate. ............................................................. 76a (7) 123 

Contribution of pay or making of deposit, illegal .................................... 126h (1) 210 

Cruel and unusual, prohibited; enumerated, Art. 55 ................................ 125 205 

Dfscipllnary; limitations may beimposed by regulation by Secretary ofDepartment. 131a 231 

Discretionary; discussed.. ........ .... ................................................ 125,126~ 206 

Dishonorable discharge; when appropriate. ......................................... 76a (6) 122 

Evidence of drunkenness, as affecting ............................................... 154a (2) 295 

Excessive; court will not adjudge in reliance upon mitigating action of higher authority .......................... ..................................... 76a (4) 122 

For a particular offense, aee that ofense by name. 

For enlisted persons ............................................................ .... 126e, 127 209,213 

ForfeitureAppropriate punishment for all military personnel .............................. 126h (2) 210 

Computation .................................................................. 126h (2) 210 

Convening authority may suspend or defer effective date ....................... 126h (5) 211 

For officers and warrant off~cers ..................................................... l26d. i 208,212 

For prisoner sentenced to punitive discharge ........................................ 126e, 127 209,213 

General lmitations .......................................... r-. ................ 1276 213 

KindsAdmonition. See Admonition. 

Bad conduct discharge. See Bad conduct discharge. 

Conhement. See Conbement. 

Death. See Death sentence. 

Detention of pay. See Detention of pay. 

Dishonorable discharge. See Dishonorable discharge. 

Dismissal. See Dismissal. 

Flues. See Fines. 

Forfeitures. See Forfeitures. 

640 
! INDEX 

Punishment-Continued Par. Page 

Kinds-Continued 

Hard labor. See Hard labor. 

Life imprisonment. See Life iFprisonment. 

Loss of rank, numbers, promotion, seniority .................................... 1261 212 

Reduction of officer. See Reduction in rank. 

Reduction to lowest enlisted grade. See Reduction in grade. 

Reprimand. See Reprimand. 

Restriction to limits. See Restriction to, limits. 

Suspension from rank, command, duty ................... 1 ..................... 1261 212 

Limitation on if court of inquiry.proceedings read in evidence, Art. 60 .............. 1% 207 

Limitations on special or summary court.-. ........................................ 127b 213 

MandatoryDiscussed ....................................................................... 126a 206 

Offenses involving, not subject to trial by special court-martial ................. 15a 18 

Maximum authorized for separate offenses arising out of same act or transaction---- 76a (8) 123 

MaximumApplicable to included and closely related offenses .............................. 127c 214 

Computation of amount of forfeiture ............................................ 126h (2) 210 

Computation of time of absence without leave ..........................-....... 127c 217 

General courts-martial .......................................................... 126b 207 

Limitations on certain violations automatically suspended in time of war-----.- 127c 217 

Limitations, to rrhom applicable.. .............................................. 127a 213 

Normally reserved for aggravated cases; discussion .............................. 76a (2) 121 

Offenses not listed; not included in or closely related to listed offenses, punishment 

applicable .................................................................... 127c 214 

Permissible additional punishments, Sec. 8 ..................................... 127c 216 

Power of President to prescribe, Art. 56 ......................................... 15a 19 

Sentence to confinement of officer or warrant officer will not exceed that prescribed 

for enlisted persons in table ................................................... 126d 208 

Special courts-martial, Art. 19 .................................................. 126c (1) 207 

Summary courts-martial, Art. 20 ................................................ 126c (2) 208 

Table applies to each separate offense ........................................... 127c 215 

Table of Equivalent Punishments, when applicable ............................. 127c 215 

Military duties not to be imposed as ................................................ 125 - 205 

Minor, authorized svhile accused is in restraint. AT^. 13- ............................ 18b (3) 22 

Mitigation. See Remission oi sentence. 

Previous convictions; period of limitation on, in considering sentence ................ 756 (2) 119 

RehearingSee Disciplinary punishment; Sentence. 

Accused credited with executed portion of former sentence ...................... 89c (7) 153 

Accused's rights restored if acquitted or hdings of guilty disapproved; exception. 89c (7) 154 

Stoppage of pay to settle liability, prohibited. ...................................... 126h (1) 209 

Types not sanctioned by custarn of service, prohibited ............................... 125 205 

Under Art. I+ 

See Disciplinary punishment under Art. 15. 

As matter in mitigation ......................................................... 75c (4) 121 

Authorized ..................................................................... 131b 231 

Voting on. See Voting. 

Punitive articles; discussed in detajl.. .............................. 1 ................... 1X-213 302,381 

Punitive discharge: 

Appellate review required; prior to execution of, Arts. 71c, 7% ....................... 9 166 

Limit of time of suspension of.. ..................................................... 97a 165 

Power of Secretary of Department to substitute administrative discharge for, Art. 

746 ................................................................................ 97a 165 

Suspension. See Suspensim of sentence. 

Quarantine, medical, breach ot sped6cation, form for, Art. 134 ........... App, 6c (163.- ........ 494 

Quarrels, frays, disorders; persons mith power to quell, Art. 7c .......................... 19b 23 

Questions: 

See also Witnesses. 

dmbiguous and misleading, dkcussed; example ..................................... 149c (2) 282 

Asking through interpreter; form ................................................... 50b 72 

Degrading and incriminating. See Self-incrimination. 

Formal, of witness; asked by trial muusel ................................. A a ........ 610 

Hypothetical, dehed and discussed ................................................ 138e 243 
INDEX 

Questions-Continued Par . Improper. harsh. insulting; duty of court to protect from ........................... 540 

Interlocutory . See Interlocutory questions . Leading, defined and discussed; examples ........................................... . 149c (1) 

Objectionable; suggesting nonexistent or inadmissible matters ...................... 149c (3) 

Refusal to answer, a military offense or an offense under Art . 47 ........... 149a 

Quitting guard . See Absence without proper authority (absence without leave); 

Sentinel . Q. uittiug place of duty to plunder or pillage: 

Discussion, proof, Art . 99 ............................................................ 178f 

Specification, form for, Art . 99 .............. App . 6e (48) .......... 

Quitting post or duties before resignation accepted, deemed desertion; specillention, form 

for, Art . 8.5 .............................................................. App . Be (12). ......... 

Quorum; court reduced below, by challenge; procedure ................................. 62c, h (4) 

Radio: 

Broadcasts of court-martial proceedings, prohibited; exceptions ...................... 5"e 

Use of , by counsel to publicize pending caso, prohibited .............................. 426 

Rank: 

Change of, how described in specification .............................. A 6a (6).. ........ 

Court-martial; seating of members according to ..................................... 616 

Cross-examination not limited because of ........................................... 1496 (1) 

Different corps or commands joining, determinationof command by, Sec . 6.App. 2b .......... 

Loss of, sentence to, unauthorized ................................................... 126i 

Official statements of officer not excepted from hearsay rule by reason of ............ 139b 

Power to appoint courts-martial not dependent on .................................. 5a 

Reduction . See Reduction in rank; Reduction in grade . Report of sentence involving officer's ............................................... 96 

Suspension from, includes suspension from commmd... ............................ 126i 

Trial by persons inferior in, to be avoided, Art . 25- ................................. 4c 

Rape: 

Character of victim as evidence of consent ....................................... 153b (2) (b) 

Discussion, proof, Art . 120 .......................................................... 199a 

Fresh complaint by victim of, as evidence .......................................... 14% 

Specification, form for, Art . 120 ...................................... App . I% (88) ......... 1 

Reading of articles, Art . 137 ................................................... A 2a .......... 

Real evidence, admissibility of, how treated ............................................. 138c 

Reasonable doubt: 

As to sanity; action by convening or higher authority ............................... 124 

Convening authority must find conviction established by evidence beyond ......... 87a (3) 

Law officer; duty to advise court concerning rule of, Art . 51c ........................ 39b (1) 

Resolved in favor of accused, Art . 51c .......... r. ................................. 736 

Rule ofClemency recommendations not to be based on doubt as to guilt ............... 770 

De6ned and discussed .......................................................... 74a (3) 

Reasons: 

For Rndings, for information of convening authority ................................ 74f (3) 

. For sentence, for information of convening authority ................................ 76b (4) 

Rebuttal; of matter in aggravation, extenuation, or mitigation ........................... 75d 

Receipt by accuscd for copy of record or certificate in lieu thereof ............. App . 9a .......... 

Reoeipt: 

Delivering less thau amount called for hyDiscossion, proof, Art . 132 (3) ....... L ........................................... 2111 

Specification, form for, Art . 132 (3) ............................ App . 6c (112) .......... 

Making or delivering without knowledge of truthDiscussion, proof, Art . 132 (4) ..................... 1 ............................. 211g 

Speciflention, form for, Art . 132 (4) ............................. App . 6c (113).. ........ 

Receiving stolen goods: 

Iinowledge that goods were stolen asevidenced by other actsof receivingstolen goods . 1390 

Specification, forln for, Art . 134 .................................... App . 6c (160).. ........ 

Recess: 

Prbcedurc on .............................................................. App . 8a.. ........ 

Reconveniug after; trial counsel accounts for personnel .... ., ......................... Glc 

Recesslug court; power of president of grnerai court as to 401, (1) 

Reciprocal jurisdiction: 

By one armed force over personnel of another, Art . I7a .............................. 13 

Policy, rules for composition 01 courts for ............................................ 49 

642 

Page 

76 
INDEX 

Mckless driving . See Drunken or reckless driving . Par . Reconsideration . See also Rehearing; Revision . Record: 

Closed session; conlerence with law officer as to iorm of fludings ..................... 63d 

Of proceedlngs for disciplinary punishment under Art . 15 to be forwarded on appeal. . 134 

Recorder of court olinquiry; appointment, oath, powers, dut.ies, Art . 135 ....... App . 2a .......... Record of former trial; admissibility, method of proof ................................... 1456 

Re'cord of proceedings; special court-martial; completc rewrd required if bad conduct 

discharge adjudged ..................................................................... 156 

Records of wurt-martial: 

Accused's copy; disposition when delivery cannot be made .......................... Bla, b 

Arrangement ............................ : ................................ App . Be.. ........ 

As evidence in subsequent trial, admissibility ....................................... 1456 

Certificate of correctionClerical errors, etc., may be rectified by ......................................... 88c 

App . 9d.. ........ Copy furnished each accused except in summary court .......................... 86c 

Must correspond to facts ........................................................ 88c 

Complete without reference to other eases ........................................... 536 

Contempts; discussion .............................................................. 118b 

Copies forwarded when certain sentences or ofljcers involved ........................ gla, b 

Copies; when prepared by reporter .................................................. 49b (2) 

Correction of, subject to appellate review ........................................... 95 

Decisions and orders of convening authority at end of ............................... 89a 

Foreign laws; inclusion of pertinent extract as exhibit ............................... 1476 

Forwarding of, for appellate review ................................................. 99 

General court-martialAppellate review . See Appellate roview . Appenrlages to recordInstructions for attachment and arrangement .................... App . 9e. ......... 

What and how arranged ................................................. 77a, 826 (5) 

Arguments on proposed instructions; not recorded, exception ................... 73c (2) 

AuthenticationAbsence, death, etc., of president or law officer; procedure ................... 82f 

By law officer ............................................................... 39f 

By president and law officer ................................................ 82f 

App . 96.. ........ 

Branch office of the Judge Advocate General, forwarding of to, when, Art . M.-. 104 

Contents, general ............................................................... 82b 

App . 9a.. ........ 

Copies; preparation and disposirion ............................................. 8% 

Correction of record by trial counsel before authentication ...................... 82e 

Disposition by convening authority; accompanying papers ...................... 9la 

Disposition by Vial counsel ..................................................... 829 (2) 

Examination by defense counsel before authantication; notation of .............. 82e 

Form ............................................................... .App . 9a.. ........ 

Instructidns, proposed; to be appended, when ................................... 73c (2) 

Loss or destruction; procedure ................................................. 82h 

Notes or recording devices from which prepared, to be retained, time limitation . 82a 

Oral arguments and statements of eounsel recorded verbatim. .................. 82b (4) 

Preparation and responsibility for .......................................... 82a 

Proceedings shown as lac s they went .......................................... 82b 

Proceedings to be made part OF record ........................................... 39c 

Proffered exhibits, propo%d arguments, medical certacate, proceedings outside 

presence of court; not included in ............................................. 826 (5) 

Read to new law officcr; procedure .............................................. 39e 

Review of, in office of Judge Advocate General where review by board of review 

not required, Art . 69 .......................................................... 103 

Revision proceedings, how shown ............................................... 826 (3) 

Gecurity classification; procedure ................................................ 82d 

Stricken material to be fully recorded ........................................... 8% (2) 

Testimony given through interpreter, how shown ............................... 82b (1) 

New trial; disposition 01 ............................................................ 109j 

Offer of proof, when rejected, to be included in ...................................... 154c 

Reporter; duty n-ith respect lo preparation ......................................... 49b 

Revision . See Revision . 

Page 
INDEX 

Records of court-martid-Continued Par . Page 

Special court-martidArrangement of summarized record with allied papers .............. App . lob .......... 535 . 

ContentsIn general, when verbatim record ................................. A . 9a .......... 524 

If bad conduct discharge adjudged .......................................... 83a 137 

If bad conduct discharge not adjudged ...................................... 83b 137 

Summarized ..................................................... A pp . 10a .......... 531 

Corrective action by authority higher than convening authority ................ 94a 162 

Disposition after action by convening authority, Art . 65c ...................... 94b 163 

Disposition of, involving bad conduct discharge ................................. 91b 157 , 

FormWhen summarized ................................................. 10a .......... 531 

When verbatim ................................................... A . a ...... 524 

Orders . See Court-martial orders . , Preparation, copies, authentication, disposition, general ......................... 83, 85a 137, 140 

Requirements, in general, same as for general court ............................. 83a 137 

Summary court-martidContents .......................................................... ....A 1 .... 536 

Copies ofDisposition after review, Art . 65c ........................................... 84b lf3 

Sent o5cer exerhing general court-martial jurisdiction ..................... 91c 157 

Corrective action by authority higher than convening authority ................ 94a 162 

Disposition, Eling ............................................................... 9lc 157 

Form ................................................................ A . 1 ..... 536 

Forwarded to o5cer exercising general court-ma~tial jurisdiction ................ 9lc 157 

Keeping and authentication, regulations by President, Art . 546 ....... dpp . 2a .......... 431 

Preparation, contents, disposition, etc .. general .................................. 79e, 83e 129, 138 

Records of courts of inquiry: 

Admissibility before courts-martial or military commission, Art . 60 ........... kpp. 2a.. ........ 430 

Keeping and authentication, Art . 135h .................................... A . ...... 450 

Records of disciplinary punishment, how and where kept; form ......................... 135b 235 

A . 3 .. 459 . Recniit, certain articles read to, Art . 137 .................................... ..Ap p. 2a.. ........ 451 

Redress: 

For injuries to property by military persons, procedure, Art . 139 .......... App . 20.. ........ 451 

Of wrongs; complaint against commanding officers, procedure, Art . 138 

A . a .. 451 . 

Reduction, ofnoncommissioned ofticeror pettyofficer; as punishment under Art . 15 .......... 131b 231 

Reduction!in grade: 

As additional punishment, when authorized, Sec . B ................................ 127c 228 

Enlisted persons, sentence mvolving ................................................ 126e 209 

Noncommissioned officer or petty oflicer above fourth grade may not bereduced except to next inferior grade by summary court ...................................... 166 20 

Summary court-martial; limitations on Dover to adjudge ........................... 1Gb 20 

Reduction in rank: 

Officers and warrant officers; sentence to intermediate gradc, prohibited ............ '126d 208 

OfficersBy commutation by Secretary of Department ................................. 100 (1) (b) 171 

Sentence to dismissal may be commuted to, Art . 716 ............................. 12Gd 208 

Refreshing recollection; memornnda used for purpose of ......................... 146a , 149c (1) (6) 272, 282 

Refusing to testify before court.martia1, etc . . specification, form for, Art . 124 

App . 6c (164).. ........ 494 

Regulation or general order, violation of: 

Discussion, proof, Art . 92 ........................................................... 144d 442 

Specification, form for, Art . 92 ....................................... App . 6c (28) .......... 476 

Rehearing: 

See also Revision . Accused credited in action with executed portion of former sentence, Art . 63 ........ 89c (7) 153 

Accused's rights restored if acquitted or flndings of guilty dissp1)roved .............. 89c (7) 154 

Action of convening autho~ity to state rezson for disapproval of sentence and order 

of ................................................................................. 89c (2) 152 

Authorized as to offenses if conviction is based on plea of guilty ..................... 92 159 

Authorized when proof is based in part on inadmissible evidence, examples ......... 92 159 

Case not capital if no death sentence at earlier trial ................................. 16u 19 

Composition of courts-martial for ................................................... 92 160 
INDEX 

Rehearing-. Continued Par . Conviction at flrst trial of lesser included oflense. effect of .......................... 92 

Deposition; admissibility in capital cases ............................................ 145a 

Dismissal of charges in lieu of, ordered by board of review ........................... 1W (3) 

Dismissal of charges in lieu of, ordered by Court of Military Appeals, Art . 67j- ...... 101 

Former record may be examined by law officer to decide questions of admissibility, 

etc ................................................................................ 81c 

Former testimony, use of; general rules ............................................. 14541 

Forms of action on ......................................... A 14 (3,9, 18,23,38).. ........ 

Member of previous court ineligible as member on. Art . 636 ......................... 

Not authorizedWhen sentence is disapproved for lack of sufficient evidence in record ........... 

Where part of sentence is ordered into execution ................................. 

Offenses triable on; limitation, Art . 63 .............................................. 

Order directing, made at time of action on sentence and included in action on such 

sentence .......................................................................... 

Order of, forms of action ............................................ App . 14 (8, 24) .. 

Papers referred to trial counsel on, to inform of errors ............................... 

Procedure in general ................................................................ 

Sentence, court to be advised of original ............................................. 

Trial for offense of which found not guilty by first court, forbidden, Art . 63 .......... 

Vacation of prior sentence, when necessary .......... ... ............................. 

When ordered by board of review, Art . 66d ......................................... 

When ordered by Court of Military Appeals, Art . 67e ............................... 

Who may authorize, Arts . 63, 66d, 67e ..................................... A . 2a.. 

Relewe or restraint of accused ns result of trial: 

Discussion. proof. Art . 96 ........................................................... 175 

Specification, form for, Art . 96 ......................................... App . 6c (39).. ........ 

Relief and assistance; not affording all practicable, under Art . 99 ........................ 178i 

Relieving, etc., the enemy . See Enemy . Remission of punishment under Art . 15, procedure for .................................. 135a 

Remission of sentence: 

See also Commutation; Sentence; Convening authority . As part of action suspending a sentence ............................................ 88e (2) (a) 

Departmental regulations dealing wlth ............................................. 97a 

Discharge of accused not in confinement as affecting; to confinement, ete ............ 97a 

Limitation on, of sentence coniilmed or approved by Pres~dent, Art . 74 .-- App . 2a.. ........ 

Power ofSubsequent to one ordered executed, who may exercise, Art . 74 ....... App . 2a.. ........ 

Who may exerc~se, as to unexecuted portion, Art . 74 ............................ 10% 

Judge Advocate General, Art . 74a .............................................. 105b 

Removal of civil or criminal cases against military persons to Federal courts, Sec . 9 

App . 2b.. ........ 

Report: 

Autopsy, adrmssibihty of .......................................................... 144d 

. Cases pending trial; made by trial counsel, weekly .................................. 44e (1) 

Defense counsel not legally qualified ................................................ 61 j (3) 

Investigating officers'- 

Admissibility ................................................................... 144d 

Formal, content, form .......................................................... 34e 

App . 7.. ........ 

Informal; content ............................................................... 34f 

Member physically disabled from attendance at trial ............................... 41c 

Official . See Privileged communications; Documentary evidence; Official records; 

Business entries 

Of trial counsel . See Tnal counsel . Proceedings to vacate suspension; form, content ........................... App . 16 .......... 

Result of trial; made by trial counsel ................................................ 44e (2) 

To convening authority as result of vote upon challenge ............................. 6% (4) 

Trial counsel reports om disqualification... ........................................ 41c 

Reporter: 

Appointment or dehil for court.martia1, military commission, or court of inquiry, 

Art . 28 ............................................................................ 7 

Authorized means of recording proceedings .......................................... 49b (1) 

Page 

IBo 

269 

170 

172 
INDEX 

Reporter-Continued Par . Copies of record to be prepared by .................................................. 496 (2) 

Copy of voucher of, need not be attached to record of trial .......................... 82b (5) 

DutiesDuring trial .......................................................... .App . 9a .......... 

In general ............................................................. A . 8a .......... 

Form of oath ....................................................................... 114 

Forms to be followed. .............................................................. 49b (1) 

Guide to be followed ...................................................... App . 9a .......... 

Special courts-martialAppointment not required, when; exceptions ................................... 33k 

Complete record required in certain cases, .4rt . 19 ............................... 151, 

Summary court; appointment for, when authorized ................................. 7 

Sworn, when ....................................................................... 61d 

Reports: 

In case accused is left without legally qualitled counsel L............................ 611 (4) 

In case of apprehension of officer or warrant officer by enlisted person ............... 19a 

Required in case of confinement- ................................................... 20d (5) 

Reprimand: 

Ascorrective measure, proper ....................................................... 128c 

As disciplinary punishment under Art . 15, to be in writing as to officer or warrant 

officer of Army or Air Force ....................................................... l33n 

Authorized as disciplinary punishment, when, Art . 15 .............................. lRlb 

Court will not iix terms of- ......................................................... 126f 

Form for, under Art . 15 ........................................... -: ...... App . 36.. ........ 

Included in action of convening authority, when .................................... 89c (8) 

May be adjudged in any case ...................................................... 126f, 127c 

Summary court-martial may adjudge ............................................... 16b 

Reproachful or provoking speeches or gestures: 

Discussion, proof, Art . 117 .......................................................... 196 

Specification, form for, Art . 117 ....................................... App . 6c (84.. ........ 

Reputation, as proof of character ........................................................ 13Rf (1) 

Reputation of accused . See Character evidence . Request for counsel legally qualified, during trial ............................. App . 8a .......... 

Request for enlisted membership, attached to appointing orders .............. App . Ra .......... 

Research, legal, by counsel .............................................................. 44' (4) 

Resene components; competency as members of courts-martial ......................... nu 

Reserve officers; rank and precedence In time of war, See . 6 ................... App . 26 ........ 

Res gestae . See Spontaneous exclamations . Residence; presumption of continuance until change shown ............................. lRQa 

Resignation; quitting post or duties before acceptance as desertion: 

Proof, Art . 85 ....................................................................... 164a 

Specification, form for, Art . 85 ........................................ App . I52 (12) .......... 

Resisting apprehension: 

Dscuion proof Art 95 ............................................................ 174a 

Specification, form for, Art . 95 ........................................ App . 6c (36) .......... 

Res judicata: 

See also Motions . Asserting of as defense; motion when entered ........................................ 67d 

Deflned, discussed ........................................ i ......................... 716 

R~storation: 

See also New trial . Of rightsForms of action ....................................... L........ App . 14 (9.23).. ........ 

Privileges and property affected by punishment under Art . 15, application for.-.-- 135a 

Privlleges and property, Art . 75a ................ -I .............................. 106 

Restoration to duty: 

Following report of result of trial .................................................... 21d 

Of deserter without trial, as constructive condonation ............................... 68f 

Restraint: 

See alao ~phebension; Arrest; Confinement . Accused; action by officer receiving information of ofleense ........................... 300 

Scope o L ............................................................................ 17 

Under Art . 97 ........................................................................ 176 

Restriction, in lieu of arrest, defined, disc~~ssed; breach of, punishment .................. 20 

Page 

71 

134 
INDEX 

Restriction to limits: Par . Page 

Apportionment when summary court adjudges with confinement ................... 16b . 20 

As disciplinary punishment, Art . 15 ................................................ 1316 231 

As form of punishment, discussed ................................................... 1260 209 

Breach of; specification, form for, Art . 134 ........................ App . 6c (165).. ........ 494 

Retired personnel: 

Eligibility for court-martlal duty ................................................... 4u 2 

When subject to code, Art . 2 (4) ........................................ App . 2a .......... 413 

Retreat, when required in self-defense ................................................... 197c 352 

Return, to habeas corpus . See Habeas corpus . Reverent behavior, Sec . 7 (e) ................................................. App . 26.. ........ 454 

Review, departmental; in reciprocal jurisdiction ......................................... 13 17 

Reviewing authority: 

See also Appellate review; Convening authority . Approval of sentence; prerequisites, Art . 61 .............................. App . 2a.. ........ 433 

Power incident to power to approve, Arts . 63, 64 ....................... App . 2a.. ........ 433, 434 

Review of record of trial: 

See dso Appellate review; the speciflc appellate agency by name . By board of review . See Board of review . By convening authority . See Convenihg authority . By Court of Military Appeals . See Court of Military Appeals . By staff judge advocate . See Staff judgeadvocate or legalofficer; Conveningauthority . By the Judge Advocate General . See Judge Advocete General . Cases in which appellatereview not otherwise provided lor, action, Art . 69.App. 2a.- 103 436 

Of member of another armed force .................................................. 13, 89 17, 169 

Review of staff judge advocate or legal officer; disposition ............................... 85d 142 

Revision: 

See also Rehearing; Convening authority . Copy of record given to accused ..................................................... 821 (1) I:% 

Correction of original record, how made ............................................. 80d 131 

.Limitation in cases in which part of sentence has been ordered executed, Art . 62.---- 86d 14.1 

Members of court, competency of ................................................... 80b 130 

Presence of accused and counsel required ............................................ 80b 130 

Previous conviction wrowfully considered ....?........ ............................ 86d 144 

Procedure, in general, Art . 62 ........................................................ 80c 130 

Proceedings ............................................................. A . 8.. ........ 522 

. ReconsiderationOf certain matters, prohibited, Art . 62 .......................................... 80, 86d 130, 114 

Of motions and similar matters ................................................. 67f 98 

Record, wntents of ................................................................ 8% (3) 133 

Summary court; application of rules ................................................ 80e 131 

When findings as to charges and specifications inconsistent .......................... 87b 145 

Right and wrong; ability tq distinguish, as test for insanity ........... .. ................ 120b 200 

Itiot: 

CommittingDiscussion, proof, Art . 116 ...................................................... 195a 349, 350 

Specification, form for, Art . 116 .................................. App . 6c (82).. ........ 483 

Robbery: 

Discussion, proof, Art . 122 ........................................................ 201 363, 364 

Specification, form for, Art . 122 ............................... .Ap p. 6c (91) .......... 484 

Rules of evidence . See Evidence . Rules of procedure; President may prescribe, Art . 36 .......................... App . 2a.. ........ 425 

Ilulings by court . See Law officer; President of court-martial; Interlocutory questions . Ruliugs, form of by law officer and president .................................. A . a ... 608 

Running away before the enemy: 

Discussion, proof, Art . 99 ........................................................... 178a 331, 332 

Speciflcation, form for, Art . 99 ........................................ A . 6c (43)- ........ 478 

Safeguard, forcing a : 

Disrussion, proof, Art . 102 .......................................................... 181 336 

Specification, form for, Art . 102 ..................................... App . 6c (66) .......... 479 

Safety of command, unit, place, or military property, endangering: 

Discussion, proof, Art . 99 ........................................................... 178c 332 

Specificatiou, form for, Art . 99 ........................................ App . 6c (45).. ........ 478 

Sale, unlawful, of military property: 

Discussion, proof, Art . 108 ......... 2. .............................................. 187a 342 - 

Specification, form for . Art . 108 ...................................... App . 6c (661.. ........ 480 

647 
INDEX 

Same act or transaction: Par. 

Findings of guilty of two or more offenses arising out of ............................. 74b (4) 

Maximum punishment authorized for separate offenses arising out 01.. .............. 760 (8) 

Sanity of accused. See Insanity of accused; Presumptions. 

Seals: 

Authentication of o5cial records .................................................... 143b (2) 

Judicial notice of certain public ..................................................... 147a 

Search: 

Conducted by immediate commander of accused, when.. ........................... 32b 

Evidence obtained as result of unlawful; inadmissible, when.. ...................... 152 

Lawful, examples oL ......................................................... J ...... 152 

Seating of members and others at courts-martial.. ...................................... 61b 

App. 8a-. ........ 

Secondary evidence, documentary; admissibility, weight of. ............................. 143a (1) 

Second trial. See Former jeopardy. 

Secrecy as to votes, etc. See Voting. 

Secretary of a Department: 

Action by, on record of new trial, Arts. 73, 75.. ..................................... lOBj 

Approval of sentences by, when required, Art. 716.. ...................... 98, lOOc (1) (bj, 101 

Capital case; may authorize officers exercising special court-martial jurisdiction to 

refer capital case for trial .......................................................... 15a 

Consent of, required for appointmeqt of personnel of courts from commands of other 

armed forces ...................................................................... 49 (3) 

Consent to be obtained for exercise of jurisdiction by court-martial over certain 

civilians .......................................................................... 11 

Contempt toward, an offense. See Contemptuous words against President, Congress, etc. 

General courts-martial, pover of appointment by, Art. 22 ........................... 517 

Power to commute, Art. 71b ........................................................ 105a 

Power to remit, suspend, unexeeuted portions of court-martial sentences, Art. 74a..- 97a 

Power to substitute administrative discharge for executed punitive discharge or 

dismissal, Art. 74b .............................................................. 97a 

Prescribes iustructions concerning place of execution of sentence to confinement, 

Art. 68a ........................... ............................................... 93 

Punishment; may limitCategories of commanders authorized to impose, under Art. 15 .................. 128a 

Kind and amount of, under Art. 15 ............................................. 131a 

Regulations respecting authority to appoint reporters and interpreters; prescribed 

by, Art. 28 ........................................................................ 7 

Remission, sus~ension of sentences; exercise of pourer by, Art. 74 .................... 1056 

Separation from service; prescribes regulations, Sec. 6 ..................... App. 2b .......... 

Transmission of cases to, for action by the President ................................ 101 

Vacation of suspended dismissal not effective until approved by, Art. 7% ........... 97b 

Secretary of Defense: 

Contempt toward, an offense. See Contemptuous words against Pr?.sident, Congress, 

etc. 

May authorize certain commanders to exercise court-martial jurisdiction over members of other armed forces ......................................................... 18 

Security matters: 

Classifleation of records of trial ...................... 1 ............................... 82d 

Effect on disposition of charges- ..................................................... 331 

Record of trial; action by convening authority ...................................... 82g (1) 

Sedition. See Mutiny and sedition. 

Seized or captured vessels, Art. 103 ...................................................... 182d 

Self-defense: 

Homicide in, dehed ................................................................ 197c 

In assault ........................................................................... 207a 

In maiming ......................................................................... 203 

Self-incrimination: 

Accused to be advised of rights against, Art. 31- 

Discussed ................................................................... 34b, 53h, 150b 

Page 

116 

123 

During trial- ............................................... App a ........ 516 

Other times ............................................. ....... A 7,10,16.- ........ 496,534 

655 
1 INDEX 

Self-incrimination-Continued Par . Page 

Aceused waives privilege as witness ............................................. 149b(l), 1501 280, 284 

Degrading questions only objectionable if not mnterial, Art . 31 ...................... 150a 283 

Explained and discussed, Art . 31 .................................................... 150b 283 

Waiver of privilege against, in general ............................................... 1501 283 

Witnesses; compelling to answcr incriminating, immaterial, or degrading questions 

prohibited, Art . 31 ................................................................ 150 283 

Self-inflicted injury . See Malingering . Selling military property. See Sale, unlawful, of military property . Seniority, loss oI; sentence, to whom applicable ......................................... 126i 212 

Sentence: 

See also Punishment . 

Action by law officer in ease of ambiguity or illegnlity in ............................ 76c 124 

Affected by mental impairment or deficiency ....................................... 123 204 

Announcement in open court; procedure- .......................................... 76c 124 

A . a .. 521 

Approval by convening authority of part of; rules. ................................. 88c 148 

Approval, express, by convening authority; prerequisite to execution ............... 86a 142 

Approval ol; action to mention disapproved &dings olguilty ....................... 89c (3) 152 

Approval or disapproval of, must be explicit ...................................... 88a 147 

Basis for determining, in general .................................................... 76a 121 

Closed session; deliberation uponMuence of rank prohibited .................................................... 76b (2) 123 

Required ....................................................................... 63d 74 

Voting upon, in general, Art . 52b ............................................. 766 (2), (3) 123.124 

Commutation of; by President and Secretary of a Department, eto .................. 105a . 174 

Convening authority's power to mitigate- .......................................... R8c 148 

Court-martial order; when promulgated by Department ............................. 107 175 

Court may be advised of authorized maximum punishment prior to voting; procedure ............................................................................ 766 (1) 123 

Court will exercise own discretion in determining; exception ........................ 76a (1) 121 

Date adjudged published in court-martial order ..................................... 90a 154 

Death . See Death senteye . Deliberation on, in closed session; procedure ........................................ 76b (2) 123 

Deterrent effect of; as &ecting approval ............................................ 88b 147 

Disapprov~l ndlifles 8s basis for punishment ....................................... 88a 147 

Disapproval of; action on findings not required; exceptions .......................... 89c (2) 152 

Divisible sentence, part may be approved. ......................................... 88a 147 

Evidence of previous convictions, weight given to, in determining ................... 76a (3) 122 

Excesd~e; court will not adjudge in reliance upon mitigating action of higher 

authority ......................................................................... 76a (4) 122 

Execution - 

Action by board of review as n prerequisite to ................................... 98, lOOa 168.169 

Aetion by Court of Military Appeals as a prerequisite to ........................ 98, 101 168, 171 

Action of President, or Secretary of Department, as prerequisite to ........... 98, lOOc (2) 168, 171 

Action to contain order of, when proper .......................................... 89c (4) 152 

Approval by convening authority required prior to ............................. 86a, 98 142, 168 

Delay not requiredupon petition for new trial under Art . 73, Sec . 12 .......... 109a, llOa 176, 181 

Effect of suspension of dishonorable or bad conduct discharge, or con~ement 

Ior one year or more, on power of .............................................. 88d 149 

Interruption of ................................................................. 97c 166 

New trial, accused to be credited with executed portion of prior sentence, when, 

Arts . 73, 75a .................................................................. lO9Z 180 

Not involving dishonorable or had conduct discharge ........................... 88d 149 

Not involvjng general or flag officer, dismissal, or death ......................... 88d 149 

Upon expiration of appeal period . when ...................................... lOOc (1) (a) 170 

Finality of, Art . 7& ............................................................... 8, 105, 108 13, 174 

175 

Forms 01 .......... !, ................................................................. 766 (4) 124 

App . 13.. ........ 541, 542 

Inadequate; effect of ................................................................ 76a (5) 122 

. ..... 

. ...................................... 

Influencing or coercing action of court or members on, prohibited, Arts 37, 98 5a, 38, 866 8,53, 143 

Irregularities in proceedings; effect on, Art 59a lOOa 169 

Law officer, advises mlvt as lo maximum ......................, 39b (1) 55 

Legal; less severe to be approved when unnecessarily severe ......................... 881 147 

Legal part of divisible illegal sentence may be approved ............................ 88a 147 
INDEX 

Sentence.. Continued Par . Local conditions may affect relative uniformity ..................................... 76a (4) 

Mitigation . See Mitigation . New trialBasis for determining .......................................................... 109g 

Limitations on; general considerations .......................................... 8ld 

Oncer, report upon promulgation in case of ......................................... 96 

Omission of words "hard labor" from; effect . Art . 58h ............................... 126j 

Persons under, remain subject to code, Art . 2 (7) .......................... App . 2a .......... 

Presentencing procedure 

Aggravation, receipt or matter in .................................... L -......... 75b (3) 

Evidence of previous convictions: type, time limitation ......................... 756 (2) 

Extenuation, receipt of matter in .............................................. 75c (3) 

Matter presented by defense, general. .......................................... 75c (I) 

Mitigation, receipt of matter in ................................................. 75c (4) 

Objections to data as to service; objections, waiver .............................. 756 (1) 

Procedure if matter inconsistent with guilty plea is presented ................... 75a 

Prosecution and defense present matter to aid conrt in determining proper 

sentence ...................................................................... 75a 

Prosecution presents data concerning accused's age, pap, service, restraint ...... 75b (1) 

Rebuttal of matter in aggravation, extenuation, or mitigation ................... 75d 

Unswom statement of accused in estenl~etion or mitigation ..................... 75c (2) 

Punishment adjudged by court cannot be increased. ................................ 88a 

Reasons for, may be included in record ............................................. 766 (4) 

.Reconsideration of by court; limitations on: procedure .............................. 76c 

Reconsideration of; limitation on power to order, Art . 62b (3) ....................... 80a 

Rehearing; limitations on . See Rehearing . Remission . See Remission . Requiring approval by President, no action on by board of review in branch ofiice .. 104 

Restoration of rights, etc., affected by executed portion of, when, Art . 75a .......... 1130 (b) 

Revision . See Revision . SuspendedDeath; honorable discharge operates as remission of ....... ........,... .......... 97a 

Remission by expiration of term of suspension, when ............................ 97a 

Suspension . See Suspension of sentence . Suspension under Art . 74a .......................................................... 97a 

To a particular punishment or for a particular ofense, see specific offense by name . Vacating; on application for new trial, Sec . 12 ....................................... llOa 

Vacating suspension of . See Suspension or sentence . Voting on . See Voting . Sentinel or lookout: 

Drunk or sleeping on postDiscussion, proof, Art . 113 ...................................................... 192 

Specification, form for, Art . 113 .................................. App . 6c (76). .-------. 

Leaving post 

Discussion, proof, Art . 113 ...................................................... 182 

Specification, form for, Art . 113 ................................... App . 6c (761.. ........ 

Misbehavior of, limitation on punishment suspended in time of war ................ 127c 

Offenses against and by; specifications, forms for, Art . 134 ........ App . 6c (166-168) .......... 

When on post, Art . 113 . r ...................... 1 .................................... 192 

Separate, organization of Marines, Sec . 7 (b) .................................. App 2b .......... 

Separate unit, de6ned ........................... .:.. ................................... 56 

Reparation from the service: 

See also Bad conduct discharge; Dishonorable discharge; Dismissal . Obtained by fraudSee abo Fraudulent separation; Effecting unlawful enlistment, appointment, or 

separation . Effect on jurisdiction, Art . 36 ................................................... 11 

Service: 

Number, not alleged in specification .............................................. 2Ra (1) 

App . 6a (4) .......... 

Of charges . See Ch~rges and specifications; Accused . Of subpoena . See Witnesses . Service record: 

Absence without proper authority (absence without leave); proof by ................ 1R4a 

Final indorsement evidence of prior discharge .................................... 162 

Page 

122 
INDEX 

Service record-Continued Par . Not complete evidence of desertion ......................... 164a 

Official record ....................................................................... 1446 

Previous convictions; proof by ....................................................... 756 (2) 

Setting on Bre . See Arson .............. : ............................................... 205a 

Severance, motions for; nature, grounds, procedure ...................................... 69d 

Shoal, Art . 110 .......................................................................... 189 

Shooting . See Firearms . Shore patrol, authority to apprehend ................................................... 19a 

Signature: 

Charges ............................................................................. 29e 

Court-martial records . See Records of court-martlal; Authentication of record of 

trial . Depositions; action when signature not obtainable .................................. 117e 

App . 18.. -....... 

Forgery of, in connection with claimDiscusslon, proof, Art . 132 (2) (c) ............................................... 211e 

Specification, form for, Art . 132 (2) (c) ............................ App . 6c (110) .......... 

Judicial notice of, of certain officials ................................................. 147a 

Staff judge advocate or legal ofljcer, to recommendation on chnrges referred for trial .. 35c 

Subpoena ............................................,............................. . 115d (1) 

App . 17 .......... 

Waiver of proof of ................................................................... 1436 (1) 

Warrant of attachment ................................................... App . 19.. ........ 

m'itnesses, on investigation of charges ordinarily required ........................... 34d 

Signing false official document, Art . 107 ................................................. 186 

. Simple arson, defined ................................................................... 205b 

Sketches, maps, photographs . etc .. rulas as to admissibility ............................. 144e 

Sleeping on post . See Sentinel or lookout . Sodomy: 

Complaint by victim of, as evidence ................................................ 142c 

Dscsion roof Art . 2 .......................................................... 204 

Specification, form for, Art . 125 .................................. App . 6c (95) .......... 

Soldiers: 

. See also Enlisted person . Make good time lost, Sec . 6 (note) ..................................... App . 26.. ........ 

Separation from service, Sec . 6 (note) .................................. App . ........ 

Solicitation: 

Discussion, proof, Art . 82 ........................................................... 161 

Limit of punishment suspended in time of war ...................................... 127c 

Specifications, forms for, Art . 82 ................................ bpp . 6c (4, 5).. ........ 

Solitary codnement; discussion; when prohibited ...................................... 125 

Sovereignty; jurisdiction over offense committed within territory of friendly nation, an 

incident of ............................................................................ 12 

Speaking words inducing misbehavior, etc., before the enemy . See Solicitation . Special courts-martial: 

See also Courts-martial; Qeneral courts-martial; and generally throughout this index . Here are indexed only matters relating specifically to special courts.martia1 . . Appellate redew, required, when, Art . 65b .......................................... 98 

Authentication of record .............................................. App . 9b (2) .......... 

Authority of officer having supervisory authority to remit, suspend, unexecuted 

sentences by, when ............................................................... 97n 

Challenges-- 

Grounds for, disclosed hy trial counsel and members ............................. 626 

Ruling upon interlocutory questions arising from ............................... 62h (2) 

Convening authorityEnumerated, Art . 23 .................................................. App . 2a .......... 

Forms of action by ................................................... A . 146.. ........ 

Reporter appointed by, Art . 28 ................................................. 7 

Convening of court; when complete ................................................. 61i 

Defense oounselSee 02.30 Defense counsel . Legal qunliflcations similar to trial counsel ..................................... 6c, 61f (1) 

Discharge, had conduct; when an authorized punishment; approv~l and review required, Arts . 65b, 66, 67, 68 ........................................................ 15b 

Page 

313 

265 

120 

368 

106 

345 
INDEX 

Special courts-martial-Continued Par . Page 

Execution of sentence iuvolving bad wnduct discharge; action prerequisite to. Arts . 6%. 66 ............................................................................ 84d, 98 140, 168 

Bindings, put in proper form in closed session ....................................... 741 (2) 118 

Interlocutory questions; ruling by president, procedure, Art . 516 .................... 57c, e, j 79,80 

Investigation of charges; formal report not required ................................. 34 f 48 

JurisdictionSee Courts.martia1-Jurisdiction . AU persons subject to the wde, Art . 19. ............................... App . 2a.. ........ 419 

Cases referred to, by officer exercising general court-martial jurisdiction; exceptions, Art . 19 .................................................................. 15a 18 

Persons and offenses, Art . 19 ..................................... <'. ............ 15a 18 

Punishments; limitations upon, Art . 19 ......................................... 15b 19 

Members- bSee also Members of courts.martia1 . Appoint, who may, Art . 23.. ................................................... Eib 8 

ChaUenges,Art.41 ............................................................... 62a 89 

New member after trial begun, procedure ....................................... 41j 59 

Number required, Art . 18 (2) ................................................... 46 3 

Power to punish, lacking ....................................................... 416 58 

Oaths; when administered during trial; procedure ................................... 61h 89 

Order appointing counsel, qualifications exhessly stated ............................ 6c, d 11, 12 

PresidentAnnounces legal qualifications of Counsel ........................................ 619 B.B9 

Authenticates record ............................................................ 40c 58 

Duties in general- .............................................................. 40b (2) 57 

Instructs court as to elements of offense charged, presumptiou of innocence, 

reasonable doubt, burden of proof ...................................... 40b (Z), 73b, i8 58, 112 

126 

Interlocutory questions; power with respect to .......................... 40b (Z), 57r, e, 78 68.79 

80, 126 

Preconvening duties enumerated ................................................ Gla 85 

presumption of innocence, burden of proof, reasonable doubt; instructs court as 

to, Art . 51c .................................... L .......................... 406 (2), 736, c .%, 112 

Vote of. ........................................................................ 416 58 

Procedure; comparable to general courts.martia1 .................................... 78 126 

ProceedingsCbrouological order ............................................................. 53a 73 

Complete in each case- ......................................................... 536 73 

Punishment authorizedSee also Punishment . Limitation on kind, duration, and amount of, Art . 19 ............................ 126c (1) 207 

Record of trialAccused furnished copy ......................................................... 83a 137 

Complete, required when, Art . 19 ............................................... 156, 83a 19, 137 

Disposition ofBy convening authority .................................................... 91b, 94 157, 163 

By trial counsel ............................................................. 83a 

Preparation, contents, authentication, disposition ............................... 83 

Review of ...................................... : ................................ 94a 

Summarized; guide to form of ....................................... App . 1Oa .......... 

VerbatimQuide to form of ................................................. App . 9a .......... 

Required, when ............................................................ 15b, 831% 

Reference for trial to; form; copies; accompnnying papers ............................ 33j (2) 

Rehearing after action of convening authority ....................................... 94a (2) 

Reporter, directing non-appointment of ............................................. 7, 33k 

Beating of personnel and accused .................................................... Glb 

App . 8a.. ........ 

Trial counsel . See Trial counsel . Specifications . See Charges and speciflcations . Speciflc intent . See Intent . Spectators: 

Court-martial sessions; allowed generally ........................................... 63e 

Witnesses ordinarily may not attend as ............................................ 53j 

App . 8a.. ........ 
- 

INDEX 

Epeeches and gestures, reproachful or provoking: Par. 

Discussion, proof, Art. 117 .......................................................... 196 

Speciflcatton, form for, Art. 117 ...................................... App. 6c (84).. ........ 

Spies. See Spying. 

Spoil, committing. See Committing waste or spoil. 

Spontaneous exclamations; admistiibllity of. examples--. ................................ 14% 

Spying: 

Discussion, proof, Art. 106 .......................................................... 185 

Specification, form for, Art. 106 ...................................... App. 6c (64)-. ........ 

Squadron, separate; authority of commanding ofllcer to appoint special courts-martial. ... 5b 

Staff judge advocate or legal officer: 

Advice and consideration of, when necessary ........................................ 30c, 856 

Courts-martial instruction given through ............................................ 38 

Duties in general; review of court-martial records .................................... 85 

Eligibility to perform duties as; rules, Art. 6c .. ...................................... 85a 

Oaths, authority to administer, Art. 136a ............................................ 113 

Persons ineligible to act as, Art. 6c ....................................... App. 2a-- ........ 

Recommendation of, on general court-martial records ................................ 85a 

Reference toCharges; before trial by general court-martial ordered ............................ 35b 

Judge Advocate General, in absence of .......................................... 85a 

Questions involving future proceedings in court-martial ......................... 52 

Review byAccompanies record transmitted to the Judge Advocate General ................. 9la 

Acquittalofall chargesandspecifications; limited to jurisdiction, Art. 61 .......... 856 

Disagreement with convening authority, action ................................. 85c 

Disposition, copies .............................................................. 85d 

Supplementary, oral or written reports may be required of ...................... 85b 

Written, contents of ............................................................. 85b 

Staff officer; suspension from duty, as permissible punishment ........................... 126i 

Standing in court. See Courts-martial. 

State and foreign law; not included in crimes or offenses not capital under Art. 134; exception ................................................................................ 213c 

State court; member of bar of highest, qualified as counsel of general court, Art. 27 .......... 61f (1) 

Statement of accused: 

Guilty plea, inconsistent with; action by court, Art. 45a ............................ 706 (4) 

Investigation of chargesForm oL ........................................................................ 34d 

Informed of rights and warned .................................................. 34b 

Rights explained before interrogation-- ............................................. 30a 

Rights of accused, court to explain, when ........................................... 53h 

App. 8a-- ........ 

Statements of motive, intent, or state of mind or body; when admissible, examples ...... 142d 

Statement of service, considered in determining sentence ................................ 75b (1) 

Statement, unsworn, of accused; right to make; form; effect; how treated ................ 75c (2) 

App. 8a-. ........ 

States: 

Civil authorities. See Civil authorities. 

Courts. See Civil courts. 

Distinct offenses against United States and against-- ............................... 68d 

Judicial notice of laws, seals, political organization, etc ............................... 147a 

Reference to laws of, in determining offense committed.. ........................... 213c 

State's evidence; promise of immunity to accomplice .................................... 148e 

Statute of limitations: 

See also Former jeopardy. 

Absence from territory in whichUnited States can apprehend; other impediment..- 68c 

AccusedFound not guilty because of; reason mag be stated .............................. 74f (3) 

To be advised of his rights to interpose, when ................................... 68c 

Application of, governed by offense alleged. not article under which laid ............ 68c 

Art. 43 applicable to offenses committed prior to 31 May 1951 if trial not barred prior 

thereto ........................................................................... 68c 

As defense under plea of not guilty .................................................. 68c 

Charges; effect of date of receipt of; date to be recorded by officer exercising summary 

court-martial jurisdiction ......................................................... 33b 

Oomputation of time; affecting continuing offenses and others, Art. 43 -------------- 68c 

Page 

350 

483 
INDEX 

Statute of limitations-Continued Par. 

Court to explain meaning, when, Art. 43 ............................................ 53h 

App. 8a.. ........ 

Extension ofPeriod, when authorized, Art. 43e.f.. ................................. App. 2a-. ........ 

Secretary of the Department in certain cases, by, Art. 43e ............. App. 2a.. ........ 

In time of war, Art. 43 (note) ............................................. App. 2a.. ........ 

Lesser included offenseFinding of guilty, action required ............................................... 74h 

In bar of punishment.. .......................................................... 74h 

Plea of guilty, may result in waiver .................. .......................... 88c, 74h 

Offenses barred by prior to 31 May 1951 not revired by Art. 43 ...................... 68c 

Pleading of, as a defense. See hlotions. 

Recording date received, on charge sheet ............. 5-. ........ Self-incrimination, privilege against; ceases on running of ............................ 1Wb 

Tolled by receipt of charges, form of recording ......................... Bpp. 5.. ........ 

Trial or punishment, bar to; exceptions. Art. 43 .................................... 88c 

Waiver by failure to assert during hearing ........................................ 68c 

Waiver by plea of guilty ............................................................ 88c 

Statutes: 

District of Columbia. See District of Columbia. 

