MANUAL 


FOR 


COURTS-MARTIAL 


UNITED STATES 


1969 (Revised edition) 


For sale by the Superintendent of Documents, U.9. Government Printing O5ce 


Washington, D.C. 20402 - Price $5.75 

Executive Order 11476 

PRESCRIBING THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 

1969 (REVISED EDITION) 

By virtue of the authority vested in me by the Uniform Code of 

Military Justice (Title 10, United States Code, Ch. 47), and as Psesident of the United States, I hereby prescribe the following Manual for 

Courts-Martial, to be designated as "Manual for Courts-Martial, 

United States, 1969 (Revised edition) ." 

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

United States on and after August 1,1969, with respect to all courtmartial processes taken on and after that date: 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 August 1, 1969; and any such investigation, trial, or 

other action begun prior to that date, may be completed in accordance 

with 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 further, 

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 

August 1,1969, shall not exceed the applicable limit in effect at the 

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

for cases arising under section 12 of the Act of May 5, 1950, 64 Stat. 

147 (50 U.S.C. 740), the provisions of paragraph 110, Manual for 

Courts-Martial, United States, 1951, shall remain in effect. 
TABLE OF CONTENTS 


Page 

Key to references, citations, and abbreviations. 

Chapter I. Military jurisdiction -----_-_----- - --- ............................... 

Sources----------------------------------------------------------------

Exercise---------------------------..-----------------------------------

Chapter 11.Classification-Composition of Courts-martial ------- ---____- --_----- . . Classlfication-----------------------------------------------------------


Composition------------------------..-..------------------..-..-----------


Chapter 111.Courts-martial--___ -- - - -- -- - ----- ---- --- - - ------ --- - ------------
 . . Convening authorities- ..-- - - - - ---..--- - --- ..---- - -- --------------- - - -------

Detail of trial counsel, defense counsel, assistants ---------..-----_-----------

Detail or employment of reporters and interpreters--- -- - --------- - ---- - - - - - - 

Chapter IV. Jurisdiction of courts-martial ------ - -- - - - --- --------------- - - ------ . . Sources, nature, and requ~sites ----1-- - -- - - - -- - - ------------------- - -------

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 civil authorities ---_--_------------- ----------

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-------

Action by officer exercising summary court-martial jurisdiction- - - _ _ ---- - -----

Investigation of charges- ------- - - --- ....................... - ---- - - -- ----

Action by officer exercising general court-martial jurisdiction -___-__----------

Chapter VIII. Convening of courts-martial --___ - ---------------- -- -- -- -- - ------

Convening orders-------------------------------------------------------

Changes in personnel------____------------------------------------------ 

Command relationship with court _------__________--------------------....--

Chapter IX. Personnel of courts-martial ---------_--..__------------------------ . . Milltary judge-_---_-_--..______--------..-------------------------------

President----__--------------------------------------------------------

. . Counsel; general provlslons ............................................... 


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

____ 

TABLE OF CONTENTS 

Chapter IX. Personnel of courts-martial-Continued Page 


Trial counsel---------_--__---------- 9-7 


Assistant trial counsel--_------_-----_-----------­ ..---------------------- 9-10 


Defense counsel-_---__----_-------------- 9-11 


Assistant defense counsel ................................................ 9-11 


Counsel forthe accused--------_--_--------------------- 9-11 


Reporter--_-_-_---____-----_---_.._-__-__-__..__-_--__-__--.._---­ ---_-__-
 9-15 


Interpreter---____-__-------------­ 9-16 
 -

Guards, clerks, and orderlies ............................................. 9-16 


Chapter X. General procedural rules --_______-____----------------­ ----
 10-1 

Reference to convening authority- -- - --- _- _------ - - - ---- - -- -- - ---- - -- 10-1 


Miscellaneous matters -__------------- --- --- ---------- 10-1 


Introduction of evidence-------------------------------- 10-5 


Action when evidence indicates an offense not charged ....................... 10-7 


Withdrawal of specifications; mistrials ------------------ ----- -------- 10-7 


Interlocutory questions other than challenges .............................. 10-9 


Postponements and continuances- ----_...................... - - - - 10-13 


Chapter XI. Organization of the court and arraignment of the accused- _ _ _ _ _ _ _ --- _ 11-1 


Attendance ofthe court---_------------^-^-^^^-^^^^^^^^^-^ 11-1 


Attendance and security of accused ................................. 11-1 


Preliminary organization of the court --_-_ _ - _ -- - - - - -- - - - --------- -- - - ------ 11-1 


Challenges------------------------------ 11-6 


Witness for the prosecution -------- --------___-_____-_-__--_---___ --__---
 11-10 . . Investigating officer- -- -- - - -- -- - --- ----- - -- _ - _ --- - - _ -- - -_ _ _ _ - ----- -- _ -!.- - 11-10 


Arraignment----------------------------- 11-11 


Chapter XII. Pleas and motions ---- ----_---_______________--_---__-_ ___-__-__
 12-1 


General------------------------------------- 12-1 


Motions raising defenses and objections -__--- ---- -- - - -- ----- ------- - - -- - - - - 12-1 
 . . Motionsto d~sm~ss'----------_---------------------12-4 


Motions to grant appropriate relief .................................. 12-7 


pleas--------_---_-^-^^^-^-^^-^^^------- 12-9 


Motion for finding of not guilty; res judicata ............................... 12-11 


Chapter XIII. Matters related to findings and sentence ......................... 13-1 


Arguments---------_--------------------- 13-1 


. . Instructions to a court-martial with members- ---- -- - -- - _ -------- - - - - --- ---- 13-2 


Find~ngs-_-_-_-_-_-------~-------~ 13-4 -~-~--


Presentencing procedure---_-_---__--------_-------______--_____-__13-9 
 ___---


Sentence-------------------------------- 13-11 


Conclusion of the trial _______--------~-~------------­ 13-15 
 ----


Chapter XIV. Procedure of inferior courts-martial- --- _ --- -------- -------- - - 14-1 


Special courts-martial- --- - --- - - ------- -------- -- - - - - - -- 14-1 


Summary courts-martial -____-------------------­ -14-1 


Chapter XV. Procedural aspects of revision proceedings, rehearings, and new or 


othertrials-----------------------------:---- 15-1 
 . . Revision___-__-__-___------------_-____-___--------_-----_-____-_-_-_-_
 15-1 


Rehearings and new or other trials .................................. 15-2 


Chapter XVI. Records of trial _-_-__-___---------~-~-~----­ 16-1 
 ------


General courts-martial- _---- -- --- --------------- - - - - - --- -- 16-1 


Inferior courts-martial .......................... 16-4 


Chapter XVII. Initial review of and action on records of trial .................... 17-1 


Who may take initial action .................................. 17-1 


Reference to staff judge advocate or legal officer ............................ 17-2 


Additional powers and duties of the convening authority ---_-_-_-_-_---__ 17-3 


Examination of findings of guilty ---------- - - ...................... 17-5 


Powers of the convening authority with respect to the sentence.. _ - _ - _ - - _ - _ _ _ - _ 17-7 


Forms of action and related matters --_-________-----_-_-_----------­ 17-11 
 --_-__


Orders and related matters ................................. 17-14 


Disposition of the record and related matters __-----____-____---_-__-_17-15 ___--_

TABLE OF CONTENTS 

Chapter XVIII. Action ............................... 18-1 

Ordering rehearing or other trial-- ---- _---------_---...................... 18-1 

Place of confinement------------------------ 18-3 

Chapter XIX. Action after promulgation- _ -- _ -- - --- - ---- - - --- - - - - -- - ---- - -- - - - 19-1 

Review of sentences and filing of records of special and summary couvts-martial-- 19-1 

Correction of records of trial subject to appellate review ..................... 19-2 

Reports in certain cases ............................... 19-3 

Miscellaneous matters-- --------------------------- - - - - 19-3 

Chapter XX. Appellate review-Execution of sentences- ------- --- ---- - - - - - - ---- 2&1 

General-------__---__------------------ 20-1 

Preliminary action---------------------------------- 20-1 

Review by the Coi~rP of Military Review .................................. 20-2 

Review by the Court of Military Appeals ................................. 20-4 

Appellate counsel----------------------------- 20-5 

Review in the office of the Judge Advocate General -------_-------I 20-6 

Branch offices-------_------------------------------------------- 20-6 

Commutation, remission, and suspension --------------- ---- - -------- -- - -- - 20-6 

restoration-----------^----------- 20-7 

Court-martial orders- ----------------- - - ------ --- - ------ --------- - --- 20-7 

Finality of court-martial judgments ------- -- -------------- -------- 20-7 

Chapter XXI. New trial and related matters ................................ 21-1 

The petition for new trial ................................................ 21-1 

Conduct of new trial and subsequent action ................................ 21-3 

Powers of the Judge Advocate General after final review ----__-_-_-__------- 21-4 

Right of dismissed officer to trial by court-martial .......................... 21-5 

Chapter XXII. Oaths-_-~------------------------------- 22-1 

Oaths in trials by courts-martial .......................... 22-1 

Authority to administer oaths-- --- .............................. 22-2 

Forms of oaths---------------------------------------------------_----- 22-2 

Chapter XXIII. Incidental matters- - -------- - - - - --------------- - ------ - ---- - 23-1 

Attendance of witnesses - - ----........................... ------- - 23-1 

Employment of experts--------------------------------- 23-4 

Depositions--__-------------------------- . . 23-4 

Contempts----------_------------------------------- 23-8 

Expenses of courts-martial ----- ---------- 23-9 

Chapter 24-1 

General consideration- -------- - ---- .............................. ------- 24-1 

Inquiry before trial -----_---..--..----------_-------------------------_--- 24-2 

Inquiry and determination by court ................................... 24-2 

Effect of mental impairment or deficiency upon sentence ---_--_-__-----------24-5 

Action by convening ~r higher authority ................................. 24-6 

Chapter XXV. Puqishments---_-_-__----~------ 25-1 

General limitations--------_.._-_-_-_-_-_-_..----_-_-..-----------------_--- 25-1 

Miscellaneous limitations- - -- _ - _ - _ -- - _ - _ - _ --- - - _ ---- - - - -- _ - _ - - - --- - _ ---- - 25-2 

Maximum limits of punishments -..------.................................. 25-7 

Chapter XXVI. Nonjudicial punishment -----..----------------------------_--- 26-1 

Authority--------_-~-~------------ 261 

Policies applicable----..------------------------------------------------- 26-2 

Effect of erron------------------:------------------------------ 26-3 

Punishments----------2------------------ 26-3 

Right to demand trial-_---_--------------------------- 26-8 

Appeals----_-_---------------------------------------------------------

Chapter XXVII. Rules of evidence- -------_-_-_-_--_---_-----_---------------

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

Chapter XXIX. Matters of defense ........................................... 

General--- - - - - -- - - - _- - - ---- - - -- - - - - - --- - - - - -- - -- - -- - -- - - -- - ----- - - -- - -- - 

Motionsin bar oftrid---------------------------------------------------

Special defenses--------------------------------------------------------
TABLE OF CONTENTS 

APPENDICES 

Page 

1. Constitution of the United States of America ---__----___-------------------Al-1 

2. Uniform Code of Military Justice ........................... A2-1 


3. Statutes to which military personnel should have ready access ---------------- A3-1 

4. Forms for drders convening courts-martial -------- ----- - - ----------- A4-1 

5. Charge ~heet-----_--------__---------~----------------------------------A5-1 

6. Forms for charges and specScations- --___----..-_----__-----.. -.._-- A6-1

7. Investigating officer's report .............................................. A7-1 


8. 	Procedure for trials before general courts-martial; contempt and revision pro- 


cedures for general and special courts-martial- - - _ ---- _- ---- -- __ - _- - _- -_--- A8-1 


9. Guide for verbatim record of trial- -------	--..------------- -----_--..-------- A9-1 

10. Guide for summarized record of trial- - - - - - ----- _ --- - ----- - -- _ -- -- - - _ - -- ---A10-1 

11. Form for record of trial by summary court-martial- -----_------------------- All-1 

12. Table of commonly included offenses ....................................... A12-1 


13. Forms ofsentences-------.----------------------------..-----------------A13-1 

14. Forms for action by convening authority- _ -- - _-------- _ - -- -- -------- ---_---A161 

15. Forms for court-martial orders- ---------------- _- -- -- -- _ --- -- -----_--_--- - A151 

16. Report of proceedings to vacate suspension ................................. A16-1 

Chapter I 

MILITARY JURISDICTION 

SOURCES-EXERCISE 

1. SOURCES. The sources of military jurisdiction include the Constitution and international law. International llav 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 a~lthority vested in the President, and in a provision of the fifth ainendmeilt. 

2. EXERCISE. Military jurisdiction is exercised by n belligerent occupying enemy territory (military government) ;by a government temporarily governing the civil populatioi~ within its territory or a portion thereof tlirough its 

military forces, without the anthority 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 illilitary establishment (military law) ; and by 

a government with respect to offenses against the law of war. 

The genciw through which military jurisdiotion is exercised include : 

Military Commissions and Provost Courts for the trial of offenses 

within their respective jurisclictions. Subject to any applicable rule of 

international law or to any regulations prescribed by the President or by 

any other competent authority, these tribunals mill be guided by the applicable principles of law ancl rules of proceclure and evidence prescribed 

for courts-martial. 

Courts-Martial-General, Special, and Summary for the trial of 

offenders against military law and, in the case of general courts-martial, 

of persons who by the law of mar are subject to trid by mililary tribunals. 

Commanding Officers and Officers in Charge exercising nonjudicial 

powers under Article 15. 

Courts of Inquiry for the investigation of any mattel- referred to 

such court by competent authority. See Article 135. Under the provisions 

of Article 140, the authority to promulgzte regulations governing courts 

of inquiry is hereby delegahcl to the Secretaries concerned. 
Chapter ZI 

CLASSIFICATION-COMPOSITION OF 


COURTS-MARTIAL 


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

and summary courts-martial (Art. 16). 

4. COMPOS~TION. a. General. General courts-martial shall consist of 

a military judge and any number of members not less than five or of a military 

judge alone. Special courts-martial shall consist of any number of members not 

less than three, and, if so detailed, a military judge, or of a military judge 

alone. The military judge is not a member of the court. In any case to which 

a military judge has been detailed, the accused, knowing the identity of the 

military judge and after consulting with counsel, may request, in writing, trial 

by the military judge alone. If the military judge approves the request, he 

alone constitutes the general or special court-martial without participation by 

the members. Summary courts-martial shall consist of one commissioned officer 

(Art. 16). 

b. Who may serve as members. Any commissioned officer on active duty 

with the armed forces is eligible to serve on courts-martial (Art. 25 (a) ) . Ally 

warrant officer on active duty with the armed forces is eligible to serve on 

general and special courts-martial for the trial of any person other than a 

commissioned officer (Art. 25 (bl) ). ~n~ enlisted member 011 active duty with 

the armed forces who is not a member of the same unit as the accused is eligible 

to serve on general and special courts-martial for the trial of any enlisted 

accused who has personally requested in writing prior to assenibly (61h) that 

enlisted members serve on the court (Art. 25 (c) ) . No distinction exists among the various classes of commissioned officers, 

warrant officers, or enlisted inembers on active duty with the armed forces. 

The term "aotive duty" as used herein refers to the status of being in the active 

Rederal service of any of the armed forces under a competent appointment or 

enlistment or pursuant to a competent muster, order, call, or induction. Retired 

members of any Regular component and members of )any Reserve coinponent 

of the armed forces are eligible to serve on co~lrts-martial only when they are 

in an active auty status. Members of the Environmental Science Services Administration and the Public Health Service are eligible to serve on courtsmartial when they are assigned to and serving with an armed force. 

No member of an armed force is eligible to serve as a member of a general 

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

or 11s )acted as investigating officer or as counsel in the 'same case (62f; Arts. 

1(8), 25 (d) (2) ) or, in the case of a rehearing or a new or other trial, if he was a 

memlber of tlie court which first Ile~rd the case (62f; Art. 63(b)). Nlo enlisted 

ineinber of an armed force may serve as a meniber of :L court-inartial for the 
U 4c CHAPTER II 

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

(1) ). The word "unit" as used herein means any regularly organized body m 

defined by the Secretary concerned, but in no case may 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 omesponding to oneof them (Art. 25 (c) (2) ). Definitions made pursuant to Article 25 (c) (2) are as follows : 

Army. A "unit" of the Army in the sense of Article 25 (c) is a company, 

biattery, troop, detachment, or other (organization of the Army for which a 

separate morning report is prepared. 