Judicialnotice ...................................................................... 147a 

penal code. See Title 18, U. S. C., "Crimes and Criminal Procedure.'' 

State, etc., as basis of charges under military law .................................... 213c 

Statutory perjury; specification, form for, Art. 134 ........................ App. 6c (159)-- ........ Stealing. See Larceny. 

Stenographer. See Reporter. 

Stipulations: 

Capital cases, facts in, as to ......................................................... 154b (1) 

Facts; discussed; duty of court as to ................................................ 1Mb (I) 

Oml, procedure on ....................................................... App. 8a-- ........ 

Testimony and documentary e~dence; effect and weight of ......................... 154b (2) 

Unimportant or unr~ntested matters; counsel should enter into .................. 449 (I), 48d 

Withdrew81 of, permitted ........................................................... 1Mb (1) 

Witnesses' expected testimony, permitted ........................................... 115a 

Stolen goods, knowingly receiving. See Receiving stolen goods. 

Page 

75 

,503 

Stoppage of pay: 

Court-martial may not adjudge to settle pecuniary liability ......................... 126h (1) M9 

For injuries to property, Art. 139 ......................................... A. a ...... 451 

Straggling; specification, form for, Art. 134 ............................... App. 6c (170)-- ........ 494 

Striking colors or flag: 

Discussion, proof, Art. 100 .......................................................... 179b 334 

Specification, form for. Art. 100 ....................................... A. 6c 2 ........ 478 

Subordinate commanders; imposition 01 disciplinary punishment by, under Art. Is.-.-- 129 230 , . 

Subordinate joint commands; may be authorized to try members of other armed forces by 

special and summary courts-martial.- ................................................ 13 17 

Subordinate compelling surrender. See Surrender. 

Subpoena: 

See Witnesses. 

Dethition; issuance ................................................................. 115a 188 

Form ..................................................................... p.17 .......... 569 

Substantial rights: 

Disregard of errors not prejudicing, Art. 59 ... ....................................... 87c I46 

Effect of errors in connection with punishment under Art.15; waiver ................ 130 230 

Substitution of discharge adjudged. See New trial. 

Successor in command: 

Deflned, Art. 60 ... .........................................-....................... 84b 139 

Power to suspend, set aside, or remit punishment under Art. 15, or restore rights affected ...................~.................................................. ....... 135a 236 

Suffering military property to be lost, etc.: 

Discussion, proof, Art. 108 ......................................................... 187~ 343 

Specification, form for, Art. 108 ...................................... App. 6c (68) ......... 481 

Suffering prisoner to escape: 

Through neglect or designDiscussion, proof, Art. 86- ............................... ................-... ... 1754 c 328,330 

Specification, form for. Art. 96 .................................... App. 6c (3Ri.- ........ 477 
INDEX 

Suffering vessel to be hazarded: Par . Pnge 

Discussion. proof. Art . 110 .......................................................... 189 345 

Spccification, form for, Art . 110 ...................................... App . 6c (73).. ........ 482 

Summarized record of trial, ................................................. App . 10a.. ........ 631 

Summary courts.martia1: 

&''also Courts.martiJ . Here are indexed only matters relating speciflcally to summary courts.rnertictl . Accuser may be convening authority of ............................................. 5c 9 

Authorlty ol officer having supervisory authority to remit, suspend, unexecuted 

sentences hy ................. .... ................................................. 97a 164 

Capltnl offenses; not triable by, Art . 20 .............................................. ltia 19 

Challenge, not subject to ......................................................... 6% 89 

Consists of one offlcer, Art . 16 (3) ...................................... App . 2a.. ........ 418 

Convening authorityEnumerated, Art . 24 ................................................. App . 212.. ........ 421 

Forms of action by .................................................. App . 14a. ......... 543 

Depositlons in .................................................................... 117a . 192 

EBects of deceased persons, powers and duties respecting disposition of, Sec . 6 

A %- . 453 

Explanation to accused of iuconsistent or improvident pleas ......................... 79d (2) 128 

Findings, general rules ............................................................ 79d (4) 128 

Functions of .............................................................. i9a 126 

Investigation of death on post; powers and duties of, Sec . 6 ................ App . 2b.. ........ 454 

JurisdlctionSee alao Courts.rnartia1-Jurisdiction . Limitations upon duration of punishments, Art . 20 ............................. 166 20 

Over persons and oflenses, described, Art . 20 .................................... 16a 19 

Oaths-. 

See olao Oaths . Authority t~ administer, Art . 136a .............................................. 113 185 

Objections to trial; annot proceed if objection made unless opportunity given for 

refusal of non-judicial punishment, Art . 20 ........................................ 79d (1) 1%' 

Order appointing ......................................................... A. 4 ..... 464 

Previous convictions, affecting sentencas ........................................... 79c, 79d (4) 126, 129 

Procedure-. 

Amigament .................................................................... 79d (2) 127 

Charges, correction of errors in ................................................. 79c 126 

Civilian witnesses, subpoena of ................................................. 79b 126 

Court to advise msed of Bndings and sentence when determined .............. 79d (4) 129 

Depositions ..................................................................... 79b 126 

Explanation of charges, nature of proceedings, accused's rights as witness, Arts . 20, 31 ................................................................... 79d (I), (21, (3) 127, 128 

Pleas, guilty; explanation of to accused ....................................... 706, 79d (2) 108, 127 

Presentation of evidence; rights of accused: duty of court.. ...................... 79d (3) 128 

PunishmentScc ako Punishment . Apportionment of conhement and restriction ............................ 166, 126c (3) 20, 208 

Limitation on kind, duration, and amount, Art . 20 .......................... 16b, 126c (2) 20, 208 

Limitations in ease of noncommissioned or petty olEcers .......... 16b, 126c (2) 20, 208 

Record of trialSee aho Records of court.rnartial . Actlon by mnrening authority, disposition of ................................... 91c, 94 157.163 

AuthentimtEou by si-mtnre .................................................... 79e 129 

Disposition of ................................................................... 79e 129 

Entries mhieh must bn recorded ................................................ 79e 129 

Form of .................................. '._ ..................................... 79e 129 

Appll 536 

Number of cupies required ...................................................... 79e 129 

Prepared In triplimte in lieu of issuance of court-martial orders .................. 9Oe 156 

Revlew oL ...................................................................... 94a 162 

Reference for trial by; form; copies .................................................. 33j (3) 43 

Rehearing after action by convening authority ...................................... 94a (2) 162 

Reporter not authorized ............................................................ 7 12 

Selected lrom officers mot ?.elox- lieutenant of Navy or Comt Qnard or captain of 

Army, Air Force, or Marine Corps, whenever practicable ......................... 4c 4 

Sentence, generally ................................................................. 79d (4) 129 
Summary courts-martid-Continued Par. Page 

When more than one officer present .-----.. .--.------------.------------------ - 5c 9 

Withdrawal of charges and specilications .-.-. .---------- ---- ------..--------- -- --- 5c 9 

Witnesses, attendance of, powers and duties, Art. 46 --..-.-.--.---.-...---.--------- 794 115 126,188 

Superior authority: 

Imposition of disciplinary punishment by, under Art. 15 .-..............------------ 129 230 

Power to suspend, set aside or remit punishment under Art. 15, or restore rights sffected by --.-- ------------- .----------------------------~~-~~~

135a 235 

Procedure for disposing of appeals, Art. 15 ..----.--.--------------------- ------------- 134 234 

Superior officer: 

AssaultingDiscussion, proof, Art. 90 .......................................................

16Oa 3% 

Specification, form for, Art. 90 ................. A. 6 ) -- 475 

Detion Art. 1 .......... A. 20-. -------- 412 

Disobedience of. See Disobedience of orders. 

Disrespect towardsDiscussion, proof, Art. 89 .------------.-.--------------..--...-.------

168 319,320 

Specification, form for, Art. 89 .................................... App. 6c (XI)-. ..._--.- 475 

Order of, presumed legal .-----.---~----------------------~.. ........................ 1696 321 

Surrender: 

Abandonment of command to enemy, when justified ..-...------..--.---.-------. 17% 332 

Attempting to compel, distinguished from compelling ...... .. .-. - -- -.. -------.--- - - 174a 327 

Subordinate compelling commander to abbandonDiscussion, proof, Art. 100 .....................................................

170a 334 

Specification, form for, Art. 100. ..-.-.. ........................... App. 6c (521.- ----_._- 478 

Suspension: 

Official authorized to suspend under Art. 74a to be designated by departmental 

regulations .--------.-....------.-.--...-------.-------------------

97a 165 

Period within which sentence may be suspended .-.------.------------------------ 97a 165 

Punishment under Art. 15, procedure for ..-------.--...-.....-.-.---...-.----------135a 235 

The Judge Advocate General, powers of, Art. 74a -----.----....--.---.....-....----- 10% 174 

Suspension from command: 

Effect; does not affect promotion; deprives of authority to exercise command..-.-.-. 126i 212 

Report by prompt means to Department of approved sentence of .-...---------..--- 96 164 

Suspension from duty: 

Appropriate in case of staff officer ................................................... 126i 212 

Report by prompt means to Department of approved sentence of ......-___..-...--- 96 164 

Suspension from rank: 

Effect; does not affect promotion; deprives of privileges dependent on ra nk......-..- 126i 212 

Persons under, ineligible as members of courts-martial.. . .. ... ....-.-..-.. -- -- ------ 4a 3 

Report by prompt means to Department of approved sentence of -__..--.....----.-- 96 164 

Suspension of counsel for misconduct. .................................................. 43 61 

Suspension of sentence: Conditional remission in connection with.. -.-.-..-.. .. ....... .. ..........-... 88e (2) (a) 150 

Conhement; release from as terminating, when appellate review comple te-..-... 88e (2) (b) 150 

Discharge, punitive; suspended until accused's release from confinement; rules..-- 88e (2) (b) 150 . Forfeitures; effect on; deferment in lieu of suspension ...---...--.. ..----..----.---- 88e (2) (c) 151 ' 

Foms of action -----.---------------------- A. 14 (4- 6, 1'2-20, 28, 30-40)-. --. ..--- 543,545 

546,548 

Indefinite ~----~.~~.----------~---.....88e (2) (a) 150 

Limitation on ----...---.---...-- --- -- -- .....------.......-.......-.---.-..--..-..... 88e (1) 149 

Of death, not authorized, Art. 71d .--.-.-----..- -.------------.-.---.-...--------- -- 88e (1) 149 

Officer exercising gencml court-martial jurisdiction; action on sentence involving bad 

conduct discharge adjudged by special court-mwtial.--.----- --- --. -. ------..----- 84d 140 

Power of, who may exercise initially, Art. 71d ------.--..-..-----------..-.-...---..- 88e (1) 149 

Purpose of; in general .-..------.-----------.-----------.----.---.--.-88e (1) 149 

Subsequent to time ordered executed, who may exercise, Art. 74 ..-_-...-- App. 2a.. ----..-- 438 

Vacation ofAppellate review required before, effective whcn .......------..------ ...-.---.-- 97b 165 

Procedure, Art. 72 .............................................................. 97b 165 

Who may order, Art. 72 .-..-.-------.-.----..----------........-.-.---.--.97b 165 

Vacation of summary court-martial and certain special court-martial sentences 

without hearing .---..---...----------------------.---------.-97b 166 

When initially approved by President; limitation, Art. 74 .........-....-. App. 2a-. .-.-.--- 438 

Suspension, proceedings to vacate; form, content -----...-.-.------------------ App 16-. --.----- 554 

Swearing court, etc., in presence of several accused ........-.-, App. 8a.. ----..-. 605 
INDEX 

Swearing. false: Par . Discussion. proof. Art . 134 .......................................................... 213 

Speciflcation, form for, Art . 134 ...................................... App . 6c (139) .......... 

Table of Commonly Included Offenses ....................................... App . 12 .......... Table of Equivalent Punishments; relative values .................................. 127c 

Table of Maxin~um Punishments ....................................................... 127c 

Tattooing as punishment, prohibited, Art . 55 ........................................... 126 

Telegrams: 

See also Documentary evidence . Not privileged; subject to usual process ............................................. 151c (1) 

Presumption as to delivery of .................................................... 138a 

Proof of genuineness ................................................................ 143b (1) 

Television . See Radio . Temporary custody, report to the Judge Advocate General in case of change of ......... QG 

Term of service: 

Extended for purpose of trial bTcourts.martia1, when .............. l ................ 11 

Termination of, as affecting courts-martial jurisdiction .............................. 11 

Termination of trial; former jeopardy, when ............................................ 68d 

Testimonial knowledge, defined and explained .......................................... 138d 

Testimony: 

See also Witnesses . Depositions . See Depositions . False . See False swearing; Perjury . Improper; duty of court ............................................................ 54c 

Refusal to give before wurt.martia1, etc . See Refusing to testify, etc . Self.incrimination . See SeIGincrimination . Special court-martial; complete record of required if bad wnduct discharge adjudged.- 15b 

Through interpreter ................................................................ 53, 141 

The Judge Advocate General; definition, Art . 1 ................................ App . 2a.. ........ 

Threat: 

Communicating, without specific intent; specification, form for, Art . 134 

App . 6c (171) .......... In extortion .......................................................................... 206 

Tkeatening or insulting language to warrant, noncommissioned, or petty officer: 

Discussion, proof, Art . 91 ........................................................... 170d 

Specifleation, form for, Art . 91 ......................................... A . 6c (27) .......... 

Time: 

Allegations of, in specacations ........................................ .App . 6a (7).. ........ 

Computation of number of days in absence without leave ........................... 127c 

Judicial notice of divisions oL ....................................................... 147 a 

Time lost, soldier to make good, Sec . G (note) ................................. A . 26.. ........ Title 18, U . S . C., "Crimes and Criminal Procedure"; crimes and offenses of unlimited or 

local application under Art . 134 ....................................................*.. 213c 

Training, types devised as punitive measures,forbidden, prior topromulgationolsentence~ 125 

Transfer of accused does not direst convening authority of right to take action on record.. 84a 

Traveling expenses of witnesses . See Witnesses . Treaties; judicial notice of ............................................................... 147a 

Trial: 

See also specific subject titles such as Courts-martial; Former trial; TITitnesses; etc . Fundamental right to prepare for; e9ect.oi unreasonable denial ..................... 68d 

Law officer; undue interference in, improper ........................................ 396 (2) 

President of court sets time of ...................................................... 406 (1) 

Result of to be reported ............................................................. 44e (2) 

Trial counselTo bring cases promptly to .................................................... 44d 

To have time to prepme for ................. L ................................... 44d 

Trial by court-martial: 

Procedure lor demand for, when disciplinary punishment proposed ................. 133a 

Right to demand, where disciplinary punishment proposed under Art . 15.------.--- 132 

Trial counsel: 

Action upon receipt of depositions .................................................. 1171 

Announces legal quali6cations of members of prosecution- .......................... 61e 

Announces whether accused has requested enlisted embers ....................... 619 

Appointment, qua!ifieations, Art . 27 ................................................ Q c 

Assistant . See Assistant trial wmsel . 

Page 

386,387 

491 
INDEX 

Trial counsel-Continued 

Attendance of wit.nesses- Par . Page 

General powers and duties concerning Art . 16 ................................... 115a, b 188, 189 

Subpoena, issue, service, return .........................-...................... . 115d (1) 189 

Warrant of attachment; duties enumerated ...................................... 115d (3) 191 

Certiicate byFor correction of omissions or erroneous statement in record of trial by special 

court ......................................................................... 86c 143 

Of service of charges ................................................... A . 5 ...... 467 

Certifying description or extract mpy of exhibit, duty. ............................. 51d 76 

Challenges by . See Challenge . Clerks and orderlies may be detailed to assist ...................................... 51 72 

Comments by, with respect toAccused as witness failing to explain incriminatiig facts, proper ........,........ 726 111 

Accused not taking stand, improper ............................................ 7 111 

Correction ofrecordby ............................................................. 82e 135 

Court may direct to procure additional evidence . xvitnesses ......................... 646 76 

DepositionsSee also Depositions . Duties, in general ............................................................... 117 192 

, Disqualified by prior participation in same case as investigating officer, member, law 

officer, counsel for accused, Art . 27a ............................................... Ba, 61c 9, 86 

Duties during trialSee also throughout this title . Accounting for personnel after adjournment, recess, or closing of wurt.. ........ 61c 85 

App . 8a .......... 515 

Announces appointing order and names of personnel ........................ 61c 85 

Discloses grounds for challenge of members- .................................... 626 89 

Disclosure of facts constituting grounds of disqualitlcation, Art . 27 .............. 61e 86 

A . a .. 506 

Establishing reason for member's absence ....................................... 41d (4) 59 

In general, Art . 38 .............................................................. 448 64 

Maximum authorized punishment, advising eourt of ............................ 76b (1) 123 

On motion for findings of not guilty ............................................. 71a 109 

Opening statement; when made, contents ....................................... 44g (2) 64 

Opinion on point of law, when proper .......................................... 449 (1) 64 

Personal belief as to guilt or innocence, expression of, prohibited ................ 44g (1) 64 

Rebuttal of matter in extenuation or mitigation ................................ 76d 121 

Service of charges on accused, form for ................................. App . 5 .......... 467 

Duties prior to trialSee ahvo throughout this title . Communicates with convening authority, when necessary ...................... 44f (5) 63 

Correction of errors in charges, data as to serviee, previous convictions, etc ....... 44f(l) 62 

Irregularities in pretrial investigation; action ................................... 44f(5) 63, 64 

Notice of meetings of court to all concerned .................................... 44j(2), 59 62, 84 

Preparation of copies of charges for use in court ................................. 44f (3) 63 

Prepares to meet burden of proof, explained and discussed ...................... 44f(3) 63 . Report on newly discovered matters making hial inadvisable ................... 44f (5) 63 ; 

secures room for court, stationery, etc ............................................ W(3) 63 

Duties respecting chargosFailure to serve as required, as ground for continuance .......................... Mle 82 

Service on accused, defense counsel informed, Art . 35 ........................... 44h 65 

Duties respecting record of trialDisposition after trial ........................................................... 829 (2) 136 

Furnishes copy to each accused after authentication ............................ 44h 66 

Loss or destruction ............................................................. 82h 136 

Responsible for preparation ..................................................... 82a 133 

Excused from attendance by court .................................................. 44c 61 

Expert witness, request for employment o L ......................................... 116 192 

Freedom in conducting case ........................................................ 44d 61 

General rules of conduct ............................................................ 4% 60 

Instructions to court; may be requested to submit additional ..................... .. 73c (2) 113 

Investigation of charges by, prohibited .............................................. 34a 44 

Legally qualified counsel must be present in open sessions of general courts-martial- 45a 66 

May challenge law officer and members lor cause ................................... 62a 89 

Not available to act as individual counsel lor accused ............................... 48b 68 
INDEX 

Trial counsel-Continued Par . Notifies accused's commander concerning result of trial- ............................ 77c 

Oath of, form ....................................................................... 114 

App . 85. ......... Oaths administered by; general authority . Art . 1366 ................................ 113 

RebearingPapers referred with charges on ................................................ 92 

Pcrmits defense to exnmine papers . unless otherwise directed .................. 44h 

Relation with accused and his counselAdvises defense of probable witnesses ........................................... 44h 

Allows defense to examine papers accompanying charges, orders, etc., unless 

otherwise directed .............................................................. 44h 

Deals with accused through counsel ............................................. 44h 

No authority as to security or restraint of accused ............................... 214 60 

Secures defense witnesses; refers any question to appointing authority or court .. 115a 

Relief for bias, etc .. report thereon .................................................... 446 

Report to convening authorityDelay in ha1 disposition of cases on hand ....................................... 44e (1) 

Discovery of matter making trial inadvisable; procedure ......................... 441 (5) 

Granting of motion to sever, delay of trial because of ............................ 69d 

Irregularities in orders, charges, or accompanying papers ........................ 44f (1) 

Own disqualification ............................................................ 446 

Reduction of membership of court ........................................... 441 (1) 

Result of trial ................................................................... 44e (2) 

Revision proceedings, present at; duties ............................................. 80 

Stipulations . See Stipulations . Supervises assistant trial counsel L.................................................. 45 

Term as includingAssistant trial counsel ........................................................... 42a 

Summary courtAs respects depositions ...................................................... 117a 

With respect to securing attendance of witnesses ............................ 1150 

Trial procedure ............................................................... App . 8a .......... 

Twice in jeopardy . See Former jeopardy . Unavailability of enlisted persons as members of courts-martial; procedure, records and 

review ................................................................................. 4e 

Unclean accouterment, arms, etc .. specification, form for, Art . 134. .. bpp . (ic (172) .......... 

Under Secretary; powers to remit, suspend, unexecuted portions of court-martial sentences when designated by Secretary, Art . 74a ........................................ 97a 

Uniform: 

Improper or unclean; specification, form for, Art . 134 ............ App . 6c (173) .......... 

Notice of; to members of court-martial .............................................. 441 (2) 

. Other than prescribed for unsentenced prisoners shall not be required prior to promulgation of sentenoe ............................................................. 125 

President of court to prescribe for members ......................................... 4Oh (1) 

Unit: 

Departmental definitions of, Art . 25c(2) ............................................. 4a 

Detached; defined .................................................................. 56 

Enlisted members of accused's, ineligible as members of court.martial, Art . 25c ...... 4a 

Separate; de6ned ................................................................... % 

United States attorney: 

Prosecution of recalcitrant courts-martial witnesses, Art . 47c ............. App . 2a .......... 

Report made to, in habeas corpus proceeding .. ...........?......................... 215, 217 

United States Code . See Title 18, U . S . C., "Crimes and Crilhinal Procedure." 

United States Constitution ................................................... App . 1.. ........ 

United States district courts: 

See also Federal court . Removal of suits against military pprsons from State courts to, Sec . 9 ...... .4pp . % .......... Unitad States Soldiers' Home, dispusal of effects of deceeseu inmates, Sec . 6 .. Ap p. 2b .......... 

Unit personnel diary: 

Absence without leaw; usunl proof by .............................................. 164a 

An official record .................................................................. 144b, d 

Unjust enrichment of mi!itary personnel; when punishsble by fine, Sec . B .............. 127c 

Unjust or disproportionate punishment; accused may appeal irom under Art . 15 ......... 134 

Unlawful apprehension: 

Discussion, proof, Art . 97 .......................................................... 176 

Specification . form for . Art . 87 ....................................... App . 6c (40j.. ........ 

659 

Page 

125 

185 

505 

185 
INDEX 

Par. Page 

Unlawful cohabitation; wife may testify against husband in cases of .-...-._.-.-.---.---- 148e 277 

Unlawful detention of another: 

Discussion, proof, Art. 97 ---- .. ..-----..-.------------ -------. ------... 2 .....--.-.. 176 330,331 

Specification, form for, Art. 97 ...----...-..--.-----.-.--..--..------.- App. 6c (40).. ....-.-- 477 

Unlawful enlistment, appointment, or separation;effecting: 

Discr~ssion, proof, Art. 84 ...-...-.....-----...------------.-..---------------163 310 

Specification, form for, Art. 84-. .-----..-.. .---------------.-...------ A 6c (8)-- -------- 473 

Unlawful entry; specillcation, form for, Art. 134 ...---.... -..-.--------.-- App. 6c (l74)-- -.-.-.-- 494 

Unlawfr~l ~uence or coercion, use oI; effect on statement, confession, admission, Art. 31.- 140a 249 

Unlawfully influencing action of court or members, etc., prohibited, Arts. 3'7, 98..-.--..- 38 53 

Unnecessary delay in disposing of case. See Delay. 

Unsworn statements, explanation of accused's rights .---.-.--------- ---------. App. 8a.- -----.-- 520 * 

Using contemptuous or disrespectful words against President, etc. SEC Contemptuous 

words against President, Congress, etc. 

Using, etc., forged signature. See False claims against the United States. 

Using threatening language, etc., toward.tarrant, noncommissioned, or petty officer. See 

Disrespect toward warrant officer, etc. 

Usury; specification; form for, Art. 134 ----.-.-----.---------------------- App. 6c (150) -------- 492 

Vacating sentence on application for new trial; who authorized, Sec. 12..-------- App. 2b llOa 180 

Vacation of suspension: 

Limitations, procedure, power to effect, Art. 72 ...-.-.-...--.--.------.--....--..---- 97b 166 

Not effective until appellate review completed, Arts. 71c, 7% ..--_.-.-.---.-......--- 976 166 

Proceedings, form, content ..--.-.----..------------..-------...---------- App. 16.- _-....-. 554 

Value: 

Aggregating to determine maximum punishment, when forbidden.. . -------....---- 127c 215 . ., Alleged in specifications, how -...----.-...-.----...---------..------ App. 6a (Il).. --..---- 471 

Government issue property; how determined and established ..-...-......---------- 200a 361 

Stolen property; how determined and established ---. ....-------------.-.-.----.-. ma 361 

Vehicle. See Drunken or reckless driving. 

Venue; military jurisdiction not generally teritorial; exceptions .....-.-.---------------- 8 14 

Veracity of witness, grounds of impeachment for lack of .....-.-...---_._-...--.--------- 163b 291 

Verbatim record of trial -..--.-.----.-.---.---.-.-----------.-------------.-A. 9a-. -.....-_ 534 

Verdict. See Findings. 

Vessel, hazarding; specification, form for, Art. 110 ....---..-.----...---- App. 6e (70-72).- ---.--.- 481,482 

Vessel; persons embarked in or attached to, may be corned or placed on bread and water 

under Art. 15 .~-......~....~~..~~~-~~-~~----

131b 232 

Vice President of the United States; contempt toward. See Contemptuous words against 

President, Congress, etc. 

Victim, of offense; description in specification -.---.-.-.--.---------.--.-. App. 6a (lo).. -.-..--. 471 

Views and inspections by the court ...-.-----.--..----------.--.--------------.54e 77 

Violating parole. See Parole. 

Violating standing orders; offense under Art. 92, not under Art. QO ........-.--...-.----- 169b 321 

Violation of general order or regulation: 

Discussion, proof, Art. 92 ..-.-.---.-..--------------.-.------.---.--.-.---

l7la 323,324 

Specification, form for, Art. 92 ........................................ .App. 6c (28).- --..---- 476 

Violence: 

Assault. See Assanlt. 

Offering to superior officerDiscion proof Art. 90 -- 169a 320,321 

Specification, form for, Art. 90 ...-..----.....-.--.-.-....-.------. App. 6c (23.. --....-. 475 

Threatening, etc., language to warrant, noncommissioned, or petty officerDiscussion, proof, Art. Q1 ---.------.-.....----------.--------...--------

170b 323 

Specification, form for, Art. 91 --..-..---.-----.---.-------------. App. 6c (27).. .--...-. 475 

Voice, identification by; requiring person to utter words -----.-----....----...-...-.-.-. 150b 284 

Volunteers, rank and precedence among, regulars, militia, Sec. 6. ..-...-. . . . ---. App. 2h.. . . - -..- 454 

Voting: 

Challenge-- 

Counting and checking votes, announcement of result, Art. 51 ----...-----.----. 62h (3) 94 

Discussion permitted, rank not to control ..-......-...--...--.-.-------.-------. 62h (3) 94 

Law officer and challenged member excluded.. ...-.-....... .. ..f.. ..--..-.--.- 62h (3) 94 

Secret written ballot, Art. 61 --.-..-.-.-.-..-..-------------.-....--------.62h (3) 94 

Closed sessions on flndings and sentence, Art. 39.-. .....-...-.-...dindindin.....dindindindindindindindin. din 53d 74 

Closed sessions on interlocutory questions, including challenges; exceptions.. . .--.-. 63d 74 

Contempts --------.-----.---.---------------------.-------.---1186 197 
INDEX 

Voting-Continued 

Findings.. 

Charging the court on presumption of innocence of accused before voting on. Par . Page 

Art . 6lc ....................................................................... 73b 112 

Counting and checking votes, announcement of'result .......................... 74d (2) 117 

Discussion permitted, rank not to control ....................................... 74d (1) 117 

Junior officer to count votes ..................................................... 74d (2) 117 

Law offlcer, absent during deliberation and vote upon .......................... 39b (1) 55 

Number of votes required; fractions how computed, Art . 52 ..................... 74d (3) 117 

Obligatory to vote on ........................................................... 74d (2) 117 

Only members will be present during ........................................... 74d (1) 117 

Order of voting determined by president; exception ............................. 74d (2) 117 

Procedure, guide to ................................................... App . 8a.. ........ 618 

Reconsideration before announcement, proper .................................. 74d (3) 117 

See write ballot, Art . 61 74d (2) 117 

Interlocutory questionsOral vote, beginning with junior member ........... : ........................... 57f 80 

. Ruling by law officer, objection to, Arts . 51b, 5% ................................ 67d 80 

Ruling by president, objection to, Art . 51b ...................................... 57c, e, f 70,80, 81 

Tie vote, effect of, Art . 52c ................. 1 ........ 1L .......................... 67f 80, 81 

Voting in closed session, announced in open court, Arts . 39, 51b, 52c ............. 67f 81 

Sentence-- 

Counting and checking votes, Art . 52 ............................................ 766 (2) 124 

Law officer does not vote upon .................................................. 396 (1) 55 

Mandatory; requires the prescribed number of votes, Art . 524 ................... 766 (2) 124 

Number of votes required; fractions how computed, Art . 52b .................... 76b (3) 124 

Obligatory to vote, regardless of vote on 6ndings or personal opinion ............ 766 (2) 124 

Only members will be present during, Art . 39 ................................... 766 (2) 123 

Procedure, guide to .................................................. App . 8a. ......... 521 

Secret written ballot ............................................................ 761, (2) 124 

Waiver: 

Sdmissibility of evidence, by either side; procedure, effect .......................... 154d 297 

As result of a plea ................................................ : .................. 7Oa 107 

Data 8s to service, etc., of accused ................................................... 756 (1) 119 

Depositions; failure to object to introduction or manner of taking considered as effecting, when ......................................................................... 145a 270, 271 

Distinguished from consent where latter required ................................... 154d 297 

Documentary evidence; objection to ................................................ 143a (1) 258 

. Expert witness; proof of qualification ............................................... 138e 242 

Former testimony, failure to object to on certain grounds; considered as effecting .... 145b 271 

Objection to use of privileged communications ...................................... 151a, b 284, 285 

Official records; objection to authenticity of ...................................... 143b (2) (a) 261 

Pleadings . See Pleas; Motions . Privilege against self-incrimination .................................................. 150b 283 

Publication containing evidence of foreign law; objection to ......................... 147h 276 

Reading of charges and specifications at arraignment ................................ 65a 95 

A . a . 607 

Right to demand trial by court-martial; constituted by election to accept disciplinary 

punishment ....................................................................... 132 232 

Standing mute does not effect ....................................................... 70a 108 

Wanton driving of a vehicle . See Drunken or reckless driving . War: 

. Capital crimes and offenses, in time of, enumerated .......... 1 ...................... 15a 19 

Captured property . See Captured or abandoned property . Concurrent jurisdiction of offenses against law of; of general courts.martial, military 

commissions, provost courts, and other military tribunals, Art . 21 ..... ..Ap p. 2a.. ........ 420 

Judicial notice of condition of ....................................................... 147a 273 

Law of . See Law of war . Limitations on punishment for certain violations suspended in time of. ............. IZ'C 217 

Trial by general court-martial of persons subject to law of, Art . 18 ................... 14a 17 

Warrant of attachment: 

See Witnesses . Form ..................................................................... A . 19 ......... 663 

Warmnt oBcer: 

Arrest or contlnement of ............................................................ 21a (1) 26 
INDEX 

Wanant officer-Continued Par. Page 

AssaultingDiscussion, proof, Art. 91 ....................................................... 170b 322,323 

Specillcation, form for, Art. 91 .................................... App 6c (25).- ........ 475 

Commissioned; included within definition of officer, Art. 1 ................ App. 2a.. ........ 412 

Competency to serve on courts-martial, Art. 55b- ......................... App. 2a.- ........ 421 

Disciplinary punishment under Art. 15, types nuthorized as to ...................... 131b 231 

DisobeyingDiscussion, proof, Art. 91 ....................................................... 170~. 323 

Specification, form for, Art. 91 .................................... App. 6e (26).. ........ 476 

Excepted from jurisdiction of summary courts-martial, Art. 20 ...................... 160 19 

OathsAuthority to administer ................. = ........................ A. 2 (136)-- ........ 450 

May not administer, to charges ................................................. 29e 34 

Power to quell frays, quarrels, disorders, etc ........................................ 19b 23 

Punishment. See Punishment. . Waste, committing: 

Discussion, proof, Art. 109 .......................................................... 188a 344 

~~ecification, form for, Art. 109 ........................................ A. 6 9.- .... 481 

Watch or guard duty, not imposed as punishment --.......... I ......................... 125 2116 

Weapon, assault with dangerous. See Assault. 

Wearing unauthorized insignia, medal, etc.; specification, form for, Art. 134.App. 6c (176).. ........ .995 

Weighing evidence: 

By court ............................................................................ 74a (2) 114 

On appellate review, Art. 66e ....................................................... lOOa 169 

White slave purposes, wife used for, may testify against husband ....................... 148e 277 

Wife. See Husband and wife. 

Willful disobedience of noncommissioned or petty officer: 

Discussion, proof, Art. 91 .......................................................... 170c 323 

Persistent, how charged ............................................................ 26b 29 . Speciflcation, form for, Art. 91 ........................................ A. 6 2 ........ 476 

Willful disobedience of superior oacer: 

Discussion, proof, Art. 90 ........................................................... 169b 321,322 

Persistent, how charged ............................................................. 26b 29 

Specification, form for, Art. 90 ........................................ App. 6c (24).. ........ 475 

Wiretapping, evidence obtained as result of; inadmissible, when.. ...................... 152 288 

Withdrawal of specification: 

After evidence presentedMay amount to jeopardy. ...................................................... 56b 78 

Reason for shown ............................................................... 56b 79 

Bebre arraignment; not to be brought to court's attention .......................... 56d 79 

A. a .. 507 

Before court convenes; specification to he deleted from charge sheet ................. 56d 79. 

Grounds for; effect of ............................................................... 66 78 

Withholding privileges, as non-judicial punishment, two consecutive weeks limit, Art. 15. 131b 231 

Witnesses: 

See also Evidence. 

Absene 

As ground for continuance; facts to be shown, opot tobe heard ............. 58c, f 82,83 

Depositions in me of, in general, Art. 49 ......................................... 145a 269. 

Report of, by trial counsel to convening authority ............................... 44f (6) 64 

Stipulation as to testimony of absent witness as ground for denying continuance-- 68f 83 

Accomplice. See .4ccomplice. 

Accused asSee also Accused. 

Procedure ............................................................ App. 8a.. ........ 510,611 

Accused to be confronted with, in capital cases, exception, Art. 49 ..................... 14,5a, b 269,271 

Additional, may be called by court ............................................... 54b 76 

AttachmentConsiderations poverning issue of warrant of ..................................... 115d (3) 191 

Habeas corpus on. See Habeas corpus. 

Papers to accompany warrant, enumerated ...................................... 115d (3) 191 

Payment of fees, etc., as prerequisite to, ~rt. 47 .................................. 115d (3) 191 

Use of force, how far permissible; procedure ...................................... 115d (3) 192 
INDEX 

Witnesses-Continued 

Attendance- Par . Page 

At prelrial investigation, mot be compelled if not subject to military jurisdiction ........................................................................ 34d, 115a 47, 188 

Before summary court.msrtia1, Art . 48 ....................-.-.................... 79b, 115a 126, 188 

Civilians; how secured, process to obtain, Art . 46 ........--..----........-.----- 115d (1) 189 

Military persons; how secured ................................................... 1156 189 

Neglect or refusel to appear an offense; procedure, Art . 47 .---...........-.- li5d (2) 191 

Not required if tostimony stipulated ........................................... !15a 189 

Permitted only while tostilying ............................................... 53f 74 

Availability, action byAccuser ......................................................................... 30t 34 

Commander receiving charges .................................................. 30c 34 

Investigating offieer ...............~~~~~....~~~~30e 34 

Called by court ........................................................ App . 8a.. ........ 517 

Character . See Character evidence; and this title-credibility . .. Collusion or coercion of; may be instructed to prevent ............................... 53f 74 

CompetencyChild; judged not by age but by sense and understanding ....................... 1486 277 . Friend or enemy of accuscd ..................................................... 148e 277 

Husband and wife, for or against each other .................................... 148e 277 

Mental infirmity, not generslly a disqualitlcal.ion. ............................. 148c 277 

Objection to, when made ....................................................... 1480 276 . Presumption of; general rules .................................................... 14Ra 276 

Promise of immunity from trial; effect on ....................................... 148e 278 

Contempts . S6e Contempts . Corroboration . See Corroboration . Counsel, interview by; r ........................................................ 42e 60.81 Court may disbelieve in weighing evidence ......................................... 74a (2) 114 

Court may instruct as to discussion of testimony .................................... 53f 74 

Courts of inquiryAttendance, oath, cross.examination, Art . 1351 ........................ App . %. ........ 450 

Refusal to appear or testily, Art . 47 ................................... App . 2a.. ........ 428 

Court's witness, procedure ................................................ A . a ...-.. 517 

CredibilityAdoption of inconsistent pretrial statement, effect ............................ 153b (2) (c) 292 

Contradiction by other witnesses as affecting; impeachment distinguishable ..... 163b (1) 290 

Conviction of crime ..................................................... 148d, 1536 (2) (b) 277, 291 

Deflned, factors eonsidered ...................................................... 153a 289 

Identification of accused, corroborated by evidence of pretrial identification .... 153a 290 

ImpeachmentCollusion as ground oL ..................................................... 163a 290 

Conviction 01 crime as ground of ........................................ 1538 (2) (b) 291 

Deflned and discussed generally ............................................ 153b 290 

General lack of veracity ~s ground of ..................................... 153b (2) (a) 291 

Hostile witness; procedure .................................................. 1536 (1) 290 

Inconsistent statements a.s ground of ..................................... 153b (2) (c) 292 

Prejudice, bias, etc., as ground of ........................................ 153b (2) (d) 294 

Judging of, on appellate review authorized, Art 66c .............................. lOOa 169 

Repeating statements, when and when not evidence oL ......................... 163a 288 

- Defense; action of counsel lo obtain .................................................. 48d 69 

Depositions . See Depositions . Discussion of testimony; may he instructed to refrain from .......................... 53f 74 

ExaminationAmbiguous questions ........................................................... 14% (2) 282 

By court or member ............................................................ 149b (3) 280 

Cross-examination; rules gmerally .............................................. 149b (1) 279 

Defense counsel; duties respecting ....... r ....................................... 48h 69, 70 

Qeneral rules respecting ......................................................... 149a 278 

Hostile or backward witness; leading questions permitted .................... 1492 (1) (b) 281 

Objection; reason for must be stated ............................................ 149a 279 

Protection by court from insult, etc ............................................. 54a 76 

Redirect and ~.ecrossexamination ............. i ................................. 149b (2) 280 

Refusal to answer a proper qnestion on, an offenie .............................. 149a 279 

Through interpreter, method ................................................... 506 72 

Trial counsel; duties respecting ................................................. 449 (2) 86 
INDEX 

Witnesses-Continued Par. Page 

Excluded from court when ............................................... dpp.. Bu.- ........ WO 

Excusing ................................................................ dpp. ga-- ........ 511 

Expert. See Expert witnesses. 

Fees and mileageMilitary personnel not on active duty- ......................................... 11% 188 

Not prejudiced by voluntary attendance ........................................ 115d (1) IQO 

Officer sewing subpoena may pay and bf reimbursed ........................... 115d (2) 191 

Payment tendered as condition precedent to prosecution for refusal to sppeas, etc.. 

Art. 47 ........................................................................ 115d (2) 191 

Rates authorized, Art. 47. ................................................. 1I5d (2); 117d 191,lgs 

For defenseAttendance secured by trial counsel, Art. 46 .................................... 115a lgg 

Listed on charge sheet ................................................ App. 5-. ........ 465 

Reference to court or convening authority of question of necessity ofpresenoe.-.. .. 1150 1% 

Formal questions addressed to ...... 1.. .................................. Bpp. 8a.- ........ 510 

Former trial, testimony at, when admissible ........................................ 14% 271 

Form of oath ....................................................................... 114 185 

 or prosecutionDefense witness testifying adversely to defense is not ........................... 63 9f 

Determination of necessity of presence, by counsel.. ............................ 115a 1% 

Eligible as summary murt il only officer present, Art. 24 ............. bpp. 20.- ........ 421 

Ineligible as members of general or special courts, Art. 2.M. ..................... 4a 2 

Member of court or law officer emused when called as.. ........................ 63 94 

Member of court to be called, should advise convening authority ............... 41c 68 

Habeas corpus. See Babeas corpus. 

Husband and wife. See Husband and wife. 

Impeachment. See this title-Credibility. 

Inquests; attendance; oath; Sec. 6 ....................................... App, 26.. ........ 453,454 

Interview by counsel before trial .................................................... 42e 60 

Investigation of chargeOath and signature to statement ordinarily required of witness-. ............... 34d 47 ' 

Presence at, how obtaiued; no provision for compelling or paying cirilia ns....-- 346 47 

When attendance not required .................................................. 34d 41 

Law officer to conduct examination of ..-.--......................................... &a 75 . 

Leading questions. See Leading questions. 

Limitation by court of number called by either side ................................. 137 238 

OathFailure to remind of, on recall, not fatal defect. ................................. 1490 218 

Form of, during trial ............................................................ 114 185 

A. a -- 51D 

Privileged communications. See Privileged communications. 

Prosecution witnesses; defense to be advised of prior lo trial ........................ 4h 65 

Questions by court, procedure ........................................... App. 80.. ........ 511 

Rank of, without e6ect on rules of evidence ......................................... 14% (1) 210 

Recalcitrant. See this title-Attachment. 

RecallCourt may direct ..... ........................................................ . 54b 76 

Permitted, including accused, at any stage of proceeding ........................ 14Ba 278,279 

Refusal to testify before court-martial, etc.; sgeciflcation, form for, Art. 134 .......... 

Bpp. 6c 1164).- .------- 494 

Self-incrimination. See Sell-incrimination. 

Service of processAt least 24 hours' notice given. ................................................. 115d (1) 190 

FormalManner, travel orders, by v.-hom made. .................................... 115d (1) 190 

Return to trinl counsel in penalty envelope- ........................... 115d (I), 117c 180,184 

Informal; by mail, request for acceptance of service ............................. 115d (I) 1643 

Subpoena duces tecum; description of documents required ...................... 115d (1) 190 

Subpoena; preparation, sig:~rrture, issuance, form ............................... 115d (1) 180 

App. 17-. ...-.... 559 

Stipulation as to testimony which would be given if present; effect oL .............. 154b (2) 286 

TestimonyDiscussion of, improper; instructions-. ......................................... 63f 74 

May continue although guilty of contempt ..................................... 118b 199 

Warning to .............................................................. App. 8a.- ........ 511 

Warrant of attachment. See also this title--Attachment. 

664 
INDEX 

Words and phrases. Sec DeMtiom. Par. Page 

Writings. See Documentary evidence. 

Written order or instrument; violation of; how charged ....-..--.----------------------- 28e 31 

Wrong; ability to distinguish from right, ss test of sanity ----....-..--------------------- 120b 200 

Wrongful appropriation: 

Discussion, proof,Art. 121 ...-..-..------.----------.--.--------------------

200b 362 

Specification, form for, Art. 121 .--_-....-..-.-.---.--.--.------------ App. 6c (go).- ----..-- 484 

Wrongs: 

Complaint of, to commanding officer, Art. 138 .....-.------..-eeeeeeeeeeeeeeee.eeeeee App. 2a.. -.--..-- 451 

Redress of. See C~mplaint of wrongs, etc. 
UNITED STATES ARMY 

1959 CUMULATIVE POCKET PART 

TO THE 

MANUAL FOR COURTS-MARTIAL 

UNITED STATES 

Bupersedes Uwited States Army 1956 Cumulative Pocket Part, 

91 December 1956 

EXPLANATION , 

This cumulative Pocket Part contains the following materials which affect the 

administration of justice under the Uniform Code of Military Justice and the 

Manual for Courts-Martial, United States, 1951 : 

1. Executive Orders. 

2. References to Army Regulations. 

3. Brief statements of law based upon selected opinions and decisions rendered 

prior to 1 June 1959 by the following : 

a. The Judge Advocate General, U.S. Army ; 

b. The United States Court of Military Appeals ; 

c. Boards of review constituted in the Offices of The Judge Advocates General 

of the Army, Na-ry, and Air Force, and the Department of the Treasury; 

d. Federal civilian courts. 

4. References to Department of Defense forms and Department of the Army 

bulletins, technical manuals, and pamphlets which implement the Code and the 

Manual. 

All material is keyed to paragraphs or appendices of the Manual. For convenience, a table of regulations and other data by numbers, a table of opinions 

of The Judge Adsocate General by date, and a table of decisions by name are 

included. 
HEADQUARTERS, 

DEPARTMENT OF THE ARMY 

WASHINGTON 25, D.C., 8 March 1960 

The United States Army 1959 Cumulative Pocket Part to the Manual for 

Courts-Martial, United States, 1951, is published for the information and 

guidance of all concerned, 

By Order of Wilber M. Brucker, Secretary of the Army: 

L. L. LEMNITZER, 

General, United States Army, 

Official : Chief of Staff. 

R. V. LEYE, 

Major General, United States Amu, 

The Adjutant General. 

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NG: State AG (2) ; Div (2) ; Regt/Gp/Bg (1) ; Sep Bn (1). 

UEAR: Div (2) ; Regt/Gp/Bg (1) ; JAG Det (25). 

For explanation of abbreviations used, see AR 320-50. 
TABLE OF CONSTITUTIONAL AMENDMENTS, EXECUTIVE ORDERS, 

REGULATIONS, RULES OF PRACTICE AND PROCEDURE, BULLETINS, PAMPHLETS, FORMS, AND MANUALS 

Constitutional 

Amendments 

22 ---.--.---...-.. 

10247-.----.-.---- 

10428------.----.. 

10565 -------.----. 

10628.----..------ 

10652--.--.------- 

Regulations 

22-10 -- 

212 -- - 

22-30 -- 22-45 -- 25 

2136 . 

22-15 -- 

160 

275 

316 

37-104- 

37-106- 

40-2 -------------- 443-3 -------------. 

0 -- - -- - 

1 -- 

1 -- 

21GlO ------------ 210-181 -.---...-.- 

Title 

Presidential Term in Office ...---------.-------------------.-- 

Reference 

App. 1 

L 

Executive I Title . 

Orders 

Suspending Limitations Upon Punishments for Violations of 

Certain Articles ofthe UCMJ. 

Delegating Authority to Secretary of Defense to Empower 

Certain Commanders to Convene General Courts-Martial. 

Amendment of Paragraphs 76a and 127c of the Manual for 

Courts-Martial, United States, 1951. 

Restoring Limitations Upon Punishments for Violations of 

Certain Articles of theUCMJ. 

Amendment of Paragraph 126e of the Manual for Courts-Martial, United States, 1951. 

Title 

Military Justice: 

Transmittal and referral of charges and publication of 

court-martial appointing and promulgating order. 

Disciplinary proceedings subsequent to exercise of jurisdiction by civil authorities. 

Courts of inquiry -.-----------------------------------

Report of summary and special court-martial cases ...-..- 

Trial by court-martial of members of the merchant marine. 

Suspension of counsel of courts-martial.. - - --- -----.------. 

Reporters and supervisory review of records of summary 

and special courts-martial. 

Investigation and prosecution of crimes over which the 

Department of Defense and the Department of Justice 

have concurrent jurisdiction. 

Litigation: 

General Provisions- -.----------------------------

Clothing and Textile Material: 

Clsssification and inspection 

Financial Administration: 

Finance and accounting for installations; pay and allowances of military personnel. 

Finance and accounting for installations; travel and transportation allowances. 

Medical Service: 

Medical Corps ........................................... Dental Corps ............................................. Individual medical records. - . -------. -.------------------ Religious Activities: 

Functions of chaplains, commanders' responsibilities, and 

reports. 

Military Police: 

Preparation of reports and records -..--..----.------------ Installations: 

Administration ----------------------------

Stockades and hospital prisoner wards .--.-------.-.------ 

1 

Reference 

127c 

13 

76a, 127c (Sec. A), 

127c (Sec. B) 

127c 

126e 

Reference 

366, Bod, 97e, App. 15a, b 

68d 

2 

85a, 94b 

9 

43 

7, 15, 33k, 83e, gla, 940 

12,32 

215,217 

200a 

23,126h, 144b, 162 

119 

4a 

4a 

1446 

4a 

31,144b 

144b 

144b 
TABLE OF CONSTITUTIONAL AMENDMENTS-Continued - -- 

Regulations 

21181. 

31110A 

33660 ------------ 

345260---.------- 

3560. 

5 - 

600-10 -----------. 

600-15 ------------ 600-20 ------------ 60+31---.-------. 

6201 -- 

600-320 --------.-. 

605-176-lo-------- 

61&95------------ 

624-200 ----------- 

65 -- 

630-10 ------------ 

632-380------.---- 

3 - 

633-10 .----------- 

633-20----------- - 63330 - 

633-45-.--.------- 

635-204 ---------.- 635-206 -..----.--- 

64&201.---------- 

DA Bulletins 

9-1951 ---....----. 

&1955----.---.-.. 

11-1958-.----.---- 

Trtle 

Installations-Continued 

Administrative procedures for United States disciplinary 

barracks. 

Military Publications: 

Orders, bulletins, circulars, and memorandums issued 

from headquarters of field commands. 

Reports : 

Morning report ----------.-----------------

Records: 

Records administratton; maintenance and disposition of 

legal and informational services files. 

Education and Training: 

Army extension courses -. ................................ Military Security: 

Safeguarding defense informatron -------------- ---------rmPersonnel-General: 

Mditary discipline ....................................... Rank and precedence --..--.-----------------------

Command ................................................ Control procedures for military personnel innationdsecurity cases and other lnvestlgations or proceedings. 

Noncommissioned oficers and speclalists .-.-.------------ 

Apprehension and restraint --.-- ----.-- ----------- - - - - --. 

officers: 

Certification for duty as law officer, trial counsel, and defense counsel of general court-martial. 

Interdepartmental Personnel Actions: 

Disposition of personnel followmg action by courts-martialPromotions, Demotions, and Reductlous: 

Appointment and reduction of enlisted personnel ------... 