Navy and Comt Guard. A "unit" of the Navy or the' Comt Guard 

in the sense of Article 25 (c) is a ship, company, detached command, or other 

organization for which a separate unit personnel diary isprepared. 

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

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

unit military strength balance report isprepared. 

Marim Corps. A "unit" in the Mlarine Corps in the sense of Article 

25(c) is a company, battery, squadron, detachment, or other organization 

for which a separate unit personnel diary is prepared. 

Arrest or confinement renders a person ineligible to serve as a member of a 

court-martial. For other cases in which a person should not serve 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 regulations of the Secmhary of a Department. 

c. Rank of members. A commissioned officer may be tried only by a courtmartial composed of commissioned officers. A warrant officer may be tried only 

by a court-martial composed of commissioned officers or of commissioned and 

warrant officers (Art. 25 (a), (b) ). When it can be avoided, no member of an 

armed force may be tried by a court-martial any member of which is junior to 

him in grade or relative rank (Art. 25(d) (1)), nor, in the case of a commissioned officer, by those below him on the same promotion list. 

Whenever practicable, the senior member of a general or special courtmartial should be an officer whose grade is not below that of lieutenant of the 

Navy or Coast Guard or captain of the Army, Air Force, or Marine Corps. 

Whenever practicable, a summary court-martial should b0 an officer whose 

grade is not below that of lieutenant of the Navy or Coast Guard or captain of 

the Army, Air Force, or Marine Corps. 

An enlisted member who has requested in writing that enlisted members 

serve on the general or special court-martial which will try his case may not 

be tried by a court the membership of which does not include enlisted members 

in a number comprising at least one-third of the total membership of the court 

unless eligible enlisted members cannot be obtained because of physical conditions or military exigencies. If these members cannot be obtained, the court may 

be assembled 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 (Art. 25 (c) (1) ). For example, when the only enlisted members on duty at an isolated station or on board a ship at sea are 

members of the same unit (Art. 25 (c) (2) ) as the accused and no other enlisted 

members can be obtained without manifest injury to the service, the convening 

authority may, in his sound discretion, direct that the trial be held without 
COURTS-MARTIAL 140 

enlisted members. Mere inconvenience is not a ground for proceeding with a 

trial without enlisted members. The detailed written statement appended to the 

record stating that enlisted members could not be obtained as members is subject to review when the record of trial is examined under Articles 65,66, and 69. 

d. Qualification of members. When convening a court-martial, the convening authority shall detail as members thereof such members of the armed 

forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament (Art. 

25 (dl (2) 

e. Military judge of a court-martial. The authority convening a general 

court-martial shall, and, subject to regulations of the Secretary concerned, the 

authority convening a special court-martial may, detail a military judge thereto 

(Art. 26 (a) ). A military judge shall be a commissioned officer of the armed forces on 

active duty who is a member of the bar of a Federal court or a member of the 

bar of the highest court of a State and who is certified to be qualified for duty 

as a military judge by the Judge Advocate General of the armed force of which 

such military judge is a member (Art. 26(b) ). The military judge of a general court-martial shall be designated by thti 

Judge Advocate General, or his designee, of the armed force of which the 

military judge is a member for detail by the convening authority. Unless the 

general court-martial was convened by the President or the Secretary concerned, neither the convening authority nor any member of his staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of 

the military judge so detailed, which relates to his performance of duty as a 

military judge (38). A commissioned officer who is certified to be qualified for 

duty as a military judge of a general court-martial may perform such duties 

only when he is assigned and directly responsible to the Judge Advocate 

General, or his designee, of the armed force of which the military judge is a 

member. He may perform duties of a judicial or nonjudicial nature other 

than those relating to his primary duty as a military judge of a general courtmartial when such duties are assigned to him by or with the approval of that 

Judge Advocate General or his designee (Art. 26 (a) ). The order convening a court-martial to which a military judge is detailed 

will expressly state that the military judge is certified as qualified for such duty 

by the Judge Advocate General of the armed force of vhich he is a member 

(Art. 26(b) ). The order convening a general court-martial will further state 

that the military judge has been designated and assigned in accordance with 

Article 26(c). See appendix 4 for the form of these statements. 

Proceedings of a court-martial are void unless the military judge of a 

general court-martial, or when detailed, of a special court-martial, is qualified as 

prescribed by Article 26. 

No person is eligible to act as military judge in a case if he is the accuser 

(Art. l(9)),or a 11-itiless for the prosecution (63), or has acted as an investigating officer or counsel in the same case (Art. 26(d) ). Ail officer who has served 

as a member should not be detailed as military judge for a rehearing (92a), or a 

new (lIOa(2) ) or other (926) trial of the same case. Prior participation in the 

same case as military judge, staff judge advocate, or legal officer to the convening authority may be a ground for challenge for cause. (See 62f.) 
14g CHAPTER II 

f. Detail of members and military judge from other commands of the 

same armed force. The convening authority may, with the concurrence of 

their proper commander, detail as members of a court-martial or as military 

judge of a court-maAial eligible members 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. Detail of military judge and members from other armed forces. 

(1) General policy. A convening authority may detail a military judge from 

among qualified officers under his command or made available Q him regardless 

of the armed force of- which the military judge is a member. Members of courtsmartial ordinarily are members of the same armed force as the accused. When a 

court composed of members of more than one armed force is convened, at least a 

majority of the membership of a general or special court-martial should be 

members ~f the same armed force as the accused unless exigent circumstances 

render it impracticable to obtain such a majority without manifest injury to 

the service. 

(2) Joint command or joint task force. Subject to the provisions of 

4g(l) above, 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 

detail as members of courts-martial any eligible persons under his command or 

made available to him. The commandiilg 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, detail as members of special courts-martial any 

eligible persons under his command or made available to him. However, a summary court-martial will be a member of the same armed force as the accused. 

(3) AZl other convening authom'ties. All other convening authorities 

may, under exceptional circumstances, request from the Judge Advocate General 

concerned the authority to detail members of other armed forces to courtsmartial. With the concurrence of the other Judge Advocates General concerned, 

authority may be granted to detail members of other armed forces, subject to 

the provisions of 4g(l) above, for a particular case or, when appropriate, 

generally. 
Chapter iii 

COURTS-MARTIAL 

CONVENING AUTHORITIES--DETAIL OF TRIAL COUNSEL, DEFENSE COUNSEL, 

ASSISTANTS-DETAIL OR EMPLOYMENT OF REPORTERS AND INTERPRETERS 

5. CONVENING AUTHORITIES. a. General courts-martial. (1) 

General courts-martial may be convened by the President of the United States, 

the Secretary concerned, the commanding officers of commands designated in 

Article 22(a), and any other commanding officer designated by the Secretary 

concerned or empowered by the President. The term "Secretary concerned" 

refers to the Secretary of the Army, with respect to matters concerning the 

Army ;the Secretary of the Navy, with respect to matters concerning the Navy, 

the Marine Corps, and the Coast Guard when it is operating as a service in 

the Navy; the Secretary of the Air Force, with respect to matters concerning 

the Air Force; and the Secretary of Transportation, with respect to matters 

concerning the Coast Guard when it is not operating as a service in the Navy. 

(See app. 3,10 U.S.C. 5 101(8).) 

(2) When a commanding officer is designated by the Secretary concerned pursuant to Article 22 (a) (6) or empowered by the President pursuant 

to Article 22(a) (7) to convene general courts-martial, the convening order will 

cite the authorization. See appendix 4 for form. 

(3) It is unlawful for a commanding officer who is an accuser to convene 

a general court-martial for the trial of the person so accused. When any commanding officer who would normally convene the general court-martial is the 

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

who will either convene the court or designate another competent convening 

authority who is superior in rank to that accuser or, if in the same chain of 

command, who is superior in command to that accuser 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. 22 (b)) .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 subordinate command. ' 

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

who directs that charges nominally be signed and sworn to by another, or any 

other person who has an interest other than an official interest in the prosecution 

of the accused (Art. l(9)). 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 commanding officer who convened the court is 

the accuser in other cases is a question of fact. Action by a commanding officer 

which is merely official and in the strict line of duty cannot be regarded as suf- 
!ISb CHAPTER Ill 

ficient to disqualify him. For example, a commanding officer may, without becoming the accuser in the case, direct a subordinate to investigate an alleged 

offense with a view to formulating and preferring appropriate charges if the 

facts disclosed by the investigation should warrant preferring charges. The 

commanding officer may thereafter refer the charges for trial as in other cases. 

(5) Except as provided in Article 140, no one other than those expressly 

designated io Article 22 as having the authority to convene general courtsmartial has this authority and 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 commanding officer. The rules as to the devolution of command in case of the death, disability, or temporary absence of a 

commanding officer are stated in regulations of the Secretary of a Department. 

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

determine the cases to be referred to it for trial and may dissolve it, 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 coixrt has finally terminated the proceedings thereon by 

n finding or by a ruling which amounts to a finding of not guilty. See, however, 

Article 44 (c). 

b. Special courts-martial. (1) Special courts-martial may be convened 

by any person who may convene a general court-martial, the commanding 

officers of the commands designated in Article 23(a), and any other commanding officer empowered by the Secretary concerned. See 5a(l) for definition of "Secretary concerned." When empowered by the Secretary, an officer 

in charge of a command of the Navy may also convene special courts-martial 

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

courts-martial. See Article 23 (b) asto accusers. 

(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 conlmander primarily 

.the one to be looked to by superior authority as the officer responsible for the 

discipline of 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 court-martial jurisdiction over the command, and if arising in the Navy or Coast Guard, to the 

flag or general officer in command or the senior officer present who designated 

the detachment, for his determination. This determination shall be final. 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 for the discipline of the battalion, may convene special courtsnmrtial 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 responsible to a 

group for its operations. In such a case, the squadron would be separate in 

the sense of Article 23 (a) (4). The power of the squadron or batt a 1' ion coin- 
COURTS-MARTIAL T 60 

marider to convene special courts-martial is subject to the po\ver of superior 

competent author it,^ to reserve to himself the right to convene these courts 

for any or all subordinate units and detachments in his command. 

(4) A subordinate commander may exercise his power to convene special 

ccnxrts-martial unless a competent superior reserves that power to himself and 

so notifies the subordinate. 

c. Summary courts-martial. Summary courts-martial may be convened 

by any person who may convene a general or special court-martial, the commanding officers of the commands designated in Article 24(a), and any other 

commanding officer empowered by the Secretary concerned. See 5a(l) for 

definition of "Secretary concerned." When empowered by the Secretary, an 

officer in charge of a command of the Navy may also convene summary courtsmartial (Art. 24 (a) (4) ). Summary courts-martial may, however, be convened 

in any case by superior competent authority when deemed desirable by him. 

When but one commissioned officer is present with a command or detachment 

he shall b* the summary court-martial of that command or detachment and shall 

hear and determine all summary court-martial cases brought before him (Art. 

24(b)), and no order convening the court need be issued. When more than one 

commissioned officer is present, a subordinate commissioned officer mill be 

detailed as 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-martial be convened 

by the latter; but the fact that the convening authority or the summary court 

officer is the accuser in a case does not invalidate the trial. 

The principles stated in 5 n (2), (5) and (6), and 56 (3) and (4) apply to 

summary courts-martial. 

6. DETAIL OF TRIAL COUNSEL, DEFENSE COUNSEL, ASSISTANTS. a. General. For each general and special court-martial the authority 

convening the court shall detail a trial counsel and a defense counsel, together 

with such assistants as he deems necessary or appropriate. Detailed counsel 

shall be commissioned officers. ,411 accused may, however, be represented by individual counsel (48a, 6). No person who has acted as investigating officer, military judge, or court member in a case may act later as trial counsel, assistant trial 

counsel, or, unless expressly requested by the accused (61f (4) ; app. 8a), as 

defense counsel or assistant defense counsel in the same case. No person who 

has acted for the prosecution may act later in' the same case for the defense, nor 

may any person who has acted for the defense act later for the prosecution 

(Art. 27 (a) ). In the absence of evidence to the contrary, a person who, between 

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

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 iavestigation or other proceedings involving the same general matter is ineligible to act 

thereafter for the prosecution. &4n accuser, unless expressly requested by the 

accused (61f (4) ; app. Sa), may not act as defense counsel or assistant defense 

counsel in the same case. 

The power to detail under Article 27 cannot be delegated. 
COURTS-MARTIAL n 60 

mander to convene special courts-martial is subject to the power of superior 

competent authorit,y t,o reserve to himself the right to convene these courts 

for any or all subordinate units and detachi~~ents in his command. 

(4) A subordinate commander may exercise his power to convene special 

courts-martial unless a competent superior reserves that power to himself and 

so notifies the subordinate. 

c. Summary courts-martial. Summary courts-martial may be convened 

by any person who may convene a general or special court-martial, the commanding officers of the commands designated in Article 24(a), and any other 

commanding officer empowered by the Secretary concerned. See 5a(l) for 

definition of "Secretary concerned." When empowered by the Secretary, an 

officer in charge of a command of the Navy max also convene summary courtsmartial (Art. 24 (a) (4) ). Summary courts-martial may, however, be convened 

in any case by superior competent authorit-y when deemed desirable by him. 

When but one commissioned 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 (Art. 

24(b)), and no order convening the court need be issued. When more than one 

commissioned officer is present, a subordinate commissioned officer will be 

detailed as 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-martial be convened 

by the latter; but the fact that the convening authority or the summary court 

officer is t,he accuser in a case does not invalidate the trial. 

The principles stated in 5a(2), (5) and (6), and 5b (3) and (4) apply to 

summary courts-martial. 

6. DETAIL OF TRIAL COUNSEL, DEFENSE COUNSEL, ASSISTANTS. a. General. For each general and special court-martial the authority 

convening the court shall detail a trial counsel and a defense counsel, together 

with such assistants as he deems necessary or appropriate. Detailed counsel 

shall be commissioned officers. An accused may, however, be represented by individual counsel (48a, 6). No person who has acted as investigating officer, military judge, or court member in a case may act later as trial counsel, assistant trial 

counsel, or, unless expressly requested by the accused (61f (4) ; app. 8a), as 

defense counsel or assistant defense counsel in the same case. No person who 

has acted for the prosecution may act later ih the same case for the defense, nor 

may any person who has acted for the defense act later for the prosecution 

(Art. 27 (a) ).In the absence of evidence to the contrary, a person who, between 

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

counsel or assistant counsel of the court to which the case has been referred, 

shall be deemed lo 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. 8a), may not act as defense counsel or assistant defense 

counsel in the same case. 

The power to detail under Article 27 cannot be delegated. 
11 6c CHAPTER Ill 

The convening authority may, with the concurrence of the appropriate 

commanding officer, detail as counsel or as assistant counsel of general and 

special courts-martial any qualified officer regardless of the armed force of 

which that officer is a member. 

b. Qualification of counsel of general courts-martial. An officer who 

is detailed as trial counsel or defense counsel of a general court-martial must be 

a judge advocate of the Army, Navy, Air Force, or Marine Corps, or a law 

specialist of the 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 must, be a commissioned officer of the Army, Navy, Air Force, Marine Corps, 

or Coast Guard who is a member of the bar of a Federal court or of the highest 

court of a State (Art. 27(b) (1) ) ;and, in addition to the foregoing qualification, 

must be an officer who is certified as competent to perform such duties by the 

Judge Advocate General of the ar&ed force of which he is a member (Art. 

27(b) (2) ). 