Women's Army Corps: 

General Provisions .-.---.-----------------------

Personnel Absences: 

Absence without leave and desertion -..------------..---- Standards of Conduct: 

Petty offenses committed by civilians on Federal reservations. 

Apprehension and Confinement: 

Prisoners, general provrsions ---~~-..---~~---~--.-.--

Mitigation, remission, and suspension of sentences ----.--- Parole of prisoners from United S tates disciplinary barracks. 

Military sentences to conBnement .----.-----------------

Detention of female persons subject to the Uniform Code 

of Mllitary Justice. 

Personnel Separations: 

Dishonorable and bad conduct discharge-- - -----.-------- Discharge, misconduct (fraudulent entry, AWOL. desertion, conviction by civil court). 

Personnel Records: 

Service records- - - ------.------.----------------

Title 

Uniform Rules of Procedure for Proceedmgs in and Before 

Boards of Review. 

Addendum to Uniform Rules of Procedure for Proceedings in 

and BeforeBoards of Review. 

Chsnges to Uniform Rules of Procedure for Proceedings in and 

Before Boards of Review. 

Reference 

68g 

App. l5o 

4a, 144b 

9la, 94b 

1446 

8% 

212, 21% 

168,169a, b 

5a 

33e, 34a, 96 

4c, 16a, 12%a, 131b 

17 

4e, 6b 

89c, 96 

1316,135b 

4a, 34a 

30,144b. 164a. 165 

9 

Ma, 89c, 93,97d 

97a, 105b 

85b 

93,97c 

17,8Bc, 126j 

1276 

164a 

144b 

Reference 

48j, lOOd 

48j, 100d 

48j, lOOd 
3 

TABLE OF CONSTITUTIONAL AMENDMENTS-Continued 

DD Forms I Title I Reference 

DA Pamphlets I Title I ~eference 

453 .--.-.-----.--- 

454 .-------------- 

455 -----------.--- 

456 .--.-..---.---- 

457 --.--.-.-.--.-- 

458 ------..-..--.- 

490 ---..------.-.- 

491 

493 --.-.------..-- 

494 -.--------.--.- 

789 ---..-.----.-.- 

27-9 -------------- ( Military Justice Bandbook-The Law Oficer -............... I73a. b, c, 74b 

Subpoena for Civilian Witness --------.--------------------

Warrant of Attachment ...---------------------- ------------ Report of Proceedings To Vacate Suspension .---------------- 

Interrogatories and Depositions ....--.------------------------ Investigating Officer's Report ...----.-.---eseseseseseseseseseseseseseseseseseses 

Charge Sheet --...-.--.-.-.------.---------------------

Verbatim Record of Trial ---.--.------.-------------------

Summarized Record of Trial by SPCM --.------------------- 

Extract of Military Records of Previous Convictions --.-.-.---- Court-Martial Data Sheet.. .-.-.------.---------------------

Unit Punishment Record --------.--.. ........................ 

App. 17 

App. 19 

App. 16 

App. 18 

App. 7 

App. 5, App. 11 

App. 9e 

App. IOU, b 

App. 8a 

85a, App. Qe, App.lOb 

App. 3 

Technical 

Manuals 

8-240 --.-------.-- 

110-5 ------------- 1 Joint Action; Armed Forces.. .----------------------------1 128a 

Field 

Manuals 

TABLE OF OPINIONS 

Title 

Psychiatry in Military Law -.-...---...---------------------- 

Reference . 

121 

Title Reference 

13 Jul51, Msg, DA 23692 --..-------------------------------------

31 Ju151, Ltr, JAQJ CM 347167 ----------.-.----- ................................ Aug 51, Msg, JAQV CM 347443 .------.--.--.--------------------------

2-. 

28 Aug 61, Msg, JAGN CM 346731 -_--.-----------------.---------

31 Aug 51, Msg, JAQN CM 347754 -------_---_-----.-------------

6 Sep 51, Ltr, SpCM 3535. --------.--.----.-.-.--------------------

21 Sep 61, Ltr, JAQJ DM 347176 .-.-.-----------------------------------

9 Oct 51, Msg, JAQU CM 3483i9 .-.-,-----------------------------.-----

18 Oct 51, Ltr, JAQJ ---,--..--.---------------.-.---------------

13 Nov 51, Ltr, JAQM CM 347981 ..--------.---------.------------------

29 Nov 61, Ltr, JAQV CM 348570 --.----------------------------------

30 Nov 51, Ltr, JAQQ CM 348295 -.-..----_---------------------------

Dec 51, Ltr, JAQJ CM 349043 .-.-,---,-----.-------.--------------------

Dec 51, Ltr, JAGJ CM 349534 .-----------------------------------------

4 Dec 51, Msg, JAGN CM 349056 .----------------------------------------

13 Dec 51, Msg, JAGQ SpCM 4214 ..-.--------.-----------------------

18 Dec 51, Ltr, JAQM 348115 -..-------------------------------------

1952, Ltr, JAQJ CM 349972 -.---------------------------------------- 

1952, Lt A CM 350140 - 

1952, Ltr, JAQJ CM 347742 ---.----.-.-----------7-.------.----------------.-- 

Jan 52, Ltr, JAQJ CM 348509 ..----.------~-~-~-~--~~.~~

4 Jan 62, Ltr, JAGM CM 347482-. --------------:-.-.------------ ------ 23 Jan 62, Ltr, JAQV OM 350154 ----.-------l---------.-.---.--------- 

1 Feb 52, Ltr, JAQJ CM 350452 .~.------.--~---.--------.-----.-

5 Feb 62, Ltr, TAQJ 1957/1014 ----~~--------~~--------

Reference 

85d, App. 9e 

89c 

App. 15a 

9Oa 

App. 15a 

lOOc 

App. 15a 

34.5 

127c 

49b 

34e 

821 

86d 

36b, 37c 

35c 

App. 9e 

49b 

38 

APP. 15a 

App. l5b 

App. 15b 

97a 

48i, APP. 9e 

5Gb 

70a 
TABLE OF ~PINIONS-CO~~~~U~~ 

8 Feb 52, Ltr, JAQJ ----- ---- ------ --- ............................................ 12 Feb 52, Ltr, JAQJ OM 347815----- ------.----------------------

1 ---- 14 Feb 52, Ltr, JAQJ ...--.- -.-- I:--- -------------------------------

23 Feb 52, Ltr, JAQJ SpCM 4375---- ----.--.-----------------------

3 Mar 52, Lr A PC 4 -- 5 Mar 5 LA OM 3516 -- - -- 5 Mar 52, Ltr, JAQJ CM 351239.------ ---- - ---------------------------------

6 Mar 52, Ltr, JAQJ 19621m7-------------- ------------------------------------. 

6 Mar 52, Ltr, JAQJ 195212108---- .- -------- ................................ -- --. - 18 Mar 52, Ltr, JAQM OM 349438-.- -.--.-.-------------------------

25 Mar 52, Ltr, TAQJ 195212903 -.-- --- ....................... ---- ------- -------- -. 

26 Mar 62, Ltr, JAQQ BpCM 4780---- ..-------.-------------------

1 Apr 52, Ltr, JAGJ OM 349339-------- -..---------------------------

1 A 2 Ltr, A OM 351901 - 2 A 5 Lr A PC 4382---- ------ 4 Apr 62, Ltr, JAQJ OM 351973 ---.- ---.------------------------

May 52, Msg, JAQQ SpOM 6381 .---..--------------------------

2 May 52, Ltr, JAQJ OM 352503 ---.-----------------------------

13 May 62, Ltr, JAQJ OM 34S981.--- .......................................... 19 May 52, Ltr, JAQU OM 352.265-.- --------.----------------------

28 May 52, Ltr, JAQM ---..--.----. - -------------------------------

2 Jun 52, Ltr, JAQQ OM 353122 -..--.-.---------------------------

6 Jun 52, Msg, JAQQ OM 353617 ---.--.--------------------------

13 Jun 52, Ltr, JAQJ OM 347491----- .------------------------------

25 Jun 62, Ltr, JAGJ OM 353621 ---- - ............................................ 2 Jul52, Ltr, JAQJ 195215119-. .--- --.-----------------------------

10 Jul 52, Ltr, JAQJ OM 354438.----- 

2.2 Jul52, Ltr, JAQB .---------.- ----- 28 Jul 52, Ltr, JAQV SpCM 3636 ---- - ..---.-------------------------

7 Aug 52, Ltr, JAGJ SpOM 5288 ----.-----..-.---------------------

18 Aug 52, Ltr, JAQJ CM 353730 .--.-..----..-----------------------

18 Aug 52, Ltr, JAQJ CM 353644 ...--.-----.----------------------

21 Aug 62, Ltr, JAQJ OM 355611 .----.----------------------------

27 Aug 52, Ltr, JAQJ OM 355826----- ..---------------------------

28 Aug 52, Ltr, JAQJ OM 356832--- --.--.--.---------------------

3 Sep 52, Ltr, JAQJ 195216796 ---------.---------------------------- 11 Sep 52, Ltr, JAQJ 1952/6970 ,--.-.------------------------------

3 Oct 52, Ltr, JAQJ OM 347769 ---..-.--.----------------------

8 Oct 52, Msg, JAQM ------.---------------------------

24 Oct 52, Msg, JAQM --.-----------------------------------

5 Nov 52, Ltr, JAQJ 195218435 .----------------------------------

17 Nov 52, Msg, OM 357972 .----.----.------------------------

19 Nov 52, Ltr, JAQJ OM 358061 ..-----.---.----------------------

28 Nov 52, Ltr, JAQJ 196219113 .-.--------------------------------

I 5 M JAM -- - -- 2 Dec 52, Ltr, JAQJ 196217830 ..------------.-.-.-.---------------

4 Dee 52, Ltr, JAQN OM 357449 .-----.---------------------------

4 Dee 52, Ltr, JAQJ OM 368482 -.-------.------------- -.--.-----.-----.--------

5 Dee 52, Ltr, JAGJ OM 367044 ---.--.-.-------------------------

10 Dec 52, Ltr, JAQJ OM 358662 ..--..-.---------------------------

5 Jan 53, Ltr, JAQU OM 358780 .-----.----------------------------

7 Jan 53, Ltr, JAQJ OM 351645 -...--..-----------------------------

14 Jan 63, Ltr, JAQJ OM 359617 .-.---....---------------------------

16 Jan 53, Ltr, JAQJ CM 352366 --..-----.---------------------------

26 Jan 53, Ltr, JAQJ OM 359618 .----..--.-------------------------

26 Feb 53, Ltr, JAQN OM 360202 -.-..-...-; ......................... 4 Mar 63, Ltr, JAQJ 195312104 .---.-....---------------------------

12 Mar 63, Msg, OM 361348 .----......-----------------------------

18 Mar 53, Ltr, JAQJ 1953/1980 ..--.------------------------------

8 Apr 53, Ltr, JAGM OM 863869 -.--.------------------------------

17 Apr 53, Ltr, JAQJ 195312726 --.-.--..-------.-------------------

Reference 

~pp. 96, App. l6b 

App. 15c 

82d 

App. 15e 

85b 

30 

EM, ma 

89b, 97a. App. 15c 

89b, 135b 

App. l5c 

128a 

90a 

App. l5c 

App. 14c 

App. 15b 

App. 15a 

62e 

85c 

App. 15b 

6a 

94a, App. 15d 

97b 

App. 15a 

App. 15c 

89c, App. 14c 

826, 89b, SOa 

61 

102 

App. 16b 

lOOc 

lOOc 

lOOc 

126h 

App. 13 

App. l5a 

94a 

4c,36c, 41d, 610 

97b 

App. 9e 

lOOc 

13 

46c 

89c 

126d 

lac, App. 16b 

171a 

117g 

95, App. 14c 

lOOc 

App. 16a 

93 

App. 16b 

App. Be 

App. 16b 

49b, App. 9a 

124 

170c I 

86a 

I%, b 

92,101 

128a 
TABLE OF OPINIONS-Continued 

I Reference 

- . 

.5 May 53, Ltr, JAQJ 195313857 ---- -.---------------------------------.. 

19-May 53, Ltr, JAQM CM 362847 .--.---....-------------------7---------------- 

3 J 5 Lt AM ------ 16 Jun 53, Msg, JAQU CM 363867 -.-.. - ....-..--._--.-.---------------------.

25 Jun 53, Ltr, JAQM Subject: "Pleas of Qullty" ----------------------------

10 Jul 53, Ltr, AQAC-C(M) 250.47, JAQJ ----.--------------- 1 111111111: --------. 

14 Aug 53, Ltr, JAQJ 185316411 --.---.--.-----------------------------

2 Nov 53, 33 Camp. Qen. 195 --.----...-.------------------------------

4 Dec 53, Ltr, JAQF CM 367761 -...-------..----------------------------: 

24 Dec 53, Ltr, JAQJ 1953/9959. -.--..-.-------_.---------------------:-- 

23 Feb 54, Ltr, JAQJ 185412037 -------.-----------------------------

9 Mar 54, Ltr, JAQJ 195412438 .--------------------.-------.-----------

23 Mar 54, Ltr, JAQJ 195412812 -----.-.------.-----.---------------------

20 Apr 54, Ltr, JAQJ 195414164.. . ---. .-..-.- r-.-..----.-.------------------ --- 9 Jun 54, Ltr, JAQJ 195414518 .----.---.----------: ----------------------------

20 Jan 55, Ltr, JAQJ 1954/1040D .----.-.----------------------------------

28 Feb 55, Ltr, JAQJ 1954/9969 ...---------------------------.-----------

18 May 55, Ltr, JAQA 195514369 .--.--.-----------.----.-.-.-------------

4 Aug 55, Ltr,TJAQAF, AFCJA-211ACM 5-11376 (Prelim Dec) -----------.--.-- 21 Nov 55, Ltr, JAQJ 195517575.-: .----------------------.---------------

9 Jan 56, Ltr, JAQA 1956/1108 .-------------------.----------- :: ----------------- 20 Mar 56, Ltr, JAQJ 1956, 2910 ..---.--_.----------------------------

13 Jul56, Ltr, JAGA 195615649 --.------------------------.-.---. 1 11111111111111111 

10 Aug 56, Msg, DA 445130 .--.----.------------------------------------.-: 

16 Oct 56, Ltr, JAQJ 195617198 ---.-------------.----------------

1 Nov 56, Ltr, JAQJ 195617666 .---..-----------------------------------

15 Nov 56, Ltr, JAQJ 195417706-r ................................................ 17 Jan 57,36 Comp. Qen. 512 ..---.------.: -_----------------------------

8 May 57, Msg, DA 525595: .----..---------------------------------

9 May 67, Ltr, JAQJ'1957/4207 ---.- i:---------------------------------

17 May 57, 36 Comp. Qen;777 -.-----------------.-.-.---------.--------

6 Jun 57, Ltr, JAGJ 195714840 -..-..---------------------------------

7 Jun 57, Ltr, JAQJ CM 395414-- .------._----------------------------

12 Jun 57, Ms, Comp. Qen. B-131093 -------------------------------------

17 Jun 57, Ltr, JAQJ 195715066 ---.-.; .----------------------------------

18 Jun 57, Ltr, JAQJ 1957/5311.--..-.------------------------------------------.-. 

2 Aug 57, Ltr, JAQJ 195716279 .-----------.------------------------------

23 Aug 57, Ltr, JAQJ CM 396429 --..----------------------------------

29 Aug 57, Ltr, JAQJ 195716975 ..--..----------------------------------

12 Nov 57, Ltr, JAQJ 195711465 ------------------------------.-------

8 Jan 58, Ltr, JAQJ 195719282 ..-----------------------------------------

14 Jan 58, Ltr, JAQJ 195717888 .------------------------------------

4 Apr 58, Ltr, JAQJ 195713748 ...--.-..----.------------.----.-----------

14 Apr 58, Ltr, JAQJ 195812671 -.--------------------------------------

28 May 58, Ltr, JAQJ 195812701- ................................................. 2 Jul 58, Ltr, JAQA 195813056 ..----.------------------------.--------

.---.-.-. 

25 Sep 58, Msg, DA 367625.. .-------.-----------------------------

19 Nov 58, Ltr, JAQJ 195817856 -.-----------------------------------

3 Dec 58, Ltr, JAQJ 195818144 .-.---------------------------------.-----

23 Dee 58, Ltr, JAQA 195818452 .-.--.-----------------------------------

29 Dec 58, Ltr, JAQJ 195818257 --.--.------------------------------.-

14 Jan 59, Ltr, JAQJ 195815979 ..-------.--------------------------------

20 Feb 59, Ltr, JAQJ 1959/1764.. ----------' --------------------------------

20 Feb 59, Ltr, JAQJ 195912013 .-.----..-----------------------------

27 Mar 59, Ltr, JAQJ 1959j2540 .------.--.-------------------------------

12 Apr 59, Ltr, JAQJ 195913800 .---.---.----------.----------------------.-

16 Apr 59, Ltr, JAQJ CM 400951, 400321 .-----------------------------

24 Apr 59, Msg, DA 406032 .-----.-------------------------------------

20 Jul59, Ms. Comp. Qen. B-139265 .-.-.-.-.-.---.-----.---------------------

16a, 127c (Sec. B) 

07a 

82g 

486 

856 

96 

89c ., 

126a 

57g, 1% 

48j, 102c ' ,' 

App. 14c 

4a . 

856 

89c ,97d 

820, 91a 

App. 15a 

165 

1316 

85a 

App. 156, c, e 131 

144e 

135a 

406 

164a 

164a, 165 ' 

91a 

88e, 126h 

706 

53e 

, 115d 

App. 13 

90a, App. 14c 

135a 

115c 

856 

79e 

26d, 164a, App. 6c 

48a 

9 

5b, 12& 

128a 

706 

126e 

88e 

23c 

85a 

85b 

829 

9 .\ 

113 

856 

579,-82b, App. So, 

App. 9e 

68c 

101 

30, 676,82b 

92 

88e 

88e 
TABLE OF CASES 

; 8 . . . . 

Adamiak (CMA No. 4032),4 USCMA 4l2,15 CMR 412 .-..--..-.-.---.--------- Adams (CMA No. 5300),-5 USCMA 563,18 CMR 187 ----------...-----------

Alexander (CMA No. 2334), 3 USCMA 346,12 CMR 102 --.-.: ..---.------------ Albright (CMA No. 10495), 9 USCMA 62426 CMR 408 .----------.-----.------- Allen (CMA No. 5611), 5 USCMA 626,18 CMR 250 -------- Amie (CMA No. 8708),(7 USCMA 514,22 CMR 304 ------------.----- 1 ---------- Aronson (CMBNo. 9614), 8 USCMA 525,25 CMR 29. .--------.-.-------------- Arthur (CMA No. WQ), 8 USCMA 210, 24 CMR 20 .------------...-----------

dyers (CMA No. 3765), 4 USCMA 220,15 CMR 220 -----------..------------

Backley (CMA No. 1588), 2 USCMA 496, 9 CMR 126 ...................... ---. 

Ballinger (CM 368421), 13 CMR 465 .-------.------------------------

Bancroft (CMA No. 1139), 3 USCMA 3,11 CMR 3 --------.-----------------

. . 

Banner (CM 391391), 2i CMR 510 .-------------------------------------

Barnes (ACM 5-6846),12 CMR 735 .............................................. Barrett v. Looney, 262 F. 2d 588 ................................................. Batchelor (CMA No. 7611), 7 USCMA 35422 CMR 144 -------.-------: :----.--- 

Beach (CMA No. 1036), 2 USCMA 172, 7 CMR 48 ----------------.---------- 11- 

Beachley (CM 367313), 13 CMR 392 ------------------- - .......................... Beene (CMA No. 2961); 4 USCMA i77,15 CMR 177 -------.------. 1 ---------- :-- 

Bell (CMA No. 6316), 6 USCMA 392,% CMR 108 -.---.------- i .---------------- Bell (CMA No. 5316), 7 USCMA 744,23 CMR 208 -..- - ----------.--------------

.. . 

Bell (OMA NO. gal), 8: USCE;IA 193,24 CM~Z 3 ---.-- --.--------------------

Bennie (CMA No. 11884) 10 USCMA 159,270MR 233 .------------------------

Bergin (ACM 437$, 7 CMR 501 --.----------------------------

Berry (CMA No. 6701), 6 USCMA 609, 20 CMR 325 .------------------------I--- . . 

Best (CMA No. 4361), 6 USCMA 39, 19 CMR 165 . . 

Bey (CMA No. =4), 4 USCMA 665,16 CMR 239 ---- ----- ---------------------: 

Bigger (CMA No. 456), 2 USCMA-~Q?, 8 CMR 97- .------.- ------------------ Blankenship (CMA No. 8026), 7 USCMA 328,22 CMR 118 .-------------.------- Blanton (CMA No. 9499), 7 USCMA 664, 23 CMR 128 .------------------------- 

Blau (CMA No. 4472), 5 USCMA 232,17 CMR 232 ---------------.----------

Bloomfield (ACM 6787), 11 CMR 686 ......................................... '-1- 

Blue (CMA No. 2778), 3 USCMA 550,13 CMR 106 .............................. Bonder (CMA No. 1781), 2 USOMA 357, 8 CMR 157 ------.--- - --.-------------- Boriellino (CM 358874), 9 CMR 304 --.-.------------ --------------- -------------- Boshears (ACM 12923), 23 CMR 737 ............................................. Boudreau (CMA No. 10701), 9 USCMA 286,26 CMR 66 -------.--.---..--------- Bouie (CMA No. 10060),9 UBCMA 228,26 CMR 8 ---..---.-----..-----------

Brady (CMA No. 9594), 8 USCMA 456,24 CMR 266 ------------.-------------

Brand (CMA No. 12685), 10 USCMA 437,28 CMR 3 ...---------.--------------- Bridges (CMA No. 10914), 9 USCMA 121, 25 CMR 383 .......................... Britt (CMA No. 12790), 10 USCMA 557,28 CMR 123 -.----------..-.--------

Brown (CM 351955), 3 CMR 247 ................................................. Brown (CMA No. 2690), 3 USCMA 454, 13 CMR 10 .--.---.----.------------

Brown (OM 366483), 13 CMR 161 ---------.-------------------------

Brown (CMA No. 4690), 4 USCMA 683,16 CMR 257 --.---------.-. i ------------ Brown (CMA No. 7DD8), 7 USCMA 251,22 CMR 4l .--.---------...----------

Brown (CMA No. 9715), 8 USCMA 616,25 CMR 20 .--.---.-------------------- - Brown (CMA No. 12634), 10 USCMA 498,28 CMR 64 --------.-------------

Brownell (ACM 9225), 17 CMR 741 .-.------------------------------ ---- Bryant (ACM 8270), 16 CMR 747 .---..--.--------------------------

Bryson (OM 360567), 10 CMR 164 ---.--.--.-------------------------

Bull (CMA No. 3248), 3 USCMA 635,14 CMR 53. ------.--.-.---.----------

Burke (CM 869467), 14 CMR 365 ....--------.-.-----------------------

Burns (CMA No. 847), 2 USCMA 400, 9 CMR 30 --...-.--..-----.------------ Butler (CM 363644), 11 CMR 445 -.---.------..----------------------

- Butler (CMA No. 11215), 9 USCMA 618, 26 CMR 398 -.-.---.----------------

- Butts (CMA No. 8504), 7 USCMA 472, 22 CMR 262 --.--------.--.----------

- Cslhoun (CMA No. 5390), 5 USCMA 428,18 CMR 52 -.-------------.---------

Callahan (CM 390869), 22 CMR 443 -....---.-.-.------------------------ Campbell, U. S. v., 138 F. Supp. 344 (N.D. Ia. 1956) -.-----.--...---------------

- -- 

. . 

- . Reference 

416 

197c, 207a , <, 

213a 

85a, 86c 

41c, d 

73c 

186 

186 

68c 

73c 207c 

126d 

127c 

706 

5a, 171a 

9 

69e 

App. 12 

39b, 72b 

190,19&3 ' 

109 

lOOa 

85b ,, 

'&a, 621 

57b, 152,2136 

92 

213a 

73c, 88c, 100a; 105a ' 

54a, 1496 ., 9 

5a 

4e, 6% 

127c 

164a, 165 

- 48b, 5& 

37b 

?,Gila 

440,630,7% 

,1170 

2136 

App. 12 . . 1380,5536 

App. 12 

213d(3) 

168 

33d 

53e 

I71a 

152 

6a 

48c 

4a, d 

73c 

App. 12 

73c 

2136 

481 

88e 

201 

70b, 75~ 

41b 

TABLE OF CASEX-Continued 

I Reference 

Field (CMA No. BlO), 5 USCMA 379,18 CMR 3 -.--.----.---...-.--------

Fields (CMA No. 10614), 9 USCMA 70,25 CMR 332 .------.--.-..------------

Fletcher (CM 3340951, 6 CMR 163 ..---.-.---.--------------------

Floyd (OM 374314), 18 CMR 362 ---.----------------------------------

Forslund (CMA No. 11584), 10 USCMA 8,27 CMR 82 ---.-----.-.---.--------

Foster (OM 367311), 14 CMR 382 ---------------.-----------------

Fowler (AM 11010) 20 CMR 779 ---------- Freeman (ACM 8037), 15 CMR 639 --------.-----------------------

Fuller (CMA No. 10300), 9 USCMA 143,25 CMR 405 --------------.---------

Gallagher (CMA No. 8541), 7 USCMA 506,22 CMR 296 -----------.-.-.--------

Galloway (CMA No. 1463), 2 USCMA 433,9 CMR 63 .-.--.---.---.------------- Gandy (CMA No. 10348), 9 USCMA 355,26 CMR 135 ..-.-------...------------

Garcia (CMA No. 3086), 5 USCMA 88,17 CMR 88 .----.------.---.----------

Gardner (CMA No. 10135), 9 USCMA 48, 25 CMR 310 

Garland (CM 388200), 21 CMR 427 -------..-.----------------------

Garner (CMA No. 8655), 7 USCMA 578,23 CMR 42 ---------------.--------

Garrison (CM 367342), 14 CMR 359 ------.-----------------is-----is-isisisisisisisisisisisisisis 

Gebhart (CMA No. 13052), 10 USCMA 606,28 CMR 172 .--..-.---.-----..----._ Geib (CMA No. 10858), 9 USCMA 392,26 CMR 172 --------.----------------

Gemelli (ACM 6695), 11 CMR 680 -----------.---------------------

Gentry (CM 388342), 21 CMR 361 

Gholston (CM 370047), 15 CMR 435 -------.---------------------

Gillin (CMA No. 10491), 8 USCMA 669, 25 CMR 173 ............................ Ginn (CMA No. 263), 1 USCMA 453, 4 CMR 45 --.-----------------------

Girard, Wilson v., 354 0.6. 524 (1957) - . -- ---- ---- ---- ---- - -- ------ -- ------------- Glaze (CMA No. 2078), 3 USCMA 168,ll CMR 168 ---.----.----- - -------------- Qoff (ACM 4447), 2 CMR 716 -..-.-.--.-.---.---------------------

Goodnight (CMA No. 10695), 9 USCMA 542,26 CMR 322 ---------.------------

Goodwin (CMA No. 6868), 5 USCMA 647,18 CMR 271 ---.---------.-----------

Gordon (CMA No. 258), 1 USCMA 255,2 CMR 161 -------.-----------------

Gordon (CMA No. 4429), 5 USCMA Z6,17 CMR 276 -----------.-.----------

Gray (CMA No. @lo), 6 USCMA 615,20 CMR 331 --.------------.---------

Gray (OM 402130),-CMR- --....------------------ -- ........................... Green (CMA No. 5486), 5 USCMA 610,18 CMR 234 --.---------.-.-----------

Green (CM 396947), 24 CMR 369 ----------------- .- ............................... Greer (CMA No. 3155), 3 USCMA 576,13 CMR 132 -------.-----------------

Grice (CMA No. 9352), 8 USCMA 166, 23 CMR 390 ..---------.--..-----------

Qrm (CMA No. 11221), 9 USCMA 215, 25 CMR 477 ------------.-.-------LGrm (CMA No. 0601), 8 USCMA 206,24 CMR 16 ----------..-.-.-----------

Grosel (OM 375027), 17 CMR 394 .----....-----.-------------------

Grossman (CMA No. 796), 2 USCMA 406,9 CMR 36 .------.-----.-----------

Guagliardo v. McElroy, 259 F. 2d 927 ---...----.-.-------------------

Guest (CMA No. 1544), 3 USCMA 147,ll CMR 147 -.---.---.-----------------

Gunnels (CMA No. 8863), 8 USCMA 130,23 CMR 354.. ----. -.-.-.-. -.-.----- Guthrie (OM 356249), 6 CMR 190 --------.-.--..-------------------

Guy (CMA No. 9401), 8 USCMA 66,23 CMR 290 .---------.-.-.------------

Haimson (CMA No. 4549), 5 USCMA 208,17 CMR 208 ...---...-..---.---------- Hallett (CMA No. 3440), 4 USCMA 378, 15 CMR 378 ...-----.-.-..-------------- Hangsleben (GMA No. 9527), 8 USCMA 320,24 CMR 130 -.-----..-.------------ Harvey (OM 391513), 22 CMR 415 -----.-.--.---..-------------------

Hawkina (CMA No. 6965), 6 USCMA 135,19 CMR 281 -.---..------.-----------

Hawthorne (CMA No. 8077), 7 USCMA 293,B CMR 83 .--..-.-.-.-.---.-.----- Hayes (CMA No. 9734), 8 USCMA 627,25 CMR 131 --..-----.---.-----------

Haynes (CMA No. 11189), 9 USCMA 792,n CMR 60 ------..-.---....---------- Heinel (CMA No. 10076), 9 USCMA 269,28 CMR 39 .------..-.-..--.----------

Hill (CMA NO. 6586), 6 USCMA 599,20 CMR 315 .-..------....-.-------------

Hobbs (CMA No. 8682), 7 USCMA 693,23 CMR 157 .----.-.-.-.-.-.: .---------- Hogsett (CMA No. 9604), 8 USCMA @1,25 CMR 185 ..---.-.------ --:---------- Holder (CMA No. 7485), 7 USCMA 213,22 CMR 3 --.-.--.--..---; -------------- Holt (CM 357002), 8 CMR 360.. -..--.--------.--.-.---.----.. -.- --.-.---..------ Holt (CMA No. 8430), 7 USCMA 617, 23 CMR 81 -.---------..-------------

Holy Rock (CM 362791), 10 CMR 479 -.---.--.----.-------------------

Hopi (CMA No. 372), 1 USCMA 584, 6 CMR 12 .---.--.-.---.-.------------

1Wb 

85b 

@& a 

169b 

1506,169b 

621 

61h, 87c, 11% 

2136 

2130 

9,111, 

86c 

342 

88d. 126h 

4% 

70b 

166 

l7lc 

152 

IZc (See. B), 186 

4e, 6% 

174b 

App. 12 

213a 

7%. 197c 

12 

4 

App. 12 

213a 

88c, l00a 

5a 

5a 

21a 

6a 

48e, 87e, 15lb 

33i 

150b. 1696 

85b 

200a 

851, 

621 

190 

9 

38 

48s 

App. 12 

74b 

5a 

178 

174c 

62j 

151b 

38 

200a 

140a 

1516 

85~ 

213d(2), App. 12 

171a 

'164a, 166 

App. 9a 

213a 

200b 

7% 
TABLE OF CASES-Continued 

. 

Horne (CMA No. 11127),9 USCMA 601,26 CMR 381 

Horton (CMA No. 11285), 9 USCMA 469,26 CMR 249 -..------.-----.---------- Hounshell (ACM 10420), 19 CMR 906 -...--.-----.-----------------------

1 ----- Hounshell (CMA No. 7393), 7 USCMA 3,21 CMR 129 .--.-----.-----.---...---- Hufm (COCM 9837), 19 CMR 603.. . ....----.----.--.-------------------

Hufm (CMA No. 7460), 7 USCMA 247,22 CMR 37 ----.-----.---..--------------- Hughes (CM 358097), 7 CMR 229 .............................................. Hunter (CMA No. 2819), 3 USCM'A 497,13 CMR 53 ----.---.--...----.-- ------ Hutchins (CMA No. 4946), 5 USCMA 422,18 CMR 46 --------...-.--..--------- Hutzler ACM 5-3403), 5 CMR 661 ............................... Isbell (CMA No. 21), 1 USCMA 131,2 CMR 37 .-.----...------.--------------

Ital (OM 371618), 15 CMR 514 --.-----------------------------------

Jacks (CMA No. 9546), 8 USCMA 674.26 CMR 78 .--.----- 1 -.-.--.------------- Jackson (CMA No. 141), 1 USCMA 190,2 CMR 96 ..-----.----..--.------------- Jackson (ACM 5-2863), 5 CMR 429 -.-..-----------------------------

Jackson v. Taylor, 353 U.S. 56 (1957) ............................................ Jakaitis (CMA No. 11429), 10 USCMA 41,27 CMR 116 ----..------- ------------ Jemison (CMA No. 12871), 10 USCMA 472,aCMR 38 .--.---.-.----.-.--------- Jenkins (CMA No. 8268), 7 USCMA 261,22-CMR 51 .-----.-.--.------.--------- Jenkins (CMA No. 9771), 8 USCMA 274, 24 CMR 84 ?-----.-- i -------------- Jobe (CMA No. 12593), 10 USCMA 270,27 CMR 350 ---.--.--------------------- Johnson (CMA No. 2363). 3 USCMA 447,13 CMR 3 -------.-----------------

Johnson (CMA No. 2588). 3 USCMA 725,14 CMR 143 -.---..---.----.----------- Johnson (CMA No. 10486), 9 USCMA 178, 25 GMR 440 ------.----.------- 1 ------ Jones (CMA No. 426),1 UBCMA 276,3 CMR 10 ...--.-----.-------------------

Jones (ACM 9393), 17 CMR 904 ..-----------.---------------------------

Jones (CMA No. 7815), 7 USCMA 283,22 CMR 73 ---------------- i ------------- Jones (CMA No. 12814), 10 USCMA 532,28 dIdR 98 .---.---.-------------------- Keith (CMA No. 3293), 3 USCMA 579,13 CMR 135 -------.--.------------------ Kelley (CMA No. 5057), 5 USCMA 259,17 CMR 259 ------.--------------------- Kelsey (ACM 5228), 6 CMR 522 .-----.----.-..------------- King (CMA NO. 12795), 10 USCMA 465,28 CMR 31 ..-----.--------------------- KinseUa v. Krueger, 354 U.S. 1 (1957).- - ---- ~ --.-------------------------

Kinsella, Madsen v.,-343 U.S. 341 (1952) ---------.---------------------

Kinsella, Singleton v., 27 LW 2118 (D.C., S.D.W. Va 1958) ..--.----...------ ---- Kirksey (CMA NO. 7111), 6 USCMA 656, 20 CMR 272 -.---..- ---- --.----------- Kitts (CM 386028). 20 OMR 467 --.-----.. ........................... --------- Klein (ACM 5-46681, 8 CMR 649 .----------------------------- - --------------- -- Knudson (CMA No. 3365), 4 USCMA 587,16 CMR 161 ..-.------.--.-- i .------. Kraskoukas (CMA No. 10371), 9 USCMA 607, 26 CMR 387 -------.--.---.------- Krause (CMA No. 10272), 8 USCMA 746,25 CMR 250 ---...-.--.-.-.----..----. Krueger, Kinsella v., 354 U.S. 1 (1957) ..-.-----. .. ------- ---------- 1-1 ------------ LaGrange (CMA No. 313), 1 USCMA 342,3 CMR 76 .--.-.--.,----.----------- 

Landrum (CMA No. 4478), 4 USCMA 707,16 CMR 281 --..--.------.----------- Law (CMA No. 13038), 10 USCMA 573, 28 CMR-139 ----------.----------------- Leach (CMA No. 8193), 7 USCMA 388, 22 CMR 178 ..-----.-.------------------- Lee (CMA No. 200) , 1 USCMA 212, 2 CMR 118 .---------.--.--------------

Lee (CMA No. 819), 3 USCMA 501,136MR 57 ..-----.---. -.----.----------- Lenton (CMA No. 9830), 8 USCMA 690,25 CMR 194 

Leo (CM 373477), 17 CMR 387 .-------------------------------- 

LeSage (ACM 12800), 22 CMR 853 -------------.---------------------

Lightfoot (CMA No. 9362); 7 USCMA 686, 23 CMR 150 ---..----- 1 .------------- Littrice (CMA No. 2&709), 3 USCMA 487;13 CMR 43 ----------.-------------- - Lively (CM 361848), 10 Apr 53. - .----.----------.-------------------

Lloyd (ACM S-8392), 14 CMR 792 --.---.---.--..----------------------

. . 

Long (CMA No. 464), 2 USCMA 60; 6 CMR 60 -..---------------------------

Long (CM 356546), 6 CMR 194 -.------~..---~---~-----------

Long (CMA No. 4012), 4 USCMA 101,15 CMR 101 .---.--.-------------------- -- Long (CMA No. 5503), 5 USCMA 572,18 CMR 196 ..--.---..------------- 1-- 

Looney, Barrett v.. 252 F. 2d 588 -----.---.-----: ~------------------------= - Lucas (CMA No. 7), 1 USCMA 19,l CMR 19 -..-------:-,------- 1 ----------- - Luce (ACM 4191), 2 CMR 734 .------.---------------------- --- -- .. 

Lueero (ACM 10369); 18 CMR 942 ---.-- - -------.-------- .-----i--- ---~---- . . 

Reference - 

48c 

200a 

6a 

67b 

68f 

164a, App. 8c 

70b 

38 

186 

74.5 

213a 

19h, 207a . 

lOOa 

165 

70a 

100a 

145a 

8% 

162 

85b 

127b 

44g, 87c, 138p 

73c 

440 

73c ' 

21a 

62% h 

81d5a, 169b, 171b 

81d 

6a 

201,207b, ~pp. la 

9 

2,12 

9 

213b 

336 e 

621 

584 67f 

48a 

164a 

9 

5a 

734 C 

4e, 62f 

213a 

6a, 64 

73C 

70b, 200a, 213a 

85a 

213a 

21% 

38 

704 76a 

App. 12 

213~ 

70b ' . 

76c . 

5a,6c, 84~ 

9 

7% 

. 164~ ,' 

88d, 98 ' , '
TABLE OF CASES-Continued 

I Reference 

Lynch (CMA No. 112'16), 9 USCMA 523,26 CMR 303 .-------- 1 -.------,------ LMcCann (CMA No. 9454);s USCMA g15,25 CMR 179 -------.-.-------------. McCarthy (CM 357972). 7 CMR 329 ................................. i: ------- - MeClinthen (CM 397228),24 OMR 436--1. ---- 1 .................................. McCoy (CM 364489), 13 CMR 285- - ----------------.-.----- i .................... McCoy (CM 396537), 24 CMR 456 _.-------------------------------

McElroy, Quagliardo v., 259 F. 2d 927 ~ ---------------- McQary (CMA No. 10958),9 USCMA 244,26 CMR 24 .---- 1-'--.-.----------- L. 

McMahan (CMA No. BMO), 6 USCMA 709,21 c&IR 31 -----.---.-.----,-------- 

McNeill (CMA No. 1048), 2 USCMA 383 9CMR 13 -.-------..----:-.------I 

McVey (CMA No. 2682), 4 USCMA 167,15 CMR 167 ........................ Madsen v. Kinsella; 343 U.S; 341 (1952) -.-_---__._- ---.--------------------

-- -. 

Malone (CMA No. 4158), 4 USCMA 471,16 CMR 45 --.-.--------------------.-

Manos (CMA No. 10072), 8 USCMA 734,25 CMR 238 ..-.------------------.-... 

Mansbarger (CM 384814), 20 CMR 449 -------.---- -.---------- ~ -----: 

Mansell (CMA No. 945$), 8 USCMA 153,23 CMR 377 .----,---------.-----------. 

Marquez (ACM S-11376) (Prelim Dec), 20 CMR 736 -------. 

Marsh (CMA No. 1526), 3 USCMA 48,11 CMR 48 .-.------- 1; ---:------- -----. 

Marshall (CMA No. 1670), 2 USCMA 342, 8 CMR 142 -.----- i ------------------. 

Martin (CMA No. 9475), 8 USCMA 346,24 CMR 156 

Martii (CMA No. 10292), 9 USCMA 84, 25 CMR 346 --------:--,.------: --.-..' 

Martin (CMA No. 11053), 9USCMA 568, 26 CMR 348 ---,-------,-----:--- 

Massey (CMA No. 5581), 5 USCMA 514,18 CMR 138 -.-.------- 1 --------------. 

Mattox (CM 348755); 2 CMR.361 ..--.-.-...-.-- : -----.-.--------- -1 11111--- 

May (CMA No. 12426),,10 USCMA 258, 27 CMR 4s .----------------------- LLLLL 

Melville (CMA Not 9W), 8 USCMA 697, 25 CMR 101 .,----------_-_---.---.-.

Messenger (CMA No. 310), 2 USCMA 21, 6 CMR 21--:-; ;.._-_-- r-----------.- 

Miller (AM 461) 3 OM 0 -- . 

Miller (DM 356030), 7 OMR 325- - .-----.----.------ 1 11111111111111111111111 I 

Miller (CMA No. 7563), 7 USCMA 23, 21 CMR 149..: ----------.-------------.. Miller (CMA No. 12191), 10 USCMA 296, WCMR 370 ----- 1: -.--------------.-. Mims (CMA No. 9433), 8 USCMA.316, 24 CMR 126 ..------: -.----------------. Minniseld (CMA No. 10656), 9 USCMA 373;26 CMR 153 -----: -.----- 1--:-.. 

Moffett (CMA No. 12316), 10 USCMA 169, 27 CMR 243:: ----,--:7---..------... 

Morris (ACM S-1513), 2 CMR 840 -------- :- :-.-12 ------.--:-... . MOS~~ (CM 392172), 23 CMR 425 ..------.----: ----.------ !.-L 1111111111111 :-- 

Moseley .. ... (CM 348127), 2 CMR 263 .-------.-.----------------------

Moses (CM 363294). 11 CMR 281 --.-----.-- :--:: --------: -------- TT :--------.---- 

Mundy (CMA'NO. 1447), 2 USCMA M#), 9 CMR 130 LMusguire (CMA No. 10101), 9 USCMA 67, 25 CMR 329 -..----------.-.--- 1 ----- Nation (CMA No. 11M1), 9 USCMA 724, 26 CMR 504 .---.--------------------

L 

Nedeau (CMA No. 9177), 7 USCMA 7l8, 23 CMR 182 --...--------------------

NeiU (CM 352896), 4 CMR 221 --------_.-.-.-------------------

Nelson (CMA No. 2760), 3 USCMA 482, 13 CMR 38 ,-----------..-------------

Nichols (CMA No. 302), 2USCMA 27, 6 CMR 27 -------: .---.-.---------------- Nichols (CMA No, 9114), 8 USCMA ll9,23 CMR 343 -.,--------------rr-r----.. 

Nicholson (CMA No. 11645), 10 USCMA 186, 27 CMR 260 .-...-.---------------- Nicolas (ACM 7678), 14 CMR 683 ...-.---------------.-------------------------- Norris (CMA No. 1756), 2 USCMA 236,s CMR 36 -------.-.-.....-----------

Nyrnan (ACM S-3051), 5 CMR 598 ---------------.--------------

Oakley (CMA No. %log), 7 USCMA 733,23 CMR 197 -.--------.-.--------------- Oakley (CM 398074), 26 CMR 624.: .-------.---.---------------------

Ochoa (CMA NO. 12952), 10 USCMA 602,!28 CMR 168 -----------.-------------

Offley (CMA No. 1841), 3 USCMA 276,12 CMR 32 ..------.-..-...----------.--- 0 (AM 5 1 CMR W -: , , Olson (CMA No. 8336). 7 USCMA 242.22 CMR 32 ------..---.-...------------

Osborne (CM 362159), 10 CMR 441 

Osborne (CMA NO. 10993), 9 USCMA 455,26 CMR 235 ....----..-.-------- ::--- 

O'Shana (ACM 5-2859) (Reh), 6 CMR 816 -...--.--------------------------- Overton (CMA No. 11082), 9 USCMA 684,26 CMR 484 ----...---------------- 2- 

Owen (CMA NO. 7156). 6 USCMA 466,20 CMR 182 .--.----.------------------

Palacios (CMA NO. 11274),9 USCMA 621, 26 CMR 401 .-..----....-------------- Parker (CMA No. 2449), 3 USCMA 541, 13 CMR 97 .---------- ;: ...------------- 

69e' 

38 

6d 

70b 

178h 

9 

9 

&kl 

48c 

9 

U)1,207b, App. 12 

2, 12 

213d(l); App. 12 

213a 

9, lld 

63 

85a 

5a, 16% 

76a 

71b 

8% . -. 

9 

8%, 87a , , 

20b 

88e 

48a ' ' 

706' , , 

69b 

App. ., 12 . . 

i17a ' . 

92,103a- - 140a ' - - - ' 

250b, 16% 

86a 

App, 12 . .

IQQ~, ~pp. ii 

5a 

41c, 44b 

App, 12 

150b, 169b 

171a 

744 

696, App. 6d 

8% . . 

58c 

34c ' ' 

186 

App. 12 

mob, 213a 

6lh, 11% 

127c (Sec. A) 

48c 

171a 

73c 

33d, e 53g, 75a 

App. 12 

,186 

127c (Sec. B) 

9 

109 

70b 

67b, App. 12 
TABLE OF CASES-Continued 

I Reference 

Parker (CMA No. 81571, 7 USCMA 182,21 CMR 308 ....--.-----.-.------------- Patton (ACM 4272), 2 CMR 658 ----.----.-.------------------------

Petree (CMA No. 8794), 8 USCMA 9,23 CMR 233 .-.---...--------------------- Petroff-Tachomakoff (CMA No. 6139), 5 USCMA 824,19 CMR 120 .-..-------.- Phillips (CMA No. 1244), 3 USCMA 137,ll CMR 137 ......---.---.-.----------- Pinkston (CMA No, 7040). 6 USCMA 700, 21 CMR 22 --.--.-.------------------- Pino (ACM 5274). 6 CMR 543 .-------.-----.------------------------

Plummer (CMA No, 0064), 7 USCMA 630,23 CMR 94 .-.-.------..-..---------- Politte (CMA No, 12176), 10 USCMA 134, 27 CMR 208 .--.-.-.------------- Ponds (CMA No. 491),1 USCMA 385,3 CMR 119 --..--..--.------------------- Posnick (CMA No. 0406), 8 USCMA 201, 24 CMR 11 ...--..--------------------- Prescott (CMA No. 812), 2 USCMA 122,6 CMR 122 -...--.---.---------------.- Price (CMA NO. 8926), 7 USCMA 590, 23 CMR 54 ..-..--.----.--------.--------

Quarles, U.S. ez ?el Toth v., 350 U.S. 11 (1955) ....-.------.-------------------

Ray (CMA No. 8312), 7 USCMA 373, 22 CMR 168 .-..----.-------------------

Reams (CMA No. 11209), 9 USCMA 696, 26 CMR 476 ----.---------.-----------

Redenius (CMA No. 2450), 4 USCMA 161, 15 CMR 161 -...---------------------- Roese (CM 358308), 7 CMR 292 -------------------------------------

Reid v. Covert, 354 U.S. 1 (1957) ----.--.-..------------------------

Renton (CMA No. 10113). 8 USCMA 697, 25 CMR 201 -.----.---..-...----------- Rhea (OM 361644), 10 CMR 268 ...----.-....---.-------------------------

Richard (CMA No. 7048), 7 USCMA 46, 21 CMR 172 .-...----------.----- ------- Rinehart (CMA No. 9647), 8 USCMA 402, 24 CMR 212 ...-----------.----------- Roberts (CMA No. 7738). 7 USCMA 322, 22 CMR 112 ..--..--------------------- Robertson (CMA NO, 9737), 8 USCMA 421, 24 CMR 231 -..--------------------- Robinson (CMA No. 3842), 4 USCMA 12, 15 CMR 12- .-.----------------------- 

Robson (CM 396852), 24 CMR 376 -------.---..-....--------------------

Rodgers (CMA No. 9403), 8 USCMA 226, 24 CMR 36 .-..--.--.-.--.--------- Rosato (CMA No. 1375), 3 USCMA 143, 11 CMR 143 .-----.----.-.-.-----------

St. Ours (CM 355349). 6 CMR 178 ...--.--...-------------------------

Sanders (CMA No. 7836). 7 USCMA 21, 21 CMR 147 ..--.----------------------

Schiavo (ACM 9778), 18 CMR 858 .--------------------------------

Schuld (CMA No. 10505), 8 USCMA 721, 25 CMR 225 .--.---.-----.------------- Schultz (CMA No. 394), 1 USCMA 612,4 CMR 104 .---..----.-.--.------------

Self (CMA No. am), 3 USCMA 568, 13 CMR 124 -.-.-..-------.--------------

Shamlian (CMA No. 10360), 9 USCMA 28, 25 CMR 290- .---.--.-.----.--------- Sicley (CMA No. 6037). 6 USCMA 402, 20 CMR 118 .----.---.----.-------------- Simms (ACM S-11054), 20 CMR 720 .-..-------- ..--- ---------------- Simone (CMA No. 6153), 6 USCMA 146, 19 CMR 272 -.-----.------------------- Simpson (CMA No. 11766), 10 USCMA 229, 27 CMR 303 

Singleton v. Kinsella, 27 LW 2118 (D.C., S.D. W. Va. 1958) -----.-.-------------- pel (AM 565 8 CMR 698 .- 

Sizemore (CMA No. 784), 2USCMA 572, 10 CMR 70 ..------------------------ Slabonek (CM 387850), 21 CMR 374 ...-..---------------------------------- 

Smith (CMA No. 3260). 4USCMA 369, 15 CMR 369 ---..-------------------

Smith (CMA No. 9484), 8 USCMA 178, 23 CMR 402 -.-..----.--.-.------------ Smith (CMA No. 10403), 9 USCMA 236, 26 CMR 16 -.--.----------------------

Smith (CMA No. 12020), 10 USCMA 153, 27 CMR 227 ---.---.------------------- Soccio (CMA No. 10126), 8 USCMA 477, 24 CMR 287 .----------.--.---------- Spann (CMA No. 12?24), 10 USCMA 410, 27 CMR 484 .---.-.----------------- Sperland (CMANo.366), lUSCMA661, 5CMR89 ..-------.-.------------- Statham (CMA No. 10571), 9 USCMA 200,25 CMR 462 -----.----------.-------- Stellman (CM 361237). 4 CMR 232 ..-_-_---.------------------------------

Stephenson (CM 402281). 26 Aug 69, CMR .--.~...~-.-----------------

Stiles (CMA No. 10928), 9 USCMA 384,26 CMR 164 --..----.------.---------- Stone (CMA No. 10570), 9USCMA 191, 25 CMR 453 --.---------------------

Stover (CM 348430). 2 CMR 371 ..~.-~..~--.~~.-~~----

Stringer (CMA No. 4071), 5 USCMA 122, 17 CMR 122 --.----.------------------- Taylor (CM 39, 13 CMR 20 -- Teague (CMA No. 1719), 3 USCMA 317,12 CMR 73 .------------.----------. Thomas (ACM 6507). 6 CMR 792 .-.~........~~.---~~--.~~-------

Thomas, Commonwealth v., 117 A. 2d 204 (1955) ....----.---.---------------- Thornton (CMA No. 9119), 8 USCMA 57, 23 CMR 281 .-----.-.----------------- 

54b, App. 8a 

9, llb 

213b 

21d, 89c 

73c, 138f, 204 

73c 

61h, 87c, 11% 

856,88b 

145a 

100c, 101 

App. 12 

127c (Sec. B) 

Ma, 186 

9, llb 

EO 10214 

186 

App. 12 

165 

9 

4e, 6%,62f 

App. 12 

6%,69e 

74f 

35a 

lld 

76c 

9 

68c - 150b, 169b 

213a 

127c 

72e 

EO 10214 

12,143 

57c 

69e 

154a 

70b, 80a 

164a 

126e 

9 

5a 

58,72a 

70a 

7lb 

5a 

213d(4) 

126d 

1643 

68c 

178a 

154a 

126h 

856,881, 

125 

154a 

App. 12 

56, 69e 

334 e, 34a 

21d, 174b 

122, 138e 

197g 

6a 
TABLE OF CASES-Continued 

. - 

Thornton (CMA NO. 9270),8 USCMA 446,24 CMR 256 -------------.----------

Tolbert (ACM 6751),11 CMR 680 -----------. ---- =-=----~ ------- - ----- ------------d-- 

Tomaszewski (CMA No. 9760),8 USCMA 266, 24 CMR 76 ---.--; --..--.-------- Torrente (CM 390142), 21 CMR 481 --------.------------------------

Toth, United Ststes ez re1 v. Quarles, 350 U.8.11 (1956) ....-..-----.eseseseseseseseseseseseses 

Towle (ACM 4632), 4 CMR 733 ----.--.--.--------.----------------

Trede (CMA No. 1803), 2USCMA 581,lO CMR 79 ----------.---.---------

Trent (ACM 5165), 5 CMR 674 -.-----------------------------

Tubbs (CMA No. 428), 1 USCMA 588,5 CMR 16'---'- -----------..----------

Tucciarone (CM 365801), 13 CMR 244 -------------; .............................. Turner (CMA No. 6737), 7 USCMA 38, 21 CMR 164 ------------..----------

Turner (CMA No. 10022), 9 USCMA 124, 25 CMR 386 -..---------.-------------

Vara (CMA No. 10567), 8 USCMA 651, 25 CMR 155 -.-----------.------------

Varnadore (CMA No. 11301), 9 USCMA 471, 26 CMR 251 .------..--.---.------- Vaughan (CMA No. 788). 3 USCMA 121,ll CMR 121 .----------.-------------

Verdone (CM 365692), 13 CMR 468 -.---.---.-------------.-----------

Vinson (ACM 10841), 19 CMR 919 -----------.-.-.----.---------------

Walker (CMA No. 352), 1 USCMA 601,4 CMR 93 --.-.--------...------------

Walker (CMA No. 9262), 8 USCMA 38,23 CMR 262 ------------.-.----------

Walker (CMA No. 10213), 8 USCMA 640, 25 CMR 144 ----------.-------------

Walter (CMA No. 9080), 8 USCMA 60, 23 CMR 274 ..-.-------.-.--------------

Walters (CM 362540), 11 CMR 355 ---------.---------------------------

Walton (ACM 6301), 5 CMR 813 ...------. ..: -----.-----------------------

Wappler (CMA No. 1457), 2 USCMA 393, 9 CMR 23 -.--------.-.-------------

Washington (CMA No. 10086), 9 USCMA 131, 25 CMR 393 -..--.--.----.------. Washington (CMA No. 11652), 9 USCMA 689, 26 CMR 369 ..----------.-.------. Watkins (CMA No. 834), 2 USCMA 287,8 CMR 87 -----------.-.-----I 111111111 

Watkins (ACM 10987), 20 CMR 760- ---.----: -------- - ------------------- ----- Watson (ACM 9-2753, 5 CMR 476 -------------.---.---------------

Watson (CMA No. 3639), 4 USCMA 657, I6 CMR 131 --------.--, --------------- Weaver (CMA No. 10110), 9 USCMA 13,25 CMR 275 -------------.----------

Weiman (CMA No:l403), 3 USCMA 216, 11 CMR 216 ----.------.------------

Welker (CMA No. 10362), 8 USCMA 647, 25 CMR 151 -..-.-.-.---.------------- Whatley (ACM 10448). 20 CMR 614 --.---------.------------------

White (ACM S-7152), 12 CMR 783.: ------ ;---: .-------------------------

White (CMA No. 11656), 10 USCMA 63,n CMR 137 .-------------------- 1 ----- Whitley (CMA No. 6017), 5 USCMA 786, 19 CMR 82 .------------.--.--------

Whitman (CMA No. 2169, 3 UECMA 179,ll CMR 179 -_-.. ;-;---.-.----------- Williams (CMA No. 2@), 1 USCMA 231, 2 CMR 137 ..-.---.-.----..-----------

Williams (CMA No. 3088), 4 UBCMA 69, 15 CMR 69 .-.---.---.-.-.-.----------- Williams (CMA No. 12831), 10 USCMA 615, 28 CMR 18 .--.-------.------------

Won (AM 7)4 CMR 557 -- Wilson (CMA No. 8989), 7 USCMA 656,23 CMR 120 ..----------.----------

Wilson (CMA No. 9028), 7 USCMA 713, 23 CMR 177 ..----.--.----.------------- Wilson (CMA No. 12563), 10 USCMA 398, 27 CMR 472 ..----_---.-.-..---------

Wilson v. Girard, 354 U.S. 524 (1957) 

Wise (CMA No. 6937), 6 USCMA 472, 20 CMR 188 ..------------.-----------

Wise (CMA No. 12820), 10 USCMA 539,-28 CMR 105 ---.-..------...-----------

Woodson (CMA No. l740), 3 USCMA-372,-12 CMR 128 ---.----- ----..---------- Wooldridge (CMA No. 12638); 10 USCMA 510, 28 CMR 76 -------.--------.----- Wright (CMA No. 6817), 6 USCMA 186,19 CMR 312 ...--------.-----.-..-----

Young (CMA NO. 9723), 8 USCMA 695, 25 CMR 19'J ---.-.-.-----------------

Yray (ACM 6516), 10 CMR 618-; .---; ------- i ------ Zagar (CMA No. 4867), 5 USCMA 410,18 CMR 34; .--..----------.----------

. . 

mpa (CM 3403) OR 2 -- 

-- -p 

Reference 

115a 

& - 

34c 

3% 

9,116 

App. 12 

7Ob, na, 120 

4 . . App. 12 

21% 

8Sa 

76b 

856, W 

127b 

68d, u, 128e 

App. 12 

85a 

af 

213a 

App. 12 

200a 

21% 

187a 

125, 127c 

186 

8% 

I27c (Sec. B) 

62f 

213a 

173 

4e 

9 

70b 

17la 

88a 

86a 

5a, 37b 

16b, 83a 

73a 

192 

' f%7 

App. 12 

4e, 63 

73c 

671, 

12 

WJ 

148e, 202 

207b, 213d(l) 

I&, 202 

70b 

2004 

.ag, 135~ 

38 

e2.b 
EXECUTIVE ORDER 10214 

Effective date of forfeitures.-Where accused is tried for an offense committed 

between 1 Feb 49 and 31 May 51, forfeitures may not be applied to pay and allowances accruing on or before the date of the order directing execution of the 

sentence. Ray, 7 USCMA 378,22 CMR 168. 

Where accused is tried after 31 May 51 for an offense committed prior to 1 

Feb 49, the CA may provide in his action that forfeitures shall apply to pay and 

allowances accruing on and after the date of his action.--Schuld, 8 USCMA 721, 

25 CMR 225. 

MILITARY JURISDICTION 

2. EXERCISE. 

Regulations.-Rules governing courts of inquiry convened under the authority 

of Art. 135, see AR 22-30. 

Cross-reference.-Jurisdiction of military commissions, par. 12 (Madsen V. 

Kinsella, 343 U.S. 341 (1952) ). 

COURTS-MARTIAL 

4. COMPOSITION.-a. Who may serve as members. 

Regulations.-Except when regulations specifically stipulate to the contrary, 

Medical Corps officers will not be detailed as members of CM, AR 40-2. Dental 

Corps officers will not be detailed as members of CM, unless the military situation 

so dictates, AR 403. A chaplain is not available for duty as 10, TC, DC, LO, 

or as a member of the court, AR 16545. A court to which charges against a 

member of the WAC are referred will include WAG personnel, if available, in 

its membership, AR 625-5. Army organizations for which separate M/R's will 

be prepared, AR 335-60. 

Cross-reference.-Effect of member becoming a prosecution witness as a result of his signature appearing on an official document admitted in evidence, 

par. 63. 

Member previously appointed assistant DC of another CM to which the 

charges had been referred.-Such member, in the absence of any contrary indication in the record, was deemed to have acted in his prior capacity of assistant 

DC and was ineligible to sit on the CM which tried accused. Findings and sentence set aside and a rehearing ordered. Trent (ACM), 5 CMR 574. 

Member who is JAGC officer.-Neither the Code nor the Manual disqualifies 

a JAGC officer from serving as a member of a CM. Glaze, 3 USCMA 168, 11 

CMR 168. See also Ltr, JAGJ 1954/2438, 9 Mar 54, indicating that there is no 

policy against appointing JAGC officers as members of GCM's. 

Member not required to be of same race as accused.-There is no express or 

implied requirement in the Code or Manual that the membership of a CM include 

personnel of the same race as the accused. Bryson (CM), 10 CMR 164. 

46. Rank of members. 

Regulations.-Specialists will not, except under extraordinary circumstances, 

sit on a CM of an NGO. In those cases in which a specialist sits on a CM of an 

NCO, he should have senior date of rank. When an NCO sits on a CM of a 

537610'-6-2 
specialist, he should be in the same or higher pay grade, and if in the same pay 

grade he should have a senior date of rank, AR 6W201. 

Withdrawal of. request for enlisted members.-An accused who has previously 

requested enlisted personnel on the CM which will try his case should be permitted to tender a written withdrawal of such request prior to trial. If a specMc withdrawal of a prior written request has not been made, an accused should 

not be allowed merely to waive the presence of enlisted personnel, as an unrevoked request imposes a statutory requirement as to the conlposition of the 

CM, and it is not within the province of accused to waive such requirement. 

However, he may, after the CM is caIled to order and prior to arraignment, 

insert into the formal proceedings a withdrawal of his request. The record 

should clearly show that accused was fully advised of his rights and was in no 

way misled into withdrawing his request for the convenience of the Govt. Ltr, 

JAGJ 1952/6970,11 Sep 52. 

4d. Qualification of members. 

Cross-reference.-Legality of trying a Negro by a CM whose membership included only one Negro, par. 4a (Bryson (CM), 10 CMR 164). 

Members of CM initially selected by TC.-TC's preparation of a request by 

his CO to the CA for the appointment of a CM which listed the members subsequently appointed by the CA constituted reversible error. To permit the TC 

to select the members of the CM, who are then actually appointed by the CA, for 

the trial of a case in which the TC, a s a n adversary, has a personal, partisan interest in the outcome of the trial, violates the clear intent of the Code. Cook 

(ACM) ,18 CMR 715. 

4e. Law officer for general court-martial. 

Regulations.-Certification of LO, TC, and DC of GCRl's, SR 605-175-10. 

Cross-reference.-Effect of LO becoming a witness for the prosecution by the 

admission in evidence of an exhibit signed by ,him, par. 63 (Wilson, 7 USCMA 

656,23 CMR 120). 

LO previously appointed counsel in same or related case.-An officer who has 

performed duties as counsel in the accused's case or the case of his accomplice 

is ineligible to serve as LO for the accused's trial. Accordingly, where the LO 

has been appointed counsel in the same case or the case of an accomplice and 

the record fails to show that he has not acted in his prior capacity, the findings 

and sentence must be set aside. Gemelli (ACM), 11 CMR 690 (LO previously 

appointed TC of same CM) ; Bloomfield (ACM), 11 CMR 686 (LO previously 

appointed TC of CM to which charges against accused's accomplice had been 

referred) ; Tolbert (ACM), 11 CMR 680 (LO previously appointed DC for an 

accomplice but absent from his trial). 

LO who served as LO in closely related case.-Whepe the LO and DC for 

accused's case are the same officers who had served as LO and DC, respectively, 

in a closely related case and DC uses the record of the former trial in crossexamining witnesses at accused's trial, the LO'S prior participation in the 

former case does not, in the absence of a challenge on that ground, render him 

ineligible to serve as LO for accused's trial. Weaver, 9 USCMA 13, 25 CMR 275. 

LO who assisted in drafting the charges.-By rendering technical assistance 

to the officer who prepared the charges and specifications, the LO actively assisted 

the prosecution and thereby became totally incompetent to serve as LO of the 

CM which tried the accused. Without a competent LO the CM ceased to be a 

CM for any purpose except to take the necessary steps to have itself reconstituted. 

Renton, 8 USCMA 679,25 CMR 201. Compare Law, 10 USCMA 573, 28 CAlR 139. 
COURTS-MARTIAL 

5. CONVENING AUTHORITIES.-a. General courts-martial. 

Regulations.-Rules governing the devolution of command in case of death, disability, or temporary absence of a commander, AR 600-20. 

Cross-references.-Effect of CA appointing members of CM selected by TC, 

par. 4d (Cook (ACM), 18 CMR 715). Effect of CA appointing a new senior 

member of SPCM after the president sustained DC's objection to TC's method of 

examining a witness, par. 37b (Whitley, 5 USCMA 786, 19 CMR 82). 

CA junior in rank to normal CA who signed charges as the accused.-An accused cannot be legally tried by a CM convened by a CA who is not superior in 

rank to the accuser. Accordingly, where the normal CA signs charges as accuser and forwards them to his superior for appropriate action, the CA designated by the superior to convene a CM for trial of the case must be superior in 

rank to the normal CA. La Grange, 1 USCMA 342,3 CMR 76. 

CA held to be an accuser and therefore disqualified.-The CA was deemed to 

have a personal interest in the prosecution'making him an accuser and therefore 

disqualified to perform the functions of a CA where, he was the victim of an 

offense initially included in the charges but dismissed prior to trial, Gordon, 1 

USCMA 255, 2 CMR 161; where housebreaking of CA's home, larceny therein 

of property belonging to CA's son, and AWOL were the charges referred to trial, 

Moseley (CM), 2 CMR 263; where CA's personal interest arose from his ultimate responsibility for nonappropriated welfare funds stolen by his appointed 

custodian, his receipt of payment for the losses from accused's bonding company, 

and his signing of the release for such payment, Bergin (ACM), 7 CMR 501 ; 

where accused was issued, in addition to regular travel orders, a direct, individual letter order over the CA's command line, directing him to report to his proper 

station, and was charged with willful disobedience thereof, such order was obeyed, 

Marsh, 3 USCMA 48,ll CMR 48. 

CA held not to be an accuser.-The CA's interest in the prosecution was 

deemed to be official only, and he was not considered an accuser where an ordinary travel order issued by the CA's headquarters was the subject of a charge 

of failure to obey, Keith, 3 USCMA 579, 13 CMR 135; where the violation of a 

routine standing order applicable to all personnel of the CA's command was the 

charged offense, Barnes (ACM), 12 CMR 735; where CA directed TC to amend 

the charges to the greater offense of robbery instead of larceny, Smith, 8 USCMA 

178, 23 CMR 402 ; where CA expressed an opinion as to accused's guilt in official 

correspondence recommending acceptance of accused's resignation in lieu of 

trial, Sippel (ACM), 8 CMR 698 ; where CA's indorsement on the charge sheet 

included instructions to the TC concerning his duties, witnesses he should call, 

and the location of certain documents he might use, which instructions were in 

terms wholly advisory and not compulsory in spirit, Haimson, 5 USCMA 208, 

17 CMR 208 ; accord, Blau, 5 USCMA 232, 17 CMR 232 ; Gordon, 5 USCMA 276, 

17 CMR 276; where official documents required by law to be executed and signed 

by the CA were used at the trial and their correctness was not questioned, Long, 

5 USCMA 572,18 CMR 196. 

56. Specid courts-martial. 

Division Artillery Commander may convene SPCM.-A division artillery commander is a "commhnding officer" who may convene an SPCM under the provisions of UCMJ, 81%. 23, for .;the trial of personnel within his command.-Ltr, 

JAGJ 1957/9282,8 Jan 58. 
C 5~. Summarg courts-martial. 

Regulations.-Establishment of SCM's in towns, cities, and recreational areas, 

SR 22125-5. 

6. APPOINTMENT OF TRIAL COUNSEL, DEFENSE COUNSEL, ASSISTANTS.-a. General. 

TC who, in his prior capacity as legal assistance officer, advised accused with 

respect to securing a DC and evidence to support his defense to the charge upon 

which he was tried.-In rendering such advice, the legal assistance officer was, 

within the meaning of Art. 27a, acting as DC for the accused in the same case in 

which he subsequently served as TC. Accordingly, he was ineligibIe to serve 

as TC for accused's trial. Brownell (AOM), 17 CMR 741. 

Trial counsel who served as accused's counsel at pretrial investigation.-The 

record of accused's trial by GCM disclosed that the trial was conducted by the 

Assistant Trial Counsel who stated that Trial Counsel, who was not present at 

the trial, had been requested as defense counsel at the Article 3271 investigation ; 

"however, his services were not available at that time." Contrary to this assertion the Investigating Officer's report indicated that Trial Counsel had been 

available and was present at the investigation as counsel for accused. Held, the 

appointed trial counsel shall be deemed to have acted in the case unless the contrary affirmatively appears of record, and affidavits will not be accepted "as a 

supplementary designation of the record" to show the non-participation of trial 

counsel in the preparation for trial or trial of the case. Gray, CM 402130. 

TC who served as DC in closely related case.-TC for accused's trial was ineligible where he had served as DC at the separate trial of another accused who 

was tried for the same offense of escape from confinement which was accomp 

lished by the concerted action of each accused. Ltr, JAGU CM 352265,19 May 52. 

See also Kelsey (ACM), 6 CMR 522, wherein TC had served as DC at the separate trial of another who was tried for the same offense of unauthorized sale of 

govt. property committed jointly with the accused. Under such circumstances, 

TC was ineligible since he had previously acted as DC in what must be considered 

to be "the same case" within the meaning of Art. 27a. 

TC who conducted informal investigation prior to signing charges as accuser.- 

Where TC was also the accuser and, prior to signing the charges, he conducted 

an informal investigation in order to determine whether the facts appeared to 

warrant trial, such inquiry did not make him an 10. Consequently, he was not 

disqualified to serve as TC in the same case. Lee, 1 USCMA 212, 2 CMR 118. 

See par. 64 concerning who is an 10. 

TC who acted as officer designated to take depositions.-An officer designated 

to take depositions from two witnesses did not become an I0 or LO by taking the 

depositions and therefore was not ineligible to act in the capacity of TC in obtaining the deposition of another witness in the same case. Hounshell (ACM), 19 

CMR 906. 

DC who also served as DC at prior trial of the prosecution's principal witness 

for substantially the same offense.-Since DC had defended the prosecution's 

principal witness who was tried on charges of stealing and selling a pistol, his 

subsequent defense of the accused for purchasing the stolen pistol placed him in 

the legally precarious position of having to safeguard the interests of the accused and at the same time retain the confidences derived from his attorneyclient relationship with the prosecution witness. Under such circumstances 

accused was denied the effective assistance of DC. Findings and sentence set 

aside. Thornton, 8 USCMA 57,23 CMR 281. 
66. Qualification of counsel of general courts-martial. 

Regulations.-Certification of LO, TC, and M= of a GCM, SR 605-175-10. 

Certification of non-JAGC officers.-It is the policy of The Judge Advocate 

General that certification of non-JAOC officers, pursuant to Art. 27b, will 

be accomplished only on the basis of established need and manifested intent to 

use the officer for the purpose certified. Moreover, prior certification of such 

officers is not evidence of need or intent. 59 Chron Ltr 2/13. 

66. Qualification of counsel of special courts-martial. 

Appointed DC of SPCM must be a commissioned officer.-Even where accused 

requests and is provided an EM for his DC, a commissioned officer must be 

appointed as DC of the CM which tries accused. Such officer must, if the ac 

cused so desires, act as associate counsel; otherwise he shall be excused by the 

president of the CM. In the event such officer is excused, the record should 

show that accused, with full knowledge of his right to the officer's services, expressly waived such right. Long, 5 USCMA 572'18 CMR 196. 

6d. Qualification of assistant trial counsel and assistant def ense counsel. 

Assistant DC serving as DC where appointed DC was absent due to separation from service.-Although it was error not to either appoint a new DC 

or amend the orders and redesignate the assistant DC as DC to replace the 

separated DC, the error was not prejudicial where both the separated DC and 

the assistant DC were certified in accordance with Art. 27b and the accused 

consented to the absence of his appointed DC and to his representation by the 

assistant DC. McCarthy (CM), 7 CMR 329. 

7. APPOINTMENT OF R E P 0 R T E R S AND INTERPRETERS. 

Regulations.-Reporters shall not be appointed for SCM's or for SPGM's 

unless the CA has received special authorization in each instance from the SA. 

TJAG will consider, sign, authenticate, and issue or withhold any such authorization by the authority of and Por the SA. A CA may, however, furnish clerical 

personnel to assist SCM's and SPCM's in maintaining and preparing a record 

of the proceedings in any case. AR 22-145. 

JURISDICTION OF COURTS-MARTIAL 

9. JURISDICTION AS TO PERSONS. 

Regulations.-Prosecution of civilians for petty offenses on Fed. reservations, 

AR 632-386. Trial by CM of members of the merchant marine. SR 22-60-5. 

Cross-references.-Effect of a discharge from service upon CM jurisdiction, 

par. llb (United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) ; Gallagher, 

7 USCMA 506, 22 CMR 296). Effect upon CM jurisdiction of a reserve officer's 

return to inactive duty status, par. lld (Mansbarger (GM), 20 CMR 449). 

Claim of erroneous induction.-"The attention of all judge advocates is invited to the provisions of subparagraph 3a (2), AR 635-205, 2 April 1956. In the 

case of a claim of erroneous induction no action wiU be taken until a recommendation is obtained from the Director of Selective Service and disposition of the 

member will be in accordance with wch recommendation." Ltr, JAGJ 1958/8452, 

23 Dec 58. 
Inductee who failed to notify the draft board of his prior service.-By failing 

to enter his prior service on the space provided on his draft registration form, 

or to otherwise notify the draft board of such service, and by reporting for duty 

without appealing his classification, the inductee waived his exemption from 

induction. Accordingly, he was subject to CM jurisdiction on charges of desertion 

committed six weeks after his induction. McNeill, 2 USCMA 383, 9 CMR 13. 

Members of Army Reserve ordered to active duty.-Members of Army Reserve ordered to active duty for failure to participate satisfactorily in prescribed Ready Reserve duty training who fail or refuse to respond to such 

orders are subject to trial by CM if jurisdiction over the individual has attached 

through apprehension. arrest, conjinement, or filing of charges prior to expiration 

of the training period stated in the orders. Ltr, JAGJ 1957/1465. 12 N'ov 57. 

Alien enlisted in violation of statute.-An alien who, by fraudulently representing himself to be a U.S. citizen, procures his enlistment contrary to 10 U.S.C. 

3253(c) (which prohibits an original enlistment of an alien who has not made 

a legal declaration of intention to become a U.S. citizen) is subject to CM jurisdiction during such enlistment. Robson (CM), 24 CMR 375. 

EM retained in service beyond enlistment.-"Until discharged through one of 

the recognized legal modes of separation from the service," such persons remain 

subject to CM jurisdiction. Downs, 3 USCMA 90,ll CMR 90 (wherein the failure 

to comply with Naval regulations authorizing retention of a member in service 

for medical treatment did not deprive CM of jurisdiction over accused who was, 

in fact, retained in the Navy for medical treatment beyond the expiration date 

of an involuntary extension of his enlistment) ; Patton (ACM), 2 CRER 658 

(wherein the existence of an Air Force directive authorizing only one extension 

of enlistment did not deprive CM of jurisdiction over accused for offenses committed while serving under an unauthorized second extension of his enlistment) ; 

Eaton (ACM), 6 CMR 675 (wherein an administrative decision that accused's 

enlistment was not subject to an involuntary extension, which was rendered 

approximately one year after the period of enlistment, did not deprive the CM of 

jurisdiotion over lthe accused for offenses committed during the period he was 

retained in service pending the decision). 

Enlistees who have not attained statutory minimum age (17) for enlistment.- 

Such persons are legally incompetent to acquire military status. Accordingly, 

they are not subject to CM jurisdiction. Blanton, 7 USCMA 644, 23 CRlR 128. 

Furthermore, even though an enlistee below the age of enlistment is overseas at 

the time of his alleged offense, he cannot be subjected to CM jurisdiction under 

Art. 2(11) by charging him with being a person serving with the armed forces 

without the continental limits of the U.S. McCoy (CM) ,24 CMR 456. 

Underage enlistees who voluntarily remain in service after attaining statutory age for enlistment.-Such persons are subject to CM jurisdiction for offenses 

committed after reaching the statutory age of enlistment. Barrett v. Looney, 

252 F. 2d 588. Compare Overton, 9 USCMA 684,26 CMR 464. 

Inductee who failed to make passing score on AFQT.-Induction of such person was not void and he was subject to CAI jurisdiction for his subsequent AWOL. 

The purpose of the UMTR-S Aot (62 Stat. 604), as amended (50 U.S.C. App. sec. 

454(a) ), in fixing 10 points as a passing score on the AFQT was to enlarge the 

nummber of persons available for military service by preventing the armed forces 

from requiring a higher score for inductees. It was not intended to prevent 

induction of individuals whose scores fell below 10 but were otherwise determined 

to be acceptable. Martin, 9 USCMA 568,26 CMR 348. 

Constitutionality of Art. 2(11).-Art. 2(11), which confers CM jurisdiction 

over persons serving with, elnployed by, or accompanying the armed forces outside the U.S. and outside certain other specified areas, was declared uncon- 
19 7 lld 

stitutional by the U.S. Supreme Court when applied so as to subject civilian 

dependents of servicemen tO trial by CM for capital offenses in time of peace. 

Reid v. Covert and Kinsella v. Krueger, 354 U.S. 1 (1957). Relying upon the 

Supreme Court's decision in these cases, a Fed. district court has also declared 

Art. 2(11) unconstitutional when applied so as to subject a civilian dependent 

of a serviceman to trial by CM for a noncapital offense in peacetime. Singleton 

v. Kinsella, 27 LW 2118 (D.C.S.D. W. Va., 1958). Art. 2(11) has also been 

declared unconstitutional by the U.S. Court of Appeals for the District of Columbia in the case of a civilian employee of the armed forces overseas tried by 

CM for a noncapital offense in peacetime. Guagliardo v. McElroy, 27 LW 2117 

(D.C. Cir. 1958). Thus, under the present status of the law on this matter, 

USCMA and BR decisions upholding CM jurisdiction over U.S. civilian dependents and U.S. civilian employees of the armed forces and its agencies overseas 

under the provisions of Art. 2(11), or its predecessor, AW 2(d), cannot be regarded as valid legal precedents. On the other hand, there appears to be no 

legal basis on which Art. 2(11) could be declared unconstitutional in cases such 

as United States v. Weiman et al, 3 USCMA 216,ll CMR 216, in which CM jurisdiction over two Polish nationals employed by the armed forces in France was 

upheld. 

Constitutionality of Art. 104(2).-A person subject to the Code is in no position to challenge the constitutionality of Art. 104(2) on the ground that it makes 

"any person," whether subject to the Code or not, amenable to trial by CM for a 

violation of its terms. Dickenson, 6 USCMA 438, 20 CMR 154. See also Dickenson v. Davis, 245 F. 2d 317, wherein it was held that Art. 104 is not rehdered 

unconstitutional because it makes "any person" amenable to trial by CM for a 

violation of its terms. 

11. TERMINATION OF JURISDICTION.-6. Exceptions. 

Cross-reference.-Jurisdiction over an EM during a period of voluntary "holding over," par. 9 (Patton (CM) ,2 CMR 658). 

Constitutionality of Art. 3a.-Art. 3a, which authorizes trial by CM of any 

person who has been discharged or otherwise separated from the service and 

thereafter charged with an offense committed during his service which is punishable by confinement of five years or more and for which the person cannot be 

held in a Fed. or state court, is unconstitutional when applied so as to authorize 

trial by CM of a civilian ex-serviceman who has no service connections whatever 

at the time jurisdiction over him is asserted for an offense committed during 

his service. United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). But Art. 

3a is constitutional when applied so as to preserve CM jurisdiction over a discharged serviceman who has reenlisted. Gallagher, 7 USCMA 506, 22 CMR 296, 

wherein it was held that a discharged serviceman who had reenlisted was subject to trial by CM on charges of unpremeditated murder, mistreatment of fellow 

prisoners, collaboration with the enemy, and misconduct as a prisoner of war, 

committed during his prior service. 

Ild. Effect of termination of term of service. 

Cross-reference.-Jurisdiction over EM after expiration of term of service 

but before discharge, par. 9. Downs, 3 USCMA 90, 11 CMR 90; but see Doherty, 

10 USCMA 453,28 CMR 19, in cases of RFA trainees . Where accused reverted to inactive duty status prior to offense alleged under 

additional charges.-Although accused was subject to trial by CM on charges of 

AWOL filed prior to the date self-executing orders returned him to an inactive 

duty status, he was not subject to trial by CM on the additional charges alleging 
an AWOL committed after that date. His status at that time being no more 

than that of a civilian subject to CM jurisdiction on charges filed prior to termination-of his service, he was not a member of the service and therefore could not 

commit the offense of AWOL. Mansbarger (CM), 20 CMR 449. 

Where officer is retained in service for hospitalization beyond the date published orders direct his release from active duty.-The provisions of 10 U.S.C. 

8446 and 10 U.S.C. 3446 require the retention on active duty of any disabled AF 

or Army officer who has only a temporary appointment, until his physical condition is such that he will not be further benefited by retention in a military hospital 

or in the service in which he has a temporary appointment. Accordingly, where 

an AF or Army officer with only a temporary appointment is a hospital patient 

on the date published orders direct his release from active duty, the orders are ineffective and he remains subject to CM jurisdiction for offenses committed thereafter, until a determination is made by competent medical authority that he 

would not be further benefited by retention in a military hospital or his branch of 

service. Robertson, 8 USCMA 421,24 CMR 231. 

12. EXCLUSIVE AND NONEXCLUSIVE JURISDICTION. 

Regulations.-Responsibility for investigation and prosecution of offenses 

over which the Department of Defense and the Department of Justice have concurrent jurisdiction, AR 22-160. 

Cross-reference.-Power of CM to try offenses against the law of occupied 

enemy territory, par. 14a (Schultz, 1 USCMA 512,4 CMR 104). 

Waiver of jurisdiction in favor of a foreign country.-There is no constitutional or statutory barrier to a decision by the Executive Branch of the U.S. 

Govt. to waive the primary right to exercise criminal jurisdiction over a 

member of the U.S. armed forces granted by Japan with the qualification stated 

in the Protocol Agreement between the U.S. and Japan, which became effective 

on 29 Oct 53. Accordingly, the Executive Branch of the U.S. Govt. did not exceed 

its authority by waiving criminal jurisdiction over a member of the Army who, 

while on guard duty in Japan, inserted an expended 30 caliber cartridge in the 

rocket launcher attached to his rifle and, by firing a blank cartridge, projected 

the expended cartridge in such a manner that it caused the death of a Japanese 

woman nearby. Wilson v. Girard, 354 U.S. 524 (1957). 

Power of military commission to try a civilian dependent of a member of the 

armed forces for a violation of the law of occupied enemy territory.-While in 

an area still occupied by U.S. troops, a U.S. military commission has jurisdiction 

to try a civilian dependent of a member of the armed forces for a violation of. the 

law of occupied enemy territory which has been expressly adopted by the U.S. 

military Govt. Madsen v. Kinsella, 343 U.S. 341 (1952) (wherein the U.S. 

Supreme Court affirmed the judgment of the Circuit Court of Appeals discharging 

a writ of habeas corpus filed by an AF officer's dependent wife who was convicted by a U.S. military commission in Germany of murdering her husband in 

the American zone of occupied Germany. 

13. RECIPROCAL JURISDICTION. 

EXECUTIVE ORDER 10428 DELEGATING TO THE SECRETARY OF DEFENSE THE AUTHORITY O F T H E PRESIDENT TO EMPOWER CERTAIN 

COMMANDING OFFICERS OF THE ARMED FORCES TO CONVENE 

GENERAL COURTS-MARTIAL. 

By virtue of the authority vested in me by the Uniform Code of Military Justice, Article 140 (64 Stat. 107, 145), and as Commander in Chief of the 

armed forces of the United States, I hereby delegate to the Secretary of Defense 

the authority, vested in the President by the Uniform Code of Military Justice, 
Article 22(a) (71, to empower any officer of the armed forces who is the 

commander of a joint command or joint task force to convene general courtsmartial for the trial of members of any of the armed forces in accordance with 

the Uniform Code of Military Justice, Article 17(a), and the Manual for CourtsMartial, United States, 1951, paragraph 13. 

January 17,1953. EIABRY S. TRUMAN. 

Members of AF confined in USDB.-Prisoners confined in a USDB who, at the 

time of their original conviction, were members of the AP and who commit an 

offense while in confinement should be tried by CM's convened by a CA of the 

AF, in the absence of a showing that there would be manifest injury to the 

service. Ltr, JAGJ 1952/8435, 5 Nbv 52. 

14. JURISDICTION OF GENERAL COURTS-MARTIAL.-a. 

Persons and Offenses. 

Violations of the law of an occupied territory by U.S. citizens.-Under the law 

of war, U.S. citizens residing in a foreign country occupied by U.S. forces are 

subject to CM jurisdiction for offenses against the laws of the occupied country 

which have been continued in effect by the occupying U.S. forces. Schultz, 1 

USCMA 512, 4 CMR 104. 

15. JURISDICTION OF SPECIAL COURTS-MARTIAL.-6. 

Punishments. 

Cross-reference&-SPCM's may not adjudge a BCD unless the record of trial 

contains a verbatim transcript of all proceedings in open court, par. 83a 

(Whitman, 3 USCMA 179, 11 CMR 179). Prior to appointing a court reporter 

for an Army SPCM, the CA must obtain special authorization from the SA, par. 

7, AR 22145. 

16. JURISDICTION OF SUMMARY COURTS-MARTIAL.-a. 

Punishments. 

Regulations.-Additional limitations upon punishment of NCO's and specialists, 

AR 600-201. 

Cross-reference.-Additional punishment SCM authorized to adjudge upon 

showing of two previous convictions, par. 1276, Sec. B (Ltr, JAGJ 1953/3857, 

5 May 53). 

APPREHENSION AND RESTRAINT 

17. SCOPE. 

Regulations.-General provisions concerning apprehension and restraint, AR 

600-320. Apprehension, arrest, restriction, and confinement of female persons, 

AR 633-45. 

20. RESTRAINT.-6. Restriction in lieu of arrest. 

Where accused had full knowledge of his unit's impending move forward to 

contact the enemy at the time he went AWOL, the fact that he had been placed 

in a status of administrative restraint and from performance of any duty, a 

status equivalent to arrest, was no defense to a charge of desertion with intent 

to avoid hazardous duty. His status of restraint was merely a matter of administrative convenience which might have been terminated at any time either 

directly or constructively by an order to perform military duty. Mattox (CM), 

2 CMR 361. 
21. ARREST AND CONFINEMENT.-a. Who may arrest or 

confine. 

Cross-reference.-A commander may restrict the authority of his subordinate 

officers to confine personnel of the command by requiring the prior approval 

of his SJA, par. 174c (Gray, 6 USCMA 615, 20 CMR 331). 

Warrant officers, when performing the duties of officer of the day, have authority to erder confinement of enlisted persons who have committed offenses.- 

Jones (ACM), 17 CMR 904. 

21d. Responsibility for restraint after trial. 

Restraint pending completion of appellate review.-Where the codnement portion of an accused's sentence to discharge and confinement has been served prior 

to completion of appellate review, the CO or the CA may take reasonable measures 

to insure his physical presence within the command until completion of final 

action on the case. Such measures may include placing him under restriction or 

arrest. Petroff-Tachomakoff, 5 USCMA 824,19 CRlR 120 ; Teague, 3 USCMA 317, 

12 CMR 73. 

23. APPREHENSION OF DESERTERS BY CIVILIANS.-a. 

Civil officers. 

Regulations.-Rewards and reimbursement for expenses of delivery of deserters to military control, AR 37-104. 

230. Delivery to and return of offenders from civil authorities. 

Army personnel released on bail by civil courts.-Prevailing Army policy with 

respect to members who are arrested and released on bail by civil authorities is 

to effect their return to military control whenever possible; to negotiate with 

the civil authorities the release of such members to the military authorities on 

the basis of an undertaking to make the member concerned available for trial 

when necessary ; and to insure the availability of the member at the time of trial 

by either attaching or transferring him to a unit located within the geographical 

area of freedom on bail permitted the member by the civil court concerned. 

Accordingly, a member freed on bail should not be returned to his home station 

when such station is located outside the territorial limits prescribed by the court 

as a condition of release on bail until such time as the case is finally disposed of. 

Ltr, JAGA 1957/2961,26 Apr 57. 

PREPARATION OF CHARGES 

26. GENERAL RULES AND SUGGESTIONS.--6. Offenses 

arising out of one transaction. 

Cross-reference.-Test for determining whether conduct constitu'tes separate 

offenses for purpose of punishment, par. 765. 

26d. Joint offenses. 

Cross-reference.-Independent proof that offense was "committed jointly and 

in pursuance of a common intent" is not essential to the admissibility of confessions by join't offenders, par. 140a (Dolliole et al, 3 USCMA 101, 11 CMR 101). 

Desertion not to be charged as joint offense.-As desertion is considered to fall 

within that class of offenses which can only be committed by one person, rather 

than by joint aotion by two or more persons, the practice of jointly charging and 
trying individuals for that offense is considered questionable. Accordingly, in 

such cases, it is recommended that the accused be charged and tried separately 

or, if considered appropriate under the circumstances, tried at a common trial on 

separate charges. Ltr, JAGJ CM 396429,23 Aug 57. , 

SUBMISSION OF AND ACTION UPON CHARGES 

30. BASIC CONSIDERATIONS. 

Regulations.-Procedures in preferring and forwarding charges in AWOL and 

desertion cases, AR 630-10. 

Where charges are not forwarded within eight days after accused is ordered 

into arrest or confinement, the record of trial should contain the report required 

by Art. 33. Ltr, JAGJ CM 351151,5 Mar 52; Ltr, JAGJ 1959/3800,12 Apr 59. 

31. ACTION BY PERSON HAVING KNOWLEDGE OF A 

SUSPECTED OFFENSE. 

Regulations.-Preparation by MP's of reports on offenses and offenders, SR 

19045-1. 

32. ACTION BY COMMANDER EXERCISING IMMEDIATE 

JURISDICTION UNDER ARTICLE 15. 

Regulations.-Offenses over which the Department of Defense and the Department of Justice have concurrent jurisdiction, AR 22-160. 

33. ACTION BY 0 F F I C E R EXERCISING SUMMARY 

COURT-MARTIAL JURISDICTION. 

Cross-reference.-Charges redrafted after statute of limitations has run, par. 

680 (Rodgers, 8 USCMA 226,24 CMR 36). 

33d. Alterations. 

Obvious errors in charges may be corrected and charges may be redrafted over 

the accuser's signature, provided the redraft does not include any person, offense, 

or matter not fairly included in the charges as preferred.-For example, a single 

specification alleging three separate offenses of sodomy on different dates was an 

obvious error properly corrected over the accuser's signature by redrafting the 

specijication to allege only one offense and adding a new specification for each of 

the other offenses. Taylor (CM), 13 CMR 201. And where further investigation 

revealed that an offense, originally charged as a violation of Art. 134, occurred 

on a date prior to that alleged and prior to the effective date of the UCMJ, the 

error was properly corrected by redrafting the charges over the accuser's signature as a violation of the AGN on the date revealed by the investigation. Brown, 

4 USCMA 683,16 CMR 257. 

But if the correction of charges results in the inclusion of any person, offense, 

or matter not fairly included in the charges as preferred, new.charges must be 

signed and sworn to by an accuser.-For example,' charges alleging a violation 

Of a certain regulation may not be amended over the accuser's signature to allege 

a violation of a different regulation. In such case, new charges must be signed 

and sworn to by an accuser. Olivieri (ACM), 10 CMR 644. Accord, Kitts (CM) , 20 CMR 467, wherein reversal was required because a specification alleging 

forgery of leave papers was amended over the accuser's signature to allege 

wrongful possession, with intent to deceive, of false leave papers. 
33e. Investigations. 

Regulations.-Reports of pending investigations and CM proceedings, AR 

600-31. 

Cross-references.-Effect of changing the specification after an investigation 

has been conducted, par. 3313 (Taylor (CM), 13 CMR 201 ; Kitts (CM) , 20 CMR 

467). What is a substantial change in a specification, par. 33d (Olivieri (ACM) , 10 CMR 644). 

33i. Forwarding charges. 

Where trial is not deemed appropriate.-Where the officer exercising SCM 

and SPCM jurisdiction believes trial by CM is not appropriate, he need not dismiss the charges but may forward them to the GCM convening authority with 

his recommendations for disposition. Such action is especially appropriate 

where his belief is based on the insufficiency of the available evidence. Green 

(CM), 24 CMR 369. 

33k. Reporters in t'rials by special courts-martial. 

Cross-reference.-Special authority required in each case for appointment of 

reporters for Army SPCM's, par. 7 (AR 22-145,13 Feb 57). 

34. INVESTIGATION OF CHARGES.-a. Introductory statement. 

Regulations.-Interrogations of women personnel, AR 625-5. Reports of pending investigations and CM proceedings, AR 600-31. 

Cross-reference.-Effect of changing the specification after an investigation 

is made, par. 33d (Taylor (CM) ,13 CMR 201). 

346. Counsel. 

Effect of excluding civilian DC from pretrial investigation for lack of security 

clearance.-Where an accused is denied the right to have his personally retained 

civilian counsel represent him at the pretrial investigation because such counsel 

does not have security clearance for access to classified matter, and the Govt. 

refuses to initiate clearance action, accused's subsequent conviction by CM must 

be reversed and a new investigation must be conducted before a rehearing may 

be ordered. Nichols, 8 USCMA 119,23 CMR 343. 

Military DC provided for pretrial investigation.-If military DC of accused's 

own selection is made available to represent accused at the pretrial investigation, 

such counsel need not be legally qualified within the meaning of Art. 27b. Gandy, 

9 USCMA 355,26 CMR 135. On the other hand, if accused requests mi.litary DC 

without specifying any particular person, the DC provided pursuant to par. 

34c(3), MCM, must be legally qualified within the meaning of Art. 27b. Tomaszewski, 8 USCMA 266,24 CMR 76. 

34e. Formal report. 

Exhibits appended to the report of investigation must be forwarded to 

OTJAG with the record of trial.-Ltr, JAGV CM 348570,29 Nov 51. 

The investigating officer's report must be signed.-Msg, JAGU CM 348319, 

9 Oct 51. 

35. ACTION BY 0 F F I C E R EXERCISING GENERAL 

COURT-MARTIAL JURISDICTION.-a. General. 

CA may not delegate authority to refer CM charges for trial. Roberts, 7 

USCMA 322,22 CMR 112. 
35c. Action of the staff judge advocate or legal officer. 

' The advice of the'SJA must be included in khe record of trial. Msg, JAGN CM 

349056,4 Dec 51. 

APPOINTMENT OF COURTS-MARTIAL 

36. APPOINTING ORDERS.-6. Form and content. 

Regulations.-Style and content of orders appointing CM's, AR 22-10. 

Cross-reference.-Amending orders, par. 370 (Ltr, JAGJ CM 349534, Dec 51). 

36c. Selection of personnel. 

Cross-references.-Withdrawal of request for EM on CM, par. 4d (Ltr, JAGJ 

1952/6970, 11 Sep 52). TC prepared list of members for CM, par. 4d (Cook 

(ACM); 18 CMR 715). 

37. CHANGES IN PERSONNEL.-6. Exceptions. 

Replacement of president after arraignment for ruling adverse to prosecution.-To say the least, dissatisfaction with a ruling by the president does not 

amount to good cause for his removal. Furthermore, such action imposes 

command control over the CM requiring reversal. Whitley, 5 USCMA 786, 19 

CMR 82. 

Ordinary leave is not good cause for excusing CM member after arraignment.-Boshears (ACM), 23 CMR 737. 

37c. Manner in which effected. 

Ordinarily, not more than three amending orders to an order appointing 

a OM should be published. Ltr, JAGJ CM 349534, Dec 51. 

38. INSTRUCTING PERSONNEL OF COURT. 

CA's pretrial instructions and other directives which have been held to deprive an accused of his right to trial by a CM free of command influence.-See 

McCann, 8 USCMA 675, 25 CMR 179, where, during a continuance of the trial, 

several court members attended a military justice training lecture given by 

the SJA in which the accused's offense was characterized as being among certain 

acts of misconduct which were more reprehensible in the military than the 

civilian community; Zagar, 5 USCMA 410, 18 CMR 34, wherein all the members 

of a court attended a lecture by the SJA on the day before trial at which time 

they were told that because of the careful pretrial preparation of the case a 

person would not be brought to trial if a crime had not been committed and if 

accused had probably not been the person who committed it ; Ferguson. 5 USCMA 

68, 17 CMR 68, wherein the SJA, at a conference prior to trial of accused for 

mutiny occurring at a post stockade, told the membhrs of the court that there 

had been difficulties at the post stockade because of dissident elements and that 

failure to take and prompt action would aggravate the problem ; Hunter, 

3 USCMA 497, 13 CMR 53, wherein at a pretrial conference the CA discussed 

the preview derelictions of the accused with at least three members of the 

court and informed them that a previous court-martial had adjudged a much 

too meager punishment; Hawthorne, 7 USCMA 293, 22 (4MR 83, wherein a 

CA several months prior to trial promulgated a policy directive to the effect 

that all RA fenders with two previous convictions should be considered 

for elimination from the service. and that the first method to consider should 

be trial by GCM so that Sec. B, TMP, could be fully utilized; and further 
directed that the difective be brought to the attention of all members appointed 

to GCM's; Littrice, 3 USCMA 457, 13 CMR 43, wherein at a meeting of CRI 

members immediately prior to trial the acting CO informed them (1) that 

inadequate sentences bring the services into disrepute, (2) the prerogatives of 

the CA as to commutation of sentences should not be usurped, (3) the findings 

and sentence arrived at by the court are relatively unimportant because the 

case receives a thorough review at higher headquarters, and (4) that a court 

member's good performance mould be reflected in his efficiency report. Compare Isbell, 3 USCMA 782, 14 CMR 200. 

Mere presence of SJA at the trial is not improper, but SJA must not participate as adviser to the president of the CM.-Self, 3 USCAIA 568, 13 CMR 

124 ; Guest, 3 USCASA 147,ll CMR 147. 

SJA must not criticize the CM in his review.-As the SJA is the legal 

representative of the CA, comment in par. 6 of the SJA's review, c~iticizing a 

CAI for failing to adjudge an adequate sentence and concluding with such 

"action reflects a deterioration in the standards of the officers who adjudged 

the sentence and has a degrading effect upon their associates," closely approaches the conduct forbidden by Art. 37. Ltr, JAGJ CM 349972, 1952. 

PERSONNEL OF COURTS-MARTIAL 

39. LAW OFFICER.-6. Duties. 

Cross-reference.-Abuse of discretion by LO in limiting DC's argument, par. 

72b ( Beachley (CM) ,13 CMR 392). 

Where possible grounds exist for disqualification of the LO, the decision 

of whether to disqualify himself or not must be made by the LO without 

advice from his superiors since such advice would fall squarely within the 

prohibited area of command influence.-Torrente (CM), 21 CBSR 491. 

40. PRESIDENT.-6. Duties. 

Acceleration of previously fixed trial date.-A previously fixed date of trial 

should not be accelerated without adequate notice to accused's parent, guardian, or civilian counsel who has announced a desire to confer with accused or 

attend the trial. Sound policy dictates that an interested parent, guardian cn' 

civilian counsel who has been notified of the offense and has indicated a desire 

to confer with the accused or be present at his trial be given a reasonable 

opportunity to do so at his own expense unless the accused specifically expresses 

a contrary desire. What is a reasonable opportunity depends on the circumstances of each case, including the distance of interested parties from the 

place of trial. In no event should fixed dates of trial be accelerated without 

coordination and careful consideration of the impact on all interested parties 

who have been notified. DA Msg 445130,lO Aug 56. 

41. MEMBERS.4. Duties. 

Notetaking by jurors is a matter for the discretion of the trial judge, and a 

request by the jury to take notes should be denied only in exceptional cases.- 

United States v. Campbell, 138 J?. Supp. 344 (N.D. Ia., 1956). 

Members of the CM should not converse with witnesses off the record.-Conversations between members of the CM and any witness during recess and off 

the record raise a rebuttalble presumption of prejudice. Adamiak, 4 USCMA 

412,15 CMR 412. 
41c. Absence of members. 

CA's may delegate to their SJA's, presidents of CM's or any other impartial 

official, the authority to excuse CM members prior to arraignment for good 

cause.-And if no objection to the absence of any member is made, the record 

, of trial need not reflect the reason for the absence or that the member was excused by proper authority. But where an objection is made, the record of trial 

must affirmatively show that absent members were properly excused either by 

! the CA or by an impartial official expressly authorized by the CA to excuse members for good cause. Allen, 5 USCMA 626,18 CMR 250. 