A "judge advocate of the Army" is any commissioned officer of the Regular 

Brmy appointed in the Judge Advocate General's Corps, any other member 

of the Army assigned thereto by the Secretary of the Army, or any of the other 

persons mentioned in Section 3072, title 10, United States Code. A "judge 

advocate of the Navy" is a commissioned officer of the Judge Advocate General's 

Corps of the Navy. A "judge advocate of the Air Force" is a commissioned 

officer of the Air Force designated as a judge advocate by the Secretary of the 

Air Force (10 U.S.C. $8067(g) ). A "judge advocate of the Marine Corps" is 

a commissioned officer on the active list of the Marine Corps who is designated 

as a judge advocate with the approval of the Secretary of the Navy. A "law 

specialist" is a commissioned officer of the Coast Guard designated for special 

duty (law) (Art. l(11) ). The order convening a general court-martial will expressly state the 

qualification of the trial counsel and the defense counsel as prescribed by Article 

27(b). See appendix 4 for the form of statement of qualification. A statement 

that counsel is certified as competent to perform such duties by the Judge 

&4dvocate General of the armed force of which 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 27 (b) (1). 

c. Qualification of counsel of special courts-martial. In all special 

courts-martial the accused must, prior to an Article 39(a) session or assembly 

of the court, be afforded the opportunity to be represented by cotulsel qualified 

under Article 27(b) unless such couilsel cannot be obtained because of physical 

conditions or military exigencies (Art. 27(c)). The accllsed may, ho~vever, 

decline to be represented by qualified co~ulsel, in 117hich event such counsel need 

not be provided (61f (3)). The case may initially be referred to a court with 

counsel who is not qualified under Article 27(b), proriclecl prior to trial the 

requirements of Article 27(c) are met. If the accused chooses not to exercise his 

right to be represented by qualified counsel, trial may proceed 1~it11 colmscl 

initially detailed. There is no requirement, as there is in the case of general 

courts-martial, that trial counsel be qualified under Article 27(b). Any coininissioned officer not disqualified by reason of prior participation in the same 

case (6a) may be detailed as trial counsel in a special court-martial. Physical 

conditioils or military exigencies, as the terms are here used, may exist uilcler 
COURTS-MARTIAL ll6d 

rare circumstances, such as on an isolated ship on the high seas or in a unit in an 

inaccessible area, provided compelling reasons exist why trial must be held at 

that time and at that place. Mere ii1convenience does not constitute a physical 

condition or military exigency and does not excuse a failure to extend to an 

accused the right to qualified counsel. 

If qualified defense counsel cannot be obtained because of physical conditions or military exigencies, trial may proceed. I11 that event, ho~rever, the 

convening authority must, prior to assembly of the court, make a written statement explaining why counsel with such qualifications could not be obtained. 

This statement, which shall be submitted at trial as an appellate exhibit, must 

set forth in detail not only the reasons why qualified defense counsel could not 

be obtained, but also why the trial had to be held at that time and at that place, 

notwithstanding the fact that qualified counsel could not 'be obtained. This written statement is subject to review when the record of trial is examined under 

Article 65. If trial proceeds without qualified defense counsel, a bad-conduot 

discharge may not be adjudged at that trial. (For this and other reasons precluding the adjudging of a bad-conduct discharge, see 15b.) 

When counsel qualified under Article 27 (b) need not be detailed, any commissioned officer not disqualified by reason of prior participation in the same 

case (6a) may be detailed as defense counsel of a special court-martial. But if 

the trial counsel is qualified to act as coui1sel before a general court-martial, the 

defense counsel must be similarly qualified (Art. 27(c) (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 detailed by 

the convening authority must be one of the foregoing (Art. 27(c) (2)). Likewise, if any assistant trial counsel is qualified to aot as counsel before a general 

court-martial, the detailed defense counsel must be similarly qualified; and if 

any assistant 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 detailed defense 

counsel must be one of the foregoing. 

The convening order will expressly state whether trial counsel and defense 

counsel are or are not legally qualified lawy~rs in the sense of Article 27(c). 

See appendix 4 for forms. Proof of th8 qualification of judge advocates, law 

specialists (see 66), and officers certified as qualified by an appropriate Judge 

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

.Judge Advocate General of the armed force of rrhich 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. 27(c) (2)) will be determined by 

the convening authority before detail on the basis of the officer's personnel 

records or by interrogation of the officer, or (both. After such a determination the 

officer concerned will report any change in his qualifications to the convening 

a~thority. The record of trilal will show verificakion of the qualifications recited on the orders. See 61 e and f and appendices 8u and 86. 

d. Qualifications of assistant trial counsel and assistant defense 

counsel. In general, it is desirable that as many assistant defense counsel as 

assistant trial counsel be detailed, and that officers be debailed as assistant 

defense counsel and assistant trial counsel who have comparable military experience and legal qualifications. In special courts-martial 117he11 the conduct 

of the defense devolves upon the assistant defense counsel because of the 

absence of defense counsel, the assistant defense counsel must have the same 
11 7 CHAPTER Ill 

qualifications (Ah. 27(c)) as are required for defense counsel (66; Art. 

38(e)).See 45 and 47 as to duties of assistant trial counsel and assistant defense 

counsel. 

The convening order for every general or special court-martial will expressly state whether alssistant counsel are or are not legally qualified as 

lawyers in the sense of Article 27 (6c). Whenever appropriate, the qualifications 

of assisbant counsel detailed for special courts-martial shall be determined and 

shown as prescribed in 6c. See appendix 4 for form and 61f (2) for procedure as 

to inquiry into the qualifications of individual co~msel for the defense. 

7. DETAIL OR EMPLOYMENT OF REPORTERS AND INTERPRETERS. Under such regulations as the Secretary concerned may prescribe, 

the convening authority of a court-martial or military commission or a court of 

inquiry shall detail or employ qualified court reporters, who shall record the 

proceedings of and testimony taken before that court or commission. Under like 

regulations the convening authority of a court-martial, military commission, or 

court of inquiry may detail or employ interpreters who shall interpret for the 

court or commission (Art. 28). No person nlay act as reporter or interpreter in 

any case in which he is an accuser. 

The detail or employment of reporters and interpreters may be effected by 

the convening authority personally or. through a staff officer, including the trial 

counsel. The detail or employmeilt of reporters and interpreters may be oral 

and need not be shown in the record of trial or allied papers. 

Unless otherwise directed by the convening authority, a reporter will not 

be detailed or employed 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 concerned may require or restrict 

the detail or employment of reporters for summary and special courts-martial. 

See Article 19. 

See chapter XXII as to oaths generally, and 49 and 50 for duties. See appropriate regulations of the Secretary concerned for compensation and other 

matters pei%inent to the employment of reporters and interpreters. 
Chapter IV 

JURISDICTION OF COURTS-MARTIAL 

SOURCES, NATURE, AND REQUISITES-JURISDICTION AS TO PERSONSJURISDICTION AS TO CONTEMPTS-TERMINATION OF JURISDICTION-EXCLUSIVE 

AND NONEXCLUSIVE JURISDICTION-RECIPROCAL JURISDICTION-JURISDICTION OF GENERAL COURTS-MARTIALJURISDICTION OF SPECIAL 

COURTS-MARTIALJURISDICTION OF SUMMARY COURTS-MARTIAL 

8. SOURCES, NATURE, 'AND REQUISITES. While courts-martial 

have no part of the jurisdiction set apart under the article of the Constitution 

which relates to the judicial power of the Unitecl States, they have an equally 

certain constitutional source. They are established under the constitutioiial 

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 clamages or to collect private debts 

(126h). 

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

the offense was committed (Art. 5). See, however, 213e as to crimes and offenses not capital punishable under Article 134. Similarly, thc 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 and determine a 

case-and hence the validity of each of its judgments. is conditioned upon the 

following requisites: That the court was convenecl by an official empowered to 

convene it; that the membership of the court was in :~ccordance wit11 the law 

with respect to number and competency to sit on the court; and tl~athe court 

mas invested by act of Congress with po\ver to try the person :uncl the offense 

charged. 

9. JURISDICTION AS TO PERSONS. Article 2 describes certain persons who are subject to the code. In addition to the persons described in Article 2, 

certain persolis whose status as members of the ai-~ilcd 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, ancl 73, appendix 

2. Notwithstanding the provisions of ,\rticle 2(11), persons serving ~vith, 

employed by, or accompanying the nilried foi-ces cannot be trircl by courtsmartial under that article in peacetime. 

It is not necessary that an acci~secl be a 1)erson subject to the code under 

Article 2 in order to be amenable to trial by court-martial for a, violation of 
ll llb CHAPTER IV 

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 CONTEMPTS. A court-martial, provost court, or military commission inay punish for contempt any person 

who uses any menacing word, sign, or gesture in its presence, or who disturbs 

its 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 commissioned officers, cadets, 

midshipmen, warrant officers, enlisted members and other persons subject to 

the code ceases on discharge from the service or other termination of that 

status and that jurisdiction as to an offense committed during a period of senice or status thus terminated is not revived by re-entry into the military service 

or return into such a status. 

b. Exceptions. To this general rule there are, however, some exceptions 

which include the following : 

Jurisdiction as to an offense against the code for which a court-martial 

may adjudge confinement for five years or more committed by a person 

while in a status in which he was subject to the code and for which he cannot be tried in the courts of the United States or of a State, a Territory, or 

the District of Columbia is not terminated by discharge or other termination of that status (Art. 3 (a) ). Courts-martial may not try such offenses 

if, at the time of trial, the accused has severed all connection with the 

military and is in civilian status, but may do so if he has subsequently become subject to the code by re-entry into the armed forces or otherwise. 

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) ). 

Each person discharged. from the armed forces who is larter charged 

with having fraudulently obtained his discharge is, subject to the statute of 

limitations, subject to trial by court-martial on that charge (Art. 83(2)) 

and is after apprehension subject to the code while in the custody of the 

armed forces for that trial. See 162. Upon conviction of that charge he is 

snbject to trial by court-martial for all offenses under the code committed 

before the fraudulent discharge (Art. 3 (b)). No person who has deserted from the armed forces may be relieved 

from amenability to the jurisdiction of the code by virtue of a separation 

from any later period of service regardless of the type of discharge under 

which the separation was accomplished (Art. 3 (c) ). 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 cocle, court-martial jurisdiction over him does not terminate. Thus, 

when an officer holding a commission in a Reserve com,ponent, 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 

status-merely the accomplishment of a change in his status from that 

of a temporary to that of a permanent officer-and court-martial juris- 
JURISDICTION 0 13 

diction to try him for an offense committed before the discharge is not 

terminated by the discharge. Also, a discharged prisoner in the custody 

of an armed force may be tried for an offense committed while a member 

of the armed forces and before the execution of his discharge. 

c. Effect of voluntary absence from trial. The accused's voluntary and 

unauthorized absence after the trial has commenced in his presence and he has 

been arraigned does not terminate the jurisdiction of the court, which may proceed with the trial to findings and sentence notwith&anding his absence. In 

such a case the accused, by his wrongful act, forfeits his right of confrontation. 

d. Effect of termination of term of seruice. Jurisdiction having attached 

by commencement of action with a view to trial-as by apprehension, arrest, 

confinement, 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 before his official discharge--even though the term 

of enlistment may have expired-he may be retained in the service for trial to 

be held after his period of service would otherwise have expired. Similarly, if 

jurisdiction has attached by the. commencement of action before the effective 

terminal date of self-executing orders, a person may be held for trial by courtmartial beyond that terminal date. See also Article 2(1). 

12. EXCLUSIVE AND NONEXCLUSIVE JURISDICTION. Courtsmartial 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 courtmartial or before a proper civil tribunal, and in some cakes before both. See 

68d (Former jeopardy). 

Under such regulations as the Secretary concerned 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. 14 (a) ).See 97c and 

Article 14(b) as to the effect of such delivery to the civil authorities upon the 

execution of a sentence of a court-martial. See also pertinent departmental regulations made pursuant to Article 14. 

Under international law, a friendly foreign nation has jurisdiction to 

punish offenses committed within its borders by members of a visiting force, 

unless it expressly or impliedly consents to surrender its jurisdiction to the 

visiting sovereign. Which nation shall exercise jurisdiction is a matter for determination by the nations involved and is not a right of the i~ldividual 

concerned. 

The provisions of the code conferring jurisdiction upon courts-martial do 

not deprive military commissions, provost courts, or other military tribunals 

of concurrent jurisdiction with respect to offenders or offenses that by statute or 

by the law of war may be tried by military commissions, provost courts, or 

other military tribunals (Art. 21). See ,4rticles 104 and 106 for some instances 

of concurrent iurisdiction. 

13. RECIPROCAL JURISDICTION. Each armed force has courtmartial 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. 17 (a) ).So much 
U 14b CHAPTER IV 

of the authority vested in the President by Article 22(a) (7) as enables him 

to empower any officer of the armed forces who is the commander of a joint 

command or joint task force to convene a general court-martial for the trial 

of members of any of the armed forces in accordance with Article 17(a) and 

this paragraph is delegated to the Secretary of Defense. 

Jurisdiction by one armed force over personnel of another should b6 

exercised only when the accused cannot be delivered to the armed force of 

which he is a member without manifest injury to the service. However, the 

commander of a joint command or joint task force who has authority to convene general courts-martial 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 discretion, specifically authorize commanding officers 

of subordinate joint commands or joint task forces who are authorized to 

convene special and summary courts-martial to convene such courts for the trial 

of members of other armed forces under regulations which 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 49. 

In all cases, departmental review after that by the officer with authority 

to convene a general court-martial for the command which held the trial, where 

that review is required by the code, shall be carried out by the department 

that includes the armed force of which the accused is a member (Art. 17 (b) ). 

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

and offenses. Subjwt to the regulations prescribed in 13, general courts-martial 

have power to try any person sulbject to the code for any offense made punishable 

by hhe code. In addition they have power to try any person who by the law 

of war is subjeot to trial by military ttribunal for any crime or offense against 

the law of was and for any c~ime or offense against the law of the territory 

occupied as an incident of war or belligerency whenever the loual civil authoritj7 

is superseded in whole or in part by the military authority of the occupying 

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). 

A genepal court-martial composed only of a military judge does not have 

jurisdicrtion to try any person for any offense for which the death penalty may 

be adjudged unless the case has been previously referred to trial as a noncapital 

oase (Art.18). 

b. Punishments. Upon a finding of guilty of an offense made punishable 

by the code, general courts-martial have the power, within certain limitations, 

to adjudge any punishqent 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 
JURISDICTION 115b 

(Arts. 18, 52(b) (1)) ; and certain kinds of punishment are prohibited (Art. 

55). When a general court-martial exercises jurisdiction under the law of war, 

it may adjudge any 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. 

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

and offenses. (1) Subject to the regulations prescribed in 13, special courtsmartial have power to try any person subject to the code for any noncapital 

offense made punishable by the code and, under regulations as 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, 110(a), 

118 (1) and (4), and 120 (a) are capital at all 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 (127c) ;nor is a case in which the 

death penalty is not mandatory but is authorized by law capital if the authority 

competent to convene a court-martial for a capital case has directed that the case 

be treated as not capital (126~). Upon a rehearing or new or other trial, a 

case is not capital if the legal sentence adjudged at a prior hearing or trial or 

as ultimately reduced by the convening or other proper authority mas other than 

death (Art. 63). However, no offense for which a mandatory punishment is 

prescribed can be tried by a special court-martial if that 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 the event of conviction must be either death or imprisonment for life 

(Art. 118 (1)) . See 92a regarding limitations on rehearings on sentence only before special 

courts-martial. 

b. Punishments. Special courts-martial may, under such lim,itation as 

the President may prescribe (125-127; Art. 56) adjudge any punishment not 

forbidden by the code except death, dishonorable discharge, dismissal, confinement for more than six months, hard labor without confinement for more than 

three months, forfeiture of pay exceeding two-thirds pay per month, or 

forfeiture of pay for more than six months. A bad-conduct discharge may not 

be adjudged by a special court-martial unless (1) a military judge was detailed 

to the trial, except in any case in which a military judge could not be detailed 
11 160 CHAPTER IV 

because #of physical conditions or military exigencies, (2) counsel qualified 

under Article 27(b) was detailed to represent the accused, and (3) a complete 

and verbatim record of the proceedings and testimony was made. 

Physical conditions or military exigencies, as the terms are here used, may 

exist under rare circumstances, such as on an isolated ship on the high seas or 

in a unit in an inaccessible area, provided compelling reasons exist why trial 

must be held at that time and at that place. Mere inoonvenience does not constitute a physical condition or military exigency and does not excuse a failure 

to detail a militiary judge. 

If a military judge cannot be detailed bemuse of physical conditions or 

military exigencies, a bad-conduct discharge may be adjudged provided the 

other conditions have been met. In that event, however, the convening authority 

must, prior to trial, make la written statement explaining why a military judge 

could not be obtained. This stabmnt, which shall be submitted at 'trial as an 

appellate exhibit, must set forth in detail not only the reasons why a military 

judge could no't be detailed, but also why the trial had to be held at tihat time 

and at that place, notwithstanding the absence of a military judge. This written 

statement is subject to review when the record of trial is examined under Articles 

65, 66, and 67. Under no circumstances, however, may an accused be sentenced 

to a bad-conduct discharge by a special court-martial without counsel qualified 

under Article 27(b) having been detailed to represent the accused (66). The 

requirement for counsel will be satisfied when counsel qualified under Article 

27('b), and not otherwise disqualified, has been detailed and made available, 

even though the accused may choose not to cooperate with, or utilize the service 

of, such detailed counsel. See 48a. 