, Authority to excuse members of a CM may not be delegated to a TC.-Accordingly, TC's failure to call all members not excused by proper authority constitutes prejudicial error. Moses (CM) ,11 CMR 281. 

, 41d. Effect of absence. 

Cross-reference.-Withdrawal of request for EM on CM, par 40 (Ltr, JAGJ 

1952/6970,11 Sep 52). 

Numerous unexplained absences prior to arraignment.-The manual provision 

(par 41d(3) ) to the effect that the unauthorized absence of a member prior to 

', arraignment will not prevent the CM from proceeding with the trial if a quorum 

, is present was intended to apply to absendes due to the error or misconduct 

of members, rather than to cope with wholesale absences resulting from excuses 

granted by subordinates of the CA. Accordingly, where an objection to the 

1 absence of members prior to arraignment is made, the CM may not proceed with 

the trial unless an affirmative showing is made that the absence of such mem- 

, bers has been approved by proper authority. However, if no objection is made, 

such a showing is not required. Allen, 5 USCMA 626,18 CMR 250. 

43. SUSPENSJON, OF COUNSEL. 

Regulations.-Suspension of counsel of courts-martial for professional or personal misconduct, SR 22-130-5. 

44. TRIAL COUNSEL.-6. Disqualification. 

Cross-reference.-Qualifications of counsel, pars. 6a, b, c, and d. 

44f. Duties prior to trial. 

Cross-references.-Failure of TC to call all members of CM not excused by 

proper authority, par 41c (Moses (CM) ,11 CEdR 281). Notificatidn of accused's 

civilian counsel and parents or guardian of accelerated trial date, par. 40b (DA 

Msg 445130,lO Aug 56). 

44g. Duties during tr2al. 

Conduct of TC during trial.-TC should not attempt to offer evidence before a 

CM which he knows to be inahissible. But an offer, in good faith, of evidence 

of doubtful competency does not constitute a deliberate flouting of the rules of 

evidence prejudicial to the accused. Johnson, 3 USCMA 447,13 CMR 3. 

Presenting legal authorities.-mile the Manual {par. 44g(2)) authorizes 

TC to read legal precedents to the CM when requested by the LO of a GCM or 

president of an SPCM, such practice often Ieads to confusion and, as a general 

.rule, should be avoided. Johnson, 9 USCMA 178, 25 CMR 440. But when a 

question of law is raised, counsel for both sides must be afforded an opportunity 

to present and read legal authorities in support of their argnhent on the question. 

Bouie, 9 USCMA 228,26 CMR 8. 
45. ASSISTANT TRIAL COUNSEL. 

Cross-reference.-Qualifications of counsel, pars. 6a, b, c. and d. 

46. DEFENSE COUNSEL.-6. Disqualification. 

Cross-reference.-Qualifications of counsel, pars. 6a, b, c, and d. 

46c. Absence. 

Where appointed DC is absent from the trial, the record must show that he 

was absent with the express consent of the accused if such is the case. Msg, 

CM 357972,17 Nov 52. 

47. ASSISTANT DEFENSE COUN.SEL. 

See pars. 6 a, b, c, and d. 

48. COUNSEL FOR THE ACCUSED.-a. Statutory right to 

counsel of his own choice. 

Cross-reference.-Need for time in which to secure counsel as ground for continuance, par. 58c. 

Counsel during interrogation by law enforcement agents prior to the preferral 

of charges.-While a suspect has no right to appointed military counsel prior 

to the preferral of charges against him, he does have a right to consult with a 

lawyer of his own choice or with the SJA, and "a right to have his counsel 

present with him during an interrogation by a lam enforcement agent." Gunnels, 

8 USCMA 130, 23 ChlR 354. See also Melville, 8 USCMA 597, 25 ChlR 101, 

where, after finding it unnecessary to answer the question of whether a suspect 

is entitled to have his civilian counsel physically present with him during interrogation by CID agents, the Court said: "We do not, however, wish to be 

understood as placing our approval on the practice of excluding the presence 

of individually retained counsel from an interrogation prior to the preferral of 

charges. MTe simply do not reach that issue in this case.'' 

Counsel in IG investigations.-"[A]lthough the Gunnels case [Gunnels, 8 

USCMA 130, 23 CMR 3541 makes reference to law enforcement agents, so long 

as the subject under investigation is suspected or accused of a crime, the principle announced therein, that such a subject 'does have a right to obtain legal advice and a right to have his counsel present with him during an interrogation,' 

applies to investigations of a criminal nature conducted by inspectors general. 

In this connection, the Gunnels case is not interpreted to mean that the government is required to furnish military counsel to be present with a suspect during 

an investigation." Ltr, JAGJ 1957/6975,29 Aug 57. 

Counsel representing accused before GCM must be a lawyer.-An accused, 

even at his own insistence, may not be represented at a GCM by a nonlawyer. 

However, the accused may consult with a nonlawyer, have a nonlawyer present 

at his trial and seated at the counsel table, or an accused may conduct his own 

defense without the assistance of counsel. Kraskouskas, 9 USCMA 607,26 CMR 

387. 

486. Detail of individual military counsel. 

Cross-references.-Effect of denying accused opportunity to obtain individual 

military counsel, par. 58c (Borzellino et a1 (CM), 9 CMR 304; Fletcher (CM), 

6 CMR 163). 

Absence of requested counsel from trial.-'When an accused has submitted a 

request for individual military counsel and such counsel is not present at the 

trial, the record should reflect the reason why the requested counsel did not 
I represent the accnsed and whether accusccl concurred in the absence of such 

counsel. Msg, JAGU CAI 3GSSG7,lG Jnn 53. I 

48c. Duties in general. 

Termination of attorney-client relationship does not terminate DC's duty to 

abstain from taking any action in the proceedings contrary to accused's 

interests.-Accorclingly, where accused was represented by one DC at the pretrial 

investigation and by another at the trial, it was prejudicial error for the pre- 1 trial DC to prepare, at the direction of the SJA, a memorandum of the expected 

' testimony against the accused, which was forwarded to the CA for use by TC. 1 Green, 5 USCNA 610,18 CMR 234; accmd, Bryant (ACM), 16 CMR 747, wherein 

' the appointed DC, who mas absent from the trial with accused's express consent, 

i conducted a post trial interview with accused and recommended approval of the 

sentence adjudged, without suspension of the DD, contrary to accused's desires. 

/ Inadequate representation by DC requiring reversal.-Reversal for inadequate 

I representation by DC was required where DC and a specially constituted CM 

, were appointed one day prior to accused's trial for premeditated murder and DC 

' made no motion for a continuance for more time to prepare for trial, conducted 

no soir dire examination of court members, made no opening or closing argument despite accused's assertion of self-defense, and failed to present available 

evidence in mitigation and extenuation, McMahan, 6 USCMA 709, 21 CMR 31; 

where a nonlawyer DC of an SPCM permitted accused to testify and repeat his 

uncorroborated pretrial confession which was the sole evidence of guilt, Gardner, 

9 USCMA 48, 25 CAfR 310; where DC represented two accused at a joint trial 

and in his argument in extenuation and mitigation placed full responsibility for 

the offense on one accused and requested that the other be given a less severe 

sentence, Faylor, 9 USCMA 547,26 CMR 327 ; where DC failed to raise the defense 

of entrapment which was reasonably raised by the evidence, Horne, 9 USCMA 

601, 26 CMR 381; where DC failed to comply with accused's request to contest 

the admissibility of his confession on the ground that it was obtained as a result 

of threats and coercion, Oakley (CRf), 25 CRlR 624. 

48g. Preparation for trial. 

Request by defense for pretrial interview with complaining witness.-Although 

a witness may be compelled to submit to interrogation by the defense at an Art. 

32 investigation, in the taking of a deposition, or in examination at the trial 

itself, the CM has no authority to compel a witness to submit to an out-of-court 

interview by the accused or his counsel. Doyle et al. (ACM), 17 CMR 615. 

48j. Duties after trial. 

Rules of procedure before BR's.--DA Bul. 9, 8 Jun 51; DA Bul. 5, 19 Apr 55; 

and DA Bul. 11,13 Oct 58. 

Certificate that DC advised accused of his appellate rights.-A statement of 

accused that he does or does not desire appellate DC, or in lieu thereof a certificate of DC that he advised accused of his appellate rights, should be attached to 

the original record immediately following the chronology sheet. Ltr, JAGV CM 

350154,23 Jan 52. 

Trial DC furnishing information to appellate DC.-If counsel subsequently 

representing an accused in proceedings arising from a CM satisfies trial DC that 

he is retained by the accused, there is no impi-opriety in trial DC's furnishing 

Such counsel kith factual information pertaining to the trial as he received in 

his capacity as DC. This community of interest with DC at another level, however, does not require that he accept any responsibility for assisting in the present 
stages of the case beyond providing the new counsel with accurate statements of 

trial DC's participation at the trial and relationship with the accused. Ltr, 

JAGJ 1953/9959,24 Dec 53. 

Premature and erroneaus advice minimizing advantages of appellate counsel.- 

DC's advice to accused immediately after trial to the effect that because of his 

plea of dty there was little an appellate DC could do for hi erroneously placed 

the emphasis on what accused had to lose rather than on what he had to gain 

by appellate representation. Furthermore, the advice was premature. Although 

the Manual provides that DC will advise the accused generally of his appellate 

rights immediately after trial, and that a request for appellate counsel will be 

forwarded to the CA within 10 days from the date the sentence is adjudged 

(par. 48j (3) ) , both of ihese provisions are questionable because the CA's action 

normally is not taken within 10 days after trial and, until such action is taken, 

DO will not have all the information needed to provide the accused with the 

advice he should have to make an intelligent decision on whether to request or 

forego representation by appellate DC before a BE. In view of the premature 

advice minimizing the advantages of appellate counsel, USCAIA was not convinced that accused made, a knowing and informed choice to forego his right to 

appellate counsel. The court also condemned par. 47&, DA Pam. 27-10, The Trial 

Counsel and The Defense Counsel, as a means of inviting DC to discourage convicted persons from exercising their right to request appellate counsel. (The 

condemned portion of par. 47d has since been corrected, see C 3, DA Pam. 27-10, 

AFP Ill-1-lA.) Darring, 9 USCMA 651, 26 CMR 431. Compare Butler, 9 

USCMA 618, 26 CMR 398, wherein the court held that, although accused's certificate to the effect that he did not desire appellate counsel was premature, the 

record demonstrated conclusively that the accused knowingly and consciously 

waived his right to appellate counsel. 

49. REPORTER.-6. Duties. 

An additional copy of the record will be furnished to accused at his own 

expense.-Ltr, JAGM GM 348115, 18 Dec 51. 

An additional copy of the record may be furnished accused's mother at her 

expense and upon accused's authorization.-Ltr, JAGM CM 347951, 13 Nov 61. 

Documents appended to record should not also be copied verbatim therein.- 

In the absence of unusual circumstances, depositions and other documents appended to the record as exhibits should not also be copied verbatim in the record 

of trial. Ltr, YAGJ CM 359618,26 Jan 53. 

GENERAL PROCEDURAL RULES 

53. MISCELLANEOUS MATTERS.-6. Proceedings in each 

case to be complete. 

Although app. 8a recognizes the propriety of having the court sworn in the 

presence of a number of accused who are to be tried separately, it is requested 

that this practice be discouraged. The relatively small amount of time saved by 

such a one-time smearing of the court is not worth the risk of a defective record 

of trial which it entails. JAGJ, Undated Memo to Asst. TJAG. 

53e. Spectators; publicitg. 

Excluding the public from a CM.-When the issue is simply one of indecent 

language involving adult witnesses, the right to a public trial encompasses the 

privilege to have the press in attendance. Accordingly, military courts should 
not be closed to all merely because immorality may be involved. Brown, 7 

USCMA 251,22 CMR 41. 

Tape recordings of CM's.-The provisions of (subpar. 53e, MCM, are interpreted 

to include the making of tape recordings for public release or broadcast and will 

be scrupulously adhered to during the open and closed sessions of the CM, 

during the periods immediately prior to convening the court and following the 

adjournment of the court, and during all recesses. No exceptions will be made 

to this rule. Ltr, JAGJ 1957/4207,9 May 57. 

53g. Opportunity to present and support contentions. 

Cross-reference.-Arguments on sentence, par. 75 (Olson, 7 USCMA 242, 

22 CMR 32). 

Citing facts from legal authorities presented to the CM.-Where counsel 

presents argument in open court on a motion for a finding of not guilty or on 

the question of accused's sanity, the LO should permit counsel to include in his 

argument the facts upon which his legal citations are based. Bouie, 9 USCMA 

228, 26 CMR 8. 

53h. Explanation of rights of accused. 

Notwithstanding the statement to the contrary in par. 53h, MCM, the explanation of an accused's rights as a witness in the suggested language of app. 8a 

should not be given "in open court" by the LO of a GCM.-"When the accused 

is represented by qualified counsel, there should be little need for the law officer 

to advise him regarding his fundamental rights since any qualified counsel 

should be fully aware of his obligation to render advice to his client in this 

regard. Undoubtedly, if the defense counsel announces that the accused has 

been so advised, there would appear to be no necessity for ,any action by the 

law officer. In this regard, affirmative action by the law officer would ordinarily 

be limited to those cases where no showing has been made, or a showing which 

the law officer finds to be inadequate has been offered that the accused has been 

adequately informed as to his fundamental right to testify or not to testify. . . . In any event, should the law officer feel impelled to inform the accused in this 

regard, we believe it would be far better practice to call defense counsel to the 

bench and inquire accordingly or to act in an out-of-court session if necessary." 

Endsley, 10 USCMA 255, 27 CMR 329. 

54. INTRODUCTION OF EVIDENCE.-a. Presentation of the 

case. 

Member's abuse of right to question witnesses results in prejudicial error.- 

While a court member may question witnesses, he must not assume the role of 

counsel. If he does, he is no longer competent to serve. Thus, where a member 

'questioned every witness called, used sarcasm on some, and attempted to discredit 

certain defense witnesses, he departed from his character as an unbiased ap 

praiser of the facts to become a champion for the prosecution, thereby casting 

substantial doubt on the fairness of the trial which requires reversal. 

Blankenship, 7 USCMA 328,22 CMR 118. 

546. Responsibilitg of the court. 

Unrestricted right of CM to call for additional evidence.-Notwithstanding 

the provisions of app. 8a to the effect that the LO will rule finally on the question 

of whether a witness requested by the CM will be called or recalled, a CM 

has the unrestricted right to order that further evidence be introduced or that 

a witness be called or recalled, subject only to the LO'S determination of the 

admissibility of such elridenee or testimony. Parker, 7 USCMA 182,21 CMR 308. 
56. WITHDRAWAL OF SPECIF jTC AT1ONS.-a. General. 

LO has authority to effect withdrawal of charges ad specifications by 

declaring a mistrial. Stringer, 5 USCMA 122,17 CMR 122. 

566. Grounds for withdrawal. 

Entry to be made when a specilication is withdrawn after evidence on the 

merits has been heard.-When a specification is withdrawn after evidence on 

the merits has been received, the reasons for the withdrawal should appear in 

the record and in the CMO. If the CMO merely states, 'FNOLLE PROSEQUI 

by direction of the convening authority," a corrected CMO will be required with 

an entry reading substantially as follows: "Withdrawn by order of the convening authority after evidence on the merits has been received, because (here 

set forth reasons) ." Ltr, JAGJ CiVI 3504551 Feb 52. 

57. INTERLOCUTORY QUESTIONS OTHER THAN CHALLENGES.-6. Applicability of this paragraph. 

The admissibility of evidence obtained by search and seizure is an interlocutory question to be determined finally by the LO, even when a factual question 

of whether accused consented to the search is involved. Berry, 6 USCMA 609, 

20 CMR 325. 

576. Rulings by the president of a special court-martial. 

It is error for the president of an SPCM to consult with the SJA during trial 

on interlocutory questions to be ruled on by the president. Self, 3 USCMA 568, 

13 CMR 124. 

579. Necessarg inquiry to be made; preponderance of evidence 

controls. 

Cross-reference.-Appearance in record of out-of-court hearings and side-bar 

conferences, app. 9e (Ltr, JAGJ 1959/1764, 20 Feb. 59). 

Presentation of preliminary evidence in open court.-It is proper to hold an 

out-of-court hearing on the issue of the voluntary character of an accused's 

alleged confession or admission. "It should be noted, however, that when the 

law officer holds that such statement is admissible it then becomes necessary to 

repeat this evidence which was taken in the out-of-court hearing in the presence 

of the court in order that the court may determine for itself whether the statement was in fact voluntary. This repetition may be effected by a re-examination of the witnesses or by a reading to the court of the out-of-court testimony." 

Ltr, JAGF CM 367761, 4 Dee 53. But see Cooper et aL, 2 USCU 333, 8 CMR 

133, wherein it was held that while accused had the right to have evidence 

bearing on the involuntary nature of his alleged confession adduced dying the 

out-of-court hearing brought before the CM, it was not error for the LO to fail 

to produce such evidence in open court became the record disclosed 8. deliberate 

and intentional waiver of that right by DC. 

58. CONTINUANCES.-6. Postponement of trial. 

Recess during trial.-While the granting or denial of a request for a recess 

is a matter for the sound discretion of the LO, denial of DC's request for a 

10-minute recess prior to his -a1 argument in a.long and ym~licated case was 

held to be an abuse of discretion, which, coupled wif.h Dcs,refusal thereafter 

toc make an argument, constituted reversible error. Sizemore et,aL, 2 USCMA 

572,lO CMR 70. 
586. Grounds for continuance. 

Good grounds shown.-The LO'S denial of accused's request for a continuance 

for a reasonable time to obtain counsel of their own choice was prejudicial error 

where accused expressed dissatisfaction with appointed DC and established that, 

through no fault of their own, they had been unsuccessful in their attempts to 

obtain either military or civilian counsel of their own choice during the brief 

period of four working days between referral of charges and trial. Borzellino 

(CM), 9 CMR 304; accord, Fletcher (CM), 6 CMR 163, wherein the LO denied 

accused's request for a continuance pending action of the SA on accused's appeal 

from the CA's decision that counsel requested by accused was unavailable. 

Good grounds not shown.-Denial of accused's request for a continuance to 

obtain civilian counsel was not error where accused admitted he did not have 

funds to retain civilian counsel and made no showing that he could obtain the 

necessary funds within a reasonable time. Edwards (CM), 13 CMR 322. 

Computation of time between service of charges and trial.-The day of the 

service of charges and the day of trial are excluded in computing the allowable 

minimum period of time within which a person can be tried by CM. Sundays 

and holidays are not excluded in computing this period. Nichols, 2 USCMA 27, 

6 CMR 27. 

58d. Effect of denying application for continuance. 

Cross-reference,-Effect of CA stating that granting a continuance was an 

abuse of LO'S discretion and ordering trial to resume, par. 67f (Knudson, 4 

USChlA 587,16 CMR 161). 

ORGANIZATION OF THE COURT AND 

ARRAIGNMENT OF THE ACCUSED 

61. PRELIMINARY ORGANIZATION OF. THE COURT.-+. 

Announcing personnel of the court' and the accused. 

Where a member of a CM is appointed by competent authority but is not 

accounted for as present or absent in the record, orders relieving him or a 

certificate of correction accounting for him should be appended to the record. 

Ltr, JAGJ CM 354438,lO Jul52. 

61e. Jntroduction of prosecuti~n counsel. 

see pars. 6a, b, G, and d. . . 

61f. Introduction of defense counsel. 

See pars. 6a, b, c, and (1. 

61g. Announcement of request for enlisted members. 

Cross-reference.-Withdrawal of request for enlisted members, par. 4c (Ltr, 

JAGJ 1952/6970, 11 Sep 52). 

61h. Administration of oaths. 

Cross-references.-Effect of failure to swear LO, par. 1126 (Pino (ACM), 

6 CMR 543). Effect of failure to swear individual civilian counsel, par. 112b 

(Danilson (ACM), 11 CMR 692). Effect of failure to swear individual military 

counsel, par. 11271 (Fowler (ACM), 20 CI'IR 779). Effect of failure to swear 

assistant DC, par. 112b (Nyman (ACM), 5 CMR 598). 
62. CH ALLENGES.-a. Statutorg provisions. 

The LO, as well as the accused and TC, may challenge a CM member for cause 

on his own motion, either daring the regular challenge procedure or during the 

trial. Jones, 7 USCMA 283,22 CMR 73. 

626. Disclosing grounds for challenges. 

Cross-references.-Effect of failure of LO to disclose prior participation as 

TC in a related case, par. 4e (Bloomfield ( ACM) , 11 CMR 686). Effect of LO 

having been appointed TC of same CM, par. 4e (Gemelli (ACM) , 11 CMR 690). 

Effect of LO helping in preparation of charges, par. 4e (Renton, 8 USmA 697, 

25 CMR 201). Meet of member's disclosure going beyond a mere statement of 

ground for challenge, par. 69e (Richard, 7 USCMA 46,21 CMR 172). 

Failure of CM member to disclose at rehearing that he was the appointed 

assistant TC for the original trial requires reversal in the absence of a showing 

that he had not acted for prosecution, even though record shows he was absent 

at original trial.-Zamarripa (CM), 1 CMR 432. 

62d. When made; reconsideration; opportunity to challenge 

new members. 

Order of challenges.-Although the prosecution nofinally disposes of its 

challenges prior to the defense, the LO, in the exercise of sound discretion may 

permit TC to peremptorily challenge a court member after the defense has made 

its challenges. Fetch et al. (ACM), 17 CMR 836. 

Where accused's counsel has knowledge prior to the conclusion of trial of facts 

indicating a court member's possible disqualification, his failure to challenge 

the member for cause at that time will be deemed a waiver of the right to 

complain of the member's participation in the trial-Dyche, 8 USCMA 430, 

24 CMR 240. 

62e. Peremptory challenges. 

Record must show that challenged member withdrew from courtroom.- 

When a member of a CM is challenged peremptorily, the record of trial should 

show that he withdrew from the courtroom. If the challenged member in fact 

withdrew, but the record does not reflect that fact, a certMcate of correction is 

required. Msg, JAG& SPCM 5381, May 52. 

62f. Challenges for cause-grounds for. 

Cross-references.-Challenge of member on ground he was an officer of the 

JAGC, par. 4a (Glaze, 3 USCMA 168,ll CMR 168 ; Ltr, JAGJ 1954/2438, 9 Mar 

54). Effect of prior participation by LO in the same or related case, par. 4e 

(Bloomfield (ACM), 11 CMR 686; Tolbert (ACM), 11 CMR 680; Gemelli 

(ACM), 11 CMR 690). 

Previously acting as LO.-Failure of CM to sustain DC's challenge of LO at 

rehearing on the ground that he had served as LO at the original trial was 

prejudicial error. Grosel (CM), 17 CMR 394. 

LO rendering accuser technical assistance in drafting the charges was 

prejudicial error.-The LO should have disqualified himself without the necessity of submitting the question of challenge to the court-martial. Renton, 

8 USCMA 679, 25 CMR 201. Compare Law, 10 USCMA 573,28 CMR 139. 

Prior participation of members in closely related case.-Prejudicial error was 

committed when the CM failed to sustain DC's challenge of all members on the 

ground that they had served as CM members in the trial of the co-accilsed and 
must have believed the accused guilty in order to find the co-accused guilty. 

Curtis (CM), 1 CMR 807. See also Foster (CM) , 14 CMR 382. 

Expression of belief that anyone brought to trial is guilty of something.- 

CM's failure to sustain DC's challenge of president on ground that, he had 

expressed such a belief during a pretrial indoctrination of the CM was 

prejudicial error. Deain, 5 USGMA 44,17 CMR 44. 

A member's admitted opinion that a conviction for desertion warrants a DD 

or BCD regardless of extenuating circumstances is ground for a challenge for 

cause, and CM's failure to sustain challenge on that ground is error.-Watkins 

(ACM), 20 CMR 750. 

Opinion that accused is unfit for service.--A member's belief that the accused 

i~ unfit for further military service is s valid ground for challenge. Klein 

( ACM), 8 CMR 649. 

Personal interest of members.-Upon trial for larceny from non-appropriated 

funds of which accused was custodian, the CM's failure to sustain accused's 

challenges against two members of the CM, who were members of council responsible for the administration of a portion of the funds, was prejudicial error. 

Bergin ( ACM) , 7 CMR 501 ; accord, Harvey (CM) , 22 CMR 415, wherein accused 

was charged with larceny from a QM depot and the CM committed prejudicial 

error in not sustaining his challenge against the president of the CM who was 

the Executive Officer of the QM Depot. 

62h. Procedure. 

LO should not permit counsel during the trial to question a challenged 

member as to the weight he has tentatively attached to the evidence which 

has been presented.-Carver, 6 USCRfA 258,19 CMR 384. 

Members challenged on grounds other than the first eight grounds specified 

in par. 62f, MCM, may be excused only after a vote by the GM.-Jones, 7 

USCMA 283, 22 CMR 73, wherein it was held to be error for the LO to excuse 

a member who had served as a CM member in a closely related case, without 

submitting the issue to CM for a vote. 

63. WITNESS FOR THE PROSECUTION. 

LO or member of CM who authenticates prosecution's documentary evidence.-Upon admission of such evidence, the LO or member who authenticated 

the document becomes a witness for the prosecution and, therefore, is ineligible 

for further service as LO or court member. The effect this will have on the 

legality of all or any part of the proceedings depends upon the point in the 

proceedings at which the LO or member becomes a witness for the prosecution 

and whether he remains on the court thereafter. Thus, where a record of 

previous convictions authenticated by a member was offered in evidence after 

findings of guilty and the member was excused prior to the exhibit's admission, 

the member's prior participation did not invalidate any part of the proceedings. 

Mansell, 8 USCMA 153, 23 CMR 377. But where the finality of a previous conviction was established after findings of guilty by an exhibit signed by the LO, 

who continued serving as such, the sentence portion of the proceeding was 

declared invalid and a rehearing on the sentence only was ordered. Wilson, 

7 USCMA 656,23 CMR 120. 

'64. INVESTIGATING OFFICER. 

Cross-reference.-Whether action of TC in conducting informal investigation 

prior to signing charges as accuser makes him an investigating officer, par. 6a 

(Lee, 1 USCMA 212,2 CMR 118). 
36 

PLEAS AND MOTIONS 

67. MOTIONS RAISING DEFENSES AND OBJECTIONS.- 

6, Defenses and objections which must be raised. 

Action to be taken when objection that-accused is not receiving speedy trial 

is raised before or during trial.-"Frequently, complaints are received from 

accused persons that they are being restdned an unreasonably long time awaiting trial, especially by inferior court. Furthermore, the United States Cowt 

of Military Appeals has recently granted review of several cases on the question of deprivation of a speedy trial. In every prospective general court-martial 

involving arrest or conhement, the commander responsible for the Article 32 

investigation should, within eight days of the accused's arrest or conftnement, 

either forward the charges together with the investigation and allied papers, 

to the officer exercising general court-martial jurisdiction; or if the same is not 

practicable, he should report in writing to such officer the reasons for delay. 

These reports should be carefully examined to determine the merit of any 

reasons for delay. Copies of such written reports should be included in all 

copies of the record of trial. If the accused raises the issue of a speedy trial 

at any stage of the proceeding the trial counsel should take this opportunitg to 

fully litigate the issue by marshalling all available evidence (par01 and documentary) in order that the reasonableness of such delays may be ruled upon 

prior to or during trial and subsequently be reviewed by appellate agencies. 

The record of trial should be made to reflect all available evidence used as a 

basis for ruling on the motion during trial. If the motion is made and ruled 

on prior to trial such evidence should be included in the allied papers." Ltr, 

JAG3 1959/3800, 12 Apr 59. 

Right to speedy trial can be waived.-An accused is entitled to a speedy trial 

which he can enforce by a motion for appropriate relief. However, if the 

accused does not demand a trial or does not object to the continuance of a case 

at the prosecution's request or if he goes to trial without making any objection 

to the lapse of time between the initiation of the charges and the trial, he has 

waived his right and cannot complain of the delay after he has been convicted. 

Hounshell, 7 USCMA 3, 21 CMR 129. See also Wilson, 10 USCMA 398, 27 CMR 

472, wherein it was stated: "[W]e caution the services that they ought to make 

every reasonable effort, consistent with the right of the defendant to prepare 

his defense, to process all cases expeditiously through both the preliminary and 

tial stages. Moreover, when the issue is raised, the facts necessary to a proper 

disposition of the question should be incorporated in the record. The right to 

a speedy trial, when preserved by an accused, will be fully protected by this 

court, and the services onght to be able to present us with a record which 

reflects credit on the proceedings." 

An objection to a specification as being duplicitous must be made at the trial 

or it will be deemed waived.-Parker, 3 USCMA 541,13 CMR 97. 

67f. Effect of rulings on motion. 

LO'S decision granting DC's motion for a continuance is not subject to review 

by the CA while the case is in progress. Knudson, 4 USCMA 587,16 CMR 161. 

68. MOTIONS TO DISMISS.-c. Statute of 'limitdions. 

Korean conflict was "war" within meaning of Art. 'd3a.-A&rdingly, a person charged with desertion -or AWOL during the Korean conflict may be tried 

and punished at any time without limitation. And this is so whether the offense 

occurred in Korea or the U.S. Ayers, 4 USCMA 220, 15 CMR 220. 
Charges redrafted after statute of limitations has run.-Although timely 

filing of charges tolls the statute of limitations, any redraft of the charges after 

the period of limitation must be made on the same charge sheet and not on a 

new charge sheet. Otherwise, accused may successfully plead the statute of 

limitations in bar of trial. Rodgers, 8 USCMA 226, 24 CMR 36. See Spann, 

10 USCMA 410, 27 CMR 484, for procedure which was sustained by USCMA. 

Action when CM finds accused guilty of lesser included offense which apparently is barred by statute of limitations.-"If by exceptions and substitutions 

an accused is found guilty of a lesser included offense to which he has not 

entered a plea, and against which it appears that the statute of limitations 

(Article 43) has run, the law officer (president of a special court-martial) 

should, as soon as such a finding is announced, advise him in open court of his 

right to avail himself of the statute in bar of trial. If the accused interposes 

the statute in bar of trial, and it is found meritorious, the court, in such a case 

should revoke its findings of guilty. If the court treats the statute of limitations 

as a bar to punishment only the convening authority should take action disapproving the findings of guilty and dismiss the charges." Ltr, JAGJ 1959/ 

2013, 20 Feb 59. 

68d. Former jeopardy. 

Regulations-Policies concerning disciplinary proceedings under UCMJ subsequent to the exercise of jurisdiction by civil authorities, AR 22-12. 

Cross-reference.-Whether punishment imposed pursuant to regulation bars 

a later trial for same offense, par. 68g (Vaughan et al, 3 USCMA 121, 11 

C3IR 121). 

68f. Constructive condonation of desertion. 

The defense of constructive condonation is not applicable to the offense of 

misbehavior before the enemy.-Walker, 1 USCMA 501,4 CMR 93. 

An officer of one service exercising GCM jurisdiction cannot condone a desertion from another service in which he exercises no command function.-Huff 

(CGCRI), 19 OMR 603. 

68g. Former punishment. 

Former nonjudicial punishment is a valid defense in bar of trial for a minor 

offense regardless of whether the punishment has been served.-Accordingly, 

where accused was charged with peacetime AWOL of five days and punishment 

of 14 days' extra duty had been imposed for the offense under Art. 15, his motion 

for a finding of not guilty because of former punishment should have been 

treated as a motion to dismiss and such motion should have been granted, 

regardless of the fact that only two days of the nonjudicial punishment had 

been served. The controlling factor is whether punishment has been imposed 

and not whether it has been performed. Yray (ACM) ,10 CMR 618. 

Administrative punishment imposed pursuant to regulations for a major 

offense does not bar CM trial for such offense.-Thus, where the commandant 

of a USDB, under the authority granted by SR 600-33&1,8 May 51 (superseded 

by AR 633-5, 24 Sep 57) and SR 210-185-1, 31 May 51, imposed loss of good 

conduct time, solitary confinement, and disciplinary segregation against accused 

for escape from codnement, such punishment did not constitute a bar to trial by 

CM. Vaughan et al., 3 USCMA 121,ll CMR 121. 

Disciplinary punishment in military confinement facilities for minor offenses 

bars any subsequent trial by court-martial of the accused for the same infraction, regardless of the terms of the regulations designed to implement Article 

13 of the Code.-Williams, 10 USCDTA 615,28 CMR 18. 
69. MOTIONS TO GRANT APPROPRIATE RELIEF.--&. 

General. 

Motion for change of venue.-Although a motion for a change of venue is not 

specifically referred to in the MCM, a motion for appropriate relief based upon 

that ground and addressed to the sound discretion of the LO is proper. Therefore, if accused can demonstrate that the court would be adversely influenced 

by a general atmosphere of hostility or partiality against him, existing at the 

place of trial, he is entitled to be tried in some other place. Carter et al., 

9 USCMA 108,25 CJMR 370. 

69 6. Defects in charges and specifications. 

Motion to make specification more definite and certain.-Where specifications 

allege certain offenses to have occurred either during Aug or Sep 51, a motion 

to make more definite and certain by having the specijications set forth the exact 

date of the offenses was properly denied as the statute of limitations had not 

run from the earliest possible date upon which the offenses could have been 

committed, the accused was not misled, and time is not of the essence of the 

offense. Neil1 (CM), 4 CMR 221. 

Motion to make specification conform to proof.-Where accused is charged 

with the wrongful sale of a ration card and a different ration card is identified 

at the trial as the one wrongfully sold, it is improper to amend the specification 

to make it conform to the description of the ration card identified at the trial. 

Such an amendment is a material change which alters the identity of the offense 

charged. Miller (ACM) ,3 CMR 710. 

69e. Miscellaneous motions for relief. 

Motion for mistrial.-A motion for a mistrial is a proper remedy to cure 

errors which are manifestly prejudicial and the effect of which cannot be cured 

by cautionary instructions such as where in disclosing grounds for a challenge, 

a court member revealed that accused had been tried by another CIM for a 

similar offense, that he was consulted by a psychiatrist who interviewed accused 

and he was aware of certain lie detector tests. Richard, 7 USCMA 46,21 CMR 

172; accord, Lynch, 9 USCMA 523, 26 CMR 303. A mistrial may also be declared on the LO'S own motion even in the face of objection by the accused when 

a free and fair trial cannot be had. Stringer, 5 USCMA 122, 17 CMR 122. 

Compare these cases with Batchelor, 7 USCMA 354, 22 CMR 144, wherein it was 

held that an expression of opinion by a court member that accused was a 

traitor could be cured by cautionary instructions by the LO. See also Shamlian, 

9 USCMA 28, 25 CMR 290, wherein it was held that a statement by TC during 

argument on a motion that accused's case was referred to a GGM because of 

his attitude toward the service and previous convictions were error but was 

cured by cautionary instructions from the LO. 

Motion to elect.-Where evidence of legally severable acts is offered by the 

prosecution in support of a general allegation, the prosecution should be restricted to proof of one of them as the offense charged, and the court restricted 

to that one in predicating findings of guilty. Otherwise, an accused could be 

found guilty because the court membership believes him guilty of different 

offenses without full concurrence by the proper majority on either of the 

offenses. Everett ( ACM) , 16 CMR 676. 

70. PLEAS.-a. General. 

Cross-reference.-Whether a plea of guilty is matter in mitigation of punishment, par. 76a (Lively, OM 361848,lO Apr 53). 
Effect of plea of guilty where there is a variance between pleading and 

proof.-A plea of guilty by accused to missing the movement of troops will not 

permit approval of the findings of guilty of that offense where the evidence 

affirmatively shows there was no movement of a unit within the meaning of the 

UCMJ, but only the transfer of two individual service members. Jackson 

(ACM), 5 CMR 429. And a plea of guilty to escape from confinement will not 

permit approval of the findings of guilty where the evidence shows accused was 

not under a physical restraint at the time of the alleged offense. Fabrizio 

(ACM) , 6 ChlR 623. 

In guilty plea cases where there are aggravating or extenuating circumstances, the pertinent facts should be placed before the court, by stipulation 

or otherwise, in order that the appropriateness of the sentence adjudged may 

be based upon fact rather than conjecture.-Ltr, JAGJ 1957/1014, 5 Feb 57. 

Accused by his plea of not guilty admits his identity with the person 

described in the specification.-Slabonek (CAI), 21 CMR 374. 

706. Procedure if plea of guilty is entered. 

Plea of guilty pursuant to pretrial agreement.-SJA's of all GCM jurisdictions will insure that the following procedures are complied with in cases where 

the offer of an accused to plead guilty for a consideration is accepted: (1) The 

offer to plead guilty must originate with accused and the sentence which will 

ultimately be approved by the CA pursuant to the agreement must be appropriate 

for the offense. (2) The SJA will require the views of TC and the offer of the 

accused may be accepted only if the available evidence of guilty is convincing. 

Unreasonable multiplication of charges which might tend to induce accused to 

enter into a pretrial agreement will be avoided. (3) The agreement, if made, 

must be in writing, unambiguous, and contain no provison circumscribing rights 

of accused. It must be scrupulously carried out by the Govt. (4) CM must 

be made seciently aware of the circumstances of the offense and accused must 

be allowed to present matters in mitigation and extenuation so that the CM 

may determine an appropriate sentence. During trial, in the reported out-ofcourt hearing, the LO should determine whether accused understands the 

pretrial agreement, if any ; advise accused he may withdraw his plea before the 

sentence; ascertain whether he is satisfied with appointed counsel; determine 

from accused personally whether he is pleading guilty because he is guilty; 

and again advise him of the meaning and effect of the plea. The pretrial 

agreement, if any, and out-of-court hearing will be made appellate exhibits to 

the record of trial. Msg, DA 525595, 8 May 57. This message did not contemplate a disclosure to the CM of matters relating to a pretrial agreement. As 

officers of the CM, the LO and counsel have a duty during open sessions to 

refrain from referring to such information which might be prejudicial to the 

right of the accused to be awarded an appropriate sentence by members of the 

CM. As a precautionary measure, especially in guilty plea cases, LO'S should 

inform the members of the CM that, subject to the instructions of the LO, the 

determination of a proper punishment for an offense rests within the discretion 

of the CM and that the CM must not impose a sentence relying upon reviewing 

authorities to grant clemency to the accused. Ltr, JAGJ 1957/3748, 4 Apr 58. 

See also McClinthen (CM), 24 CMR 436, wherein the LO committed prejudicial 

error by asking accused in open cowt if he was pleading guilty because he was 

in fact guilty; and Palacios, 9 USCMA 621, 26 CMR 401, wherein the same 

question asked in an out-of-court hearing was held to be proper in ascertaining 

whether the plea of guilty was voluntary. 

Pretrial agreements circumscribing basic rights of accused are void and 

prejudicial.-Thus, where a pretrial agreement on a plea of guilty contained 
a provi~ion precluding accused from presenting evidence in mitigation and 

extenuation, the agreement was declared void and prejudicial. Callahan (CM), 

22 CMR 443; accord, Banner (OM), 22 CMR 510, wherein the agreement was 

declared void and prejudicial because of a condition precluding accused from 

raising the issue of jurisdiction. 

Improvident plea of guilty.-Where accused pleaded guilty to larceny and 

the stipulated facts disclosed that he did not steal the property but, at most, 

only received property known to be stolen, the plea of guilty was improvidently 

entered and should have been withdrawn. Welker, 8 USCMA 647,25 CMR 151 ; 

accord, Lenton, 8 USCMA 690, 25 CMR 194, wherein accused pleaded guilty to 

charges of wrongfully failing to place sufficient funds in the bank to pay a 

previously executed check and failure to pay a debt, and it appeared from the 

pretrial advice and DC's statement in mitigation that the check was executed 

to buy chips in a poker game, and that the debt was a gambling loss; Long 

(CM), 6 CMR 194, wherein accused pleaded guilty to wrongful appropriation 

of a govt. truck, then testxed in mitigation that at the time of the offense he 

was so drunk he did not remember anything that happened, and his DC thereafter argued that accused did not take the truck with intent to deprive the 

U.S. of its use or benefit. Compare Wright, 6 USCMA 186,19 CMR 312, which 

held accused's plea of guilty to wrongful appropriation of a govt. vehicle was 

not rendered improvident by his unsworn statement in mitigation that he was 

intoxicated and did not know or understand what he was doing; Dorey (CM), 

14 CMR 350, which held accused's plea of guilty to wrongfully, unlawfully and 

knowingly affiliating himself with groups advocating violent overthrow of the 

U.S. Govt. was not rendered improvident by accused's testimony in mitigation 

that his conduct was not of his own will but the result of threats of harm, which, 

in law, did not constitute duress or coercion ; Messenger, 2 USCMA 21, 6 CMR 

21, which held accused's plea of guilty to larceny was not rendered improvident 

by testimony of a defense witness in mitigation that the property was used, 

damaged, and of little value; and Trede, 2 USCMA 581, 10 CMR 79, which held 

accused's plea of guilty was not rendered improvident by a motion for a finding 

of not guilty after findings of guilty were announced when evidence in mitigation 

on insanity did not raise a substantial issue. 

Plea of guilty to one offense may not be used as evidence to prove a different 

offense.-Thus, if accused pleads guilty to AWOL and not guilty to missing 

movement of his ship occurring at the same time as the AWOL, the plea of 

guilty to the AWOL may not be used as evidence to prove guilty of the offense 

of missing movement. Dorrell (NCM), 18 CMR 424; accord, Hughes (CM), 

7 CMR 229. 

A plea of guilty cannot be withdrawn during revision proceedings.-Such a 

plea must be withdrawn, if at all, during trial and before judgment. Simms 

(ACM), 20 CMR 720. ' 1 

A judicial confession voluntarily made following a guilty plea but prior to its 

withdrawal may be considered by the CM on the general issue of the accused's 

guilt or innocence.-Garland (m), 21 CMR 427. 

71. MOTIONS PREDICATED UPON THE EVIDENCE.-a. 

Motion for finding of not guilty. 

Cross-reference.-Whether a motion for finding of not guilty is inconsistent 

with a plea of guilty, par. 708 (Trede, 2' USCMA 581,lO CMR 79). 

71b. Res judicata. 

Applicability of res judicata.-When the defense of res judicata is asserted, 

'it is immaterial whether the issues determined at the first trial were decided 
rightly or wrongly. Therefore, where accused is charged with larceny and the 

prosecution introduces a confession which the LO wrongfully excludes from 

evidence, the defense of res judicata is available to accused to prevent the 

prosecution from introducing the same confession in a later trial for a different 

larceny. Smith, 4 USCMA 369, 15 CMR 369. See Martin, 8 USCMA 346, 24 

CMR 156, wherein the defense of res judicata applied to one offense of perjury 

but not to the other. 

Applicability of res judicata on appellate review.-The doctrine of res judicata 

has no relation to appellate review of a ruling of a LO at the trial of the same 

case. De Leon, 5 USCMA 747,19 CMR 43. 

MATTERS RELATED TO FINDINGS AND SENTENCE 

72. ARGUMENTS.-a. General. 

Cross-reference.-Abuse of discretion by LO in denying DC's request for a 

recess to prepare final argument, par. 58b (Sizemore et al., 2 USCMA 572, 

10 CMR 70). 

726. Content. 

Right of DC to discuss reasonable doubt in closing argument.-Although it 

is the LO'S duty to instruct the court, the DC in a long and strongly contested 

case should not be deprived of the right to discuss reasonable doubt in his 

closing argument. The denial of the right of DC to discuss this point in a case 

where evidence of guilt is not compelling is an abuse of discretion on the part 

of LO and prejudicial to the accused. Beachley (CM), 13 CMR 392. 

Presenting legal opinions to CM in closing argument is improper.-It is 

unquestionably improper for the LO to permit counsel to present legal authorities or argue facts of other cases to a CM in closing argument. But where 

argument on a motion for a finding of not guilty or a motion raising an issue of 

accused's sanity is made in open court, it is entirely proper for couilsel to 

present not only favorable legal authorities but also the facts upon which those 

authorities are predicated. Bouie, 9 USCMA 228,26 CMR 8. 

726. Improper argument. 

Improper argument by TC.-It was error for TC during argument to intimate 

to the CM in the trial of an officer that enlisted personnel were receiving severer 

sentences than officers in trials by CM's and then ask them not to come in with 

a sentence that will be embarrassing for the CA to announce. Schiavo (ACM), 

18 CMR 858. 

73. INSTRUCTIONS. 

.See DA Pam. 27-9, T?be Law Ofice?, which contains a sample instruction on 

the elements of each offense for which app. 6, MCM, sets forth a model specification. The pamphlet also includes other information of great value to LO'S of 

GCAl's and presidents of SPCM's in preparing instructions and performing other 

duties in the conduct of trials. The pamphlet is published in looseleaf format 

to facilitate keeping it up to date with the most recent decisions of the USCMA 

and BR's. 

73a. Elements of the offense. 

Although par. 73a of the Manual states that instructions on the elements of 

an offense "may be given in the language of the applicable subparagraph" of 
the Manual entitled "Proof," USCMA has declared such instructions inadequate 

in several cases. In the case of United States v. Williams, 1 USWA 231, 

2 CMR 137, the Court said : "Too much attention is being placed on the wording 

of the Manual [par. 73al to the effect that the instruction may be given in the 

language of the applicable subparagraph. . . . The 'Discussion' and 'Proof' 

contained in the Manual quite often make general statements in reference to 

the crime, without specifically pointing out the particular and necessary elements, and in many instances the remarks include statements which are not 

fitted to the ssue involved." See also Landmm, 4 USCMA 707, 16 CMR 281, 

and cases cited therein. 

736. Charging the court. 

Where plea of guilty entered.-Notwithstanding the provisions of par. 73b 

of the Manual, instructions on the elements of the offenses charged, presumption of innocence, reasonable doubt as to guilt and degree of guilt, or the burden 

of proof, are unnecessary where accused pleads guilty to all offenses charged. 

Lucas, 1 USCMA 19, 1 CMR 19. For appropriate instructions in such cases, 

see DA Pamphlet 27-9, The Law Officer, app. VII. 

Explanatory instructions.-Contrary to the final sentence in par. 73b of the 

Manual, explanatory instructions, in addition to the instructions listed in par. 

73a, b, must be given under a variety of circumstances. See cases cited in par. 

73c. 

73c. Additional instruction by law officer. ' Too mnch reliance on the language in par. 73c(l) of the Manual to the effect 

that the LO (president of SPCM) is not required to give any instructions other 

than those required by Art. 510 has resulted in the reversal of many cases. 

The decisions in these cases, and in others on instructional matters, have established the following rules concerning instructions which must be given in addition to those expressly required by Art. 51c: (a) When the evidence reasonably 

raises an issue of whether the offense charged or some lesser offense was committed, instructions must be given on the elements of such lesser included offense, unless the accused requests that such instructions not be given. Clark, 

1 USCMA 201, 2 CMR 107; Wilson, 7 USCMA 713, 23 CMR 177. (b) If the 

offense charged involves an intent to commit another offense, as in the case of 

a charge alleging assault with intent to commit voluntary manslaughter, instructions must be given on the elements of the intended offense. Drew, 1 USCMA 

471, 4 CMR 63. (c) When words of special legal connotation like the word 

"movement," as used in connection with the offense of missing movement, are 

used in defining the elements of an offense, instructions defining such words 

must be given. Jones, 1 USCMA 276, 3 CMR 10. Compare Phillips, 3 USCMA 

137, 11 CMR 137. Also, if requested by the accused, an instruction defining 

technical terms like "reasonable doubt" must be given. Offley et al, 3 USCMA 

276, 12 CMR 32. (d) When reasonably raised by the evidence, instructions 

must be given on an affirmative defense such as self-defense, justification, 

financial impossibility of compliance with orders, physical incapacity, or insanity. Ginn, 1 USCMA 453, 4 CMR 45; Lee, 3 USCMA 501, 13 CMR 57; 

Pinkston, 6 USCMA 700, 21 CMR 22; Amie, 7 USCMA 514, 22 CMR 304; Burnq 

2 USCMA 400, 9 CMR 30. (e) If the offense charged requires premeditation, 

a specific intent, or knowledge of a particular fact, or if lack of knowledge of a 

particular fact would constitute a valid defense, and the evidence reasonably 

raises an issue of intoxication or mental impairment not amounting to legal 

insanity, an instruction on the issue of intoxication or mental impairment bust 
be given. Backley, 2 USCMA 496, 9 CMR 126; Carver, 6 USCMA 258, 19 CMR 

389. (f) When an instruction on an issue reasonably raised by the evidence 

is requested by the accused and the subject matter of the instruction is not 

covered by other instructions given, an instruction on at least the substance of 

the requested instruction must be given. Landrum, 4 USCMA 707, 16 CMR 

281. Thus, under the circumstances stated in this rule, requested instructions 

must be given on matters such as alibi, accidental homicide, character evidence, 

and justifiable inferences like the inference of continuing insanity. Bigger, 

2 USCMA 297, 8 CMR 97; Bull, 3 USCMA 635, 14 CMR 53 ; Phillips, 3 USCMA 

137, 11 ChlR 137; Johnson, 3 USCMA 725, 14 CMR 143. See DA Pamphlet 

27-9, The Law Oficer, for further guidance on instructional matters. 

74. FINDINGS.-6. Findings as to the specifications. 

See DA Pamphlet 27-9, The Law OfJicer, apps. 111, IV, for examples of findings by exceptions and substitutions. 

Finding by exceptions and substitutions held not to change nature and 

identity of offense.-Where the specification alleged that accused "did Cat a 

specified place and time] commit an assault upon Han Sun U, a Korean 

male . . .," and the evidence disclosed that the victim was unable to attend 

trial and that the other witnesses did not know his name, the CM's finding, 

by exceptions and substitutions, that accused committed the alleged assault 

upon "an unknown Korean male" did not result in fatal variance, as such finding 

did not change the nature or identity of the offense. Hopf, 1 USCMA 584, 5 

CMR 12. 

Finding by exceptions and substitutions held to change nature and identity 

of offense and result in acquittal.-Where accused was charged with larceny 

of specific items of clothing of a total value in excess of $2,600 and the CM, 

by exceptions and substitutions, found him not guilty of larceny of the specific 

items but guilty of larceny of clothing of a value in excess of $50, such finding 

changed the nature and identity of the offense and resulted in an acquittal. 