When a bad-conduot discharge is adjudged and it apipears : 

(1) that counsel qualified under Ahcle 27(b) was not detailed to represent the accused, or 

(2) that a military judge was not present at trial and either no explanatory statement by the convening authority was (attached to the record of trial, 

or the attached statement fails to establish the requisite physical coizditioizs or 

military exigencies, the portion of the sentence providing for a bad-conduet 

discharge may not 'be approved. See 81d. As to forfeiture of pay, even when a 

bad-conduct discharge is adjudged, a special court-martial may nok adjudge 

forfeitnres in excess 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 countsmartial have the power to try persons subject to the code except commissioned 

officers, warrant officers, cadets, aviation cadets, and midshipmen for any noncapital offense made punishable by the code. No person ~vitlz respect to whom 

summary courts-martial have jnrisiliction may be brought to trial before a summary court-martial if he objects thereto. This is true even though the person 

may also have refused punishment under Article 15 and demanded trial by 

court-martial. See 132. If objection to trial by summary court-martial is made 

by an accused, trial may be ordered by special or general court-martial, as may 

be appropriate (Art. 20). 

The principles stated in 15a(2) and (3) apply to summary courts-martial, 
JURISDICTION U 16b 

b. 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 for more than one month, hard labor without confinement for more than 45 days, restriction to certain specified limits for more than 

two months, or forfeiture of more than two-thirds of one month's pay (Art. 

20) ;but in the case of enlisted members 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. 

The maximum amount of confinement and forfeiture of pay or of 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 a 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 less severe thereafter. 
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 primurily 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 these 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), resisbing apprehension (174a), breaking arrest or escaping from custody or confinement (174b, 

c, d), breaching or escaping from corre'ctional custody imposed pursuant to 

Article 15 (213f (13) ) ,releasing a prisoner without authority (175a), unlawful 

detention of another (176), and confinement as punishment for contempt (118). 

18. GENERAL. a. Definitions. Apprehension is the taking of a person 

into custody (Art. 7 (a) ;sea 174d). 

Awest 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. 

9(a)). 

Con.f;~zementis the physical restraint of a person (Art. 9(a) ). 

b. Basic considerations. (1) Any person subject to the code accused of 

an offense under the code shall be ordered into arrest or confinement, as circumstances may require; but when accused only of an offense normally tried by a 

summary court-martial, he shall not ordinarily 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 involving minor offenses. A failure to restrain does 

not affect the jurisdiction of the court. 

(2) No member of the armed' forces may be placed in confinement in 

immediate association with enemy prisoners or other foreign nationals not members of the armed forces (Art. 12). If members of the armed forces are separated from the other categories mentioned, however, they may be confined in 

t.he same jails, prisons, or other confinement facilities. 

(3) Other than restraint administered as prescribed in this subparagraph (18b (3)) ,.forfeiture of pay or allowances due on and after the date of 

approval of certain sentences, and illinor punishments for infractions of 

discipline while confined, no punishment may be imposed upon an accused as a 
B 20a CHAPTER V 

result of trial by court-martial until the sentence has been approved and ordered executed. No person, while being held for trial or the result of trial, may 

be subjected to punishment or penalty other than arrest, restriction, or confinement upon the charges pending against him, nor shall the arrest, restriction, 

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 that period for infractions of discipline (Art. 13). Minor punishment 

shall include all punishment authorized by regulations of the Secretary of a 

Department for violation of the discipline prescribed for the place in which an 

accused is confined. See 68g regarding the effect of punishments for minor offenses upon subsequent court-martial proceedings. 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. 

19. APPREHENSION. a. Who may apprehend. All commissioned 

officers, warrant officers, petty officers, noncommissioned officers, and, when in 

the execution of their guard or police duties, Air Force security police, military 

police, members of the shore patrol, and such persons as are designated by 

proper authority to perform guard or police duties, including duties as criminal 

investigators, 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 

703). 

Petty officers, noncommissioned officers, and enlisted members performing 

guard or police duties should apprehend a commissioned or a warrant officer 

offender only pursuant to specific orders of a commissioned officer, except when 

this 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 commissioned officers and warrant officers 

by petty officers, noncommissioned officers, and enlisted members performing 

guard or police duties, the individual effecting the apprehension will, immediately thereafter, notify the officer to whom he is responsible or an officer of 

the Air Force security police, military police, or shore patrol. 

b. In quarrels, frays or disorders. Com~nissionedofficers, warrant officers, 

petty officers, and noncommissioned officers have authority to quell quarrels, 

frays, and disorders among persons subject to the code and to apprehend persons subject to the code who take part therein (Art. 7 (c) ). 

c. 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 distinction 

between the authority to apprehend and the authority to arrest or confine. Any 

person empo~vereci to apprehend an offender is authorized to secure the custody 

of an alleged o~ender until proper authority may be notified, the limitations 

(21a; Art. 9) on the power to arrest or confine notwithstanding. 

20. RESTRAINT. a. Status of a person in arrest. As used in this chapter, 

arrest is moral restraint imposed upon a person by oral or written ordm of 
APPREHENSION AND RESTRAINT 	 U 20d 

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 regulations of the Secretary concerned. 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 

this status his arrest is thereby terminated. This, however, does not prevent his 

being required to do ordinary cleaning or policing, or to take part in routine 

training and duties not involving the exercise of command or the bearing of 

arms. But see 131c(3) with respect to arrest in quarters imposed as a punishment under Article 15. 

b. 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 the 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 considered a wise precaution to restrict 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 

these restrictions are punishable as violations of Article 134, as are breaches 

of punitive restrictions. 

c. Confinement before trial. As used in this chapter, confinement is 

physical restraint, imposed 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) GemraZ. No person may be 

ordered into arrest or confinement except for probable cause (Art. 9 (d)). No 

authority may order a person into arrest or confinement unless he has personal 

knowledge of the offense or has made inquiry into it. Full 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. 

The foregoing does not preclude imposition of restraint necessary for the 

administration of military justice, such as arrest, restriction, or confinement to 

insure the presence of an accused for impending execution of a punitive discharge. See also 21d. A person subject to punitive restraint as a result of the 

sentence of a court-martial or punishment under Article 15 is not chargeable 

with conformance to this restraint until notified of the action which places it in 

effect. See 131e and Article 57 (b) and (c). Reasonable restraint may, however, 

be imposed pending receipt of notice that the sentence has been ordered into 

execution. 

(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. 
11 21a CHAPTER V 

(3) Procedural steps to confi.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, correction officer, 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, commander of the guard, correction officer, or 

master at arms may refuse to receive or keep any ~risoner committed to his 

charge by a commissioned officer of the armed forces, when the committing 

officer furnishes a statement, signed by him, of the offense charged against the 

prisoner (Art. 11(a) ). (4) Notification to accused. 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 provost marshal, commander of a guard, 

correction officer, or master at arms to whose charge a prisoner is committed 

shall, within 24 hours after that commitment, or, in the case of a commander 

of the guard or master at aims, as soon as he is relieved from guard, report in 

writing to the commanding officer the name of the prisoner, the offense charged 

against him, and the name of the person who ordered or authorized the commitment (Art. 11(b)). 

e. Unlawful detention. Any person subject to the code who, except as 

provided by law, apprehends, arrests, or confines any person is subjeot to trial 

by court-martial (Art. 97). 

21. ARREST AND CONFINEMENT. a. Who may arrest or confine. 

Persons subject to the provisions of the code or to trial thereunder may be 

ordered into arrest or cohfinement as follows : 

(1) Commissioned officer, warrant oficer, or civilhn. Only a commanding officer to whose authority the individual is subject may order a commissioned officer, warrant officer, or civilian into arrest or confinement. The arrest 

or confinement must be effected by an order, oral or written, delivered in person or by another commissioned officer (Art. 9(c)). The autl~ority to order 

such persons into arrest or confinement may ~ot be delegated (Art. 9 (c) ). For 

this particular purpose, the term "commanding officer" refers 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 convene a summary court-martial. 

(2) EnlGted member. Any commissioned officer may order an enlisted 

nlember into arrest or confinement. 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. 9(b)). A commanding officer may authorize warrant 

officers, petty officers, or noncommissioned officers to order enlisted members of 

his command or subject to his authority into arrest or confinement (Art. 9 (b) ). Thus, the commanding officer of any cominand or detachment may delegate to 

t'he warrant officers, petty officers, or i~oncommissioned officers thereof authority to place enlisted members who are assigned or attached to his command 
APPREHENSION AND RESTRAINT 11 23 

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. 

b. Authority of trial counsel to restrain. A trial counsel of a courtmartial, as such, has no a~thority to place in arrest or coi~fineineiit :I person 

ahout to be tried by the co~lrt. These are duties which devolve upon the convening authority or upon the post, station, or base con~inander or other proper 

officer in whose custody or command the accused is at the time. 

c. Authority of courts-martial to restrain. A conrt-martial has no control over the nature of the arrest or other status of restraint of a prisoner 

except as regards his custody in its presence. 

d. Responsibility for restraint after trial. Upon notification from a trial 

counsel of the result of a trial (44a), a commanding officer mill take proingt 

and appropriate action with respect to the restraint of the person tried. This 

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. See 20d(l) and 88f. 

22. DURATION AND TERMINATION. Although charges should be 

preferred promptly (25; Arts. 10, 30(b), 33), the accused is not automatically released from restraint because of any delay in preferring the charges. 

He must remain in arrest,, restriction, or confineinent 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 that facility is subject. Once a prisoner is placed in confine- 

~nent, he passes beyond the control and power of release of the officer who initially ordered him confined, unless that officer is the commanding officer described above. The release of a prisoner x~ithout proper'authority is a punishable offense (Art. 96). Undue delay in preferring or prosecuting charges 

sl~ould be investigated n-ith a view to prompt disposition of the case or, when 

appropriate, the release of the accused from arrest, restriction, or confinement by competent authority. Any person subject to the code who is resl~onsible 

for unnecessary clelay in the disposition of any case of a person accused of 

an offense uncler the code is subject to trial by court-martial (Art. 98). 

23. APPREHENSION OF DESERTERS BY CIVIL AUTHORITIES. 

Any civil officer having authority to apprehend offenders under the laws of the 

TJnited States or of a State, Territory, Commonwealth, or possession, or the 

District of Columbia may sumniarily apprehend a deserter from the armed 

forces and deliver him into the custody of those forces (Art. 8). 

The fact that the persoil \\-ho apprehended and delivered a deserter mas 

not authorized to do so is not a legal ground for thc discharge of the deserter 

from military custody. 

See Article 14 and appropriate regulations of the Secretary concerned as to 

delivery of offenders to and return from civil autl~orities. 
Chapter VZ 

PREPARATION OF CHARGES 

DEFINITIONS--WHEN PREFERRED-GENERAL RULES AND SUGGESTIONSDRAFTING 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 circnmstailces 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. 

b. Additional charges. Wen- ancl separate charges preferred after others 

have been preferred are knohvn in military law as "additional charges." These 

orclinarily relate to transactions not known at the time or to offenses committed 

after the original charges mere preferred. Charges of this character do not 

require a separate trial if incorporated in the trial of the original ones before 

arraignment, but necessary preliminary procedures for all charges must be 

completed. See 656. Additional charges may not be incorporated in the trial 

after arraignment. 

25. WHEN PREFERRED. When any person subject to the code is placed 

in arrest or confinement prior to trial, immediate steps shall be taken to inform 

liim of the specific wrong of which he is accused (32f (1)) and to try him or to 

dismiss the charges and release him (Art. 10). Any person subject to the code 

~7110is responsible for unnecessary delay in the disposition of any case of a 

person accused of an offense ~ulder 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 comnlitted it. In rare cases, l~owever, 

it may be advisable to prefer charges before 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. 
7 26d CHAPTER VI 

26. GENERAL RULES AND SUGGESTIONS. a. Elements of the 

offense.Before drafting charges and specifications, the accuser 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. 

b. Offenses arising out of one transaction. One transaction, or what is 

substantially one transaction, should not be made the basis for an unreasonable 

multiplication of charges against oiie person. A person should not be charged 

with both disorderly conduct and assault if tlie 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(8)). 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 74b (4) and 76a(5). 

c. Joining minor and serious offenses. Ordinarily, charges for 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. But see 30yn 

and 33h regarding joinder of charges at a single trial. 

d. Joint offenses. A joint offense is oiie 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 discussioii of accessories after the fact. Principals may 

be charged jointly with the commissioii of the same offense, but an accessory 

after the fact cannot be charged jointly with the principal he is allegecl to have 

received, comforted, or assisted. Offenders are properly joined only if there is 

a common unlawful desigil or purpose; the mere fact that several persons happen to have colninitted the same types of oflenses at the same time, altliough 

material as tending to show concert of does not necessarily establish 

it. The fact that several persons happen to have absented 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, tlie participants may be separately or jointly charged. 

However, if the participants are members of different armecl forces, they should 

be chargecl separately. See 13. The preparation of joint charges is cliscussed in 

detail in apl>endix 6(a) (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 tlie possible unfairness to the accused which may result 

if their defenses are incoiisistent or antagonistic. See 69d (Motion to sever). 

In drafting charges, it must also be remembered that an accused cannot be 

called as a witness except upon his olvn request (148e). If, therefore, the testi- 
PREPARATION OF CHARGES ll 28a 

mony 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, i11 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 defined 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 specification 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 inandatory punishment prescribed by 

the correct article must be adjudged, even if the offense has been laid under 

another article. See 74c. 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 court-martial jurisdiction as to persons. For rules as to the manner of describing the acc~~sed, 

see the instructions in appendix 6a. The service number of the accused 

should not appear ill the specific a t' ion. 

(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. 

(3) A statement in simple and concise language of the facts constituting 

the offense. As a general rule, the facts so stated will include all the elements of the offense sought to be charged. However, see appendix 6c for 

examples of permissible abbreviated pleadings. See 87a(2) as to the legal 

sufficiency of specifications. 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 specifically proscribed by one of the punitive articles of the code, but is made an oflense under the code by applicable statute (including Arts. 133 and 134), regulations, or custom having 

the effect of law (213b), words importing criminality such as "wrongfully," "unlawfully," "11-ithout authority," or L'dishonorably,77 depending 

upon the nature of the particular offense involved, should be used to describe the accused's acts. I11this 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. 
ll 28d CHAPTER VI 

b. 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 or if an offense is committed by inore than 

one means, they may be alleged conjunctively. 

c. Alleging written instruments; orders; directives. When a written 

instrument, for example, a false pass, a forged clocument, or a threatening letter, 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, the specification should contain sufficient information to indicate what 

specific directive, or part 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 diredive 

does not constitute fatal error if the omission or error does not mislead the accused to his prejndice. 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 a~penciix 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 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-

ACTION BY OFFICER EXERCISING SUMMARY COURT-MARTIAL JURISDICTION-INVESTIGATION OF CHARGES-ACTION BY OFFICER EXERCISING 

GENERAL COURT-MARTIAL JURISDICTION 

29. INITIATING AND PREFERRING CHARGES. a. Who may 

initiate. Charges are initiated by someone bringing to the attention of t.he 

military authorities information concerning an offense suspected to have been 

commited by a person subject to the code. This informat.ion 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 if he is under charges, in arrest, or in confinement. In many cases, if the 

commander who exercises immediate jurisdiction over the accused under Article 

15 is not empowered to convene courts-martial, he actually prefers the charges. 

However, when such a commander is also empowered to convene courts-martial 

and has only an official interest in the disposition of the case, it is customary 

for him to direct a commissioned officer of his command to make a preliminary 

inquiry into the suspected offense and to prefer appropriate charges if the 

facts shown by the inquiry warrant the preferring of charges. See 5a(3) and 

(4),33a, and Article l(9). 

c. Ordering 'preferment. A person subject to the code cannot be ordered 

to prefer charges to which he is unable truthfully to make the required oath on 

his own responsibility. 

d. Preparation of charge sheet. Charges will be prepared as prescribed 

by regulations of the Secretary of a Department. 

e. Signing and swearing to charges. Charges and specifications shall be 

signed under oath before a cominissioned officer of the armed forces authorized 

to administer oaths. For example, they may not be sworn to before a warrant 

officer who is not commissioned, even if such a warrant officer is an adjutant 

and therefore would have general authority to administer oaths for other purposes. See 113 and Articles 30 ancl 136. The form of oath is prescribed in 114i 

and is set forth on the charge sheet. In no case may an accused be tried on 

unsmorn charges 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 may interrogate, or request any statement 

from, an accused or a person suspected of an offense without first informing 
11 31 CHAPTER VII 

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. See Article 31 (b) . 

b. In an interrogation at which an accused or suspect is in custody, he will 

also be advised that he has a right to consult with counsel, provided as indicated 

in 846, and to have counsel present at the interrogation. After having been 

advised of these rights, the accused or suspect ordinarily should not be interrogated in the absence of counsel unless he expressly and voluntarily states (1) 

that he does not desire counsel and (2) that he is willing to make a statement. 

See 140a(2). 

c. No charge may be referred to a general court-martial.for trial until the 

formal investigation required by Article 32 has been made (34). 

d. No charge may be referred to a general court-martial for trial until it 

has been referred for consideration ancl advice to the staff judge advocate or 

legal officer of the convening authority (35b; Art. 34(a) ). e. No charge may be referred for trial if the convening authority is satisfied 

that the accused is insane or was insane at the time of the offense charged (121). 

f. 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 a subsequent 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. 

g. Subject to jurisdictional limitations and at the discretion of the convening authority, charges against an accused, if -tried at all, ordinarily should 

be tried at a single trial by the lowest court that has power to adjudge an appropriate and adequate punishment. See 26c and 33h. 

h. 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 Artic;e 10. 

i. Upon 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 ancl 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, \ 

1 

if practicable, for~val-c2 the cllarges, together with the investigation and allied 

papers, t,o the officer exercising general court-martial jurisdiction; otherwise 

he shall rcport in writing to that officer the reasons for delay (Art. 33). 

31. ACTION BY PERSON HAVING KNOWLEDGE OF A SUSPECTED OFFENSE. When any person has kno~vledge of an offense committed by a person subject, to the code, it is customary to report the facts to the 

commander exercising iinmediate jurisdiction over the accused under Article 
SUBMISSION OF AND ACTION UPON CHARGES ll32d 

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. 

32. ACTION BY COMMANDER EXERCISING IMMEDIATE JURISDICTION UNDER ARTICLE 15. The provisions of this paragraph (32) 

apply only when the commander exercising immediate jurisdiction is not also 

empowered to convene courts-martial. If this commander is so empowered, see 

33. Upon receipt of charges or inYormation indicating that a member of his 

command has committed an offense punishable by the code, action will be taken 

by the commissioned officer or warrant officer immediately authorized to exercise powers over the accused under Article 15, who is referred to hereafter in 

this chapter as the "immediate commander." Ordinarily he will dispose of the 

case in the following manner : 

a. General. All actions taken under this paragraph are subject to the basic 

considerations stated in 30. 

b. 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 a more extensive investigation and the collection of evidence. 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 accused. 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. 

c. 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 those offenses which he believes cannot properly be disposed of 

under Article 15. Charges may be preferred against an accused who is absent 

without authority, to stop the running of the statute of limitations. If charges 

have already been preferred but they are not formally correct or do not conform 

to the expected evidence, formal corrections, and those changes in the charges 

and specifications which are needed to make them conform to the evidence, 

may be made (33d ; Art. 34 (b) ). 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 preliminary 

inquiry, that all or some of the charges do not warrant further action because 

they are trivial, do not state offenses, or are unsupported by available evidence, 

or because there are other sound reasons for not punishing the accused 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 peferred. 
ll 32f CHAPTER V11 

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. Nonjudicial punishment. Unless competent superior authority has 

directed otherwise, he may impose punishment under Article 15 for any minor 

offense, whether or not it is charged. See 128 and 131. With respect to offenses 

for which charges have been preferred, specifications and charges 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 officer, he ordinarily 

should forn-ard the charges and allied papers or the report of preliminary 

inquiry to the officer exercising immediate summary court-martial jurisdiction 

with an appropriate recommendation. When reduction in pay grade is considered a proper punishment and he is not authorized to impose that punishment, he should forward the charges or report to a commander who has that 

authority under Article 15. In this connectiorl, see 129 and 1316(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 commancl, to the officer exercising summary court-martial 

jurisdiction over the command of which the accused is a member. I11forwarding 

the charges, the following rules will be observed : 

(1) Informing accused of charges. Before forwarding the charges, the 

immediate commander will inform the accused of the charges against him 

(Arts. 10, 30(b)) and complete and sign the certificate to that effect on the 

charge sheet. 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 pwnishment under Article 15. The immediate commander will note i11 the space provided on page 4 of the charge sheet 

whether the accused has been permitted and has elected to refuse punishment 

under Srticle 15 as to any offense charged. See 16a, 132, and Article 20. 

(3) Minor offenses. When charges are submitted with a view to trial by 

sumnlary court-martial or action under Article 15, they need not be forwarded 

by ,z formal letter of transmittal, but should be accompanied by evidence of 

adnlissible previous coi1victions and sufficient information about the circumstances, including an informal summary of the expected evidence, to enable 

the coinmander receiving them to make an intelligent disposition of the case 

without an additional investigation. 

(4) Serz'otls offenses. When charges are submitted with a view to trial 

by special or general coui-t-martial, they will be forwarded by a letter of transmittal signed personally by the for\v:~rding officer. The letter will include, or 

carry :is inclosures, the following : 

(a) A summary of the evidence expected froill 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. 
SUBMISSION OF AND ACTION TON CHARGES ll33c 

(b) All reasonably available documentary evidence and exhibits. If, 

because of the bulk of this 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 

(75b (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 personnel records. See 

1436 (2) and 144b (Official records). 

(d) Explanatioil of any unusual features of the case, including such 

matters as the character of the accused's military service before the offense 

charged and his record before entry into the military service, if known. 

(e) Specific recommendation as to the disposition of the charges. 

33. ACTION BY OFFICER EXERCISING SUMMARY COURTMARTIAL 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 considerations stated in 30-ordinarily dispose of the case in the following manner : 

a. Preliminarg inquiry. When charges have not already been preferred, 

and the officer exercising summary court-martial jurisdiction is also the commz~nder exercising immediate jurisdiction over the accused under Article 15, 

he may take the action outlined in 326 and c. 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 22 (b) and 

23(6). 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 any charges 

which appear to you to be sustained by the expected evidence." 

Unless otherwise directed, the officer to whom such a case is transmitted 

will make a preliminary inquiry similar to that described in 326. If the officer 

malcing the inquiry forwards his report without preferring charges, the officer 

exercising summary court-martial jurisdiction will take the action outlined in 

32, as appropriate. If the officer making the inquiry prefers charges, the officer 

exercising summary court-martial jurisdiction \mill dispose of them in accordance with the rules prescribed in the remaining subparagraphs of this 

paragraph (33). 

b. Date of receipt. Immediately upon the receipt of sworn charges, the 

officer exercising summary conrt-martial jurisdictioil over the command will 

cause the hour and date of receipt to be entered in the space provided on page 

3 of the charge sheet. This date is important as it fixes 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 43 (b) and (c) . c. Informing accused of charges. If, when charges are received by the 

officer exercising summary court-martial jurisdiction, it appears that the 

accused has not been advised of the charges against him, the action prescribed 

in 32f (1) will be taken promptly. 
f 33f CHAPTER VII 

d. Alterations. The officer exercising summary court-martial jurisdiction 

will make a preliminary examination of the charges and the allied papers to 

det.ermine whether the specifications are laid under the proper punitive articles, 

are formally correct, 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 34(b). 

e. Investigations. When the offenses are so serious that it may be appropriate to forward them with a recommendation for trial by general courtmartial, he will appoint a commissioned officer to investigate the charges in 

accordance with 34 and Article 32, subject to the following exceptions : 

(1) Effect of investigation of sub ject matter before charges preferred. 

If an investigation of the subject matter of an offense was conducted before the 

accused was charged with the offense, for example, by a court of inquiry, and if 

the accused was present at the investigation and was afforded the rights set forth 

in Article 32(b), no further 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 recall witnesses for 

further cross-examination and to offer any new evidence in his own behalf. See 

Article 32 (c) . (2) Effect of changing charges after investigation is made. If the charges 

were investigated pursuant to 34 and Article 32(b) before reaching the officer 

exercising summary court-martial jurisdiction, he need not direct another investigation unless there is reason to believe that a further investigation 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 32(b) has been conducted, 

the charges are changed to 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 32(b) 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. I11 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. Any officer exercising general court-martial jurisdiction 

who receives the charges in such a case is authorized to determine whether trial 
SUBMISSION OF AND ACTION UPON CHARGES 11 331 

of the accusecl is warranted under the circnmstances and, if so, whether the 

security considerations involved are paralnoullt to trial. As appropriate under 

the circumstances, such a commander inay dismiss the charges, authorize their 

trial, or forward them to the Secretary concerned. In this connection, see 

Article 43 (8). 

g. Nonjudicial punishment. He has the same authority as the commander 

exercising immediate jurisdiction over the accused under Article 15 with respect to the imposition of nm~judicial punishment. See 326. 129, and 131. He 

may impose this punishment himself or he may return the case to the immediate commander of the accused for appropriate action. I11 the case of warrant officers and commissionecl officers, he may, unless his disciplinary authority 

has been limited or withheld (128), iinpose nonjuclicial punishment. If his 

anthority has been limited or withheld. or if he believes a greater punishment 

is appropriate in the interest of justice and discipline, he should forward the 

charges and allied papers or, if charges have not been preferred, the report of 

preliminary inquiry to the officer exercising general court-martial jurisdiction 

or the general or flap officer in commancl. See 131b(l) (b) ancl Article 15(b) 

(1)(B). 

h. Disposition of the charges by trial. If he determines that some punishment should be adjuclged against the accused but that puniehment under 

Article 15 is not appropriate or ha& a proper case been refused by the accused, 

he must deciide to which kind of court-martial the case should be referrecl. Subject to jurisdictional limitations and at the discretion of the convening authority, charges against an accusecl. if triecl at all, ordinarily should be 

tried at a single trial by the lowest court that has the power to adjudge an 

appropriate and adequate punishment. See 26c, if both major and minor offenses are involved. The fact that, upon conviction of a particular offense, 

the Table of Maximum Punishments (127~) inay 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 

court-martial 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 in deciding 

upon his action or recommendation. 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-disl~oi~orableor bad-conduct-may be adjudged. I11this connection, see 76a (3) and (4). Ordinarily, a 

specification as to which the statute of limitations (Art. 43) apparently may be 

snccessfully pleaded should not be referred for trial. See 68r. 

i. Forwarding charges. When trial by a special or general court-martial 

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 ancl necessary allied papers, 

in accordance with regulations of the Secretary concerned, to an officer exercising 

the appropriate kind of court-martial jurisdiction. If, however, the forwarding officer is an accuser (5a(4)), the court must be convened by a competent authority superior in rank or command. The charges will be forwarded by 

indorsement or letter of transmittal, sianed by the forwarding officer, and will a.
 contain his recommendation as to their disposition. If the charges are forwarded 
11 331 CHAPTER VII 

with a recominendation for trial by general court-martial, the forwarding officer should observe the following rules : 

(1) He mill inclose a copy of the report of investigation made under 34 

and Article 32 or will explain why such an investigation was not made 

before 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 tlie time of the trial and 

the action that has been initiated to have these witnesses or their depositions 

available at the trial. See chapter XXIII and Article 49. 

j. Reference for trial. (1) Mamr of reference. Ch,arges are ordinarily 

referred to a court-martial for trial by means of the indorsement on the charge 

sheet. 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 charges be tried with 

certain other charges against the accused (24b), or in a common trial with other 

persons (332), or that a capital case be treated as not capital (15a(3) ) ;or, in 

a special court-martial, that the authorized ma.ximum punishment does not include a bad-conduct discharge (156). If, for any proper reason, it is desired 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 affixed 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 (56; Ad. 24) is often, also empozomed to conmene special courts 

martial (56 ;Art. 23). If he is so empowered and determines that trial by special 

court-martial is appropriate, he should complete the inclorsement in the prescribed manlier and transmit the charges and allied papers to the trial counsel 

of the court. \ 

(3) Su?nmary court-martial. If he determines that trial by summary 

court-martial is appropriate, he should complete the indorsement in the prescribed manner and transmit the charges fo the summary court-martial. If 

the only officer present with ;t conlmand 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 ir: authorized to direct that a reporter iiot be detailecl or employed for 

trials by special courts-martial, lie may, in an appropriate case, include in the 

indorsement referring the charges for trial tlie direction, "Reporter iiot authorized." In this connection, see 7. 

1. Common trial. If two or more persons are charged with the commissioii 

of an oflense or offenses which, althougli not jointly committed (26d), were 

committed at the same time ancl place ancl are provable by the same evidence, 

tlie convei~ing authority may in his discretioil direct a common trial for these 

offenses only. Offenses charged against different accused which are not closely 

relatecl should not be triecl in a coinillon trial, ilotwithstailding the fact that 
SUBMISSION OF AND ACTION UPON CHARGES ll 34b 

some other offenses with which each accused is charged may be closely related. 

See 69d (Motion to sever). 

m. Suspected insanity. If he suspects that an accused lacks mental 

capacity or that he was not mentally 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. Zntroductory statement. No 

charge may 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 military judge or a member of the prosecution or defense upon possible trial of the case will be designated as investigating 

officer. 

In conducting the investigati.on, 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 forth in the charges, the form of 

the charges, and to secure information upon 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 aZI available facts in arriving at his coiiclusions. He is required to conduct 

a thorough and impartiaZ investigation and is not limited to the examination 

of witnesses and documentary evidence listed on the charge sheet or iilentioned 

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 in prejudice 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 696 and 

87c. Similarly, a failure to comply with the provisions of Article 31 miy 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 circnmstances of 

other cases or exceptional or local conditions, or for any other good reason, 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 inrestigation the ;iccused 

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 certified under Article 27 (b) represent him at the investig a t'1011 

if he so desires, including the several alternatives available to him ns set forth 

in 34c; his right to cross-examine witnesses against him if they are available 
and to present anything he may desire in 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 ;and his rights under Article 31 (b) . c. Counsel. If the accused requests that he be represented by counsel, the 

investigating officer will promptly report the request to the officer who referred 

the charges for investigation. The latter will take the following action: 

(1) If the accused desires civilian counsel provided by him, he will give 

the accused a reasonable opportunity to obtain the civilian counsel without 

unduly delaying the investigation, but that counsel will not be provided 

at government expense ;or 

(2) If the accused desires military counsel of his own selection and that 

counsel is reasonably available within the command, he will provide that 

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; or 

(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 counsel certified 

under Article 27 (b) to represent the accused as counsel at the investigation ; 

otherwise he will forward the request of the accused directly and expeditiously to the officer exercising general court-martial jurisdiction over the 

command, who will promptly designate and provide certified counsel. 

The principles stated in 426 and, except as indicated above, in 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. 

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 obtain civilian counsel 

provided by him within a reasonable time after having been given an 

opportunity to obtain that counsel. 

If the accused is represented by counsel, the government may be represented 

at the investigation by counsel with equivalent qualifications designated by the 

officer who directed the investigation, at the discretion of the latter. 

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 presence of the accused, and if 

counsel has been requested, in the presence of the accused and his counsel. 

Ordinarily, application for the attendance of any witness subject to military 

law will be made to the immediate commanding officer of the witness, who will 

determine the availability of the witness. 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 must be examined 
SUBMISSION OF AND ACTION UPON CHARGES 1 340 

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 affirmation or of making an unsworn statement and 

he should be afforded the opportunity of signing and swearing to the truth of 

the substance of his statement after it has been reduced to writing. See 114j for 

forms of oaths. If it appears that material witnesses on behalf of the accused 

or the prosecution may not be available at the time of trial, the investigating 

officer should initiate action with a view toward obtaining necessary depositions. 

See 30f, 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 other similar 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 known, to the accused and, if 

counsel has been requested, to his counsel. Upon objection by the accused or his 

counsel, statements of unavailable witnesses which are not under oath or affirmation will not be considered by the investigating officer. 

e. Formal report. Whenever it appears that the case may be disposed 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. Although previously prepared forms 

may be used, special care should be exercised to insure that the use of these 

forms does not result in perfunctory or inaccurate certifications of compliance 

with the requirements of this paragraph (34). Unless 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 the 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, for example, when an accused withdraws a request for ,z 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 
q 35b CHAPTER VII 

accused with a copy if the charges are forwarded to the officer exercising 

general court-martial jurisdiction. See 33&(2) and Article 32(b). 