Guy, 8 USCMA 66, 23 CMR 290. Accord, Nedeau, 7 USChfA 718, 23 CMR 182, 

wherein the hding of not guilty of larceny of the specific items of food alleged 

in the specidcation but guilty of larceny of "foodstuffs" changed the nature 

and identity of the offense and amounted to a finding of not guilty. See also 

Hutzler (ACM), 5 CMR 661, wherein the CM's finding of guilty of AWOL 

from a different unit than the one alleged amounted to an acquittal. 

74f. Form of the findings. 

Contrary to the implication of par. 74f(2) of the Manual, the CM is prohibited from using the Manual in its closed session deliberations.--Only the 

president of an SPCM may use the Manual in the course of trial, and his use 

of it is limited to use during open sessions of the court in the presence of counsel 

for the accused. Binehart, 8 USCMA 402,24 CMR 212. 

749. Announcing the findings. 

A CM may correct an erroneous announcement of its findings to reflect the 

true findings agreed upon by the CM. Downs, 4 USCMA 8, 15 CMR 8. 

75. PRESENTENCING PROCEDURE.-a. General. 

Either DC or TC may present argument to CM on sentence.-The argument 

must be based, however, upon the evidence adduced at the trial, and it cannot 

go beyond the bounds of fair argument. Olson, 7 USCMA 242, 22 CMR 32. 

Policy directives adverse to accused may not be brought to attention of CM 
1 75c 44 

by TC in argument on sentence.-Estrada, 7 USCMA 635, 23 Cm 99 (involving a SECNAV directive setting forth policy concerning persons convicted of 

larceny and other offenses involving moral turpitude) ; Davis, 8 USCMA 425, 

24 CMR 235 (wherein TC read the provisions of par. 33h, MCM, on retention 

of thieves in service to CM) . 

750. Matter presented bg the defense. 

Pretrial agreement on plea of guilty restricting accused's right to present 

evidence in mitigation and extenuation is void and prejudicial. Callahan 

(CM), 22 CMR 443. 

76. SENTENCE-a. Basis for determining. 

EXECUTIVE ORDER 10565 AMENDMENT OF PARAGRAPHS '76a AND 127c 

OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951. 

By virtue of the authority vested in me by Articles 36 and 56 of the Uniform 

Code of Military Justice (established by the act of May 5, 1950, 64 Stat. 107), 

and as President of the United States, it is ordered that the Manual for CourtsMartial, United States, 1951 (prescribed by Executive Order No. 10214 of February 8,1951), be, and it is hereby, amended as follows : 1. The following language is added to subparagraph 76a(6) at the end thereof : "If an accused is found guilty of an offense or offenses far none of which dishonorable discharge is authorized, proof of three or more previous convictions 

during the year next preceding the commission of any offense of which the 

accused stands convicted will authorize dishonorable discharge. See 127c, Section B." 

A plea of guilty is matter in mitigation of punishment and should be considered by the CM and the CA, along with all other facts and circumstances in 

the case, in determining the sentence to be imposed, or approved, as the case 

may be.-Lively, CM 361848,lO Apr 53. 

A CM is without power to adjudge suspension of any part of its sentence.- 

Marshall, 2 USCMA 342,s CMR 142. 

766. Procedure. 

The provisions of par 76b(l), MCM, to the effect that the LO may advise the 

CM of the maximum punishment authorized are no longer valid. The LO of 

a GCM and the president of an SPCM "rntcst advise the members in open court 

on the maximum permissible limits of punishment prior to deliberation on the 

sentence." Turner, 9 USCMA 124, 25 CMR 386. (Emphasis added.) 

76c. Announcing sentence. 

An erroneous announcement of a sentence may be corrected by the CM to 

reflect the actual sentence determined by the CM.-Robinson, 4 USCMA 12, 

15 CMR 12. 

The maximum sentence which may be adjudged by a CM upon reconsideration, where a duly adjudged and divisible sentence is legal in part and illegal 

in part, and no mandatory sentence is involved, is the legal portion, of the 

sentence originally aqudged and announced.-Long, 4 USCMA 101,15 CMR 101. 
1 45 7 81d 

I 

I PROCEDURE OF INFERIOR COURTS-MARTIAL 

79. SUMMARY COURTS-MARTIAL.-e. Record. 

If it does not appear that accused has been permitted and has elected to 

refuse punishment under Art. 15 for all the offenses charged, accused must be 

advised of his right to object to trial by SCM, and his consent or objection 

must be recorded on the charge sheet. If accused objects, the SCM has no 

jurisdiction and will not proceed with the trial. Accordingly, in such cases, 

where the record of trial does not disclose whether accused objected or consented to trial, further action must be taken by the reviewing authority. If 

such failure to disclose the information was merely a clerical error, the record 

should be returned to the SCM for a certificate of correction to relate the true 

facts (see par. 86c). However, if accused was not advised of his right to 

object to trial by SCM, the record should be returned to the SCM for revision 

proceedings in accordance with par. 86d. On the other hand, if it does appear 

that he has been permitted and has elected to refuse punishment under Art. 15 

for all the offenses charged, accused has no right to refuse trial by SCM and 

there is no requirement that his consent or objection be either ascertained or 

recorded on the charge sheet. The SCM should assure itself that the offense 

charged is the same for which accused was permitted and elected to refuse 

punishment under Art. 15. Ltr, JAGJ 1957/6279, 2 Bug 57. 

PROCEDURAL ASPECTS OF REVISION PROCEEDINGS, 

REHEARINGS, AND NEW TRIALS 

80. REVISION.-a. General. 

A plea of guilty cannot be withdrawn during revision proceedings. Such 

a plea must be withdrawn, if at all, during trial and before judgment.4imms 

(ACM), 20 CMR 720. 

Basic omissions in instructions may not be corrected through the use of 

proceedings in revision.-Evans (ACM), 5 CMR 5%. 

Evidence of previous convictions may not be introduced in revision proceedings.-Coleman ( ACM) , 14 CiMR 591. 

81. REHEARINGS AND NEW TRIALS.-d. Sentence. 

Art. 63 which limits the punishment a CM may adjudge on rehearing to 

punishment not in excess of or more severe than the sentence imposed at the 

original trial, does not require that the sentence imposed be one necessarily 

included in the original sentence. Any sentence which is, in fact, less severe 

than the original sentence may be imposed. Thus, where the original sentence 

is a BCD, such less severe punishments as reduction, reprimand, or restriction 

may be imposed on rehearing. Kelley, 5 USGMA 259, 17 CMR 259. The above 

is subject: to the limitation that the maximum sentence impcrsable on a rehearing 

is limited to the lowest quantum of punishment approved by EL convening 

authority, board of review, or other authorized ofEcer under the Code, prior to 

the second triaI, unless the reduction is expressly and solely predicated on an 

erroneous conclusion of law. Jones, 10 USCMA 532, 28 CMR 98. 
RECORDS OF TRIAL 

82. GENERAL COURTS-MARTIAL.-6. Contents. 

Cross-references.-Inclusion in record of trial of evidence relating to issue 

of speedy trial, par. 67b (Ltr, JAGJ 1959/3800, 12 Apr 59). Requirement that 

modified action of CA be included in the record, par. 89b (Ltr, JAGJ 1952/5119, 

2 Jul 52). Appearance in record of out-of-court hearings and side-bar conferences, app. 9e (Ltr, JAGJ 1959/1764,20 Feb 59). 

What constitutes a "verbatim record."-If the record is sufficiently complete 

to present all material evidence bearing on all issues, it is minimally su£6cient 

to meet the requirements of the Code and Manual. Nelson, 3 USCBSA 482, 

13 CMR 38. 

Inclusion of copy of regulations in record of trial.-In trial^ by GCM where 

violations of regulations have been alleged, or where regulations bear materially 

on the facts of a case, a complete copy of the regulations is frequently necessary 

for use of the reviewing authorities. To obviate the expenditure of an unnecessary amount of time and correspondence in obtaining copies of the regulations, it is requested that, if reasonably available, a copy of the pertinent 

regulations, other than those emanating from DA level, be included with each 

copy of the record of trial by GCM when it is forwarded to TJAG. Ltr, 

JAGJ 1957/9586,8 Jan 58. 

82d. Security classification. 

Regulations.-Safeguarding of military information, AR 38&5. 

In any case in which a record containing classified matter must be transmitted 

to JAGO, the SJA will attach to the record a signed letter stating the reasons 

why declassification was not accomplished prior to dispatch.-Ltr, JAGJ, 

14 Feb 52. 

82 f. Authentication. 

Authentication of the record by a member in lieu of the LO "because of his 

transfer" is not proper, as the reason assigned is not one of the listed statutory 

grounds. Ltr, JAGQ CM 348295,30 Nov 51. 

82g. Disposition. 

Accused should be given copy of record as soon as possible.-SJA's should 

endeavor to see that accused receives a copy of the record as soon as possible 

and that the copy accompanies him when he is transferred to a USDB. Par. 

829 requires that TO deliver a copy of the record to accused as soon as 

authenticated and that accused's receipt be attached to the original record. 

If the original record is forwarded before accused's receipt is received, the 

receipt should be transmitted to JAGO as soon as possible. In addition, DC, 

in advising an accused of his appellate rights as required by par. 48j(3), should 

impress upon accused the desirability of preserving his copy of the record, at 

least until completion of appellate review. He should also impress upon each 

accused the desirability of retaining the record in his personal possession so 

that upon arrival at the USDB the legal officer will be able to study the record 

to ascertain if any errors have been committed upon which a petition for review 

to USCMA may be based should accused so desire. SJA's should also consult 

with confinenient authorities to make certain that copies of the record accompany 

an accused when he is transferred to another command or to a USDB. Ltr, 

JAGM, 3 Jun 53. 
Receipt for accused's copy of record of trial.-Every effort should be made 

to deliver to the accused his copy and obtain his receipt therefor prior to 

forwarding the original copy of the record of trial to JAGO without, however, 

either delaying the transmittal of that original record or delaying appropriate 

transfer of the accused from the jurisdiction of the CA. In some cases, delivery 

will have to be by mail to the accused, in which case the TC should accurately 

and completely execute the "Certificate in Lieu of Receipt" appearing on the 

reverse side of the cover sheet to the record of trial proper. When mailing is 

thus required, the accused's copy of the record of trial should be transmitted 

to the commander of the installation wherein the accused is physically located, 

and a letter of explanation, together with a form of receipt, should accompany 

the copy. The letter of explanation should (1) stress the requirement that the 

accused personally receipt for the record and that his receipt for the record 

should then be promptly transmitted directly to JAGO and duplicate copy of 

receipt returned to the CA and (2) indicate that if the accused has departed 

that installation, the record, together with the form of receipt and letter of 

explanation, should be forwarded to the commander of the installation to which 

the accused has been transferred, with an information copy of each such ~ubsequent transmittal letter to be returned to the CA. It is the responsibility of 

the SJA of the command which tried the accused to determine that in fact the 

record ultimately was delivered to the accused, his receipt obtained, and the 

receipt finally receivd in JAGO. Ltr, JAGJ 1954/4518, 9 Jun 54. 

Disposition of GCM record when rehearing ordered before SPCM.-When 

CA disapproves the findings of guilty and the sentence of a GCM and orders a 

rehearing by SPCM, one copy of the GCM record of trial should be forwarded 

to TJAG along with two copies of the special court-martial promulgating orders. 

Ltr, JAGJ 1958/8144,3 Dec 58. 

83. INFERIOR COURTS-MARTIAL.-a. Special court-martial 

records involving Bad conduct discharge. 

Cross-reference.-Limitation on use of reporters in SPCM's, par. 7, AR 

22-145,13 Feb 57. 

TJAG desires that the SJAYs review be signed only by the SJA.-Msg DA 

367625,25 Sep 58. 

Persons prohibited by Art. 6c from reviewing a case as SJA are also prohibited from preparing or accomplishing any part of the SJA review.-Crunk, 

4 USCMA 290, 15 CNR 290 (wherein the LO signed the review concurred in by 

the SJA) ; Clisson, 5 USCMA 277, 17 CMR 277 (wherein TC conducted the post 

trial clemency interview of accused) ; Hill, 6 USCMA 599, 20 CMR 315 (wherein 

the review was prepared by an assistant SJA who served as LO in the separate 

trial of a co-accused) ; Washington, 9 USCMA 589, 26 CMR 369 (wherein the 

review was prepared by an assistant SJA who served as TC in a related case) ; 

Vinson (ACM), 19 CMR 919 (wherein the post trial clemency interview of 

accused was conducted by the officer who represented him at the taking of a 

deposition used in his trial) ; Ltr, TJAGAF, AFCJA-21/ACM 5-11376 (Prelim 

Dec), 4 Aug 55; Marquez (AGM), 20 CMR 736 (wherein the CM data sheet 

(DD Form 494) was prepared by the LO). 

SJA disqualified to review record of trial because of his pretrial assistance 

in obtaining testimony against accused.-Albright, 9 USCMA 620, 26 CMR 408 

(wherein the SJA assured a previously tried co-conspirator that his sentence 

would be reduced if he testified against accused) ; Turner, 7 USCMA 38, 21 

CMR 164 (wherein the SJA actively participated in lie detector tests taken by 

accused and a previously tried eo-accused who thereafter testified for the Prose- 
cntion at accused's trial) ; Leo (Chf), 17 CMR 387 (wherein the SJA secured 

essential information from two witnesses by obtaining immunity for one and 

by promising to obtain immunity for the other). 

A verbatim record must be kept if BCD is adjudged.-Whitman, 3 USCMA 

179, 11 CMR 179, wherein it was stated that although par. 15b, which speaks of 

a "complete" record, may possibly be inconsistent with par. 83a, "we believe that 

the latter, as setting out the more stringent rule and one inclining more directly 

in favor of an accused person, must prevail." Moreover, there is no conflict 

between par. 83a and Art 19, because, although the latter speaks of a complete 

record, "it was certainly within the authority delegated to the President to 

require, in addition, a verbatim account of special court proceedings which 

culminate in the imposition of a bad conduct discharge." 

INITIAL REVIEW OF AND ACTION ON 

RECORDS OF TRIAL 

84. WHO MAY TAKE INITIAL ACTION.-a. General. 

Cross-reference.-CA who had verified certain documents used at the trial not 

disqualified to take initial action, par. 5a (Long, 5 USCMA 572, 18 CMR 196). 

84d. Action when a bad conduct discharge is adjudged by a 

special court-martial. 

Where accused was tried by SPCDI and sentenced to a BCD, the SPCM CA 

who took initial action on the record of trial was ineligible to act as supervisory 

authority in the same case, when he became GCM CA of that command. 

McGary, 9 USCMA 244,26 CMR 24. 

85. REFERENCE TO STAFF JUDGE ADVOCATE OR LEGAL OFFICER.-a. General. 

Regulations.-Quarterly and final reports by SJA's of GCDf jurisdictions, AR 

22-45. 

Where the appointed DC of a GCM was relieved from such duties after a 

case had been referred to that CM, but before trial, and he thereafter wrote 

the SJAYs review, a certificate by such officer concerning the extent of his 

pretrial participation in the case, if any, will be required.-Msg, CM 361348, 

12 Afar 53. 

85b. Form and content of review. 

Cross-reference.-Advice in SJA's review as depriving accused of individualized review of his sentence by CA, par. 88b (Plummer, 7 USCMA 630, 23 

CMR 94). 

Standard provisions suggested for inclusion SJA review.-Many cases 

have been reversed because the SJA's review contained language which may 

have misled the CA concerning his powers, duties, or limitations as a factfinder. Fields, 9 USCMA 70, 25 CMR 332; Jenkins, 8 USCMA 274, 24 CRlR 84; 

Grice, 8 USCMA 166, 23 CMR 390. As a means of obviating reversive action 

on this ground in future cases, the SJA review should include, as a subparagraph under paragraph 4 and as paragraph 5b, resgectively, the following 

comments : 

"Convening Az~tlioritg Respo~zsibilitu. You, as the convening authority, have 

the independent power and responsibility to weigh the evidence, judge the 
credibility of the witnesses, and determine controverted questions of fact. 

Before approving a finding of guilty, you must determine that the finding of 

guilty is established beyond a reasonable doubt by competent evidence of 

record (par. 87a(3), MCM, 1951)." Ltr, JAGJ 1957/5311, 18 Jnn 57. 

"b. The competent evidence of record establishes the accused's guilt beyond 

a reasonable doubt and the findings of guilty are correct in law and fact." 

57 Chron Ltr 31/12. 

Statistical material to be included in SJA re~iew.-~'In order that The Judge 

Advocate General's Office may compile significant statistical material it is re 

quested that each staff judge advocate insure that paragraph 2a of his review 

contains the following information: 

"Marital Status (single, married, separated, divorced, divorced and re 

married) 

"Education (number of years completed, high school graduate, college 

graduate, degrees) 

"Intelligence (General Test (GT) score or Armed Forces Qualification 

Test (AFQT) score) 

"Character of service (adjective rating) 

"Length of creditable service (years and months-include all service with 

appropriate deductions for 'time lost') 

"Enlisted status (draftee or enlistee-if enlisted under Reserve Forces Act, 

so specify) ." Ltr, JAGJ 1958/5979,14 Jan 59. 

The SJA's review should contain recommendations as to the action which 

the CA should take with respect to the findings as well as the sentence.-Ltr, 

JAGG SpCM 4687,3 Mar 52. 

In a case involving disputed questions of fact, a mere summarization of the 

testimony does not necessarily point to the correct conclusion; rationalization 

is required, and the staff judge advocate must give reasons for his opinion, 

Bennie, 10 USCMA 159,27 CMR 233. 

The SJA review may include evidence of accused's innocence, even though 

outside the record of trial.-Massey, 5 USCMA 514, 18 CMR 138 (wherein 

reversal was required because the SJA erroneously advised the CA that he 

could not rely on evidence outside the record (results of lie detector and truth 

serum tests) to set aside findings of guilty). But the SJA is under no duty 

to include such evidence in the review. Martin, 9 USCMA 84, 25 CMR 346. 

Whenever the sentence imposed by a GCM is based on a plea of guilty, the 

SJA's review should contain a brief statement of any agreement between the 

parties as to consideration to be extended accused and as to compliance with 

such agreement.-Ltr, JAGM, subject: "Pleas of Guilty," 25 Jun 53. 

In those cases in which there is a finding of guilty, the SJA's review should 

contain an objective statement of the facts and circumstances involved and 

other available information of an aggravating and extenuating nature.-If such 

facts do not appear in some other section of the review, or if accused pleaded 

guilty and no evidence was introduced, the required information should be 

included in the clemency section. Ltr, JAGJ 1954/2912, 23 Mar 54. 

Although the SJA's review may intlnde matters from outside the record 

for the CA's consideration in determining an appropriate sentence, if such 

matter is detrimental to accused he must be given a fair and reasonable opportunity to refute or explain it.-Griffin, 8 USCMA 206, 24 CMR 16. This re 

quirement may be met by ''serving a copy of the review, or those parts which 

contain matters of fact adverse to an accused, on the accused or his counsel 

sometime prior to action by the convening authority . . . . The time of serv- 
ice should be early enough to permit a reply thereto if accused is so disposed." 

Vara, 8 USCMA 651, 25 CMR 155. See also CN 402281, Stephenson, 26 Aug 59, 

- CMR -. 

Recommendation concerning suspension or reduction of sentence in SJA 

review.-"Reference is made to 57 Chron Ltr 2/6, 7, which called attention to 

the practice prevalent in some commands whereby Staff Judge Advocates in their 

reviews recommended that the convening authority's clemency powers be exercised to reduce the period of com3nement to slightly less than one year and 

to suspend the punitive discharge until completion of appellate review or until 

release from confinement, whichever mas the later date. It was stated at that 

time that a prisoner whose sentence to confinement was so reduced was thereafter precluded from parole consideration. under the provisions of AR 633-20, 

19 June 1956. 

"It has been noted that this practice continues to exist in Rome commands, 

notwithstanding the policy enunciated in 57 Chron Ltr 2/6, 7. The Judge Advocate General desires that clemency procedures be used in support of the Army 

program for rehabilitating military offenders for further military service or 

for civilian life and not as a means of furthering administrative consideration." 

Ltr, JAGJ 1958/7856, 19 Nor 58. 

85c. Disagreement between convening authority and staff judge 

advocate or legal officer. 

Action inconsistent with recommendation of SJA.-Where the CA takes -an 

action different from that recommended by his SJA, and such action was not 

taken through inadvertence, the discrepancies should be noted in an addendum 

to the SJA's review in substantially the following form : "The difference between 

the action recommended and that taken by the convening authority is not 

inadvertent." Ltr, JAGJ CAI 352603,2 Nay 52. 

85d. Disposition of review. 

In addition to the original and one copy of the review required to be attached 

to the original record of trial, one copy of the review will be attached to each 

copy of the record required to be forwarded to TJAG by par. 910. Msg, DA 

23692, 13 Jul 51. 

86. MISCELLANEOUS POWERS AND DUTIES OF THE 

CONVENING AUTHORITY.-a. General. 

Cross-reference.-Authority to proceed where accused is insane, par. 100a. 

When the CA grants immunity to a prosecution witness, he becomes ineligible 

to take the post trial action of a CA.-White, 10 USCMA 63, 27 CMR 137. But 

the granting of such immunity will not disqualify him from referring the charges 

to trial. Moffett, 10 USCMA 169,27 CNR 243. 

86c. Correction of record. 

DC's refusal to approve a certificate of correction does not affect the validity 

of the certificate.-Gallowag; 2 USCNA 433, 9 CMR 63. Accord, Albright, 9 

USCMA 628, 26 CMR 408, wherein the Court held that affidavits of defense 

personnel to the contrary did not overcome a recital in the record to the effect 

that the interpreter was sworn. 

86d. Revision proceedings. 

Cross-reference.-Date of GO when only the form of the sentence is 

corrected by revision proceedings, Par. 90a (Ltr, JAGJ CM 351239, 5 Mar 52). 
Revision proceedings are proper where the CM fails to make a finding as to 

a speci6cation.-Ltr, JAGJ CM 349043, Dec 51. 

87. EXAMINATION OF FINDINGS OF GUILTY.-a. Findings as to a specification. 

Cross-references.-Authority of CA to consider evidence outside of the record, 

par. 8571 (Massey, 5 USCMA 514, 18 CMR 138). Power of reviewing authority 

to commute a death sentence where a lesser included offense is approved, par. 

lOOa (Bigger, 2 USCMA 297, 8 CMB 9'7). 

870. Effect of errors on the findings. 

Cross-references.-lilffect of improper conduct by TC, par. 44g (Johnson, 3 

USCMA 447, 13 CMR 3). Effect of preparation of "memo for trial counsel" 

by officer who represented accused at pretrial investigation, par. 48c (Green, 

5 USCMA 610, 18 CMR 234). Effect of failure to smear LO and civilian and 

military counsel, par. 112b (Pino (ACM) , 6 CMR 543 ; Danilson (ACM) , 11 

CMR 692; Fowler (ACM), 20 CMR 779). 

88. POWERS OF THE CONVENING AUTHORITY WITH 

RESPECT TO THE SENTENCE.-a. General. 

Actions of CA which add to sentence of CM.-Where the CM sentenced accused 

to forfeit $45 for three months, the GA's action approving forfeiture of $45 per 

month for three months increased the total forfeiture to $135 and, therefore, 

was illegal. Ealey (NCM), 15 CMR 529. An extension of the period during 

which the forfeitures apply also results in an illegal increase in the sentence, 

even though the total amount of forfeiture is reduced. White (ACM), 12 CMR 

783, wherein a sentence to forfeit $65 per month for 56 days was changed by 

the CA's action to a forfeiture of $58 per month for two months. 

88b. Determining what sentence should be approved. 

Matters outside the record of trial, including matters adverse to accused, 

may be considered by the CA in determining what sentence to approve; 

however, before any adverse matter is considered, accused must be given a 

fair and reasonable opportunity to refute or explain it.-Vara, 8 USCMA 651, 

25 CMR 155. See also CM 402281, Stephenson, 26 Aug 59, - CMR -. With 

respect to omission of signijicant clemency factors from SJA review see Jemison, 

10 USCMA 472,28 CMR 38. 

Policies established by the CA or higher authority which deprive accused of 

an individualized review of his sentence violate both the UCMJ and MCM.- 

Wise, 6 USWA 472, 20 GMR 188, wherein a new review of the sentence by a 

different CA was ordered because of the original CA's policy not to consider 

suspension or remission of a DD or ECD in any case during a period when the 

strength of the Army was~being reduced. See also Plummer, 7 USCMA 630, 

23 CMR 94, wherein the same disposition was ordered because of advice in the 

SJA review to the effect that as a matter of military custom and necessity a 

barracks thief must be eliminated from the service; and Doherty, 5 USCMA 

287, 17 CMR 287, wherein the GA was ordered to reconsider the sentence because 

of his erroneous belief at the time of his original action that a Department of 

the Navy policy letter concerning elimination of homosexuals prohibited him 

from favorably considering the CM's recommendation that accused's sentence to 

BCD be remitted. 

Wh'ere accused fails to reinstate his Class Q allotment, forfeitures may be 

based on the nonexistence thereof.-Cole (CM), 15 CMR 498. 
88c. Approval of a part of a sentence. 

Cross-references.-Commuting a death sentence when a lesser included offense 

is approved, par. lOOa (Bigger, 2 USCMA 297, 8 CMR 97). Commuting sentences other than death, par. 100a (Goodwin, 5 USCMA 647, 18 (4h1l3 271). 

That portion of par. 88c, MCM, which states that the CA cannot change a 

fine to a forfeiture is erroneous.-Cuen, 9 USCMA 332,26 CMR 112. 

88d. Execution of sentence. 

Where a sentence provides for a fine and CHL until the fine is paid, but not 

for more than one year, the sentence cannot be ordered executed until completion of appellate review.-Lucero (AClM), 18 CMR 942. Accord, Garcia, 5 

USCMA 88, 17 CMR 88, wherein jurisdiction of a BR to review a case was 

upheld on the ground that a sentence of CHL for nine months, fine of $500, 

and additional CHL for four months until payment of fine, extended to a sentence 

of one year or more within the meaning of Art. 66b, UCMJ. 

88e. Suspension of execution of sentence. 

Neither a CA nor a supervisory authority can delegate his power of suspension or remission to other persons.-Accordingly, a provision in a supervisory 

authority's action that the suspension of a BCD will not be effective unless the 

conduct of accused has been satisfactory to his CO between the date of trial 

and the date of the action constitutes an illegal delegation of authority. Butts, 

7 USCMA 472,22 CMR 262. 

Provisions of par. 88e(2)(b), MCM, declared invalid.-When tlie CA suspends 

the execution of all or any part of a sentence of an SPCM which as approved 

includes a BCD, or all or any part of any GCM sentence, the suspended portion 

of the sentence cannot be executed unless the suspension is vacated after full 

compliance with the provisions of Art. 72a and 6. If such action has not been 

initiated before expiration of the period of suspension stated in the CA's 

action, accused must be fully restored. Provisions of par. 88e(2) (b), MCM, 

to the contrary are in conflict with Art. 72 and are, therefore, invalid. May, 10 

USCMA 258, 27 CMR 432 ; Cecil, 10 USCMA 371,27 CMR 445. 

"Effective immediately no suspended GCM sentence, or any portion thereof, 

shall be executed except after full compliance with the provisions of Article 

72(a) and (b), UCMJ."Msg, DA 406032,24 Apr 59. 

Suspension of punitive discharges for excessive period.-"A number of cases 

have recently come to the attention of The Judge Advocate General wherein 

convening authorities in their approving actions have suspended the execution 

of portions of sentences extending to conhement and punitive discharge, for 

periods in excess of the actual adjudged confinement. For example, in one 

case a sentence to bad conduct discharge, total forfeitures, and confinement at 

hard labor for six months was approved, but the execution of the bad conduct 

discharge was suspended for the period of confinement and one year, with a 

provision for automatic remission at the end of that time, unless the suspension 

mas sooner vacated. In many of these cases substantial clemency has been 

granted by the convening authority in addition to suspension. It is appreciated 

that careful consideration is being given to rehabilitation measures. Nevertheless, suspen~ion for an excessive period may inhibit rehabilitation because an 

accused cannot be prolnoted during the period. Accordingly, staff judge advocates and convening authorities are urged to conduct periodic reviews of cases 

having lengthy periods of suspension to ascertain whether the accused's conduct 

warrants an earlier remission of the sentence, thereby affording him an oppor- 
tunity for advancement which will contribute toward his full rehabilitation." 

Ltr, JAGJ 1958/2701,28 May 58. 

Entitlement to pay azid allowances where original sentence set aside.-Where 

a rehearing results in a sentence which, as approved, includes forfeitures, the 

accused is entitled to receive the pay and allowances withheld from him under 

the original sentence and action of the CA and any other pay and allowances 

which have accrued to his account until the date on which the CA directs 

application of the forfeitures contained in the sentence adjudged on rehearing. 

36 Comp. Gen. 512,17 Jan 57 ; MS Comp. Gen. B-139265,20 Jul59. 

89. FORMS OF ACTION AND RELATED MATTERScb. 

Modification of initial action. 

When a CA recalls or withdraws an action taken by him before such action 

has been published and before accused has been officially notified thereof, if 

Form 10 of app. 14 is used rather than a corrected action, both the withdrawn 

and substituted actions should be bound into the record of trial at the appropriate place.--Ltr, JAGJ 1952/5119,2 Jul52. 

A CA cannot withdraw an initial action and disapprove findings and a sentence which have been affirmed by a BR-Ltr, JAGJ 1952/2108,6 Mar 52. 

When an incomplete, ambiguous, void, or inaccurate action is modified, the 

supplementary or corrective action taken by the CA must be signed by him 

in his own hand prior to the publication of a corrected CM0.-However, the 

CA need not sign an action to effect the corrective action on the findings or 

sentence taken by higher authority pursuant to Arts. 66, 67, or 74. Ltr, JAGJ 

1952/2227, 5 Mar 52. 

Where another SJA review is necessary, the CA may revoke any action he 

has taken and the GCM order promulgating the result of trial, withdraw them 

together with the SJAys review, and forward the record to another officer 

exercising GCM jnrisdiction for review and initial action-Eisenhard (CM), 

16 CMR 315. 

89c. Action on findings and sentence. 

Cross-references.-Authority of CO to restrict or place accused in arrest 

pending completion of appellate review, par. 21d (Petroff-Tachomakoff, 5 USCMA 

824, 19 CMR 120). Form of action approving sentence on rehearing, app. 14c 

(Ltr, JAGJ CM 353521,25 Jun 52). 

Regulations.-Disposition of Army personnel following action by CM, AR 

618-95. Places of confinement of Army prisoners, AR 633-5. Cominement 

of women personnel, AR 63345. 

Where the CA for any reason wishes to change a previously designated 

place of coniinement, such change should be accomplished by the pubiication 

of special orders rather than corrected GCM0's.-Ltr, JAGJ 1954/4164, 20 

Apr 54. 

%ere the CA orders a sentence to CHL executed, it is not necessary that 

a place of temporary custody be designated.-Ltr, JAGJ CM 347167, 31 Jul 51. 

Credit for CHL not actually served.-Where accused's trial results in a sentence to CHL and the CA sets aside both the hdings and sentence and orders 

a rehearing which also results in a sentence to CHL, the CA's action on the 

rehearing should state that accused is to,be credited with CHL from the date 

the original senknee was adjudged until the date it was set aside, regardless 

of whether the accused was actually in confinement during tl&i time. The 

action should conform with;Forms 18 pd 38, app, 14. Ltr, JAGJ 1953/6411, 

14 Aug 53. 
90. ORDERS AND RELATED MATTERS.-a. General. 

Cross-reference.-Data to be included in CRlO's, app. 15. 

The CA's action must be copied verbatim in the initial promulgating order.- 

Msg, JAGN CM 346731,28 Aug 51. 

When a CA by taking a second action following Form 10 of app. 14 recalls 

or withdraws his initial action before it has been published and before accused 

has been officially notified thereof, only the second action in its entirety need 

be published.-The words "any action" used in par. 90a refer only to an action 

of the CA which has legal efficacy; an action withdrawn or recalled by the CA 

before it is published or accused is officially notified thereof has no legal efficacy. 

Ltr, JAGJ 1952/5119,2 Jul52. 

Procedure where new review and action have been ordered because of 

erroneous advice in SJA review.-"In such cases, it is not necessary for the 

convening authority to withdraw his previous action or that the previous General Court-Martial Order be rescinded. In the new action, the convening 

authority should state the reasons for taking the action and refer to the 

previous General Court-Martial Order which promulgated the original action. 

The General Court-Martial Order promulgating the new action need contain 

no other information." Ltr, JAGJ CM 395414, 7 Jun 57. A sample form of 

action for use in such cases is included under app. 14c. 

Date sentence originally adjudged is date to be reflected in GCMO when 

revision proceedings relate only to form of sentence.-When revision proceedings are held by a OM and the corrective action relates only to the form of the 

sentence and the conpus thereof is in no way increased or decreased, the term 

of CHL will begin as of the date the original sentence was adjudged. In such 

case, the GCMO promulgating the result of trial should reflect the date when 

the sentence was originally adjudged and not the date when the revision proceedings were held. Ltr, JAGJ CM 351239, 5 Mar 52; accord, Ltr, JAGG SpCM 

4780,26 Mar 52. 

90d. Distribution. 

See AR 22-10. 

91. DISPOSdTION OF THE RECORD AND RELATED MATTERS.--. General court-martial. 

Regulations.-Forwarding and review of records of trial by SPCM's and SCRl's, 

AR 22-145. Disposition of CM files, AR 345-260. , 

Cross-reference-Procedures for receipting for the record of trial by accused, 

par. 82g (Ltr, JAGJ 1954/4618,9 Jun 54). 

Items to be forwarded with the two additional copies of GCM records of 

trial prescribed by par. 91a, MCM.-Each such additional copy of the record of 

trial by GCM should contain as a minimum a copy of each of the following: 

(1) charge sheet; (2) 10's report; (3) advice of SJA; (4) action of the 08; 

(5) review of SJA; (6) collateral correspondence affecting findings or sentence; 

and (7) the GDMO. In addition, when copies of other documents attached to 

the original record of trial are available, they should be included in the copies 

of the record. When additional copies of such documents are not available, a 

note should be inserted in each additional copy of the record describing the 

nature of ,the documents which are contained in the original but not in the 

copies of the record. Ltr, JAGJ 1954/7706,15 Nov 56. 
ACTION 

92. ORDERING REHEARING. 

Disposition of cases m which USCMA directs a rehearing.-When the USCMA 

directs a rehearing in a case in which it has disapproved a conviction by GCM, 

a copy of the decision will be forwarded to the original CA in the case, giving 

him the option of ordering a rehearing or dismissing the charges. In such a 

case, the fact that accused has, in the meantime, been transferred out of the 

jurisdiction of the original CA does not affect the authority trf that GA to act 

in the case. If that CA orders the charges dismissed, his action is determinative of the question of a rehearing. If, however, he orders a rehearing, such 

action does not deprive the oBcer then exercising GCM jurisdiction over accused 

of his power to decide whether a rehearing is practicable in his command. If 

the latter decides that a rehearing is not practicable, it should publish an order 

dismissing the charges. When such action is taken, it will be appropriate to 

advise the CA of the reasons therefor. Ltr, JAGM CM 353869, 8 Apr 53. 

Staff Judge advocates should make maximum use of the authority contained 

in Article 6, Uniform Code of Military Justice, to communicate directly with 

staff judge advocates of other commands, so that once it has been determined 

that it is desirable to hold a rehearing, an agreement may be reached as to the 

most appropriate lwation therefor. In arriving at any agreement, consideration 

should be given, among other matters, to the fact that appropriate military police 

authorities will expedite any requests for return of an accused to the original 

convening authority. Ltr, JAGJ CM 400951, CN 400321,16 Apr 59. 

Rehearings limited to the sentence are authorized.-"It has long been the lam 

that findings and sentence are completely separate and distinct portions of military justice procedure. . . . This being so, there is no legitimate reason why a 

valid conviction must be overturned and a rehearing on findings ordered, 

merely to purge an error that infests only the sentence and requires a rehearing 

thereon." Miller, 10 USGMA 296,27 CMR 370. 

Where accused appeals from an interlocutory order by the BR, it does not 

result in transferring the case to CMA and in the absence of such transfer of 

jurisdiction, a CM could properly proceed with a rehearing of the case as directed by a BR.-Best, 6 USCMA 39,19 CMR 165. 

93. PLACE OF CONFINEMENT. 

Regulations.-General provisions concerning military prisoners, including 

designation of places of conhement, AR 633-5. Military sentences to confinement, AR 633-30. 

Place of confinement pending appellate review.-Where a sentence by a 

GCM includes a punitive discharge and CHL for less than one year, and the CA 

approves the sentence, suspends the punitive discharge, but does not order the 

sentence executed, it is improper to provide in the action that the "prisoner 

will be committed to (name of institution) and the confinement will be served 

therein, or elsewhere as competent authority may direct." The action should 

provide for temporary custody pending completion of appellate review. This is 

so even though the CHL (less than one year) could have been ordered executed. Ltr, JAGU CM 358750,5 Jan 53. 
ACTION AFTER PROMULGATION 

94. REVIEW OF SENTENCES AND FILING OF RECORDS 

OF SPECIAL AND SUMMARY COURTS-MARTIAL.-a. Review. 

Regulations.-Review of records of inferior CRf's, AR 22-146. 

Except when a rehearing, proceedings in revision, or corrected action of the 

CA is required, the supervisory authority should take the necessary corrective action himself instead of returning the record to the CA for this purpose.-Ltr, JAGJ 1952/6796,3 Sep 52. 

Procedure where accused is administratively discharged.-Where accused, 

who had been convicted by SPCRf, was administratively clischarged after action 

on the sentence by the CA but prior to the action by the GGM authority, an 

order should be published by the CA reflecting the administrative discharge and 

remitting that part of the sentence remaining unexecuted on the date of discharge. The record of trial should be disposed of under Art. 65c. Ltr, JAGM, 

28 May 52. 

946. Filing of records. 

Regulations.-Reports of SJA's of GCM jurisdictions, AR 22-45. Filing of 

CM records, AR 345-260. 

95. CORRECTION OF RECORDS OF TRIAL SUBJECT TO 

APPELLATE REVIEW. 

When CMO reflects incorrect name of accused.-Where a GGMO indicated 

accused's name was M, but the allied papers indicated accused's true name was 

S, the CA was requested to take a corrected action as authorized by par. 95, 

following Form 10, app. 14a, bearing the date of his original action and reflecting the name of the accused as S, alias Af. Ltr, JAGJ CRI 358482, 4 Dec 52. 

96. REPORTS IN CERTAIN CASES. 

Regulations.-Reports of investigations and CM proceedings, AR 600-31. 

Temporary custody following sentence by CM, AR (iE-95. 

Notification of adjudgment of death sentence.-Whenerer a death sentence is 

adjudged by a CM, immediate notification by electrical message, including the 

name, grade, service number, organi~ation of the accused, nature of offenses, 

and date adjudged, will be made to TJAG. Additional notification by electrical 

message will be made as to the action of the CA and the date the record of trial 

was mailed to JAGO. Ltr, AGAC-C (M) 250.47, JAGJ, 10 Jul 53. 

97. MISCELLANEOUS MATTERS.-a. Remission and suspension. 

Regulations.-Person authorized to mitigate, remit, and suspend sentences, 

AR 633-10. 

Cross-references.-Forms for supple men tar^ orders, app. 15b. Forms for 

orders remitting or suspending unexecuted portions of sentence, app. 150. 

In any case in which a CA mitigates, remits, or suspends a sentence pursuant 

to par. 97 and par. 2, AR 633-10, it is not llecessary for him to sign an action.- 

The action is accomplished simply by the publication of an appropriate supplementary CMO. Ltr, JAGJ 1952/2227,5 Afar 52. 

Suspension pending completion of appellate review.-81though the restoration of an accused to duty, pending final appellate review of his case, operates 
by implieation to suspend that portion of his sentence adjudging TF, it is suggested, for record purposes, that the order restoring accused to duty expressly 

suspend that portion of the sentence involving forfeitures. Ltr, JAGM CM 

347482,4 Jan 52. 

Substitution of administrative discharge.-The CA approved a sentence including a BCD, but in his action he recommended that an administrative discharge be substituted for the BCD through the power of the SA. Action by the 

SA under Art. 74b is not appropriate in such a case, as that Art. requires that 

the punitive discharge be executed prior to the substitution of the administrative discharge therdor; obviously the BCD should not be executed when the 

reasons for substituting an administrative discharge therefor are known prior 

to the time of execution. In order to carry out the CA's recommendation, it is 

necessary to obtain the personal approval of the SA authorizing TAG to discharge the EM administratively. Before making a recommendation of this nature, a CA should give careful consideration to ihe procedure entailed, and 

unless the case is deemed to warrant personal action by the SA, the recommendation should wt be made. Ltr, JAGM CM 362847,19 May 53. 

97b. Vacation of suspension. 

Under Art 7& and par. 97b, MCM, it is mandatary that the probationer be 

present at the hearing to vacate the snspension of his sentence, not withstanding his intentional AW0L.-The fist par. of the opinion cited in Op. JAGAF 

1951/150, 1 Dig. Ops. No. 3, Sent. & Pun. 5 55.11, is contrary to the above and 

does not represent the view of TJAG of the Army. Ltr, JAGJ CM 347759, 

3 Oct 52. 

Vacation of suspension in lieu of second trial.-Accused was tried for an 

offense similar' to a previous offense for which he had been sentenced to BCD. 

The sentence had been affirmed by a BR and had been suspended by TJAG, 

which sentence was in effect at the time of accused's second trial. The nature 

of the charges which were the basis of the second trial were such that adequate 

punishment might have been imposed by vacating the order suspending execution 

of the previous BCD and ordering that discharge into execution It was suggested that consideration be given to such procedure in applicable cases prior 

to referral of new charges to trial, as such action would save the time and 

expense of a trial by GCM and would expedite acensed's separation from the 

service. This would not preclude a second trial in an appropriate ,case where 

there are aggravated circumstances warranting additional punishment. Ltr, 

JAGQ CM 3531222 Jun 52. 

97c. Znterruptibna of execution of a seatem. 

Regulations.-Computation ana operation of sentences to CHL, AR 633-30. .' 

97d. Changes in place of confinement. 

Regulations.-Transfer of prisoners, 'kR 633-5. 

Where the CA for any reason wishes to change a previously desihated 

place of confinemat,, such ehmge should be accomplished bg ttte publication 

of SO'S rather than corre- GCMO'&--Ur, 3AGJ lS54/4164, 20 Apr 54. 

97e. Distribution of court-martial oriters. 

See AR 22-10. 1 1, 
q 98 58 

APPELLATE REVIEW-EXECUTION OF SENTENCES 

98. GENERAL. 

A provision for confinement to enforce payment of a fine must be included 

within the technical meaning of "sentence" as used in Art. 71c ; and, therefore, 

where a sentence provides for a fine and CHL until the fine is paid, but not for 

more than one year, the sentence cannot be ordered executed until completion 

of appellate review. Lucero ( ACM) , 18 CMR 942. 

100. REVIEW BY THE BOARD OF REVIEW.-a. General. 

Cross-reference.-BR may order rehearing on sentence only, par. 92 (Miller, 

10 USCMA 296,27 cam 370). 

A BR cannot proceed with a review on the merits of a case of an insane 

accused.-Bell, 7 USCMA 744, 23 CAIR 208. It may, however, render a decision 

on the question of accused's mental capacity at the time of trial. Jacks, 

8 USCMA 574,25 CIVIR 78. 

BR may commute death sentence rendered illegal by BR's action on 

findings.-Where the BR's reduction of a conviction of premeditated murder to 

unpremeditated murder rendered the sentence to death illegal, the BR had the 

power to commute the sentence to DD and CHL for life. Bigger, 2 USCMA 

297, 8 CMR 97. But a BR has no authority to commute a legal sentence of 

dismissal to any other form of punishment. Goodwin, 5 USCMA 647, 18 

CMR 271. 

Where the BR affirmed accused's conviction of attempted rape but set aside 

his conviction of premeditated murder, the BR's reduction of the sentence 

from CHL for life to CHL for 20 years was within the powers gkanted the BR 

by Art. 66c of the Code.-Jackson v. Taylor, 353 U.S. 56 (1957). 

100b. Action when sentence is set aside. 

Procedure for sentencing when a conviction of one offense is affirmed and 

a rehearing is ordered as to another.-The USCMA affirmed the findings on the 

AWOL charge. However, it reversed the findings as to the forgery charge, 

set aside the sentence, and retnanded the "case" to TJAG for return to the BR 

or to the CA for a rehearing if practicabIe. Upon rehearing, the accused 

pleaded guilty to, and was convicted of, forgery; and it was stipulated that the 

accused was previously found guilty of AWOL, that upon appellate review 

the findings were affirmed, and that although finally convicted, he stood unsentenced. The CM was then instructed to render a sentence appropriate for 

both offenses. The USCMA approved the procedure followed and noted that if 

on rehearing the accused was found not guilty, the ,CM could sentence on "the 

approved findings carried forward from the initial trial." Ful'thermore, if a 

rehearing was not practicable, the CA could dismiss the erroneous finding and 

would not be required (althongh he would be permitted) to convene a CM for 

reassessing the sentence on the untainted charges unless appellate authorities 

also set aside the sentence without qualification. Field, 5 USCMA 379, 18 

CMR 3. 

1006. Action when sentence is affirmed in whole or in part. 

Service of BR decision where accused is AWOL.-me following procedure 

will be followed where the decision of the BR cannot be served personally upon 

accused because he is AWOL : 

a. A certificate of attempted service will be executed in duplicate by the 

officer attempting service, showing the date and place service mas attempted 
and the faet that accused could not be served by reason of his being AWOL. 

The certificate will be supplemented by authenticated extract copy of an M/R 

or confinement report, in duplicate, showing the escape or other AWOL. The 

certificates and extract copies will be forwarded to JAGO, together with two 

copies of the BR's decision. 

b. If accused returns to military control at his proper station within the 

30-day appeal period, a copy of the decision will be served upon him. If accused 

is returned to military control elsewhere, a copy of the decision will be transmittea to that station for service upon hini, with a request that his proper 

station be notified of the fact of service and also of any petition or waiver 

executed by accused. In either case, the notification to accused of his right to 

appeal should be modified to limit the appeal period to 30 days from the date of 

attempted service. Accused's receipt for a copy of the decision will be forwarded to JAGO. 

o. If at the end of the 30-day appeal perioa accused has not returned to 

military control or has returned to military control and has failed to petition 

for a grant of review, action mill be taken in the same manner as though 

accused had been served personally on the date of attempted service. In the 

absence of official notification at his proper station, it may be presumed accused 

has not returned to military control elsewhere. Ltr, SpCM 3533, 6 Sep 51. See 

Ltr, JAGJ SpCI\.I 5288, 7 Aug 52, wherein it was held that if accused returns to 

military control prior to the expiration of the 30-day appeal period, "it is deemed 

advisable that the [supplementary] order be dated thirty days after the date 

of actual service." 

Request by accused for final .action.-In appropriate cases, upon receipt of 

a written, dated, and witnessed request initiated by an accused after consultation with counsel, a supplementary GCMO ordering the sentence into execution 

may be published prior to expiration of the 30-day ameal period under Art. 67c. 

Msg, JAGM, 24 Oc t 52. 

A signed and dated copy of accused's request for final action should be forwarded to JAG0.-Ltr, JAG3 CM 357044,5 Dec 52. 

The forms set wt in app. 15b, including recitation of compliance with Art. 

71e, are applicable to supplementary orders published upon the request of 

accused for final action.-Msg, JAG&& 1 Dec 52. 

Execution of waiver of right to appeal to USCMA has no legal efficacy.- 

Accordingly, where accused executed a waiver of the right to appeal prior to the 

30-day appeal period, it will in no way affect his right to later appeal the decision of the BR if the 30-day period has not expired. Ponds, 1 USCMA 385, 

3 CMR 119 ; Doherty, 10 USCMA 453,28, WR 19. 

Corrective actbn required where execution of sentenee is ordered prior to 

expiration of period for appeal.-Where the GCMO directing execution of the 

sentence is erroneously published prior to the expiration of the 30-day appeal 

period, a corrected GCMO must be issued and dated on or after the 30th day 

following service of a copy of the BR decision upon accused. Ltr, JAG3 CM 

353644, 18 Aug 52. The date of service should not be included in the.appea1 

period ; the 30 days should begin to run on the day following the date of service. 

Ltr, JAGJ CM 353730,18 Bug 52. 

100d. Rules sf procedure. 

See DA Bul. 9, 8 Jun 51; DA Bul. 5, 19 Apr 55; and DA Bul. 11, 13 Oct. 68. 

101. REVIEW BY THE COURT OF MILWARY APPEALS. 

Cross-references.-Disposition of cases in which USCMA directs a rehearing, 

par. 92 (Ltr, JAGN CM 353869, 8 Apr 53). Waiver by accused of right to 
petition for review, par. lOOc (Ponds, 1 USCMA 385, 3 CMR 119; Doherty, 

10 USCMA 453,28 CMR 19). 

Proper form of petition to USCM.4.- 

"1. It has been noted that many petitions for grant of review to the United 

States Court of Military Appeals which are prepared in the field fail to meet 

the requirements of Rule 18 of the Rules of Practice and Procedure of the 

United States Court of Military Appeals. 

"2. TO comply with Rule 18 a petition for grant of review should reflect 

the following facts : 

a. The date of the accused's conviction ; 

b. The offense or offenses committed and the Article or Articles violated ; 

c. The sentence imposed; 

d. The action of the convening authority ; 

e. The date and the action of the Board of Review; 

f. That the accused is hereby petitioning the United States Court of Military Appeals for a grant of review of the decision of the Board of Review; 

g. Whether the accused desires appointed military counsel, or has retained civilian counsel, or both ; 

h. The errors, if any, which the accused desires to assert in the petition 

itself; 

i. The date the accused was notified of the decision of the Board of 

Review; and 

j. The date the petition is placed in military channels." 

Ltr, JAGJ 1959/2540,27 Mar 59. 