(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 these 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 officer 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 other suitable means. However made, the report need include in abbreviated form only the items required in 34e (1), (2), 

(4), and (6) above, 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 COURTMARTIAL JURISDICTION. a. General. The charges received by the officer 

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 courts-martial, or, in lieu of 

trial, to impose any of the punishments authorized in Article 15(b) (1) (B) 

upon commissioned officers and warrant officers of his command (See 1316 (1)). In addition to these po\vers-of which only the power under Article 15 may 

be delegated (128~)-he may take any action on the charges which the immediate commander (32) or the officer exercising summary court-martial jurisdiction (33) is authorized to take. He may take this latter action lliinself or he 

may return the charges and allied papers to a proper subordinate commander 

for appropriate disposition. 

b. Reference to staff judge advocate or legal oficer. Before directing 

the trial of any charge by general court-martial, the convening authority shall 

refer it to his staff judge advocate or legal oficer for consideration and advice. 

The convening authority may not refer a charge to a general court-martial for 

trial unless he has found that the charge alleges an ofl'ense under the code and 

is warranted by evidence indicated in the report of investigation (Art. 34(a) ). 

In those cases in ~vhich the Secretary concerned is the convening authority, the 
SUBMISSION OF AND ACTION UPON CHARGES B 35c 

appropriate Judge Advocate General shall act as the staff judge advocate or 

legal officer. In any case in which the proceedings have been terminated by 

declaration of a mistrial, the convening authority, before directing further 

trial by general court-martial, will again refer the charges to his staff judge 

advocate or legal officer for consideration and advice. See 56e (3). 

Subject to the provisions of this paragraph (35), reference to a staff juclge 

advocate or legal officer will be made ancl his itdvice submitted as provided i11 

35c. The convening authority shall at all times communicate directly and 

personally with his staff judge advocate or legal officer in matters relating to the 

administration of military justice. See Article 6(b). No person who has acted 

as investigating officer, military judge, or member of the court, prosecution, or 

tlefense in any case lnay later act as staff' judge advocate or legal officer i11 the 

same case. See Article 6 (c). 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 resp,ect to whether there has been substantial 

compliance with the provisions of Article 32, \vhether each specification alleges 

an offense under the code, and whether the allegation of each offense is warranted by evidence indicated in the report of investigation. The advice should 

include, as appropriate, a discussion of the circuinstances and available evidence, significant mitig'ating :~nd e~t~ll~li~tillg factors, and any prior recommendations for disposition of the case. It shall also include a signed 

recommendation of the action to be taken by the convening authority. The 

recommendation will accompany the charges if they are referred for trial. 
Chapter VIII 

CONVENING OF COURTS-MARTIAL 

CONVENING ORDERS--CHANGES IN PERSONNELCOMMAND RELATIONSHIP 

WITH COURT 

36. CONVENING ORDERS. a. General. See 4 to 6, inciusive, for various 

matters relating to the convening of courts-martial including the detail of a 

military judge, and the detail of trial counsel, defense counsel, and their assistants. It may be inferred that personnel detailed to court-martial duty are on 

active duty with an armed force. .See Article 25. 

b. Form and content. A court-martial is created by a convening order 

issued by the convening authority. The convening order designates the kind of 

court, the place and time it is to meet, lists the members of the court, and, when 

appropriate, the military judge and the members of the prosecution and defense. 

It should designate no more members than those who are expected to be present 

for the trial of cases referred to the court which it convenes. The qualifications 

of the inilibaary judge under Article 26 and of the members of the prosecutibn 

and defense under Article 27 are shown in the convening order. Unless otherwise provided by regulations of the Secratary concerned, the convening order 

shall also show that the certified legal personnel (Ad. 26 (b) and Art. 27(b) ) 

have previously taken a prescribed oath to perform their duties faithfnlly (Art. 

42 (a)).See chapter XXII as to oaths generally. If enlisted persons are detailed 

as members of the court, the unit-company, squadron, ship's crew, or corresponding body-of which each is a member is shown (4b; Art. 25 (c) ). The convening order may contain a provision for the withdrawal of cases from other 

courts-martial and referral of those cases to the new court (56) ;it should contain no reference as to whether a reporter or interpreter is authorized. See 

appendix 4 for forms of convening orders. 

c. Selection of personnel. (1) General. Courts-martial are ordinarily 

composed of personnel of the coilvening authority's command. With respect to 

utilizing personnel of other.coinmands or other nnned forces, see 4fand g. If 

his subordinate commands are separated geoo.~~aphically, the convening author- b ity may convene a court for each locality, using personnel froni the area where 

the court is to sit. When a general court-martial is to be, or has been, convened to sit at a post, camp, station, or subordinate command located at a 

distance from the officer exercising general court-martial jurisdiction, and the 

personnel of the court are selected froin that post, camp, station, or subordinate 

command, the commander of the installation or subordinate comnland shonld 

transmit timely recominendatioiis 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 detailed. 
137b CHAPTER Vlll 

(2) EnZGted members. When charges against an enlisted person have 

been referred to a general or special court-martial to which enlisted members 

have not been detailed, the accused may request that enlisted persons serve on 

the court (61h, j; Art. 25 (c) ).Such a request should be made in writing before 

the conclusion of any Article 39(a) session called by the military judge prior 

to assembly, and must be made before the court is assembled for the trial of the 

accused. When a request is made, the convening authority shall : 

(a) Detail 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 mill be enlisted persons ;or 

(6) Withdraw the charges from the court to which they were originally referred and refer them to a court which includes the required percentage 

of eligible enlisted persons ;or 

(c) Advise the court before which the charges are 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 (37b), it is within the discretion of the convening authority to 

make changes in the composition of courts-martial convened by him. For 

instance, he may detail new members to a court in lieu of, or in addition to, 

the members of the original court; or he may detail a new military judge, trial 

counsel, or defense counsel in lieu of the personnel designated to perform those 

respective duties by the original convening order. When practicable, the convening authority should change the composition of courts-martial from time 

to time to provide the maximum opportunity for eligible personnel to gain 

experience in the administration of military justice. 

b. Exceptions. No member of a general or special court-martial may be 

absent or excused after the court has been assembled for the trial of the accused 

except for physical disability or as a result of a challenge or by order of the 

convening authority for good cause (Art. 29 (a) ). Good cause contemplates 

a critical situation such as emergency leave or military exigencies, as distinguished from the normal conditions of military life. The determination of 

facts which constitute good cause for the excuse from attendance or the relief 

of a member rests within the discretion of the convening authority. The record 

of trial should detail the basis for absence or relief of any member after 

assembly and affirmatively establish that the absence or relief falls within 

the provisions of Article 29 (a). The convening authority may not detail additional members to a general or special court-martial after the court has been 

assembled unless the court is reduced below a quorum or for other good cause. 

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 importallt proceedings were held. 


See 410 for procedure when a member is absent. 

CONVENING OF COURTS-MARTIAL 7 38d 

c. Manner in which effected. (1) Chunges in composition. Changes in the 

composition of a court-martial, such as changes which involve the detail of new 

personnel to a court or the relief of a member, are usually accomplished by the 

promulgation of formal written orders amending the original convening order. 

If it is necessary to make a change by oral order, message, or signal, the oral 

order, message, or signal should be confirmed by written orders. For forms of 

amending orders, see appendix 4. Amendments of the original convening order 

should be kept to a minimum. To avoid making a number of separate changes 

by way of amendment, it is better practice to convene a new court. If trial 

proceedings have not begun, any case pending before the old court may be 

withdrawn from it and referred to the new court subject to the limitatiohs in 56. 

In convening a new court, the old court should not be dissolved, nor the order 

convening the old court rescinded or revoked, as it may be necessary to reassemble the old court for revision proceedings. 

(2) Excusing personnel. 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 do this by oral order, message, or signal 

and need not confirm the action by a written order. See 41c, 446 and c, and 

466 and c. 

38. COMMAND RELATIONSHIP WITH COURT. a. General. Convening authorities and other commanding officers are expressly forbidden to 

censure, reprimand, or admonish a court or any member, military judge, or 

counsel thereof, with respect 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 

proceedings. No person subject to the code may attempt to coeree 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 tin 

any case or the action of any other convening, approving or reviewing authority 

with respect to their judicial acts (Art. 37). See also Article 98. 

b. Exceptions. (1) Imtructiom. The provisions of 38a do not prohibit 

general instructional or informational courses in military justice if such courses 

are designed solely for the purpose of instructing members of a command in 

the substantive and procedural aspects of courts-martial. 

(2) Cowrt statements. The provisions of 38a do not prohibit statements 

and instructions given in open court by the military judge, president of a 

special court-martial witho~~t a military judge, or co~~nsel. 

c. Evaluation of member. In the preparation of an effectiveness, fitness 

or efficiency report or any ,other report or document used in whole 01-in part for 

the purpose of determining whether a member of the armed forces is qualified 

to be advanced in grade, or in determining the assignment or transfer of a 

member of the armed forces, or in determining whether a member of the armed 

forces should be retained on active duty, no person subject to the code may 

consider or evaluate the performance of duty of any such member as a member 

of ,a conrt-martial. 

d. Evaluation of counsel. In the preparation of an effectiveness, fitness 

or efficiency report or any other report or document used in whole or in part 

for the purpose of determining whether a member of the armed forces is qualified 
U 38e CHAPTER Vlll 

to be advanced in grade, or in determining the assignment or transfer of a 

member of the armed forces, or in determinirlg whether a member of the armed 

forces should be retained on active duty, no person subject to the code may give 

a less favmable rating or evalaution of any defense counsel because of the zeal 

with which such counsel represented any accused before a court-martial. See 43. 

e. Evaluation of militarg judge. (1) General courts-martial. Unless the 

court-martial was convened by the President or the Secretary concerned, 

neither the convening authority nor any member of his staff shall prepare or 

review any report concerning the effectiveness, fitness, or efficiency of the military judge detailed to a general court-martial, which relates to his performance 

of duty as a militarg judge. 

(2) Special courts-martial. The convening authority shall not prepare 

or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to a special court-martial which relates to his performance 

of duty as a military judge. When the military judge is normally rated or his 

report is reviewed by the conveiling authority, the manner in which such military 

judge will be rated or evalauted upon'his perform.ance of duty as a military 

judge may be as prescribed in regulations of the Secretary concerned. These 

secretarial regulations will insure the absence of any command influence in the 

rating or evaluation of the military judge's judicial performance. See 38a 

and Article 37. 
Chapter ZX 

PERSONNEL OF COURTS-MARTIAL 

MILITARY JUDGE-PRESIDENT-MEMBERSCOUNSEL; GENERAL PROVISIONS 

SUSPENSION OF COUNSEL-TRIAL COUNSEL-ASSISTANT TRIAL COUNSlELDEFENSE COUNSELASSISTANT DEFENSE COUNSELCOUNSEL FOR THE 

ACCUSED-REPORTERINTERPRETER-GUARDS, CLERKS, AND ORDERLIES 

39. MILTTARY JUDGE. a. Selection. See 4e for qualifications and assignment of the military judge. 

b. Duties. (1) General. The military judge shall preside over each open 

session of the court-martial to which he has been detailed. He takes appropriate 

action in the open sessions of the court in order that the proceedlllgs may be 

conducted in a dignified, military manner. He is responsible for the fair and 

orderly conduct of the proceedings in accordance with law. During the trial, he 

rules on all interlocutory questions including challenges (57), determines if a 

deposition may be taken while the case is being heard (117b), recesses or adjourns the court as appropriate, and instrucks the court on questions of law and 

procedure which may arise. Any such ruling made by the military judge upon 

any question of law or any interlocutory question other than the factual issue 

of mental responsibility of the accused is ha1 and constitutes the ruling of the 

court. He may, however, change his ruling at any time during the trial. 

(2) Article 39(a) sessions. The military judge may call the count into 

session without the presence of the members of the court pursuant to Article 

39 (a) for the purpose of hearing and determining interlocutory motions raising 

defenses and objections, ruling on other matters that may Iegally be ruled on by 

the military judge, and performing other procedural functions which do not 

require the presence of court members. He may also, if permitted by regulations 

of the Secretary concerned, hold the arraignment, receive pleas, and enter findings of guilty upon an accepted plea of guilty. See 534 70b and appendix 8a. 

The military judge prescribes the uniform to be worn at Article 39 (a) sessions. 

(3) Assembling with members. The military judge should set the tiine 

for assembly of the court after consultation with the senior member. The military judge is not a member of the court and does not vote with the members of 

the court on matters properly referred to the court for decision. Before the court 

closes to vote on the findings, he instructs it as provided in 73. After the court 

has finally voted on the findings, he may, at the request of the court, assist it in 

open court so that it may put the findings in proper form (74b; Art. 39). Before 

the court closes to vote on the sentence, he must give appropriate ii~structions 

including the maximum authorized punishment which it,may impose (76b and 

81cl). 

(4) Interference in conduct of t&Z. The military judge ]nay properly 

intervene in a trial of a case to prevent unnecessary waste of tiine or to clear up 
ll39e CHAPTER IX 

some obscurity. He should bear in mind, however, 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. 

Consultation between the military judge and counsel in court is often 

necessary, but the military judge should avoid controversies which are supt to 

obscure the issues before the court. In maddressing counsel, the accused, witnesses, or the court members, 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. 

(5) Court-martial cmposed of military judge alone (Art. 16). The 

military judge alone may assemble as a court in the presence of the accused, the 

defense counsel, and the trial counsel as indicated in 53d. The military judge 

of such a court-martial shall determine all questions of law and fact arising 

during the proceedings, make findings of guilt or innocence, and, if the accused is convicted, adjudge an appropriate sentence. He shall make a general 

finding and shall in addition find the facts specially when requested. If an 

opinion or memorandum of decision is filed, it will be sufficient if the findings 

of fact appear therein (744. 

c. Record. All proceedings involving rulings or instructions made or 

given by the military judge during the course of a trial shall be made a part 

of the record. All rulings and instructions shall be made or given in open 

session in the presence of the accused and the counsel for the prosecution and 

defense, but the rulings which, in the discretion of the military judge, should not 

be brought to the attention of the members (57g(2)),if any, need not be made 

in their presence. See Article 39. A conference between the military judge and 

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 58a as to postponement of 

meeting of the court for a trial. See also 57g (2) for rules governing proceedings 

held outside the presence of members of a court-martial with respect to preliminary evidence, offers of proof, and arguments as to the admissibility of 

offered evidence, and 73d for rules governing the preparation of instructions by 

the military judge. 

d. Absence of military judge. In any case in which a military judge has 

been detailed to the court, no proceedings may be held in his absence. When 

the military judge is presiding at a trial with members, he must be present at all 

times during the trial of the case except when the court is closed to deliberate 

or vote (Art. 39). When the military judge is absent from any open session of 

the court during the trial of a case, the court will adjourn until either the military judge is present or a new military judge is regularly detailed and is present. 

In appropriate cases, the court will report the absence of the military judge to 

the convening authority. If, before trial, it appears to a military judge that he 

should not sit on the court, either at all or in a articular case, for reasons 

enumerated in 62f or for other reasons. lie mill bring the matter to the attention 

of the convening authority. 

e. New military judge. The military judge may not be replaced during 

the progress of a trial except for physical disability. as a result of challenge, or 
PERSONNEL OF COURTS-MARTIAL V40b 

for other good cause. As in 376, good cause contemplates a critical situation 

such as emergency leave or military exigencies, as distinguished from the 

normal conditions of military life. The record of trial should show the facts 

which constitute good cause. If a new military judge is detailed to the court in 

the course of a trial, an opportunity to challenge him for cause having been 

given, the trial may proceed as if no evidence had previously been introduced, 

unless a verbatim record of the evidence previously introduced or a stipulation 

thereof has been read and shown to him in the presence of the accused and 

counsel for both sides. An accused who was being tried by the military judge 

alone, must once again be given the opportunity to request trial by the new 

military judge alone. If the accused does not so request or if the new military 

judge does not approve the request, the accused should be tried by a court composed of a military judge and members. See 80b for the procedure to be 

followed when a new military judge is present at revision proceedings. 

f. Authentication of record. The military judge who was present at the 

conclusion of the proceedings in a case will authenticate the record of trial. 

See 82f. 

40. PRESIDENT.a. General. The senior in rank among lthe members 

det!ailed 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 detailed 

to the court, ispresident of the court for the trial of that case. 

b. Duties. (1) Cowrt-mrtiaZ with a military judge. The president of a 

court-martial with a military judge detailed has the duties, powers, and 

privileges of members in general. He has the following additional powers and 

duties : 

(a) He consults with the military judge as to the time of assembly 

and prescribes the uniform to be worn at sessions attended by the members. 

(6) If authorized by regulations of the Secretary concerned, he shall 

administer oaths fo such personnel not previously sworn as those regulitions may prescribe. See chapter XXII as to oaths generally. 

(c) He presides over closed sessions of the court and speaks for the 

court in announcing the findings and sentence and the results of any vote 

upon a matker properly presented to the court members fbr decision. 

(d) He speaks for the members of the court in conferring with, or in 

requesting instructions from, the military judge upon any question of law 

or procedure; but, except for his right as a member to object to certain 

rulings of the milibary judge (576, 118). he shall not interfere with those 

rulings of the military judge which affect the legality of the proceedings. 

(2) Specbl cou~t-martial witkmt a militmy judge. The president of a 

special court-martial without a military judge is responsible for the fair and 

orderly conduct of the proceedings in accordance wikh law in dl cases referred 

to the court. After consultation with trial counsel, he sets the time of trial. As the 

presiding officer of the court, he bakes appropriate aation to preserve order in 

the open sessions of the court in order that the proceedings may be wnducted 

in a dignified, military manner. He also performs, as applicable, the duties 

prescribed for the president of a.court-mal*tial with a.military judge (406 (1)) . In addition, he rules upon all questions of law and all interlocutory questioils 

except chlallenges (57). He recesses or adjourns the court as appropriate. His 
11 41c CHAPTER IX 

ruling upon any question of law other than a motion for a finding of not guilty 

is final and oonstitutes the ruling of the court. On a motion for a finding of not 

guilty and any interlocutory question of fact, he rules subject to the objection 

of any member (57c). He may, however, change his ruling at any time during 

the trial. Before the court closes to vote on the findings, he gives the court those 

instructions which are required by the law in the light of the circumstances of 

the case. See 73a, b. Before the court closes to vote upon the sentence, he must 

give appropriate instruotions, including the maximum authorized punishment 

which may be imposed (76b and 81d). He will not inform the aourt of any 

punishment in excess thereof which could be imposed by a different court or, in 

case of a rehearing or a new other trial, which could have been imposed had 

the prior proceedings not taken place. See Article 63(b). With respect to the 

conduct of trials, he will be guided by the principles outlined in 396 (4). 

c. Authentication of record. At a special court-martial without a military judge the senior member of the court who was present at the conclusion of 

the proceedings will authenticate the record of trial as president. See 83 and 

appendix 96 (3). 

41. MEMBERS. a. General. This paragraph is inapplicable to trials by 

the military judge alone and to Article 39(a) sessions which are conduoted 

without the presence of the members. 

The qualifications of members of courts-martial are discussed in 4a to d 

inclusive. 

b. 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 these matters than any other member. In this coimection, see 57f, 62h(3), 74d, and 766 (2). Members will be dignified and attentive. Members should not fraternize with the military judge, 

witnesses, or trial personnel during the course of the trial and should avoid any 

conduct which may create any appearance of prejudice to the accused. Members should not discuss the case with nonmembers or with other members, until 

it is submitted to them for final decision. Although a court has no power to 

punish its members, improper conduct by a member, such as a refusal or failure 

to vote or properly to discharge any other duty under his oath or otherwise, may 

be a military offense. 

c. Absence of members. No member of a general or special court-martial 

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 meeting of the court for the trial of a case, it appears to a member 

that he should not sit on the court 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 ~vho is, 

or has reasoil to believe that he will be, absent 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 dbsence and, if it occurs after the 
PERSONNELOF COURTS-MARTIAL n 4it 

assembly of the court for the trial of the accused, will report his findings to the 

court (41d (4) ). d. Effect of absence. (1) General. When less than a quorum, thah is, 

the minimum number of members required by Anticle 16, is present, the court 

may not proceed with a trial. Less than a quorum may adjourn until a prescribed time. When a quorum is present at a special court-martial without a 

military judge and one member is challenged, the remaining members may pass 

on the challenge. 

(2) EnZisted members. When, pursuant to Article 25 (c), an enlisted person requests participation of enlisted members in his trial by general or special 

court-martial, the court may not proceed with his trial unless at least one-third 

of the members actually sitting on the court at all sessions at which the members 

are present after assembly are enlisted members, or the convening authority has 

directed that the court assemble without enlisted members. See 4c and 36c (2). 

(3) Before assembly. 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 before the assembly of the court for the trial of the accused mill not prevent the oourt from proceeding with the trial if a quorum is 

present. The trial counsel will report any unauthorized absence of a member 

to the convening authority. 

(4) After msembZy. If a member who was present at the assembly of 

the wurt for the trial of the amused 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 determining 

whether a member is absent because of physical disability the military judge 

or president of a special wurt-martial without a military judge may accept 

the statement of the trial counsel as to the results of his informal inquiry into 

the cause of absence (41c) or may require the trial counsel to procure and pGsent 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 military judge or the president sf a special 

court-martial without a military judge may accept the statement of the trial 

counsel that he has been advised by oral order, message, or signal that the 

member has been excused by the convening authority from further attendance in 

the case. The trial counsel shall include in his statement the reason for the 

excusal (37~). 

e. New member of general court-martial. When a member who was 

previously absent from, or who has been newly detailed to, a general courtmartial has been sworn (or it has been ascertained as a matter of record that 

he has been previously sworn in accordance with regulations of the Secretary 

ooncerned), an opportunity to challenge him having been given, the trial may 

proceed after the recorded evidence previously introduced in open sassion has 

hen read to him in the presence of the military judge, the accused, counsel, aild 

the other members of the c.ourt. See Article 29 (b). 

f. New member of special court-martial. When a member who was 

previously absent from, or who has been newly detailed to, a special courtma,rtial has been swvoril (or it has been ascertained as n matter of record that 
11 43 CHAPTER IX 

he has been previously sworn in accordance with regulations of the Secretary 

concerned), an opportunity to challenge him having been given, the trial shall 

proceed as if no evidence had previously been introduced, unless a verbatim 

record of the evidence previously introduced is read, or a stipulation thereof is 

read to him, in the presence of the military judge, if any, the accused, counsel, 

and the other members of the court. SeeArticle 29 (c). 

42. COUNSEL;GENERAL PROVISIONS. a. Definition of terms. The 

term 'Lcounsel" as used in this manual includes, unless otherwise indicated by 

the context, the detailed 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 mentioned, it refers 

to the detailed trial counsel of a general or special court-martial, including, 

unless otherwise indicated by the context, any assistant trial counsel. Whenever the terms "defense counsel" or "counsel for the accused" are used, they 

include, unless otherwise indicated by the context, the detailed defense counsel, 

any detailed assistant defense counsel, and any individual counsel. The term 

"individual counsel" refers to military counsel selected by the accused and to 

civilian counsel provided by him. 

b. General rules of conduct. In performing their duties before courtsmartial, counsel should maintain a courteous and respectful attitude toward the 

military judge, the members of the court, and opposing counsel, and should treat 

adverse witnesses and the accused with fairness and due considerat.ion. Personal 

colloquies between counsel which cause delay or promote unseemly wrangling 

should 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 official directive 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 any 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 without the consent of 

opposing counsel or the accused. See 44h as to relations between the prosecution 

and the accused. In interviewing a witness, counsel should scrupulously avoid 

any suggestion calculated to induce the witness to suppress or deviate from the 

truth when appearing as a witness at the trial. See Article 31. 

43. SUSPENSION OF COUNSEL. Rules defining professional or personal misconduct, or other reasonable grounds, which disqualify a person, either 

temporarily or indefinitely, from acting as counsel before courts-martial may be 

announced by the Judge Advocates General of the armed forces in appropriate 

regulations. These regulations shall provide for notice and opportunity to be 

heard and will also establish procedures to provide for the suspension of persons 

from acting as counsel before courts-martial. Appropriate action may be taken 
PERSONNEL OF COURTS-MARTIAL n 44f 

by a convening authority, in accordance with the 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. 

When any person is suspended as counsel before courts-martial by the 

Judge Advocate General of any armed force, the Judge Advocate General taking that action will notify the Judge Advocates General of the other armed 

forces and this suspension will be good cause for suspension of the person from 

acting as counsel before courts-martial of the other armed forces, without 

further hearing. Also, disbarment by the Court of Military Appeals will be good 

cause for suspension from acting as counsel before courts-martial without 

further hearing. 

44. TRIAL COUNSEL. a. Selection. See 6 for qualifications of trial 

counsel. 

b. Disqualification. When it appears to the court or to the trial counsel 

that any member ,of the prosecution named in the convening order is for any 

reason, including misconduct, bias, prejudice, hostility, previous connection 

with a particular case, or lack of legal qualifications, if required, disqualified or 

unable properly and promptly to perform his duties, a report of the facts will 

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, for example, preparation of another case, 

the convening authority, the military judge, or the president of a special courtmartial without a military judge may excuse from attendance during a trial or 

trials those personnel of the prosecution whose attendance 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. 38 (a)).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 the order he deems 

expedient. He will be given ample opportunity to prepare properly the prosecution of each case. 

e. Reports of result of trial. Upon final adjournment of the court in n 

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 confinement, to the commanding officer to whose command 

the place of confinement is subject. Immediate action will be taken to release 

the accused if the trial results in an acquittal or in a sentence not involving 

confinement. See 21d and 22 in this respect. 

f. Duties before trial. (1) Examinatio~iof file. He will report to thc 

convening authority any subst,zntial irregularity in the order coi~vening the 

court or in the charges or accompanying papers. If the membership of the court 

to which the case is referred is reduced below a quorum for any reason or if the 
11 44f CHAPTER IX 

trial counsel has good reason to anticipate such a reduction, he will report the 

facts through appropriate channels to the convening authority. See 36c (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) Notification of personnel; witnesses. He will give timely oral or 

written notice to the members of the court and to all others concerned, including 

any officer whose duty it is to see that the accused attends the court, of the date, 

hour, and exact place of any illeeting of the court. He may include in this notice 

such other matter as the military judge or president may direct, such as a statement of the uniform to be worn. Before 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 expected to give is material 

and necessary and whether a deposition will properly answer the purpose and is 

praoticable. See 117 and Article 49. The trial counsel does not, however, have 

authority to determine whether witnesses requested by the defense will be required to attend. If he disagrees with the defense counsel as to whether the 

attendance of a witness is necessary, he will report the matter to the convening 

authority in the matter prescribed in 115a. 

(3) Preparing for trial. 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 military judge, 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, and that he had the requisite criminal intent at the time, except to 

the extent that such a burden is relieved by a plea of guilty. When the question 

of jurisdiction of the court over the accused is placed in issue, the prosecution 

also has the burden of proving that jurisdiction exists, without regard to the 

accused's pleas. Whatever the defense may be, the burden of proof in each of 

these instances never changes. Proper prepar&tion 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 evidence will be introduced at the 

trial, and requires a determination of the order in which the evidence will be introduced. I11general, evidence should be presented in the sequence of events as 

nearly as practicable, and when several offenses are charged, especially if unrelated, the evidence should be directed to the development of their proof in 

the order charged. If evidence is to be presented out of proper sequence to suit 

the convenience of witnesses or for other reasons, the trial coni~sel may ill\-ite 

the attention of the court to the anticipated deviation. 

(4) Legal research. If he finds that the provisions of this manual do not 

clearly settle a question likely to arise at the trial, he should endeavor to secure 

for use at the trial al~thorities to sustain his contentions. such as pertinent de- 
PERSONNEL OF COURTS-MARTIAL II 44g 

cisions of the courts or authoritative military precedents. To secure these authorities, he may communicate with the convening authority. 

(5) Reporting inadsisability of trial. 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 were referred for trial. For example, this action would be appropriate 

when the trial counsel discovers that there has not been a substantial compliance 

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 Prom him. 

g. Duties during trial. (1) General. He executes all orders of the court. 

Under the direction 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). 

He should respectfully call the attention of the court 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. He will not 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, an 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, for example, in his closing argument or in an argument on a motion or on 

the admissibility of evidence, he should not give the court his opinion upon anx 

point of law arising during the trial except in court when it is requested by the 

military judge or the president of a special court-martial without a military 

judge. It is improper for him to assert before the court his personal belief as 

to the guilt or innocence of the accused. When he addresses the court, he will 

rise. 

(2) Presentation of the case. The trial counsel may make an opening 

statement-that is, a brief statement of the issues to be tried and what he expects 

to prove-but he 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 prosecution, but in exceptional cases the military judge, or the president of a special 

court-martial without a military judge, in his discretion may permit like statements to be made at later stages of the proceedings. 

On behalf of the prosecution, he conducts the direct and redirect examination of the witnesses for the prosecution and the cross and recross-examination of the witnesses for the defense. He will, unless the military judge, or the 

president of a special court-martial without a military judge, otherwise directs, 

conduct the examination for the court of any witnesses called by the court. 
745b CHAPTER IX 

On behalf of the prosecution, he may cross-examine a witness called by the 

court if the witness has not previously testified for the prosecution or defense 

(see 1536 (1) ), or if the witness has so testified, as to #any new matter elicited 

upon recall by the court (see 1496 (3) ). See 72 as to closing arguments. 

h. Relations with the accused 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 that the copy has been so served. Except as 

otherwise directed by the convening authority (see, for example, 15171 (I) and 

(3)), 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 convening the court and all amending orders. 

Before trial, he should advise the defense of the probable witnesses to be 

called by the prosecution, 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 detailed 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) (Disposition-Delivery to accused). 

i. Duties after trial. See 82,83, and appendix 9b for rules and procedures 

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 convening order as an assistant trial counsel of a general courtmartial may, under the direction of the trial counsel or when he is qualified 

to be a trial counsel as required by Article 27(b), perform any duty imposed 

by law, regulation, or the custom of the service upon the trial counsel of the 

court. See Article 38 (d). He will perform those duties in connection with trials 

which the trial counsel may designate. However, an assistant trial counsel 

who is not qualified to be a trial counsel as required by Article 27(b) may not 

perform any of the duties of the trial counsel before the court in a general courtmartial case. Except when the contrary affirmatively appears, 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. 

b. Special court-martial. Unless he is disqualified by reason of prior participation in the 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 38(d). He will perform those duties in connection with trials which 

the trial counsel may designate. 
PERSONNEL OF COURTS-MARTIAL 11 48a 

46. DEFENSE COUNSEL. a. Selection. See 6 for qualifications of def ense counsel. 

b. Disqualification.A report of facts will be made at once to the convening 

authority for his appropriate action when it appears to the court or to the 

defense counsel that any member of the defense named in the convening order 

is for any reason, including unfitness, bias, prejudice, hostility toward the 

accused, lack of legal qualifications if required, or previous connection with 

the same case, unable properly and promptly to perform his duties in any 

case. 

c. Absence. For a proper reason, for example, preparation of another case, 

the military judge, or the president of a special ,court-martial without a military judge, shall, with the express consent of the accused, excuse from attendance during a trial those personnel of the defense whose attendance will not 

be required. See Article 38 (b) . 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, civilian 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 detailed to defend him at 

the trial, explain his general duties, and advise him of his right to select 

individual counsel, civilian or military, of his own choice pursuant to Article 

38(b). 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 detail or retention of any 

individual counsel. 

47. ASSISTANT DEFENSE COUNSEL. Unless he is disqualified by 

reason of prior participation in the case (6a; Art. 27(a)), any person named 

in the order as an assistant defense counsel of a general or special court-martial 

may, when he is qualified to be the defense counsel as required by Article 27, 

perform any duty imposed by law, regulations, or custom of the service upon 

counsel for the accused. See Article 38 (e) .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. However, an assistant defense counsel who is 

not qualified to be defense counsel as required by Article 27 may not perform 

any of the duties of the defense counsel before the court in a general or special 

court-martial case. Except when the contrary affirmatively appears, all duties 

performed outside of court by the assistant defense counsel shall be deemed to 

have been performed under the direction of the counsel in charge of the 

defense. 

48. COUNSEL FOR THE ACCUSED. a Statutory right to counsel 

of his own choice. The accused has the right to be represented in his defense 

before a general or special co~~rt-martial by cix~ilian counsel if provided by him, 
ll48b CHAPTER IX 

or by the military counsel of his own selection if reasonably available, or by the 

defense counsel detailed under Article 2'1. Should the accused have counsel of his 

own selection, the defense counsel and any assistant defense counsel who were 

detailed, shall, if the accused so desires, act as his associate counsel; otherwise 

they shall be excused by the military judge or by the president of a special 

court-martial without a military judge (Art. 38(b)). Civilian counsel will not 

be provided at the expense of the United States. 