102 APPELLATE COUNSEL.-6. Duties. 

Petitions for grant of review forwarded to TJAG are being signed by JA 

officers as "Appellate Defense Counsel." Art. 70a provides that TJAG shall 

appoint appellate DC to represent an accused. Hereafter, officers who prepare 

petitions for review should sign as "Counsel for the Accused" if accused does 

not personally sign his petition for grant of review. Ltr, JAGB, 22 Jul52. 

1020. Civilian counsel. 

Cross-reference.-Relationship between appellate DC and trial DG, par. 48j 

(Ltr, JAGJ 1953/9959,24 Dec 53). 

105. COMMUTATION, REMISSION, AND SUSPENSION.- 

a. Commutation. 

Cross-references.-Power of BR or CA to commute a sentence, par. lOOa 

(Bigger, 2 USCMA 297, 8 CMR 97 ; Goodwin, 5 USCMA 647,18 CMR 271). 

105b. Remission and suspension. 

Regulations.-Authority to mitigate, remit, and suspend sentences, AR 

633-10. 

NEW TRIAL AND RELATED MATTERS 

109. OFFENSES COMMITTED AFTER 30 MAY 1951.a. 

General. 

The right to petition for a new trial does not expire during a period of 

insanity.-Bell, 8 USCMA 392,20 CMR 108. 

Filing of petition for a new trial is complete when placed in military 

channels.-Owen, 6 USCRlA 466,20 CMR 182. 
OATHS 

112. OATHS IN TRIALS BY COURTS-MARTIAL,--& Persons 

required to be sworn. 

Failure to swear the LO is a "substantial error of procedure" requiring 

disapproval of the findings and sentence and the ordering of a rehearing.- 

Pino ( ACM ), 6 CMR 543. 

The same is true with respect to the assistant DC.-Nyman (ACM), 5 

CMR 598. 

Failure to swear individual military DC is error but does not involve such 

a creative and indwelling principle as to constitute general prejudice.-There 

fore, where such counsel acted as an assistant to the appointed DC who conducted the defense, accused pleaded guilty, and compelling evidence of guilt 

mas presented, the error did not prejudice the accused. Fowler (ACM), 20 

CMR 779; cf. Danilson (ACM), 11 CMk 692 (wherein the same result wag 

reached with respect to individual civilian DC) . 

113. AUTHORITY TO ADMINISTER OATHS. 

Appointment of SCM for the purpose of administering oaths.--Once properly 

appointed pursuant to Art. 24, an SCM is competent to exercise the jurisdiction 

conferred by Art. 20 notwithstanding an order purporting to limit the court to 

the function of administering oaths. No order appointing SCM's should attempt to so limit the power of the court. On the other hand, the fact that a 

particular SCM administered oaths only would not make such oaths invalid. 

Ltr, JAGJ 1958/8257,29 Dec 58. . 

INCIDENTAL MATTERS 

115. ATTENDANCE OF WITNESSES.-a. Generd. 

Accused cannot be forced to present the testimony of a material witness on his 

behalf by way of stipulation or deposition and is entitled to have the witness 

testify directly from the witness stand in the courtroom.-Accordingly, where 

a witness residing 1200 miles away is material and necessary to the defense, it 

is prejudicial to refuse to comply with a defense request to subpoena him even 

though the prosecution stipulates to his testimony and a continuance is offered 

the accused in order that the witness' deposition may be taken. Thornton, 8 

USCMA 446.24 CMR 256. 

I15c. Production of documents in control of military authorities. 

"The view has been expressed that with regard to the production of evidence 

in the custody and control of the military authorities the accused has the right 

(1) except as otherwise directed by the convening authority, to examine any 

paper accompanying the charges prior to trial; and (2) to the production of 

documents or other evidence in the custody and control of military authoritim 

upon a showing that the items are admissible in evidence and are relevant and 

material to issues at the trial. 

"Defense should make its request for production of evidence to the trial 

counsel. If he opposes the request the matter should be referred to the convening authority, or to the court if it has already convened. If the request is 

still not granted the defense should lay proper foundation by direct or crossexamination of witnesses or by offer of proof. If the request is then denied it 

537610°-60-5 
must be determined on review whether denial was error to the prejudice (spe 

cific) of the accused." Ltr, JAGJ 1957/5066,17 Jun 57. 

II5d. Civilian witnesses. , . 

Mileage computation for payment of witnesses.-Wltnewes, other than govt. 

employees and members of the uniform seryicea, who are required to appear 

before military courts are entitled to payment for mileage at the same rate as 

witnesses who appear in U.S. courts. 36 Comp. Gen. 777. 

117. DEPOSITIONS.+. General. 

Notwithstanding hnguage in par.,ll7 of the Manual to the contrary, when a 

deposition is to be used in a GCM'the'officer designated to represent the accused in taking the deposition must be legally qualzed as required by Art. 

27.-Drain, 4 USCMA 646,16 CMR 220. 

Although the accused's presence at the taking of a deposition is not required 

to render the deposition admissible, his consent to representation by the 

officer designated is required.-Miller, 7 USCMA B, 21 CMR 149. 

1179.. Depositions on oral examinations. " 

When depositions on oral examinations are taken, the deposition form should 

show that the deposition was taken by the officers appointed by the CA for that 

purpose.-Ltr, JAGN CM 357449,4 Dec 52. 

Appointment of counsel to take depositions after charges have been referred 

for trial.-Contrary to the provisions of par. 1170, after the charges against 

accused have been referred for trial and the parties are represented by ap 

pointed counsel, the CA may not appoint other counsel to take oral depositions. 

Brady, 8 USCMA 456,24 CMR 266. 

119. EXPENSES OF COURTS-MARTIAL. 

See AR 37-106. 

INSANITY 

120. GENERAL CONSIDERATION. 

Cross-reference.-Claim of insanity based upon evidence of an "immaturity 

reaction," par. 708 (Trede, 2 USCMA 581,lO CMR 79). 

121. INQUIRY BEFORE TRIAL. 

See TM %240/AFM 160-42, Psychiatry in Military Lam. 

122. INQUIRY OF COURT.-c. Evidence. 

The rule concerning the admissibility of expert testimony on matters of 

mental responsibility is that any physician may as an -?A witness and 

that the extent of his specialized training or expenenCe in psychiatrr affects 

the weight of his testimony rather than his as an expert witness. 

Thomas (ACM) ,6 CMR 792. 

124. ACTION BY CONVENING OR HIGHER AUTHORITY. 

Findings required by medical board of.0% when CA directs post trial 

inquiry concerning accused's mental ere it is determined after 

trial that further inquiry as to accused's condition is warranted, ac. 

cused may be transferred to an Army hospltal for Observation and report by a 

board of medical officers. This board gake separate and distinct find- 
ings as to whether accused was sane at the time, of the offense and the time of 

trial. In addition, the board should make a separate finding as to whether accused npw possesses sufficient mental capacity to understand the nature of the 

proceedings against him and intelligently to conduct or cooperate in his defense. 

Further appellate review will be delayed until receipt of such report. Ltr, 

JAGN CM 360202,26 Feb 53. 

PUNISHMENTS 

125. GENERAL LIMITATIONS. 

Illegality of coniinement on bread and water for more than three consecutive days.-Notwithstanding the provisions of pars. 125 and 127~. no CM may 

adjudge confinement on bread and water for personnel other than those attached 

to or embarked in a vessel, but a CM of any service may impose conkement on 

bread and water in cases involving personnel attached to or embarked in a 

vessel, for a period not to exceed three consecutive days. Wappler, 2 USCMA 

393,9 CMR 23. 

Solitary confinement may not be adjudged against personnel of any service, 

including the Navy.-Stiles, 9 USCMA 384,26 CMR 164. 

126. MISCELLANEOUS LIMITATIONS.--a. General comments. 

Regulations.-Restrictions upon punishment of specialists, AR 600-201. 

As forfeitures must be adjudged in express terms in order to be included in 

a sentence, "a sentence to death does not include by implication a forfeiture 

of pay or allowances."-Further, as a sentence to death does not include confinement (although it may be commuted to confinement), even if forfeitures were 

expressly included in a death sentence, they could not be ordered executed until 

approval by the President and could not be applied to pay and allowances 

becoming due after the action of the CA, under Art. 57a, as the sentence would 

not include "confinement not suspended." Ltr, JAGJ 1953/2725, 17 Apr 53; 

accord, 33 Gomp. Gen. 195. 

126d. Officers and warrant officers. 

Sentence to CHL.-Contrary to the provisions of par. 126d, MOM, a CM may 

sentence an officer to confinement without also adjudging a dismissal. Smith, 

10 USCMA 153,27 CMR 227. 

Dismissal.--"A dismissal is more than a separation without honor; it is a 

separation 'with dishonor' and is equivalent to the dishonorable discharge provided as punishment for a warrant officer or enlisted person in appropriate 

cases." Also, sec. 300 of the Act of 22 Jun 44 (58 Stat. 286; 38 U.S.G. 6939) 

bars all veterans' beneiits under any laws administered by the YA based upon 

the period of service to which a dismissal by reason of the sentence of a GCM 

pertains. Ballinger (CM), 13 GMR 465. 

Where an officer was sentenced to DD, TF, and CHL for three years, the CA 

did not err by substituting a dismissal for the DD in his action.-Bell, 8 USCMA 

193, 24 OMR 3. 

126e. Enlisted persons; prisoners sentenced to punitive discharge. 

Regulations.-Punitive discharges, AR 635-2M. 

The aulomatic reduction provisions of par. 126e, MCM, as amended by E.O. 

10652, 10 Jan 56, have been declared invalid.-Accordingly, the CA's approval 
TABLE OF MAXIMUM DAILY AND MONTHLY FORFEITURES OF PAY WH

AGAINST ENLISTED PERSONS WHO ARE NOT SENTENCED TO A P

LAW 85-422, 85TH CONGRESS 

- 

E-1 (Recruit) : 

Under 4 mos-. ..-. . . 

Under 2 yrs .-.-..-.. 

Over 2 yrs .....-..... E-2 (Private): 

Under 2 yrs -... --. -. 

Over 2 yrs ---.---.-.- E-3 (PFC): 

Under 2 grs.-. .-. --. 

Over 2 yrs ---.-.-.... 

Over 4 yrs ..--...... 

E-4 (Cpl or SP4): 

Under 2 yrs-.. ..-.-. 

Over 2 yrs ---.--.-..- Over 3 yrs -.--. . .--- 

Over 4 yrs ...-. . . ... 

Over 6 yrs ..-....... 

Over 8 yrs --.-.--.... E-5 (Sgt or SP5): 

Under 2 yrs ----..... Over 2 yrs ...-....... 

Over 4 yrs .--.-...... Over 6 yrs -.-......- 

Over 8 yrs --.-------- Over 10 yrs --.-. . .. . 

E-6 (Staff Sgt or SP6): 

Under 2 yrs .--.-..-. 

Over 2 yrs --..-.-..-. 

I I Maximum forfeiture per mon

Monthly pay rate Dnily pay rate not reduced to lowest 

I I Without class Q I 

Basic and Basic 1 

Forcign -- 

I --- 

Basic and 

Foreih67.33 

60.80 

76.33 

62.53 

77.33 

72.24 

88.66 

1Uu. 00 

90.20 

108.66 

116.33 

122.00 

1%. 6fl 

136.33 

107.49 

130.66 

147.33 

160.66 

, 167.33 

1 170.66 

130.64 

, 146.66 
Over 4 yrs ....-.-..- Over 6 yrs .-.-...... 

Over 8 yrs ........ -. 

Over 10 yrs ..-...-. 

Over 12 yrs --....-.. 

Over 14 yrs --....... Over 16 yrs ----..... 

Over 18 yrs ...-.---. E-7 (Platoon Sgt, SFO, 

or SP7): 

Under 2 yrs ..----.- Over 2 yrs -----..... 

Over 4 yrs .-...-.-.. Over 6 yrs ..-....... 

Over 8 yrs .---... ..

Over 10 yrs ----..... 

Over 12 yrs .---. . . . 

Over 14 yrs -........ 

Over 16 yrs ....-.--. 0ve4 18 yrs .---. . . . . 

Over 20 yrs -.--..... 

E-8 (1st Sgt, Master 

Bgt, or SP8): 

Over 8 yrs ....-.. ..- 

Over 10 yrs ...-... . 

Over 12 yrs ..--.-.-. 

Over 14 yrs ........ . 

Over 16 yrs .---..... 

Over 18 yrs ......... 

Over 20 yrs ...-..... Over 22 yrs .......-. E-9 (Sgt Major Or SP9): 

Over 10 yrs .-....... Over 12 yrs -._-..... 

Over 14 yrs ....--... Over 16 yrs ....--.-. Over 18 yrs ----...-. Over 20 yrs -.--.-.. . 

Over 22 yrs .---..--- 
of a sentence which includes BCD, DD, CHL, or hard labor without confinement will not result in an automatic reduction of the accnsed to the lowest pay 

grade, unless such reduction is expressly adjudged by the CM. Simpson, 10 

USCMA 229,27 CMR 303. 

The status of an MCO cannot be changed to a specialist or vice versa by the 

sentence of a CM.-Ltr, JAGJ 196S/2671,14 Apr 55. 

I26h. Forfeiture; fine; detention of pay. 

Regulations.-B'oreibq duty pay, forfeitures; fines, and detention of pay, AR 

37-104. 

Cross-references.-Effect on review jurisdiction of CHL to enforce collection 

of a fine, par. SSd (Garcia, 5 USCiV1A 88, 17 C.MR 85). Entitlement to pay and 

allowances where original sentence is set aside, par. SSe (36 Comp. Gen. 512). 

Where an o5cer is sentenced to a lump sum forfeiture the CA may defer 

or apportion the application of the forfeiture adjudged so as to allow it to be 

collected in reasoilable installments.-Stellman, 4 CB1R 232. 

In computing maximum permissible forfeitures, the period of "bad time" of 

accnsed cannot be credited to longevity in determining the basic pay to which 

he is entitled in the reduced grade.-Ltr, JAGJ CM 355611, 21 Ang 52. 

126j. Confinement at hard labor. 

Regulations.-Notice to TJAG when female personnel sentenced to confinement, 

AE m45. 

127. MAXIMUM LIMITS OF PUNISHMENTS.--b. General 

limitations. 

Regulations.-Punitive discharges, AR 635-204. 

Contrary to the provisions of par. 1276, RICM, a CM may sentence an 

accused to more than six months' confinement without also adjudging a BCD 

or DD.-Varnadore, 9 USCMA 471, 26 CMR 251. Likewise, a GiVI may adjudge 

TP without also adjudging a BCD or DD. Jobe, 10 USCMA 276, 27 CMFL 350. 

1276. Maximum punishments. 

EXECUTIVE OR.DER 10247 SUSPENDING THH LIkiITATIONS UPON 

PUNISHhIENTS FOR VIOLATIONS OF ARTICLES 52, 85, 86(3), 57. 00, 

91 (1) AND (2), 113, AND 115 OF THE UNIFORJ1 CODE OF iV1ILITARY 

.JUSTICE. 

By virtue of the authoiity vested in me by Article 56 of the Uniform Code of 

Military Justice (established by the act of fiIaJ' 5, 1950, 64 Stat. 107), and as 

President of the United States, I hereby suspend, until fnrther order, as to 

offenses committed on and after May 31, 1951, by Persons under the comma~lcl of, 

or within ally area controlled by, the Commander in Chief, Far East, or ally of 

his successors in command, the limitations prescribed by the Table of Masi~n~u~

Punishments, paragraph 127c of the l\Iannal for Courts-Martial, United States, 

1051 (prescribed by Executive Order No. 10214 of Febrnary S, 1951), upon 

punishments for violations of Articles 52, 85; S6(3), 87, w, 91 (1) and (2), 113, 

and 115 of the Uniforln Oode of Military Justlee. 

HARRY S.TRWIIAN 

May 29, 1951. 
aXEUUTIVEI ORDEER 10628 RESTORING LIMITATIONS UPON PUNISHMENTS FOR VIOLATIONS OF ARTICLES 82,85, 86(3), 87, 90, 91 (1) AND 

(2), 113, AND 115 OF THE) UNIFORM GODD OF MILITARY JUSTICE. 

By virtue of the authority vested in me by Article 56 of the Uniform Code of 

Military Justice (established by the act of May 5, 1950, 64 Stat. 107), and as President of the United States, it is hereby ordered as follows : 1. The suspension of limitations upon punishments for violations of Articles 82, 

85, 86(3), 87, 90, 91 (1) and (2), 113, and 115 of the Uniform Code of Military 

Justice, made by Exec~ltive Order No. 10247 of May 29,1951, is hereby terminated as to offenses committed after the effective date of this order. 

2. Punishments for offenses in violation of these Articles by persons under the 

command of, or within any area controlled by, the Commander-in-Chief, Far 

East, or any of his successors in command, committed on and after the effective 

date of this order shall be subject to the limitations prescribed by the Table of 

i\lnximum Punishments, paragraph 127c, Manual for Courts-Martial, United 

States, 1951, as amended by paragraphs 2 and 3 of Executive Order No. 105G5 

of September 28, 1954. 

3. This order shall become effective on the twentieth day after the date thereof. 

DWIGHT D. EISENHOIVER 

August 5,1955. 

Cross-reference.-Limitation on punishment of confinement on bread and 

water, par. 125 (Wappler, 2 USCMA 393,9 CBIR 23). 

Computing period of AW0L.-Unless the hours of departure and return are 

alleged, a CM ordinarily cannot find an accused guilty of an AWOL for part 

of a day. Thus, if the accused is charged with, and found guilty of, AWOL 

from 0600 hours, 4 Apr 51, to 1000 hours, 8 Apr 51, the maximum puilishment 

would be based on 5 days' absence, since the total absence is 100 hours. But, if 

the hours of departure and return had not been alleged, the lllaximum punishment would be based on 4 days' absence (96 hours). Ltr, JAGJ, 18 Oct 51. 

The Korean Conflict was in fact a "war" within the meaning of Art. 113.- 

Bancroft, 3 USCMA 3,11 CAIR 3. 

A formal declaration is not essential to the termination of a "time of war" 

condition within the meaning of Art. 113.-Sanders, 7 USCMA 21, 21 CMR 147. 

The maximum punishment for wrongful possession of a false pass, without 

an intent to deceive, is CHL for four months and two-thirds forfeiture for 

four months.-Blue, 3 USCMA 550,13 CMR 106. 

Solicitation to commit a crime other than those listed in Art. 82 is punishable as a simple disorder.-Oakley, 7 USCMA 733,23 CMR 197. 

SECTION A 

EXECUTIVE ORDER 10565 

AiiEYDMENT OF PARAGRAPHS 76a AND 127c OF THE MANUAL FOR 

COURTS-MARTIAL, UNITED STATES, 1951. 

By virtue of the authority vested in me by Articles 36 and 56 of the Uniform 

Code of Military Justice (established by the act of May 5,1950,64 Stat. 107), and 

as President of the United States, it is ordered that the Manual for CourtsMartial, United States, 1951 (prescribed by Bxecutive Order No. 10214 of February 8,1951), be, and it is hereby, amended as follows : 

2. The offenses and punishments listed in the Table of Maximum Punishments, 

contained in paragraph 127~~ for violations of Articles 86 and 87 of the Uniform 

Code of Military Justice are revised so that they shall be as follows: 
Absence without leave : 

1. Failing to go to, or going from, Confinement at hard labor not to exceed 

the apl~ointed place of clnty. one month, and forfeiture of tmo2. From unit, organization, or thirds pay per month not to exceecl 

other place of duty : one month. 

(a) For not more than 3 clays of Confinement at harcl labor not to exceed 

absence. one month, and forfeiture of twothirds pay per month not to exceecl 

one month. 

(b) For more than 3 days but not Oonfinement at hard labor not to exceed 

more than 30 days of absence. six months, and forfeiture of t~vothirds pay per month not to exceed 

six months. 

(c) For more than 30 days of Dishonorableclischarge, forfeiture of all 

absence. pay and allon~ances, and confinement 

at hard labor not to esceecl one year. 

3. From guard or watch----------- Confinement at harcl labor not to exceed 3 

months, and forfeiture of two-thirds 

pay per month not to exceed three 

months. 

Wimth intent to abandon---------- Bad conduct discharge, forfeiture of all 

pay and allowances, and confinement at 

hard labor not to esceed six moiiths. 

4. With intent to avoid maneuvers Confinement at hard labor not to esceed 

or field exercises. SLY months, and forfeiture of twothirds pay per month not to exceed six 

months. 

Missing movement of a ship, aircraft 

or unit : 

1. Through design ----------------- Dishonorable discharge, forfeiture of all 

pay .and allowances, and confillement at 

hard labor not to esceed one year. 

2. Through neglect ---------------, Bad conduct discharge, forfeiture of all 

pay and allowances, and confiliement at 

hard labor not to exceed six months. 

SECTION B 

NXECUTIVE ORDER 10565 

AAfENDAIENT OF PARAGltAPHS 76a AND 127c OF THE MANUAL FOR 

COURTS-MARTIAL, UNITED STATBS, 1951. 

By virtue of the authority vested in me by Articles 36 and 56 of the Uniform 

Code of Alilitary Justice (established by the act of May 5, 1950, 64 Stat. lo?'), 

and as President of the United States, it is ordered that the Manual for Courts- 
Martial, United States, 1951 (prescribed by Executive Order No. 10214 of February 8,1951), be, and it is hereby, amended as follows : 

* 1: ii: * X * * 

3. Section B, Pavnzissible AdditionaZ Pzcniskmmts, of paragraph 127c, is 

amended by adding thereto at the beginning thereof (the following language : "If an accused is found guilty of an offense or offenses for none of which 

dishonorable discharge is authorized, proof of three or more previous convictions 

during the year next preceding the co~nmission of any offense of which the 

accused stands convicted mill authorize dishonorable discharge and forfeiture 

of all pay and allowances and, if the confinement otherwise authorized is less 

than one year, confinelnent at hard labor for one year. In conlputing the one- year period prececling the commission of any offense, periods of unauthorized 

absence as shown by the findings in the case or by the evidence of previous con- victions should be excluded. See 75b(2) as to further limitations concerning evidence of previous convictions which may be considered." 

DWIGHT D. EISENHOWER 

THE WHITE HOUSE 

September 28, 1954. 

Two previous convictions, the second of which is for an offense committed 

prior to the first conviction, will not permit imposition of additional punishment 

under Sec. B, 127c.-O'Shana (ACM), 6 CMR 816. See also Geib, 9 USCMA 

392,26 CMR 172, footnote 1. 

In applying par. 127c, Sec. B, there is no requirement that a BCD be adjudged 

as a condition precedent to the imposition of additional punishment based on 

previous convictions.-Prescott, 2 USCMA 122,6 CMR 122. 

Forfeitures may not be imposed under the authority of par. 127c, See. B, in 

excess of the period of CHL adjudged, but forfeitures otherwise authorized by 

TMP for the offense involved may be imposed.-Watkins, 2 USCMA 287, 8 CMR 

87. 

Acting under par. 127c, Sec. B, an SCM is authorized to sentence an accused 

to 30 days' CHL upon a showing of two previous convictions, notwithstanding 

that the SCM lacks jurisdiction to impose a BCI), when the maximum punishment for the offense of which accused was convicted is less than 30 days.-Ltr, 

JAGJ 1953/3857, 5 May 53. 

NON-JUDICIAL PUNISHMENT 

128. AUTHORITY.-a. Who ma@ impose non-judicial punishmen t. 

Imposition by commander of one service upon member of another.-Par. 

30413b, FM 110-5, 19 Sep 51, states: "As a matter of policy, non-judicial punishment under the provisions of the UCMJ, Article 15, should not be imposed by a 

commander of one Service upon a Illember of another Service." This expression of policy by the Joint Chiefs of Staff, although issued with respect to 

joint action of the armed forces, nevertheless is deemed controlling in less 

formal arrangements such as may exist in the training of Marine Corps personnel at an Army school. However, a commander may take such action as is 

permitted by par. 128c, when necessary to further the efficiency of his command. 

Ltr, JAGJ 1952/2903,25 Mar 52. 

A div. artillery commander is a "commanding officer" within the meaning of 

UCMJ and MCM, 1951, and accordingly may impose non-judicial punishment 

upon members of his headquarters and members of artillery battalions under 

his command.-Ltr, JAGJ 1957/9262,8 Jan 58. 
An Army officer attached t o t h e command of an Army officer exercising GCM 

jurisdiction is normally considered a member of the latter's command within 

the meaning of Art. 15.-Ltr, JAGJ 1953/1980,18 Mar 53. 

When one unit is attached to another for SPCM jurisdiction, the CO of 

either unit has the authority to impose non-judicial punishment under the 

provisions of Art. 15 upon members of the former unit.-Ltr, JAGJ 1957/7888, 

14 Jan 58. 

1286. Minor offenses. 

Punishment imposed under Art. 15 "for an offense which is clearly a major 

one is void. . . . This does not mean that punishment would necessarily be 

void because the offense in its most sel-ious aspect is susceptible for being treated 

as a major offense, provided that the proper commanding officer in the reasonable exercise of his discretion determines under the particular circumstances of 

the offense that it may be treated as minor." Ltr, JAGJ 1963/10SO, 1s Mar 53. 

1280. Nonpunitive measures. 

Cross-reference.-Effect of imposition of administrative punishment, par. 6Sg 

(Vaughan, 3 USCAIA 121,ll CMR 121). 

131. PUNISHMENTS.-b. Authorized punishments. 

Regulations.-Restrictions upon the punishment of specialist, AR 600-201. 

Promotion and reduction of enlisted personnel, AR 624-200. 

Reduction of NCO to specialist is not authorized under Art. 15.-However, if 

the pay-grade reduction was otherwise authorized by Art. 15, the order of rednction could be amended to reflect the pay-grade reduction in NCO status. Ltr, 

JAGA 1956/1108,9 Jan 56. 

The special pay of medical officers provided by see. 203 of the Career Compensation Act of 1949 (63 Stat. 809) as amended (37 U.S.C. see. 234; see. 8, Act 

sf 29 June 1453 (67 Stat. 89)) is not subject to forfeiture under the provisions 

of Art. 15.-Ltr, JAGA 1955/4369,18 May 56. 

135. MISCELLANEOUS.-a. Suspension, remission, and restoration. 

Reduction of an EM pursuant to Art. 15 cannot be suspended.-Ltr, JAGA 

1956/5640, 13 Jnl 56. A purported suspension of such a rednction, whether 

ordered concurrently with the reduction or subsequent thereto, is legally ineffective to prevent the individual's recluction as the reduction is consumlnated upon 

its imposition. Ms. Comp. Gen. B-131093,12 Jun 57. 

1356. Records of punishment. 

Reduction of an EM under Art. 15 should be announced in an SO of the 

command whose commander is authorized to impose the reduction (AR 624 

200). Ltr, JAGJ 1952/210S, 6 Mar 62. 

135c. Incidental matters. 

Cross-reference.-Interposing Art. 15 Punishment in bar of trial, par. 680 

( Yray (ACM) ,10 CMR 618). 
71 B 140a 

RULES OF EVIDENCE 

138. PRESUMPTIONS; DIRECT AND CIRCUMSTANTIAL 

EVIDENCE ; REAL EVIDENCE ; TESTIMONIAL KNOWLEDGE; OPINION EVIDENCE; CHARACTER EVIDENCE; 

EVIDENCE OF OTHER OFFENSES OR ACTS OF MISCONDUCT OF THE AC CUSED.-e. Opinion testimony. 

Cross-reference.-Use of physician as an expert witness on matters of mental 

resl~onsibility, par. 122c (Thomas (AGM), 6 CMR 792). 

138f. Character evidence--character of the accused; Of others. 

Cross-reference.-~ffect of refusal by LO to give a requested insti-uction on 

character evidence, par. 73c (Phillips, 3 USChIA 137,ll C&IR 137). 

Z38g. Evidence of other offenses or acts of misconduct of the 

accused. 

Cross-reference.-~mproper references to prior act of misconduct, par. 44g 

(Johnson, 3 USCMA 447, 13 CMR 3). Limitations on impeachment of accused 

by questions co?cerning acts of ~nisconduct not followed by a conviction, par 

1531, (Britt, 10 USGMA 557,28 CMR 123). 

140. CONFESSIONS AND ADMISSIONS; A C T S AND 

STATEMENTS OF CONSPIRATORS AND ACCOMPLICES.- 

a. Confessions and admissions. 

Cross-references.-Introduction of preliminary evidence adduced during an 

out-of-court hearing concerning the voluntariness of a confession, par. 57g 

(Ltr, JAGF OM 367761, 4 Dee 53). Acts which have been held to violate the 

privilege against compulsory self-incrimination, par. 1508. 

Evidence discovered solely as a result of information furnished by an inadmissible confession or admission.-The provisions of par. 14017, MCM, stating 

that such evidence is admissible have been declared incorrect. Accordingly, 

such evidence must be excluded. Haynes, 9 UBGNA 792,2'7 CMR 60. 

Corroboration required to render confession admissible in narcotics case.- 

The illanual rnle (par. 14Oa) that evidence to corroborate a confession need not 

tend to connect the accused with the offense is unsound when applied to a case 

in which the accused is charged with the use of narcotics. In such a case, the 

evidence corroborating the confession must indicate not only that the offense 

charged was conlmitted by someone but that that someone was the accused. 

Mims, 8 USCMA 316,24 CMR 126. 

Notwithstanding provisions ef par. 14Qa, MCM, to the contrary, a prosecution 

for making a false official statement is not exempt from restrictions of Art. 31 

regarding pretrial statements of an accused or suspected person.-Accordingly, 

when a statement is obtained fro111 an accused who has not been warned of his 

right against self-incrimination and the circumstances are such that the warning 

is required by Art. 31, the statement is inadlnissible even though the case in 

which it is offwed is a prosecution for ruakiig a false official statement. Price, 

7 USCMA 590,23 CMR 54. 
144. OFFICIAL WRITINGS; OFFICIAL .RECORDS; EUSINESS ENTRIES; LIMITATIONS AS TO THE ADMISSIBILITY OF OFFICIAL RECORDS AND BUSINESS ENTRIES; 

MAPS AND PHOTOGRAPHS.-6. Official records. 

Regulations.-Report of AWOL in military pay order, AR 37-104 and AR 

63M0. Report of AWOL to Class Q Allotments Division, AR 37-104. Entries 

in military pay records, AR 37-104. Medical record entry recording AWOL, 

AR 40-400. MP desk journal, AR 190-45-1. Daily strength record of prisoners 

and roster of prisoners, BR 210481. Me's, AR 335-60 and AR 350-60. Guard 

report, AR 210-10. Entries in service record, AR 64@201. 

144e. Maps and photographs. 

Use of photographs in homicide cases.-Although it is not intended to restrict 

TC with respect to the introduction in evidence of such photographs as may be 

necessary to present his case properly, care should be taken to avoid using large 

numbers of gruesome photographs in murder cases when they would have merely 

n c~imulative evidentiary value. Photographs should not be offered in eviclence 

in order to prejudice the CM against accused or to arouse the emotions of the 

court. Each photograph offered in evidence reasonably should tend to prove 

or disprove some material fact in issue. Ltr, JAGJ 1956/2910, 20 afar 56. 

145. DEPOSITIONS; FORMER TESTIMONY.-6. Former 

testimony. 

Depositions may not be taken into the closed session deliberations of a CM. 

Jakaitis, 10 USCMA 41, 27 CMR 115 ; Politte, 10 USCMA 134, 27 CMR 208. 

148. COMPETENCY OF WITNESSES.-e. Interest or bias. 

Competency of wife as witness against husband in prosecution for forgery 

of allotment checks.-Wooldridge, 10 USCMA 510,28 CMR 76 ; Wise, 10 USCMA 

539,28 CMR 105. 

149. EXAMINATION OF WITNESSES.-6. Cross-examination; redirect and recross-examination; examination by the court 

or a member. 

Cross-reference.-Member's abuse of right to question witness, par. 542, 

(Blankenship, 7 USCMA 328,22 CMR 118). 

150. DEGRADING AND INCRIMINATING QUESTIONS.-6. 

Compulsory self-incrimination. 

Notwithstanding provisions in par. 150b, YCM, to the contrary, an accused's 

privilege against self-incrimination is violated by requiring hi111 to furnish a 

sample of his handwriting, to utter words for the purpose of voice identification, 

or to submit to having a sample of his blood or urine taken. Rosato, 3 USCMA 

143, 11 CAIR 143 (handwriting sample) ; Greer, 3 USCMA 876, 13 CMR 132 

(utterance of words) ; Musguire, 9 USCAIA 67, 25 CJIR 32!) (blood salnl)le) ; 

Forslund, 10 USCMA 8, 27 CMR 82 (urine sample). See also Minnifield, 9 

USCWIA 373, 26 CMR 153, wherein the Court said: "So that there will be no 

~uisu~lderstanding as to the position this Court now takes, we specifically hold 

that an accused's handwriting exemplar is equated to a 'statement' as that term 

is found in Article 31. It follows, therefore, that in order to be admissible it 

must be shown that the provisions of Article 31 have been fully satisfied." 
151. PRIVILEGED AND NONPRIVILEGED COMMUNICATIONS.-6. Certain privileged communications. 

Cross-reference.-Effect of preparation of a "memo for trial counsel" by the 

officer who represented accused at the pretrial investigation, par. 48g (Green, 

5 USCBIA 610,lS CMR 234). 

The privilege of confidentiality extended to communications of an informer 

by par. 151b(1), MCM, is subject to one qualification.-"That is, when the 

identity of testimony of the informant is necessary or essential to the defense, 

the accused ruay compel a disclosure of that information." Hawkins, 6 USCMA 

135,140,19 CMR 261,266. 

Qualification on privilege extended by par. 151b(3), MCM, to reports of IG 

investigations.-Where DC made a motion for l~roduction of the transcript of 

testimony given during an IG investigation by ~rospective l~rosecution witnesses, 

the LO was wrong in deciding that the defense was not entitled to the transcript 

of the testimoliy of a witness before the IG "until it appeared that a witness 

nras 'testifying untruthfully, or has made an inconsistent statement.' The 

right to inspection arises as soon as it appears that the witnesses have submitted 

earlier stateme~lts on lnatters 'related in their testimony.' " Heinel, 9 USCMA 

259,26 CMR 39. 

152. CERTAIN ILLEGALLY OBTAINED EVIDENCE. 

Cross-reference.-LO'S ruling on the adillissibility of evidence which is a 

product of a search, par. 57b (Berry, 6 USCMA 609, 20 CMR 325; compare 

Brown, 10 USCMA 498, 28 CbTR 64, and Gebhart, 10 USCMA 606, 28 CMR 172). 

153. CREDIBILITY OF WITNESSES; IMPEACHMENT OF 

WITNESSES.-6. Impeachment of witnesses. 

Limitation on Manual provision (1536(2)(b)) authorizing impeachment by 

showing previous conviction.-A juvenile conviction may not be used to impeach 

an accused'who has testilied in his own behalf. Cary, 9 USCMA 348, 26 CMR 

128. See Britt, 10 USCMA 557, 28 CMR 123, concerning limitations on impeachment of accused by questions directed to acts of misconduct not followed 

by conviction. 

154. MISCELLANEOUS MATTERS-INTENT ; STIPULATIONS; OFFER OF PROOF; WAIVER OF OBJECTIONS.-a. 

Intent. 

Ignorance or mistake of fact.-Notwithstanding the implication in par. 15& 

(3), MCM, to the contrary, unless otherwise provided (expressly or by implication) by the law denouncing the offense in question, an honest ignorance or 

mistake of fact will exempt a person from criminal responsibility for an offense 

requiring specific intent or knowledge, regardless of whether the mistake was or 

was not the result of carelessness or fault on his part. Rowan, 4 USCMA 430, 

16 CMR 4. 

Ignorance or mistake of law.-Notwithstanding the implication in par. 154a (4), 

MOM, to the contrary, if a special state of mind on the part of the accused, 

such as a specific intent, constitutes an essential element of the offense charged, 

an honest mistake of law, including an honest mistake as to the legal effect 

of known facts, may be shown for the purpose of indicating the absence of such 

a state of mind, regardless of whether the mistake was or was not a reasonable 

one. Sicley, 6 USCMA 402,20 CMR 118. 
Knowledge of general regulations issued by major commands.-The phrase 

"Territorial, theater, or similar area command" in par. 154a(4), MCM, refers 

to "at least those commands which are major commands and only one step 

removed from the Departments of the Army, Navy, and Air Force, aud the 

Head~uarters of the Marine Corps and Coast Guard." Accordingly, knowledge 

need not be alleged 01. proved in a prosecution under Art. 92(1) for violating 

B general order issued by a major command directly under DA, such as AFFE 

or USAREUR. Stone, 9 USCRIB 191, 25 CRIR 453; Statham, 9 USCMA 200, 

25 CRIR 462. 

PUNITIVE ARTICLES 

162. ART I C L E 83-FRAUDULENT ENLISTMENT, APPOINTMENT, OR SEPARATION. 

Regulations.-Effect of fraudulent enlistment upon pay, AR 37-104. 

Contrary to the provisions of par. 162, MCM, the term "enlistment," as used 

in Art. 83, does not include induction.-Accordingly, Art. 83 has no application 

to "inductees." Jenkins, 7 USCMA 261,22 CMR 51. 

164. ARTICLE 85-DESERTION. 

u. DESERTION. 

Regulations.-Proced~~res affecting absentees, AR 630-10. 

Cross-reference.-Charging desertion as joint offense, par. 2Gd (Ltr, JAGJ 

CivI 39@20,23 Ang 57). 

Since a soldier may not be used for combat until completion of basic training (sec. 4(a), UMT&S Act), such training is important service within the meaning of Art. 85.-Dellel; 3 USCMA 409,12 C'MR 165. 

Conditional intent to return.-The statement in par. 164a (1), AIChf, that 

"a purpose to return, provided a particular but uncertain event happens in the 

future, may be considered an intent to remain away permanently" is an 

erroneous statenlent of law. "Evidence of an intent to return provided a 

particular but uncertain event happens in the future is not in any manner 

indicative of an intent to remain away permanently, but on the contrary, is 

evidence of a probable intent to return." Soccio, 8 USCBIA 477, 24 C&IR 287. 

An accused may be found guilty of fraudulent enlistment and of desertion 

alleged to have occurred during the period of his fraudulent enlistment.- 

Service under a frnuclulent enlistment is "void" i n i t s civil aspect as to benefits 

for accused, but it is not "void" in its disciplinary aspect as to burdens of 

sei-vice imposed on him by virtue of his status therein as a member of the 

armed forces. Lace ( ACY) ,2 CMR 734. 

The word "quits" is used in Art. 85a(2) as a word of art legally synonymous 

with the term "goes absent without authority."'-Therefore, AWOL is an essential eleiliellt of the odeiise of desertion by "quitting" a place of duty with 

illtexit to shirli iinportalit service. Bondar, 2 USCRIA 3857, S ChIR 157. 

Apprehension may be established by a M/R or extract copy thereof reciting 

that accused's unauthorized absence was terminated by apprehension.-Simone, 

6 USCUA 146,10 CMR 272 ; Krause, 8 USCMA 746,% CnlR 250. 

An honest mistake by an accused concerning the termination of his status 

as a member of the armed forces is a defense to desertion but not to AWOL 

unless the mistake is not only an honest mistake but also a reasonable one.- 

Holdel; 7 USCIIA 213, 22 CRilR 3. 
Desertion by enlistment in another armed service not a separate offense.- 

Desertion by enlisting in another armed service is not a separate offense but 

a form of desertion with intent to remain away permanently. Enlistnlent in 

another service without full disclosure of an existing duty status is merely 

evidence of an intent not to return. Huff, 7 USCMA 247, 22 CMR 37. Accordingly, only one specification of desertion for the total period of absence of the 

accused fro111 the armed force trying the case should normally be alleged in 

cases of this nature. Specification 9, app. 60, MCM, should be used as a model. 

The documentary or other evidence of enlistment in another armed force should 

be presented to the court as additional evidence of the intent to remain away 

permanently. Ltr, JAGJ 1956/7198,16 Oct 56. 

Prolonged absence may not be substituted for intent.-Although par. 1640, 

MCW1, states that where an "absence without proper authority is much prolonged 

and there is no satisfactory explanation of it, the court will be justified in 

inferring froin that alone an intent to remain absent permanently," an instruction in these words is erroneous because the CM could interpret such an 

instruction to mean that if it found the absence to be much prolonged, a conviction of desertion would be justified without the necessity of any fnrther 

consideration of accused's intent. Cothern, 8 USCMA 158, 23 CMR 382. 

Administrative discharge of deserters.-Par. 11, AR 635-206, 16 Jan 56, providing for the administrative discharge of individuals chargeable with AWOL 

or desertion when trial is deemed inadvisable in accordance with the policies 

of DA, may be construed to cover exceptional cases where there are special 

extenuating ciscumstances such as age, outstanding contribution to the Govt., 

extreme hardship, or critical family conditions, as well as cases in which documentary or other evidence is defective. In cases where trial is deemed 

inadvisable as a matter of policy, the GCM (convening) authority may forward 

the entire file .with his recommendations to TAG who can issue an administrative 

form of discharge. Each case will be considered on its merits. Ltr, JAGJ 

195617666, 1 Nov 56. 

165. ARTICLE 86-ABSENCE WITHOUT LEAVE. 

Regulations.-Procedures affecting absentees, AR 630-10. 

Cross-references.-Mistake as a defense to AWOL, par. 164a (Holder, 7 

USCM-4 213, 22 CMR 3). Administrative discharge of individuals chargeable 

with AWOL, par. lMa (Ltr, JAGJ 1956/7666,1 Nov 56). 

The word "quitsn as used in Art. 85a(2) is synonymous with the phrase "goes 

absent without authority."-Bondar, 2 USCMA 357, 8 CMR 157. 

AWOL is not a continuing offense and is consummated on the date of original 

absence.-Emerson, 1 USCMA 43,l CMR 43. 

The offense of failure to go to the appointed place of duty at the time prescribed is not a lesser included offense of the offense of AWOL from a particular unit or organization.-Reese (CM), 7 CMR 292. 

AWOL was not terminated by temporary military control incidental to trial 

by an SCM established to try transitory personnel.-The temporary military 

control exercised over accused in the course of his trial by one of several SCM's 

established in large troop concentration areas of Korea to facilitate prompt 

prosecution of transitory personnel for minor offenses did not, in the absence 

of a showing that the accused disclosed his AWOL status, operate to terminate 

the AWOL. Jackson, 1 USCMA 190,2 OMR 96. 

Reporting to other than proper duty station at the expiration of leave.- 

A member of the Army who fails to report to his proper station at 2400 hours 

on .the day following the last day of leave commits an offense punishable under 

Art. 86(3). Return to another station prior to that time will not prevent the 
occurrence of the offense, but exercise of military control over the member 

after that time will teruinate the AWOL. Prior to the expiration of authorized 

.leave time, there cannot be an effective exercise of military control over the 

individual as he is accountable to his parent organizatioi~. After he is in an 

AWOL status, however, the organization to which he returns will have jurisdiction over him, at which time the AWOL terminates. In such a situation, the 

maximum punishment imposable is for a one day's AWOL. A member of the 

Army who thus turns in at other than his proper station does not riolate Art. 

134. The utilization of Art. 92 in such s situation is inadvisable, although it 

is probable that the punishment in any instance will be limited to that for one 

day's absence (par. 127c (fn. 5, Sec. A, 'IDTP), MCM, 1951). Ltr, JdG.1 

1954/0969,25 Feb 55. 

When an absentee is apprehended by the civil authorities at the request of 

the armed services, the AWOL terminates at that time.-Garner, 7 USCBIA 

578, 23 CMR 42. 

168. ARTICLE 89-DISRESPECT TOWARDS A SUPERIOR 

OFFICER. 

Regulations.-Rank and precedence, AR 600-15. 

The term "officer" as used in Art. 89 refers only to a commissioned officer.- 

Brown (Cr\%), 13 ChfR 161. 

169. ARTICLE 90-ASSAULTING OR WILLFULLY DISOBEYING OFFICER.-a. STRIKING OR ASSAULTING SUP&- 

RPOR OFFICER. 

Regulations.-Rank and precedence, AR 600-19. 

6. DISOBEYING SUPERIOR OFFICER. 

Regulations.-Rank and precedence, AR 600-15. 

Cross-references.-Trying accused for disobeying an order of CA, par. 5a 

(Marsh, 3 USCLIIA 4S,11 (YPIR 48 ; Keith, 3 USGMA 579, 13 CMR 135). 

An officer may be in the execution of his office even while a prisoner of 

war.-Floyd (CPI) ,18 CMR 362. 

Orders held to be illegal as requiring self-incrimination.-Notwithstanding 

provisions of par. 150b to the contrary, it is a violation of Art. 31 to order an 

accused to furnish a sample of his handwriting, to utter words for the purpose 

of voice identification, or to submit to having a sample of his blood or urine 

taken. Rosato, 3 USCJIA 143, 11 CNR 143; Minnifield, 9 USChIA 373, 26 ChIR 

153 ; Greer, 3 USC3IA 576, 13 CMR 132; Musguire, 8 USCMA 67, 25 CMB 329 ; 

Forslund, 10 USCNA 8,27 CMR 82. 

170. ARTICLE 91-INSUBORDINATE C 0 N D U C T TOWARDS NONCOMMISSIONED OFFICER. 

c. DISOBEYING A WARRANT OFFICER, NONCOMMZSSIONED OFFICER, OR PETTY OFFICER. 

Orders of NG personnel.-NG 11~rSOnnel attending service schools under sec. 

99, NDA, are not in the service of the U.S. While these individuals may be 

NC07s of the NG unit of which they are a member, they are not NCO's within 

the coutem~)latiou of Art. 91. Conseqnentl~, indiricluals in active Fed. service 

who fail to obey the orders of such NCO's are not guilty of a violation of Art. 91, 

although their conduct under certain circumstances may be a violatiou of another 

Art. Ltr, JAGJ 1953/2104,4 Mar 53. 
171. ARTICLE 92--FAILURE TO OBEY ORDER OR REGULATION. 

a. VIOLATION OR FAILURE TO OBEY A LAWFUL GENERAL ORDER OR REGULATION. 

Cross-reference.-Trying accused for violating a general regulation of CA's 

command, par. 5a (Barnes (ACM), 12 OMR 735). 

Accordingly, an order issued by a company commander, though applicable 

generally to all members of the company, is not a "general order" lvithin the 

meaning of Art. 92(1). It is at most "another lawful order,'' a violation of 

which is punishable under Art. 92(2). Brown, 8 USGMA 516, 25 CMR 20. 

General orders and regulations, within the meaning of Art. 92(1), can be 

promulgated only at departmental level or by major commanders.-Whether 

a command is major clepeiids on whether it occupies a substantial position in 

effectuating the mission of the armed forces. The possession of general courtmartial jurisdiction is an indication that a command occupies such a positioll 

in military or naval hierarchy, but the presence or absence of that disciplinary 

authority is not a controlling factor. Ochoa, 10 USCMA 602, 28 CMR 168. 

Marriage regulation of overseas command declared unlawful.-A regulation 

prohibiting servicemen of an overseas command from marrying without official 

written permission, and prescribing a six-month waiting period before an application for such.permission would be acted upon, is an arbitrary and unreasonable 

interference with the personal affairs of servicemen which cannot be supported 

by the claim that the morale, discipline, and good order of the command require 

control of overseas marriages. Nation, 9 USCMA 724,26 CRlR 504. 

"A regulation which combines advisory instructions with other instructions 

which contain a specitic penalty for noncompliance is not intended as a general 

order or regulation, within the meaning of Article 92."'-Hogsett, 8 USCMA 681, 

25 CMR 185, wherein the Court set aside a conviction on a charge under Art. 92, 

alleging a violation of par. 33, SR 66-15-1 (superseded by AR 65-70). 

A person who exceeds the limits of his pass may be charged under Art. 92 

with violating the GO imposing the limitation, and the sentence imposable 

for such violation is not limited by footnote 5, TMP.-Ltr, JAQJ 1952/7930, 

2 Dec 52. But see Brown, 8 USCblA 516, 25 CMR 20, and Ochoa, 10 USCMA 

602, 28 OMR 168, concerning who may issue general orders within the meaning 

of Article 92 (1). 

Obedience of a specific order of a superior officer will prevail as a defense 

to prosecution for violation of a general regulation unless there is a showing 

not only that the accused had actual knowledge that the order was contrary 

to the general regulation but, also, that he could not have reasonably believed 

that the order, apparently contrary to regulations, may have been valid.- 

Whatley (ACM) ,20 CMR 614. 

6. FAILURE TO OBEY OTHER LAWFUL ORDER. 

Cross-reference.-Trying an accused for failure to obey an order of CA, par. 

50 (Keith, 3 USCMA 579,13 CMR 135). 

Contrary to the provisions of par. 171b, MCM, constructive knowledge of an 

order will not support a conviction of failure to obey such order in violation of 

Art. 92(2).-Actual knowledge, which may be shown by either direct or circumstantial evidence, must be established. Curtin, 9 USCMA 427, 26 CMR 207. 
c. DERELICTION IN THE PERFORMANCE OF DUTIES. 

The duty contemplated by Art. 92(3) does not include nonmilitary duties 

voluntarily performed for additional pay after regularly assigned duty hours. 

Garrison (CM), 14 CMR 359. 

173. ARTICLE 94--MUTINY AND SEDITION. 

a. MUTZN Y. 

Under certain circumstances of allegation and proof, riot may properly be 

deemed a lesser included offense of mutiny. Duggan, 4 USCMA 396,15 CMR 396 ; 

Watson, 4 USCMA 557,16 CMR 131. 

174. ARTICLE 95-ARREST AND CONFINEMENT. 

6. BREACH OF ARREST. 

Cross-reference.-Lawfulness of arrest pending final review of accused's conviction, par. 21d (Teague, 3 USCMA 317, 12 CMR 73). 

Breach of arrest is not a lesser ii~cluded offense of escape from confinement.-Gentry (CM), 21 CMR 361. 

c. ESCAPE FROM CONFINEMENT. 

The fact that the facility in which an accused is confined is not an authorized 

place of confinement does not constitute a defense to a charge of escape from 

such confinement. Hangsleben, 8 USCMA 320, 24 CMR 130. 

178. ARTICLE 99-MISBEHAVIOR BEFORE THE ENEMY. 

There are no lesser included offenses of misbehavior before the enemy under 

Art. 134. Mallett, 4 USCMA 378,15 CMR 378. 

a. RUNNING AWAY BEFORE THE ENEMY. 

If an organization is in position, ready to participate in either an offensive 

or defensive battle, and its weapons are capable of delivering fire on the enemy 

and are so situated that they are within effective range of the enemy weapons, 

then that unit is before the enemy.-Sperland, 1 USCMA 661, 5 CMR S9. 

The phrase "runs away" must be interpreted as an absence under conditions 

from which it may be reasonably inferred that the leaving was with intent to 

avoid some form of combat action by or with the enemy.-Sperland, 1 USCMA 

661, 5 CMR 89. 

h. W 1 LL F U L L Y FAILING TO DO UTMOST TO ENCOUNTER, ENGAGE, CAPTURE, OR DESTROY ENEMY 

TROOPS, COMBATANTS, VESSELS, AIRCRAFT, OR ANY 

OTHER THING. 

The word "utmost" imports taking those measures which may properly be 

called for by the circumstances, having in mind the rank and responsibilities or 

the einployinent of the individual concerned. McCoy (CM), 13 CAIR 283. 

183. ARTICLE 1OQAIDING THE ENEMY. 

d. COMMUNICATING, CORRESPONDING, OR HOLDING 

INTERCOURSE WITH THE ENEAIY. 

To constitute communicating with the enemy in violation of Art. 104, it is not 

necessary for the communication to pass "across the lines."-Accordingly, a 
person may be guilty of this offense even though he was a prisoner of war when 

the communication occurred. Dickenson, 6 USCMA 438, 20 CMR 154. 

186. ARTICLE 107-FALSE OFFICIAL STATEMENTS. 

Cross-reference.-Use of statement obtained in violation of Art. 31 to prove 

false official statement, par. 140a (Price, 7 USCRIA 690, 23 CMR 54). . 

Materiality.-The false statement Art. is to protect the authorized functions 

of govt. departments and agencies from the perversion which might result from 

deceptive practices. Thus, "materiality is iml~ortant, not as an essential ingredient of the proof required to support a conviction, but as it bears upon the 

intent to deceive.'' "If the falsity is in resyect to a material matter, it may be 

considered by the court-martial as evidence of an intent to deceive. On the 

other hand, if the statement is false in an iminaterial respect, the immateriality 

may tend to show the absence of such intent." Hutchins, 5 USCMA 422, 18 

CMR 46. 

A false statement to an officer ordering the declarant into arrest is not 

official when the arresting o5cer is not discharging the functions of a particular office.-Arthur, 8 USCMA 210, 24 CMR 20. In reversing the accused's conviction of making a false official statement to an officer who ordered him into 

arrest upon seeing him strike his girl companio~l on a public street, the Court 

said: "Here, Captain Campbell was not acting as a lam enforcement agent. 

What the situation might be if he were so acting need not detain us at this 

time. . . . The important circumstance is that he was acting by virtue of his 

status [as an officer], and not clischarging the functions of s particular office." 

A false statement to a law enforcement agent by a person accused or suspected of an offense is not an "official statement" within the meaning of Art. 

107.-Washington, 9 USCMA 131, 25 CRlR 393 (wherein the Court held that 

accused's false statement concerni~lg his balance in a certain bank account, 

which mas made in the course of an MP investigation in which accused was 

suspected of larceny by check, was not an official statement) ; Geib, 9 USGMA 

392, 26 ChlR 172 (wherein the Court held that accused's false statenlent that 

he had been divorced and had received a copy of the decree was not an official 

statement when made in the course of an investigation in which he was suSpected of making and using a false doculllent of similar import to effect 

termination of his Class Q allotment) ; Osborne, 9 US(5RIA 455, 26 CMR 235 

(wherein the false statement declared not official was a denial of any prior 

CM's or civilian arrests, which accused made to his CO in the course of an 

illrestigntion in which the accused was suspected of making a similar false statement in his Personal History Statement). 

But when the accused or suspected person has an independent official obligation in the matter under investigation, and he elects to speak in response to 

that obligation rather than remain silent, as he has a right to do under Art. 

31, his statement will be o5cial within the meaning of Art. 107.-Thus, where 

an audit of a nonappropriated fund disclosed a shortage of money which 

resulted in an OSI investigation, in the course of which the suspect custodian 

of the fund falsely denied taking the missing money, the custodian's false 

statement mas official and punishable as a violation of Art. 107. Aronson, S 

USCMA 525, 25 CAfR 29. See also Reams, 9 USGAIA 696, 26 CMR 476 (upholding accused's conviction of making false official statements to his superiors concerning the payment of certain debts) ; Nicholson, 10 USCMA 186, 27 CMR 260 

(upholding accused's conriction of making a false official statement to the 

Unit Administrative Officer concerning accused's disposition of the personal 

effects of a transferred officer). 
Whether official within the meaning of Art. 107 or not, a false statement 

under oath to a law enforcement agent authorized to administer the oath under 

the circumstances constitutes false smearing in violation of Art. 134.-Claypool, 10 USCMA 302,27 Ci\fR 376. 

187. ARTICLE 108-MILITARY PROPERTY OF UNITED 

STATES-LOSS, DAMAGE, DESTRUCTION, OR WRONGFUL 

DISPOSITION. 

a. SELLING OR OTHERWISE DISPOSING OF MILHTARY 

PROPERTY. 

An unauthorized abandonment of military property, although recovered later, 

is a disposition within the meaning of Art. 108.-Faylor, 8 USCMA 208, 24 

(JMR 18. 

The word "sells" does not include "barter, trade, or exchange."-Thus, l~roof 

that accused exchanged the property will not support an allegation of wrongful 

sale. Waleon (AGAf), 5 CAIR 813. 

190. ARTICLE 111-DRUNKEN OR RECKLESS DRIVING. 

Where a specification charging drunken driving does not include an allegation that personal injuries resulted, as an aggravating factor, the fact that the 

evidence discloses that personal injuries actually resulted does not authorize 

the imposition of the greater punishment dependent on that factor.-Grossman, 

2 USCXA 406,9 CMR 36. 

Drunken driving and involuntary manslaughter, though arising out of the 

same transaction, are separate offenses and punishable separately.-Beene, 4 

USCAfA 177,15 CAfR 177. 

192. ARTICLE 113MISBEHAVIOR OF SENTINEL OR 

LOOKOUT. 

"Sleeping" as contemplated in Art. 113 does not require a showing beyond 

reasonable doubt that accused was in a wholly comatose condition.-All that 

is required is a showing of a condimtion of insentience which is sufficiellt sensibly 

to impair the full exercise of the mental and physical faculties of the sentinel. 

Williams, 4 USChIA 69,15 CMR 69. 

197. ARTICLE 118-MURDER. 

c. Excuse. 

Cross-reference.-Instructing on self-defense, par. 73c (Ginn, 1 USChIA 463, 

4 CMR 45). 

Soldier's home for purposes of self-,defense.-The place of abode of a soldier 

may be his tent, barracks, or even his1 foxhole, and he is there entitled to stand 

his ground against a trespasser to the same extent that a civilian is entitled to 

stand fast in his civilian home. Adams, 5 USGMA 563, 18 CMR 187. Even as 

against another who shares the same barracks, a soldier may consider at least 

his bed and the area immediately adjacent thereto his place of abode, beyond 

which he need not retreat. Ital (CM), 15 CMR 514. 

d. Premeditation. 

Cross-reference.-Instlwction on mental impaimlent, par. 73c. (Carver, 6 

USCAfA 258,19 CMR 384). 
e. Intent to kill or indict great bodily harm. 

Illtosication will not recluce the offense of unpremeditated murder to ma11- 

slaughter. Craig, 2 USChlA 650, 10 CAIR 148. 

f. Act inherently dangerous with wanton disregard of human 

life. 

To cornillit the offense set out in Art. 118(3), accused must be engaged in an 

act which is inherently dangerous to inore than one person. Davis, 2 USCIIA 

505, 10 CMR 3. 

y. Commission of certain offenses. 

Where the victinl of a robbery shoots and Bills one of the felons as he flees 

from the scene, the co-felon may be convicted of felony murder. Commonwealth 

v. Thomas, 1.17 A. 2d 204 (1955) ; accoril, Cruz (CJI) ,1 BB-J.C 277. 

198. ARTICLE 119-MANSLAUGHTER. 

6. INVOLUNTARY MANSLAUGHTER. 

Involuntary manslaughter and drunken driving are sel~arate offenses even 

though they arise out of the same transaction. Eeene, 4 USCJIA 177, 1.5 CMR 

177. 

199. ARTICLE 120-RAPE AND CARNAL KNOWLEDGE. 

a. RAPE. 

Several acts constituting one offense.-Where several accused, pursuant to 

a common clesign and purpose, aided first one accused and then another in 

committing a rape upon a female, the acts of the several accused co%titutecl 

a single criminal transaction which does not require the Govt. to elect between 

the different acts of intercourse and the findings need not disclose a concurrence 

among the meillbers of the court concerning the particular act upon which their 

findings n-ere predicated. Doyle (ACII), 17 CUR 615. 

6. CARNAL KNOWLEDGE. 

Carnal knowledge not lesser included in rape.-The offense of carnal knowledge in~olves the element of age not found in the offense of rape and is not 

lesser included in the latter crime. Mosby (Gal), 23 OMR 425. 

200. ARTICLE 121-LARCENY AND WRONGFUL APPROPRIATION. 

a. LARCENY. 

Regulations.-Determining value of certain types of govt. property, AR 32-15. 

Provisions of Manual concerning a contingent intent to return property 

declared invalid.-That portion of par. 200a(G), MCfil, to the effect that a 

person may be guilty of larceny "even though he intends to return the property 

ultimately, if the execution of that intent depends on a future condition or 

contingency which is not likely to happen within a reasonably limited and 

definite period of time" is invalid because proof of an intent to deprive permanently is not satisfied by evidence of an intent to deprive temporarily predicated 

upon the happening of an uncertain event. Griffin, 9 USCMA 215, 23 CNR 477. 

Qualification on Manual rule that an intention to replace property stolen 

with equivalent property is no defense to larceny.-Although par. 200a(6), 

UCN, states that an intention to replace the property stolen with equivalent 
property is not a defense to a charge of larceny, even though such an intention 

existed at the time of the theft, when the property involved is money such an 

intention is a defense to larceny and evidence thereof will l~lace in issue the 

lesser included offense of wrongful appropriation. Hayer, 8 USCMA 627, 25 

CMR 131; Boudreau, 9 USCMA 286, 26 CMR 66; Horton, 9 USCMA 469, 26 

CRXR 249. 

Accused's negotiation of worthless checks to fellow gamblers for cash or 

credit during the course of a gambling game did not constitute larceny because 

of the illegal nature of the activity.-Walter, 8 USCMA 50, 23 CMR 274; 

Lenton, 8 USCMA 690, 25 CMR 194; Young, 8 USCMA 695, 25 CMR 199. 

b. WRONGFUL APPROPRIATION. 

"Wrongful taking" is not a lesser included offense of wrongful appropriation.-Furthermore, there is no other lesser incl~ldecl offense not requiring a 

specific intent which can be affirmed to purge the LO'S error in failing to instruct 

on the legal effect of accused's intoxication when such issue is reasonably raised 

by the evidence. Norris, 2 USCMA 236, 8 CMR 36. 

A degree of intoxication whioh would preclude guilt of the offense of larceny 

would also preclude guilt of the offense of wrongful appropriation.-Holy Rock 

(CM ) , 10 cnlR 479. 

201. ARTICLE 122-ROBBERY. 

An accused may be punished for both wrongful appropriation and assault as 

lesser included offenses under a specificetion alleging robbery.-Calhoun, 5 

USCMA 428,18 CMR 52. 

Aggravated assault is a lesser included offense of robbery under a specification alleging robbery "by force and violence."-McVey, 4 USCMA 167, 15 CMR 

167; nccord, Coughlin, 4 USCMA 175, 15 CMR 175 : King, 10 USCMA 465, 28 

CMR 31. 

202. ARTICLE 123-FORGERY. 

Cross-reference.-Competency of wife as witness against husband in prosecntion for forgery of allotment checks (Wooldridge, 10 USCAIA 510, 28 CMR 76; 

Wise, 10 USCMA 539,28 CMR 105). 

204. ARTICLE 125-SODOMY. 

Cross-reference.-Effect of failure to define the term "unnatural copulation," 

par. 730 (Phillips, 3 USCMA 137, 11 CRIR 137). 

207. ARTICLE 128-ASSAULT. 

u. ASSAULT. 

For purposes of self-defense, a soldier's home may be his tent, barracks, or 

even his foxhole, and he is there entitled to stand his ground against a trespasser to the same extent that a civilian is entitled to stand fast in his civilian 

home.-Adams, 5 USCMA 563, 18 CMR 187. Even as against another sharing 

the same barracks, a soldier's honie includes at least his bed and the area immediately adjacent thereto. Ital (CM), 15 CMR 514. 

b. AGGRAVATED ASSAULT. 

Cross-references.-Effect of failure to instruct on intoxication, par. 73c 

(Backley, 2 USCMA 496, 9 CMR 126). Aggravated assault as a lesser included 

offense of robbery (McVey, 4 USCMA 167, 15 CMR 167; Coughlin, 4 USCMA 

175, 16 CMR 175; King, 10 USCMA 465, 28 CMR 31). Assault with intent to 
inflict great bodily harm is not a proscribed offense under the Cocle, par. 213d 

(Woodson, 3 USCAIA 372,12 CBlR 128). 

212. ARTICLE 133-CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN. 

Regn1ations.-For proceclnre when an individual fails to pay a just debt, AR 

600-10. 

213. ARTICLE 134-GENERAL ARTICLE. 

a. DISORDERS AND NEGLECTS TO THE PREYUDICE OF 

GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES. 

Cross-reference.-"Wrongful taking" is not a lesser included offense of 

wrongful appropriation, par. 20071 (Norris, 2 USCMA 236, 8 CMR 36). 

Conduct held to he pnnishable under first clause of Art. 134a.-False official 

statement without an intent to deceive. Watson (ACM), 5 USCMA 476. 

Officer borrowing money from an EM of the same command, camp, post, or 

station. St. Ours (CM), 6 CMR 178. 

Soliciting another to give a false statement to an officer making an official 

investigation, Isbell, 1 USCMA 131, 2 CMR 37; to violate a lawful regulation, 

Goodnight, 9 USCMA 542, 26 CMR 322; to commit a felony, Walker, 8 USCMA 

38,23 CAlR 262. 

Conduct equivalent to graft. Alesandel; 3 USCMA 346, 12 CMR 102 (wherein 

accused accepted money to transport an unauthorized person in a govt. vehicle) ; 

Bey, 4 USCMA 665, 16 C&lR 239 (wherein accused accepted money to help EM 

procure pass) ; Holt, 7 USCMA 617, 23 CMR 51 (wherein accused as a bingo 

caller wrongfully awarded prizes by falsely calling numbers). 

Obstructing justice. Long, 2 USCMA 60, 6 CXR 60 (wherein accused assaulted a person for testifying against him) ; LeSage (ACM), 22 CllR 853 

(wherein accused damaged another's property for testifying against him). 

Open and notorious cohabitation with woman not accused's wife. Leach, 7 

USCMA 3SS, 22 CMR 178. 

Conduct held not punishable under first clause of Art. 134.-Nonpayment of 

a check for gambling debts. Lenton, 8 USCMA 690, 25 CMR 194. 

Unlawful entry of private automobile. Giltin, 8 USC1CIA 669, 25 CMR 173. 

Negligent indecent exposure. Manos, 8 USCMA 734, 25 CMR 238. 

6. CONDUCT OF A NATURE TO BRING DISCREDIT UPON 

THE ARMED FORCES. 

Regulations.--For procedure when an individual fails to pay a just debt, AR 

600-10. 

Offenses pnnishable under the second clause of Art. 134.-Pawning or selling 

mortgaged property. Tucciarone (CM) , 13 CiiIR 244. 

Fornication when participants lrllow that a third person is present. Berry, 6 

USCiVlA 609,20 CBlR 325. 

Misuse of assigned govt. billets by permitting rooms therein to be used for 

immoral purposes. Butler (CM), 11 CMR 445. 

Willful and intentional burning of the property and dwelling of another in 

agreement with the owners thereof in order to clefrand an insurance company. 

Fuller, 9 USCMA 143,25 CYR 405. 

Conduct not punishable under the second clause of Art. 134.-Simple negligence in the operation of an automobile, thereby causing nonfatal injury to 

another person. Eagleson (ACM) , 11 CMR 893. 
Discreditably failing to pay a debt. Kirksey, 6 USCMA 556, 20 C3IR 272. 

Discreditaably failing to maintain a sufficient bank balance to cover checks. 

Downard, 6 USC3IA 538, 20 CMR 254. See also Lightfoot, 7 USCMA 686, 23 

ChEi 150, holding that in order to allege either of the two worthless check 

offenses embraced by military law, the specification must allege wrongful and 

dishonorable failure to place or maintain sufficient funds in the bank. See 

also Brand, 10 USCRIA 437,28 CMR 3. 

Passenger fleeing the scene of an accident. In the absence of an allegation 

that accused, a passenger in _a vehicle, aided and abetted the driver in unlawfully fleeing the scene of an accident or that he was senior in rank and command to the driver under conditions authorizing him to issue orders to the 

drirer, a specification purporting to charge accused with fleeing the scene of an 

accident failed to allege an offense. Petree, 8 USGMA 9, 23 CRIR 233. 

Willfully and maliciously burning uninhabited dwelling house belonging to 

accused. Freesman (ACM) ,15 CMR 639. 

Unmarried serviceman occupying hotel room with unmarried woman. 

waiters (CM), 11 CMR 355. 

d. VARIOUS TYPES OF OFFENSES UNDER ARTICLE 134. 

(1) ASSAULTS INVOLVING INTENT TO COMMIT CERTAIN OFFENSHS 

OF A UIVIL NATURE. 

Assault with intent to inflict great bodily harm is not a proscribed offense 

under the UCMJ.-"We . . . believe that Congress concluded that Articles 128 

and 134 of the Code carved out all the necessary gradations of assault and 

that further refinement was not desirable as the previous offense of assault 

with intent to inflict great bodily harm was eliminated from the 1951 Code." 

Woodson, 3 USCMA 372, 12 OMR 128. See also Malone, 4 USCMA 471, 16 

@MR 45, wherein it was stated : "In cases of assault . . ., while the existence of 

an intent to kill will suppol-t a conviction of assault with intent (to commit 

voluntary manslaughter, the same assault, accompanied by a purpose to inflict 

grievous bodily harm only, will do no more than support a coliviction of the 

variety of aggravated assault specified in Article 128(b) (2) . . . when comprehended within the allegations and proof-assault in which grievous bodily 

harm is intentionally inflicted is a lesser offense included within assault with 

intent to commit volu~itary manslaughter." 

(2) INDECBNT ASSAULT. 

An act may properly be regarded as lewd or lascivious under some circumstances even though it is not itself indecent.-"What we regard as a sound 

rule may be found expressed in 6 CJS, Assault and Babtery, sec. 75, page 928, 

where it is said : 

'. . . The liberties taken must be such as the common sense of society would 

regard as indecent and improper; but it is not neceisary that they be taken 

with the private parts of the person assaulted. 

'The act constituting the assault need not be in itself indecent in its nature, 

but may be rendered so by the words and circumstances accompanying the 

transaction.'" Hobbs, 7 USOMA 693, 700, 23 ChlR 157, 164. 

(3) INDECENT ACTS WITH A CHILD UNDER TAN AGE OF 16' YIURS. 

Neither an assault nor bodily contact is an essential element of this offense.- 

Brown, 3 USCMA 454, 13 CMR 10 (upholding conviction on a specification 

alleging that accused comuiitted the offense of taking indecent liberties with two 

children under the age of 16 by willfully and wrongfully exposing his private 
parts in an indecent ll~anner to the children in public, with intent to gratify his 

sernal clesires). 

(4) FALSE SWBARING. 

Contrary to the ivle stated in par. 2133(4), MCRI, false swearing in a judicial proceeding or course of justice is not an offense under the UCJIJ ; and where 

a false statement is nlacle under oath in a judicial proceeding, it nlust meet the 

requirements of perjury under Art. 131 or no offense has been committed. Smith, 

9 USOAlA 236,26 CMR 16. 

HABEAS CORPUS 

214. GENERAL.-a. Nature of writ. 

A court will not grant a writ of habeas corpus "unless the person who has 

custody of the petitioner is within reach of its process." United States ex re]. 

Keefe v. Dnlles, 222 I?. 2d 390 ( App. D.C. 1954). 

215. RETURN TO WRIT OR ORDER ISSUED BY A STATE 

COURT OR JUDGE. 

Regulations.-Reports relative to writs of habeas corpus, AR 27-5. 

217. RETURN TO WRIT OR ORDER ISSUED BY A FEDERAL COURT OR JUDGE. 

Regulations-~e~iorts relative to writs of habeas corpus, AR 27-5. 

Appendix I 

CONSTITUTION OF THE UNITED STATES 

AMENDMENT XXII 

Section 1. No person shall be elected to the office of the President more than 

twice, and no person who has held the office of President, or acted as President, 

for more than two years of a term to which some other person was elected 

President sllall be elected to the office of the President more th%n once. But 

this Article shall not allply to any person holding the office of President when 

this Article was proposed by the Congress, and shall not prevent any person 

who may be holding the office of President, or acting as President, dusing the 

term within which this Article becomes operative from holding the office of 

President or acting as President during the remainder of such term. 

Section 2. This article shall be inoperative unless it shall have been ratified 

as an amendluent to the Constitution by the legislatures of three-fourths of the 

several States within sex-en years from the date of its submission to the States 

by the Congress. 

Note.-Certified as a valid part of the Constitution of the United States on 1 March 

1951 by the Admillistrator of Geller~l Services (16 F.R. 2019). 
. Appendix 3 

PUNISHMENT UNDER ARTICLE 15 

NON-JUDICIAL PUNISHMENT FORMS 

DD Form 789,l Sep 54, "Unit Punishment Record." 

Appendix 4 

FORMS FOR ORDERS APPOINTING 

COURTS-MARTIAL 

See AR 22-10. 

Appendix 5 

CHARGESHEET 

DD Fonn 458,l Nov 57, "Charge Sheet." 

Appendix 6 

FORMS FOR CHARGES AND SPECIFICATIONS 

u. INSTRUCTIONS. 

Cross-reference.-IndeAniteness in the allegation as to the time of the offense, 

par. 69b (Neil1 (OM), 4 CMR 221). 

G. FORMS FOR SPECIFICATIONS. 

Cross-reference.-Charging desertion as joint offense, par. 26d (Ltr, JAGJ 

cnf 3w429,23 AU~ 57). 

Appendix 7 

INVESTIGATING OFFICER'S REPORT 

DD Form 487, 1 Jun 59, "Investigating Officer's Report." 

Appendix 8 

PROCEDURE FOR TRIALS BEFORE GENERAL AND 

SPECIAL COURTS-MARTIAL 

a. TRIAL PROCEDURE. 

Cross-references.-Effect of TC exercising his pereml~tory challenge after 

accused, par. 62d (Fitch (ACM), 17 CMR 836). Appearance in record of outof-court hearings and side-bar copferences, app. 9e (Ltr, JAGJ 1959/1764, 20 

Feb 59). 
CAI's right to call witnesses.-Notwithstanding the provisions of app. Sa 

ip. 517) to the effect that the LO will rule finally on the question of whether 

a witness will be called or recalled, a GM has the unrestricted right to order 

that further evidence be introduced or that a witness be called or recalled, 

subject only to the LO'S determination of the admissibility of such evidence 

or testimony. Parker, 7 USGbIA 182,21 CRIR 308. 

Appendix 9 

GUIDE FOR PREPARATION OF RECORD OF TRIAL BY 

GENERAL COURT-MARTIAL AND BY SPECIAL COURTMARTIAL WHEN A VERBATIM RECORD IS PREPARED 

a. RECORD OF TRIAL. 

Form for verbatim record of trial.-DD Foim 490, 1 May 51, "Verbatim 

Record of Trial." 

There is no requirement that the reason for the absence of any member 

prior to arraignment be set forth in the record.-Holt (C'M), 8 CXR 360. 

In the absence of unusual circumstances, depositions and other documents 

appended to the record of trial as exhibits should not also be copied verbatim 

in the record of trial, as this practice results in unnecessary duplication with 

a consequent increase in the cost of the record.-Ltr, JAGJ Cli 359618, 26 

Jan 53. 

e. ARRANGEMENT OF ORIGINAL RECORD WJTB ALLIED PAPERS. 

Appearance in record of out-of-court hearings and side-bar conferences.- 

Consideration of the time factor involved in reviewing records of trial, a large 

number of which now contain extensive out-of-court hearings or side-bar conferences, suggests that the proceedings of the cout should be recorded in 

sequence rather than appended as appellate exhibits. Accordingly, it is desired 

that records of trial be prepared in such a manner that proceedings in out-ofcourt hearings and side-bar conferences appear in the body of the record as they 

occ~w. In order to insure that appellate authorities may clearly distinguish 

between those portions of the record which include such proceedings and those 

which set forth the normal trial activities, the heading "OUT-OF-COURT 

HEdRING" or "SIDE-BAR CONFEREVCE," as may be appropriate, should be 

inserted illl~liediately preceding the report of such transactions and the parenthetical phrase " (ESD OF HEARING) " or "(END 01 CONFERENCE) " 

should be inserted at the termination thereof. The following is an example: 

.... 

OUT-OF-COURT EEA4RIATG 

"1T: Let the record reflect . . . . .... 

"LO : Recall the court members. 

(END OF REARING) 

". . . ." Ltl; JAGJ 1959/1764, 20 Feb 59. 

Forms.-For form of Court-Martial Data Sheet, see DD Form 494, 1 Sep 56, 
"Court-Martial Data Sheet"; for form of Chronology Sheet, see DD Form 490, 

1 May 51, "Verbatim Record of Trial." 

Appointing orders.-When charges have been referred to C3f A for trial and 

thereafter have been withdrawn from CM A and referred to CM B which tried 

the case, copies of the orders appointing both CM A and CbX B should be 

attached to the record of trial. Ltr, JAGJ, 8 Peb 52. 

The original charge sheet sho~lld be included with the allied papers.--Msg, 

JAGQ SpCM 4214,13 Dec 51. 

The charge sheet included in the allied papers of a record of trial must 

bear the actual signatures of the persons who signed the same.-Typed names 

preceded by "/s/" do not constitute a sufficient compliance with this requirement. Ltr, JAGJ CRf 359617,14 Jan 53. 

A statement of acc~~sed that he does or does not desire appellate DC, or in 

lieu thereof a certificate of DC that he advised accused of his appellate rights, 

should be attached to the original record immediately following the chronology 

sheet.-Ltr, JAGV CM 380154,23 Jan 52. 

In addition to the original and one copy of the review that are to be attached 

to the original record of trial, one copy of the review will be attached to each 

copy of the record that is forwarded to TJAGA.-Msg, DA 23692, 13 Jul 51; 

accord, Msg, JAGM, 8 Oct 52. 

Appendix PO 

GUIDE FOR PREPARATION OF RECORD OF TRIAL BY 

SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD IS NOT PREPARED 

a. RECORD OF TRIAL. 

DD Forni 491,l Dee 57, "Summarized Record of Trial." 

6. ARRANGEMENT OF ORIGINAL RECORD WITH ALLIED PAPERS. 

For form of Court-Martial Data Sheet, see DD Form 494, 1 Sep 56, "CourtMartial Data Sheet" ; for form of Chronology Sheet, see DD Form 491, 1 Dec 57, 

"Summarized Record of Trial." 

Appendix 11 

FORM FOR RECORD OF TRIAL BY SUMMARY 

COURT-MARTIAL 

DD Form 458,l Nov 57, "Charge Sheet." 

Appendix 12 

TABLE OF COMMONLY INCLUDED OFFENSES 

Article 80.-Indecent acts with a child under the age of 16 years (Art. 134) 

is lesser included in attempted sodonly when it is alleged and proved that the 

victim is under 16. Miller (CM), 7 CMR 325. Attempted larceny is lesser 
89 1 APP 12 

included in attempted robbery. Stover (CM), 2 CAIR 371. Attempted housebreaking is lesser included in attempted burglary. Osborne (CAI), 10 C&lR 441. 

Indecent assault is lesser included in attempted rape when the proof establishes 

such offense. Hobbs, 7 USCAIA 693,23 CMR 157. 

Article 85.-Desertion with intent to remain away l~ermnnently is not lesser 

included in desertion with intent to shirk important service or desertion with 

intent to avoid hazardous duty. Redenios, 4 USCMA 161, 15 CMR 161; AWOL 

is not lesser included offense of attempted desertion. Gholston (CAI), 15 CMR 

435. 

Article 86.-AWOL for a fraction of a day is lesser included in failure to go 

to appointed place of duty. Morris (ACII), 2 CJIR 640. 

Article 87.-AWOL is lesser included in missing movement through clesign or 

through neglect. Bridges, 9 USCAIA 121, 25 CJIR 383; Posnick, 5 USCXIA 201, 

24 CMR 11. 

Article 89.-Using provoking speech or gestures (Art. 117) is lewer inclnclerl 

in clisrespect toward a superior officer. Nicolas (ACM), 14 Ci\lR GS3. 

Arlicle 90.-Disrespect to a superior officer by spoken words (Art. 59) is 

lesser included in offering violence to a superior officer in the esecutioa of his 

office by the use of the same spoken words. Carter (CAI), 6 CMR 401. 

Article 91.-Assault with a dangerous weapon (Art. 128) is lesser included in 

assault upon an NCO in the execution of his office "by ~triBilig at hilu with a 

pocket linife." Rhea (CM) ,1O CMR 268. 

Article 94.-Willful disobedience (Art. 90) is lesser included in mutiny uncler 

a specification alleging refusal to obey a lawful command with intent to override lawful military authority. Verdone (CLI), 13 CJIR 465. 

Riot (Art. 116) is lesser included in mutiny where it is within the allegations 

and proof. Duggan, 4 USCAlA 396, 15 CRIR 396. 

Article 95.-Escape from custody is not lesser inciuclecl in escape from confinement. Brown (Cirf), 3 CMl3 247. 

Article 99,AWOL is lesser inclnded in colvardly conduct by muning away 

from the enemy. Parker, 3 USC&IA 541, 13 CMR 97. 

Failure to go to appoint4 place of duty (Art. 86) is lesser includecl i11 misbehavior by cowardly conduct in the presence of the enemy by failing to join 

one's company which was moving forward to occupy an outpost position. Tubbs, 

1 USCAf.4 688,5 CMR 16. 

Article 107.-Signing a false official record without intent to cleceive, but 

knowing that it contains false information, is lesser included in signing a false 

official record with intent to deceive. Lloyd (ACM), 14 CMR 792. 

Article 108.-Suffering sale of military property is not lesser inclucled in 

unauthorized sale of such property. Goff (ACM), 2 CRIR 716. 

Article 112,Drunk in station (Art. 134) is lesser inclucled in clruilk on duty. 

Dixon ( ACM) ,2 CRIR 823. 

Article 113.-AWOL from guard (Art. 86) is lesser included in leaving post as 

a sentinel. Czarneski (CM), 6 CMR 337. 

Article 115.-Wrongful and intentional self-injury (Art. 134) is lesser included in malingering by intentional self-injury. Burke (CM), 14 CAIR 365. 

Article 120.-Taking immoral liberties with a female under 16 years of age 

with the intent of gratifying sexual desires (Art. 134) is lesser inclnded in 

carnal knowledge. Wilson (ACM), 14 CMR 557. 

Carnal knowledge is not lesser inclnded in rape. Mosley (CM), 23 CMR 425. 

Article 122.-Assault with a dangerous weapon or by intentionally inflicting 

grievous bodily harm (Art. 128) may be lesser included in robbery. Craig, 2 

USCRIA 660, 10 CMR 145 ; accwd, McVey, 4 USCMA 167,15 C&IR 167 ; Coughlin, 
4 USCMA 175, 15 CMR 175; Walker, 8 USCMA 640, 25 CMR 144; King, 10 

USCMA 465, 28 CMR 31. 

Article 134.-When comprehended within the allegations and proof, assault in 

which grievous bodily harm is intentionally inflicted is a lesser offense included 

within assault with intent to commit voluntary manslaughter. Malone, 4 

USCMA 471,16 CMR 45. 

Careless or willful discharge of a firearm is lesser included offense in assault 

with intent to commit murder. Mundy, 2 USCMA 500, 9 CMR 130. 

Assault and battery (Art. 128) is lesser included in taking improper and indecent liberties with a child under 16 years of age with intent to gratify lust. 

Cudd, 6 USCMA 630,20 CMR 346. 

Indecent acts with a child under 16 years of age is lesser included in assault 

with intent to commit rape upon the child under 16 years of age. Towle (ACM), 

4 CMR 733. 

Unlawful possession of an unauthorized pass is lesser included in possession 

of an unauthorized pass with intent to deceive. Guthrie (CM), 6 CMR 190. 

Negligently delaying the mail is lesser included in the offense of obstrncting 

mail matter. Beach, 2 USCAlA 172, 7 CBIR 48. 

Appendix 13 

FORMS OF SENTENCES 

Omission of words "per month" from sentence to CHL for six months and 

"to forfeit fifty dollars ($50.00) of your pay for a like period" results in a total 

forfeiture of only $50.-Ltr, JAGJ CM 355825,27 Aug 52. 

Ambiguity of rank.-To avoid ambiguity sentences of reduction should include 

both grade designation and pay grade. CA may clarify such sentences by 

appropriate language in his action. Ltr, JAGJ 1957/4840,6 Jun 57. 

Appendix 14 

FORMS FOR ACTION BY CONVENING AUTHORITY 

c. GENERAL COURTS-MARTIAL. 

Form used when new review and action have been ordered because of erroneous advice in SJAYs review.-When the BR or USCMA sets aside the action 

of the CA and orders a new SJA review and a new action, it is not necessary 

for the CA to withdraw his previous actioii or that the previous GCRIO be 

rescinded. The reasons for taking the new action should be stated therein, 

and reference should be made to the previous GCMO which promnlgated the 

original action. The new action should read substantially as follows : 

(Date) "In the general court-martial case of , the initial 

action, dated , as promulgated in General Court-Martial 

Order No. , this headquarters, dated , having been 

returned to the convening authority for a new review by the staff judge advocate 

and a new action by the convening authority, and a new review having been 

rendered by the staff judge advocate, the following is the new action: (The 

findings of guilty of are disapproved, etc.) (Only so much of is approved, etc.) (The sentence is approved, 

etc.) (. . . . . .). - - 

(Signature block) 

Ltr, JAGJ CM 39414,7 Jun 57. 
Action where record forwarded to TJAG under Art. 69.-In cases where the 

record is foru-arded to TJAG for review under Art. 69, an action stating, "The 

record of trial is forwarded to The Judge Advocate General of the Army for 

review by a board of review" is incorrect, i n t h a t the case will not necessarily 

be reviewed by a BR. Notwithstanding the fact that such statement is macle 

i11 the action, as shown in the record of trial, it should be eliminated from the 

1;nblished order. Ltr, JAGJ CM 351901,i Apr 52. 

Action on rehearing when unexecuted portion of CHL is remitted.-Where 

the CA approved the sentence on rehearing but, in his action, remitted the "nnexecuted" portio~~ of the CHL adjudged before ordering the sentence into esecution and failed to credit the accused with CHL served between specified dates, 

it was requested that the CA take a new action reacling substantially as follows : 

"In the foregoing case of , the action taken by (me) (my predecessor in conimand) on is withdrawn and the following substituted therefor : 

"Only so much of the senteuce as provides for confinement at hnrcl labor for sis 

months and forfeitures of $---_ per month for six months is approved and 

will be duly esecuted. The accused will be credited with confinement. from 

to . In view of the period of confinement already served, the 

unesecnted portion of the periocl of confinement at hard labor adjudged is hereby remitted." Ltr, JAGJ Gill 353621, 25 Jun 52. 

Misnomer of accused.-When a GCMO promulgated the result of trial of M 

but the allied papers indicated that accused's true name was S, it was requested 

that the Cd take a corrected action as authorized by par. 95 bearing date of 

his original action and reflecting the name of the accused as S, alias PI. Ltr, 

JAGJ CM 36S482,4 Dec 52. 

When review under Art. 69 shows the forfeitures imposed to be excessive, 

the date of the corrective action is the same whether or not the present CA was 

the CA at the time the original action was taken.-A letter is sent to the CA 

"suggesting that modifying action [dated on the date of its issuance] be taken 

pursuant to paragraph S9b, MCM, 1951, personally signed by him, and that a 

co~~rt-martial order be published announcing the modification." An example of 

the form of action suggested is as follows : 

"In the foregoing case of , so much of the action taken by me [my precedessor in command] on promulgated in General Court-Martial 

(Date) Order No., this headquarters, dated , as approves forfeitures 

in excess of , is set aside pursuant to paragraph 8921, Manual for CourtsMartial, 1951. The forfeitnres shall apply to pay becoming due on and after , the clate of approval of the sentence. A11 rights, privileges, and 

property of -which the accused has been deprived by virtue of that portion of the 

sentence so set aside will be restored." Ltr, JAGJ 195.1/20.77, 23 F'eb 54. 

Appendix 15 

FORMS FOR COURT-MARTIAL ORDERS 

a. FORMS FOR INlTIAL PROMULGATPNG ORDERS. 

Regulations.-Procedures in promulgating CMO's and other orders pertaining 

to the aclu~iuistration of military justice, AR 510-1108, AR 310-llOB, and AR 

22-10. 

Nnmberinz of G@MOYs when command redesignated.-When an installation, 

activity, or auit is redesignated or reorganized without a change of function or 

mission, GCYO's will continue to be numbered as if no change of status had 
occurred. In those cases in which the peculiar facts indicate that a new 

numerical series should be instituted, a request for an exception to this policy in 

the specific case, together with a summary of the reasons therefor, should be 

forwarded to TJAGA. Ltr, JAGJ 1954/10409, 20 Jan 55. 

When a guilty plea is later changed to a not guilty plea, the CMO should 

state "Guilty changed to Not Guilty."-Ltr, JAGJ CM 358662, 10 Dec 52. 

A plea of guilty to a lesser included offense must be set out in the CM0.- 

Ltr, JAGJ CM 350140,1952. 

Although they may be incomplete or ambiguous, the findings of the CM 

must be copied verbatim in the CM0.-Ltr, JAGJ CM 351973, 4 Apr 52. 

The sentence as adjudged by the CM must be set forth in the CM0.-Msg, 

JAGN CM 347754,31 Aug 51. 

But the date the findings are announced should not be stated in the CMO 

except where accused is acquitted.-Ltr, JAGJ CM 347176, 21 Sep 51. 

The CMO must indicate the number of previous convictions considered.- 

Msg, JAGV CM 347443, Aug 51. 

If no previous convictions were considered, the CMO should so state.-Msg, 

JAGG CM 353617,6 Jun 52. 

An error in the designation of the place of confinement may be corrected, 

without a new action by the CA, by issuing a corrected CM0.-Ltr, JAGJ CM 

355832,28 Aug 52. 

b. FORMS FOR SUPPLEMENTARY ORDERS PROMULGATING RESULTS OF AFFIRMING ACTION. 

The forms set out in app. 156, including recitation of compliance with Art. 

71c, are applicable to supplementary orders published upon the request of accused for final action.-Msg, JAGM, 1 Dec 52. 

When a sentence is affirmed on appellate review and a supplementary order is 

required, the sentence must be ordered executed in such supplementary 

order.-Ltr, JAGJ SpUM 3597, Dec 51. 

Supplementary order necessary when a rehearing has been ordered.-Where 

a rehearing has been ordered pursuant to appellate review but the CA finds a 

rehearing impracticable, he may dismiss the charges. Otherwise, the rehearing 

should be had as soon as practicable. In either case, an appropriate supplementary CMO must be issued. (In this connection, see the last form in app. 

15b.) Ltr, JAGJ 1952/2227,5 Mar 52. 

When initial CMO is corrected.-When the initial CMO was republished as a 

"corrected" CMO, the supplementary order promulgating the results of affirming 

action should refer to the initial OM0 as "Corrected General Court-Martial 

Order No. ----." Ltr, JAGJ CM 347541,1952. 

Immediately upon the promulgation of affirming action in a supplemental 

CMO, 10 copies thereof should be forwarded to JAG0.-Ltr, JAGJ, 8 Feb 52. 

( See AR 22-10. ) 

A supplementary CMO should, if the initial CMO so provided, contain a 

statement to the effect that the forfeiture apply to all pay and allowances becoming due on and after the date of the CA's action.-Ltr, JAGJ CM 347742, 

1952. 

Supplementary CMO when forfeitures have been deferred.-Where the CA 

defers the application of forfeitures and the BR affirms, the supplementary 

order should state: "The forfeitures shall apply to all pay and allowances becoming due after the date of this order." Ltr, JAGJ CM 349981, 13 May 52. 

Form of order for restoring accused to duty prior to completion of appellate 

review.-Where an accused, under a sentence which includes a punitive dis- 
charge, CHL, and forfeitures bnt which has not been ordered executed, serves 

the period of confinement adjudged and is restored to duty prior to the completion of appellate review, the order restoring the accused to duty should, for administrative purposes, expressly state that the completion of CHL and restoration to duty entitle accused to receive pay and allowal~ces from the date of his 

retnrn to duty to the date the sentence is ordered executed. This may be accom~~lishecl by a CAI0 n-ordecl substantially as follows: 

"(Rank, name, SN, and organization of accused), having served the period of 

confinemellt adjudged by (general) (special) court-martial on ,19--, as promulgated ill (GCMO) (SpCAIO) No., Headquarters , dated 

19-, is restored to duty pending completion of appellate review. 

"That portion of the seiitence adjudging forfeitures shall not apply to pay and 

allovances bccoming due, (rank, name, and SN of accused) during the period 

colilmencing on the date of this order and terminating on the date of the order 

clirecting the execution of lhe sentence." Ltr, JAGJ CAI 362366, 16 Jan 53. 

When accused has served CHL prior to supplementary CM0.-Where accused has served his sentence to CHL prior to publication of the supplementary 

CAI0 directing execution of the sentence, the following sentence should be substituted in place of the usual sentence designating the place of confinement: 

"That portion of the seiitence pertaining to confinement has been served." Ltr, 

JAGJ SpCM 4382,2 Apr 52. 

Form where findings are modified but sentence is affirmed.-Where a record 

of trial is forwarded uiicler Art. 69 and reviewed pursuant to Art. 66, and the 

findings of guilty are inoclified but the sentence is affirmecl, the sentence and al>- 

pellate action should be reflected in a GCRlO worded substantially as follows : 

"In the general court-martial case of (sentence adjudged , 19-), the approved sentence to , promulgated in General CourtMartial Order No. , Headquarters , dated ,19-, 

and only so much of the findings of guilty of the specification of Charge I as finds the accused guilty of have been affirmed pursuant to Article 

66. Article 71c having been complied with, all rights, privileges, and property 

of which the accnsecl has been deprived by virtue of that portion of the filldings of guilty which were not affirmed will be restored." Ltr, JAGJ CM 351646, 7 

Jan 53 ; Ltr, JAGJ 1955/7575, 21 Nov 55. 

Form used when TJAG has modified sentence.-When TJAG has modified a 

sentence pursuant to Art. 74a, the supplementary order promulgating results of 

affirming action, in a case involving CHL for an offense committed on or after 

31 May 51, will be prepared substantially as follows : 

"In the general court-martial case of ( sentence adjudged 

19-), the approved sentence to , promulgated in General CourtMartial Order No. , Headquarters , dated IS-, 

has been affirmed pursuant to Article 66. The following is the action of The 

Judge Advocate General on the sentence: (Here insert, verbatim, the action of 

TJAG, including the heading, the body, the signed and typed signature, rank, 

title, and date). The provisions of Article 71c having been complied with, the 

sentence as thus modified by the action of The Judge Advocate General will be 

duly executed (here insert information as to suspension). The prisoner will be 

confined in ( ) and the codnement will be served therein or elsewhere as competent authority may direct. (C%I )" Ltr, JAGJ CAI 348509, Jan 52 ; 

Ltr, 1955/7575,21 Nov 55. 

Form used when SA remits discharge.-When the sentence by SPCX to BCD, 

partial forfeitures for three months, and CHL for three months (the GHL having been served) is approved by a BR, but the BCD is remitted by order of the 

SA, a supplementary order should be issued substantially as follows: 

"In the special court-martial case of , the sentence to bad conduct 

discharge, confinement at hard labor for three months, and forfeiture of $63.00 
per month for three months, as promulgated in Special Gout-Martial Order 

No. , Headquarters , dated , has been aflkmed pursuant to Article 66. By order of the Seereta17 of the Army, dated , the bad conduct discharge was remitted, and will be separated from 

the service with a general discharge. The provisions of Article 71(c) having been complied with, the sentence as thus modified will be duly executed. That 

portion of the sentence pertaining to conhement has been served. (SpCRI 

) " Ltr, JAGJ SpCRI 3636,28 Jul52. 

c. FORMS FOR ORDERS REMITTING OR SUSPENDING 

UNflXECUTED PORTPONS OF SENTENCE. 

In any case in which a CA mitigates, remits, or suspends a sentence pursuant 

to par. 97 and par. 2, AR 633-10, it is not necessary for the CA to sign an 

action.-The action is accomplished by the publication of an appropriate supplementary CMO. Ltr, JAGJ 1952/2227,5 Mar 52. 

Form when CA suspends unexecuted portion of sentence.-If a CA desires 

to suspend the unexecuted portion of a sentence at the time he publishes the 

affirming action, the supplementary CMO should read, in pertinent part, as 

follows : "The provisions of Article 71c having been complied with, the sentence 

will be duly executed, but the unexecuted portion thereof is suspended . . . 2' 

Ltr, JAGJ CM 347815,ll Feb 52. 

Where unexecuted portion of sentence is remitted by initial CR.10.-Where 

the unexecnted portion of a sentence to CHL was remitted by the initial CMO, 

the supplementary CMO directing execution of the sentence should read substantially as follows : 

"In the general court-martial case of , the sentence to dishonorable 

discharge, forfeiture of all pay and allowances (forfeiture effective ), and confinement at hard labor for six months, as promulgated in General CourtMartial Order No. - , has been affirmed pursuant to Article 66. The unexe- cuted portion of the sentence to confinement at hard labor was remitted by General Court-Martial Order No. . The provisions of Article 710 having been complied with, the sentence as thus modified will be duly executed. 

(CM )" Ltr, JAGJ CM 349339,l Apr 52. 

Where SA has remitted part of sentence.-Where the SA has remitted a portion of the sentence to CHL for an offense committed on or after 31 hlay 51, the 

supplenlentary order promulgating the results of affirming action should be prepared substantially as follows : 

IS-), 

"In the general 

the approved sentence 

court-martial case 

to 

of , promulgated (sentence adjudged in General 

- 

CourtMartial Order No. , Headquarters dated , has been 

affirmed pursuant to Article 66. So much of confinement as is ~h excess of one and one-half years was remitted by order of the Secretary of the Army, dated . The provisions of Article 71c having been complied with, the sen- tence as thus modified will be duly executed. The prisoner will be confined 

in , and the confinement will be served therein or elsewhere as com- petent authority may direct. (Cm - )" Ltr, JAGJ ChI 347491, 13 Jun 52; 

Ltr, JAGJ 1955/7575,21 Nov 55. 

Where accused dies prior to completion of appellate review.-Where accused 

dies prior to completion of appellate review, a supplementary CMO should be 

published substantially in accordance with the following form : 

"In the general court-martial case of , the proceedings of which 

were promulgated in General Court-Martial Order Number , Headquarters , dated , the accused having died prior to com- pletion of appellate review, the proceedings are abate8. A11 rights, privileges, and property of which the accused may have been deprived by virtue of the findings of guilty and the sentence will be restored." Ltr, JAGRI CM 349438, 18 

Mar 52. 
95 8 APP 19 

d. FQRMS FOR ORDERS SETTING ASIDE ILLEGAL SENTENCE. 

TT71iere accused, who had been convicted by SPCJI, was admillistrativel~ discharged after the GCM authority had disapproved the sentence and ordered a 

rehearing, the GCJI authority shonlcl publish an order substantinlly as follo-$~s : 

"In the special court-martial case of , the findings of guilty and the 

sentence haring been Set aside and a rehearing ordered by Special Cotut-Martial 

Order No. , this headquarters, clatecl , and the accused haying been 

discharged uncler the provisions of -__ on , the charges are dismissed. 

All rights, privileges, and property Of which the accused has been deprived by 

virtue of the findings of guilty and sentence so set asicle n~ill be restored." Ltr, 

JAGM, 25 JIay 52. 

e. FORMS FOR ORDERS VACATING SUSPENSION. 

Where the CHL portioii of a sentence was suspended 1)y the initial action but 

prior to issuance of the supplementary CBIO it was determined-after action 

under Art. 72-to vacate the suspension, the supplementary C3IO should read 

substantially as follows : 

"In the sl~ecial court-martial case of (sentenced adjudged 19-), the approved sentence to bad conduct discharge, fol-feitnre of $30 per 

month for six months, and confinement at hard labor for six months (snspendecl), 

promulgated in Special Court-Martial Order No. , Headquarters -, 

dated , has been affirmed pursuant to Article 66. So much of the order as suspends, effective 19-, execution of the sentence to confiaement at hard labor is vacated pursuant to Article 72. The provisions of Article 

71c having been complied with, the sentence will be duly executed. The prisoner 

will be confined in ." Ltr, JAGJ SpCM 4376, 25 Feb 52; Ltr, JAGJ 

1956/7575,21 Nov 55. 

Appendix 16 

REPORT OF PROCEEDINGS TO VACATE SUSPENSION 

DD Form 455, 1 Mar 51, "Report of Proceedings to Vacate Suspension." 

Appendix 17 

SUBPOENA FOR CIVILIAN WITNESS 

DD Folm 453,l Mar 51, "Subpoena for Civilian Witnesses." 

Appendix 18 

I~TERROGATORIES AND DEPOSITION 

DD Form 456, 1 Mar 51, "Interrogatories and Deposition." 

Appendix 19 

WARRANT OF ATTACHMENT 

DD Form 454,l Mar 51, "Warrant of Attachment." 

U.S. GOVERNMENT PRINTING OFFICE: 1960 

For sale by the Superintendent of Documents, U.S. Govcrument Printing Office 

Washington 26, D.C. - Price 45 cents