Only a person qualified under Article 27(b) or otherwise qualified as a 

lawyer may act as individual counsel or represent an accused before a general 

court-martial or a special court-martial at which a bad-conduct discharge may 

be adjudged. Even at his own insistence after full advice an accused may not 

be represented by a person who does not fall within one of these catewories. An b accused may, if he desires, conduct his own defense without assistance of 

counsel. In such a case, the military judge or the president of a special courtmartial without a military judge (15b),shall advise him of his right to be 

represented by qualified counsel. In any case, whether represented by counsel 

or by himself, an accused may have a nonlawyer present and seated at the 

counsel table and may consult with him, subject to the discretion of the military 

judge or the president of a special court-martial without a military judge. 

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 a court-martial or before any of the appellate 

agencies concerned with the administration of justice under the code. 

b. Detail of individual military 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, but it is usually forwarded by the defense 

counsel to the convening authority. The convening authority will take the 

following action : 

(1) If the requested counsel is within his immediate command and is 

reasonably available, he will make the detail and order any necessary 

travel. If he determines that the requested counsel is not reasonably available, he will so advise the accused. 

(2) If the requested counsel is iiot a member of the command of the 

convening authority, the convening authority will forward the request for 

a determination of availability to the commanding officer or head of the 

organization, activity, or agency wit11 which the requested counsel is 

on duty. 

When a determination is made within a military department that requested 

counsel is not available, unless made at departmental level or by a commanding 

officer or supervisor immediately subordinate to the departmental level, that 

determination is subject to appeal to the requested counsel's next higher com- 

~nandiiig officer or level of supervision. Appeals may iiot be made which require 

action at departmental or higher level. The accused will be promptly notified 

of any decision on a request or an appeal. A pending appeal is ordinarily a 

proper ground for postponement or continuance of the trial. 74Then s~ determination has been made that requested military counsel is iiot reasoilably 

available 2nd the case is subsequeiitly tried by a special or aeiieral court-martial, 9 the application of the accused for that couiisel and the actions of the convening 

authority and, if applicable, of other authorities, together wit11 the reasons for 
PERSONNEL OF COURTS-MARTIAL1 ll48g 

the determination, shall be made a matter of record and be included with the 

record of trial. 

A person who has acted as a member of the prosecution in the same case 

is not available for detail as individual counsel. See 6a and Article 27. A military 

person who has been made available to act as individual counsel will, so far 

as is practicable, be relieved of all other duties which may interfere 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 counsel for a defendant before a civilian 

court in a criminal case. He will guard 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 secrets 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 chicane. 

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 

ill the conduct of their defense which would, in his opinion, warrant a request 

on the part of any of the accused for other counsel. 

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 154b (Stipulations). 

e. Request for trial by the military judge alone. If the case has been 

referred to a court to which a military judge has been detailed, he will advise 

the accused that, prior to assembly, the accused may request that he be tried 

by the military judge alone. See Articles 16 and 18. If the accused desires to 

request trial by the military judge alone, the defense counsel will prepare a 

written request to be signed by the accused and himself and forward it through 

the trial counsel to the military judge for decision. Sre appendix Be. 

f. Request for enlisted members for the court. Before the trial, he mill 

also advise an accused enlisted person of his right to have enlisted persons as 

members of the murt. See Article 25 (c). If the accused elects to exercise this 

right, the defense counsel will prepare the written request required by Article 

25(c), 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. 

g. Consultation with the accused. ~e will explain to the accused the 

meaning and effect of a plea of guilty and his right to introduce evidence after 

such a 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 exteiiuatioll and iliitigatiol~ 

(750; app. 8a) ; and his right to assert any proper defense or objection, such as 

the statute of limitations in an appropriate case (680, 74h).These exl~lanatioiis 
f48k CHAPTER IX 

will be made regardless of the intentions of the accused as to testifying or as 

to how he will plead. 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. 

h. 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 essential elements of each offense 

charged and of the pertinent rules 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 might be offered by the prosecution. If practicable, he should plan 

to introduce the defense evidence in the sequence of events and to defend against 

the alleged offenses in the order charged. When he addresses the court, he will 

rise. 

The provisions of 44f (4) apply equally to counsel for the defense. 

i. 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 military judge, or the 

president of special court-martial without a military judge, as a ma2ter of discretion may 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 recross-examination of prosecution witnesses and of witnesses called by the court. 

See 72 as to closing arguments. 

j. Absence of accused. When the trial proceeds after the accused has 

voluntarily absented himself without authority (ll), the counsel should continue to represent the accused. 

k. Duties after trial. (1) Clemency petition. At the close of the trial or as 

soon thereafter as practicable, if the accused is found guilty, the defense counsel 

may 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 will secure the signatures of those members of the court 

who have indicated their willingness to sign the recommendation, and mill submit it to the trial counsel for attachment to the record of trial. See 77a. 

(2) Appellate 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 considers appropriate (82e; Art. 38 (c) ) . (3) Advising acczued of apl~llate rights. If the accusecl is convicted, the 

defense counsel will advise him in detail of his appellate rights. For example, in 

ail appropriate case, he shall advise him of his right to be represented before the 

Court of Military Review and, when appropriate, he will assist the accused in 

requesting appellate representation by preparing a letter for the signature of the 

accused, addressed to the appropriate authority, or by other means. Although 
PERSONNEL OF COURTS-MARTIAL U 49b 

direct wmmunication 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 notice of the action of the convening authority (84), or in 

special coui-t-martial cases in which action is taken by a separate officer exercising general court-martial authority (94a(3)), from notice of the action of the 

latter, in which to forward a request that he be represented by appellate counsel 

before a Court of Military Review. Such a request should be made conditional 

upon the record being referred to a Court of Military Review under Article 66 

or Article 69. The accused should be advised that his failure to forward within 

10 days a request for appellate representation may be regarded as a waiver of 

his right to appellate counsel before the Court of Military Review, if that court 

has taken its final action in the case before receipt of such a request. The defense 

wunsel 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 connection. 

(4) Deferment of confinement. If the accused is convicted and his sentence includes confinement at hard labor, the defense counsel will advise him 

of his right to make application for deferment of service of the confinement in 

accordance with Article 57 (d) .See 88f. 

(5) Examination of record. See 82e for duties in connection with examination of the record of trial. 

49. REPORTER. a. Authority to detail or employ. See 7 and Article 28 

for the authority for, and the manner of detailing or employing, reporters 

and 33k as to the manner of directing that a reporter not be used in a special 

court-martial. 

b. Duties. (1) GeneraZ. See Article 39. He shall record the proceedings of 

and testimony taken before courts-martial, courts of inquiry, or military commissions for which he is detailed or employed (Art. 28) and may do this in 

the first instance in longhand, shorthand, or by mechanical or electronic means. 

If a question is raised at the trial as to whether any particular matter is 

included in the term, "proceedings of and testimony taken," the military judge, 

or the president of a special court-martial without a military judge, will determine the question in accordance with applicable law and regulation. It is the 

duty of the reporter to include in the record everything which is said or takes 

place in open sessions, hearings out of the presence of the court members, and 

the repo~~ter will omit no portion of these proceedings from the record. 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. h 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 vill prepare an original and two copies of each record 

and of all documentary exhibits and additional copies of each record and of 

all documentary exhibits received in evidence 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 and copies 
I1 51 CHAPTER IX 

of each record and of all documentary exhibits received in evidence 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; cornpernation. See chapter XXII as to oaths generally. The 

Secretary concerned will provide regulations concerning the form of the oath 

for the reporter, the time and place of the taking thereof, the manner of recording same, and whether the reporter shall take one oath for all cases i11 which 

he performs these duties, or whether he shall take an oath for each particular 

case. The Secretary concerned may prescribe regulations for the payment of 

allowances, expenses, per diem, and compensation of reporters. 

50. INTERPRETER. a. Authority to detail or employ. See Article 28. 

See 7 for the authority for, and manner bf detailing or employing, interpreters 

and 53; for the rule as to the detail or employment of an interpreter for an 

t~ccused 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 forin as when questioning n 

witness not through an interpreter. The interrogator, for example, will ask, 

"What is your name?" rather than state to the interpreter, "Ask the witness 

what 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 kilow what your name is.': 

The Secretary concerned will provide regulations concerning the form of 

the oath for the interpreter, the time and place of the taking thereof, the 

manner of recording same, and whether the interpreter shall take one oath for 

all cases in which he performs these duties, or whether he shall take an oath 

for each particular case. The Secretary concerned may prescribe regulations 

for the payment of allowances, expenses, per diem, and compensation of 

interpreters. 

c. Counter-interpreters. The accused may, at his own - expense, provide 

:L counte'r-interpreter to test the translation of the detailed or employed 

interpreter. See 141. 

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 

g~~ards 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-INTRODUCTION OF EVIDENCE-ACTION WHEN EVIDENCE INDICATES AN OFFENSE 

NOT CHARGED-WITHDRAWAL OF SPECIFICATIONS; MISTRIALS-INTERLOCUTORY QUESTIONS OTHER THAN CHALLENGES-POSTPONEMENTS AND 

CONTINUANCES 

52. REFERENCE TO CONVENING AUTHORITY. When a matter as 

to future proceedings in a trial bg' 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 

chronological 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 i;l\appendices 9 and 10. 

6. 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, the requirement for appropriate instructions in each case cannot 

be met if the military judge, or president of a special court-martial without 

a military judge, simply refers to instructions given to those same court members in another or related case. 

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, make 

an individual request that the membership of the court include enlisted persons, 

if an enlisted accused (4b, 61h), and, if a military judge has been detailed, 

make an individual request for trial by the military judge alone. In a joint or 

common trial, evidence which is admissible against only one or some of the 

joint or several accused may be considered only against the accused concerned. 

For example, see 1406. men 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. (1) Article 39(a) session. At any time after the service of 

charges which have been referred for trial to a court-martial composed of a 

~nilits~ryjudge and members, the militrnry judge may, subject to Article 35, call 

t,he coud into session without t,he presence of the members for the purpose of: 

(a) hearing and determining motions raising defenses or objections 
ll 53d CHAPTER X 

which are capable of determination without trial of &he issues raised by a 

plea of not guilty ; 

(6) hearing and ruling upon any matter which may be ruled upon by 

the military judge, whether or not the matter is appropriate for later consideration or decision by the members of the court ; 

(c) holding the arraignment and receiving the pleas of the accused, if 

permitted by the regulations of the Secretary concerned ;and 

(d) performing any other procedural function which may be performed by the military judge which does not require the presence of the 

members of the court. 

These proceedings are a part of the trial and shall be conducted in the presence of the accused, the defense counsel, and the trial counsel. See 57g(2) and 

73d. Process, including a subpoena, may be issued to compel the attendlance of 

witnesses and the production of evidence. See115. 

The military judge of a court-martial composed of a military judge and 

members should, ordinarily, call the court into session without the attendance of 

members for the purpose of ascertaining, when applicable, the existence of a 

request for trial by military judge alone or a request for enlisted members; disposing of interlocutory matters; hearing defenses and objections; ruling upon 

other matters that may legally be ruled upon by the military judge such as 

admitting evidence; and performing other procedural functions which do not 

require the presence of court members. He may also, if permitted by regulations 

of the Secretary concerned, hold the arraignment, receive pleas, and enter 

findings of guilty upon an accepted plea of guilty. The military judge may call 

the court into one or more Article 39(a) sessions prior to assembly, after assembly, and when directed by the appropriate reviewing authority, subsequent 

to announcement of sentence. 

A typical matter which may be disposed of at; an Article 39 (a) session prior 

to assembly is the decision on the admissibility of a contested statement of the 

accused. An objection by the defense to the admissibility of a statement on the 

ground that it was not voluntary may involve a lengthy hearing before the military judge from which the members of the court are excluded. By ruling 011 this 

question at such a session before the members of the court have assembled, the 

members are not required ito spend considerable time waiting for a decision of 

the military judge. If the military judge sustains the objection, the issue is 

resolved, and the facts and innuendoes surrounding the making of the statemenk 

will not reach the members by inference or otherwise. If the military judge 

determines to admit the statement, the issue of voluirtariness may be presented 

to the full court. 

An Article 39 (a) session ]nay be held after announcement of sentence 

in order to dispose of matters raised by appellate authorities such as questions 

of jurisdiction or speedy trial. For example, if a Court of Military Review 

remands a case for consideration of a speedy trial issue, the military judge may 

cia11 the court into session without members to dispose of the questiion. 

(2) Military judge alone. (a) General. A general .or special court-martial 

to which a military judge has been detailed shall consist fof the military judge 

alone if the accused, before the court is 'assembled, so requests in writing and the 

military judge approves. Before deciding whether to make such a request, the 

accused is entitled to know the identity of the military judge and to consult 
GENERAL PROCEDURAL RULES ll 53d 

with his defense counsel (Article 16). The military judge may hear arguments 

from both trial and defense counsel prior to acting on a request for trial before 

him alone. See appendix 8e for form of request. 

Since a general court-martial composed of a military judge alone does 

not have jurisdiction to try any case which has been referred for trial as capital 

(14a), the accused in such a case has no right bo request trial before the military 

judge alone. 

(6) Request prior to trial. If the accused has requested trial by the 

military judge alone and the military judge has approved the request prior to 

the start of trial, he should (assure himself at the trial, before announcing that 

the court has assembled, that the request was understandingly made by 

the accused. After a request has been approved, it may be ~~ithdrawll bythe 

accused at any time before assembly of the court in the discretion of the millibary 

judge. If the military judge finds that the approved request is defective or allows the accused to withdraw it, he may either adjourn the session or oall the 

court into -Article 39(a) session preparatory to assembly of the court with 

members. If the request was understandingly made and has not been withdrawn, 

the military judge should immediately announce that the court has 'msem'bled. 

See 61g and appendix 86 for procedure. 

(G) Request made at ArticZe 39(a) session. A request for trial by 

the military judge alone, if not made earlier, should be made at any Article 

39 (a) sessilon held prior to assembly. If the military judge has a pending request, 

at an Article 39 (a) session, he will assure himself at the session that the request 

was understandingly made. If the military judge approves the request, he 

should announce that the court is assembled and proceed with the trial of the 

case. If the military judge disapproves the request, he shouId continue with the 

Article 39 (a) proceedings. See appendix 8a for procedure. 

(d) Inquiry prior to msembZy with members. If a request for trial 

by the milibary judge alone has not been made prior to trial or at an Article 

39 (a) session, if any, the military judge, after calling the court to order, should 

give the accused an opportunity to make such a request. If the accused submits a 

request and the military judge approves, the military judge should excuse the 

members from further participation in the case and announce that the court is 

assembled for the trial of the case. If the accused expressly declines to submit a 

request or if the military judge disapproves the request, the trial mill proceed. 

See 61g and appendix 8b for procedure. 

(e) Procedure. The same general procedure shall be used in a trial 

before the military judge alone & is used in a trial before a military judge and 

members. The military judge rules finally on all questions of law and fact in the 

case including the admissibility of evidence and the factual iss~te of the mental 

responsibility of the accused. The military judge shall also determine the 

guilt or innocence of the accused and, when appuopriate, adjudge a sentence. 

The military judge shall make a generial finding and shall in addition find the 

facts specially when requested. See 396 (5), 74i,and appendix 86. 

(3) iYkceBmeous Provisions. The Article 39(a) session and the proceedings before the court composed of the military judge alone, as well as the 

proceedings before the court with members, are all open sessions. Consult a t' loll 

of the court members with counsel or the military judge, shall also take place 

in open session, shall be made a part of the record, and shall be in the presence 
11 53f CHAPTER X 

of the accused, the defense counsel, the trial counsel, and, when a military 

judge is detailed, in the presence of the military judge. See 57g(2) and 73d. 

A court-martial with members will sit in closed sessions during the deliberation and voting upon the findings and sentence, and upon other matters 

prop&ly referred to it for decision. Only the members of the court who are 

to vote shall be present at these closed sessions. The military judge may not 

consult with the members of the court except in the presence of the accused, 

trial counsel, and defense counsel, nor may the military judge vote with the 

members of the court. 

No member of a general or special court-martial shall have access to or 

use in any open or closed session the Manual for Courts-Martinl, reports of 

decided cases, or any other reference material, except that the president of a 

special court-martial without a military judge may use these publications or 

materials in open session. 

e. Spectators; publicity. As a general rule, the public shall be permitted 

to attend open sessions of courts-martial. Unless otherwise limited by directives 

of the Secretary of a Department, the convening authority, the military judge, 

or the president of a special court-martial without s military judge may, 

for security or other good reasons, dire& that the public or certain portions 

thereof be excluded from a trial. However, all spectators may be excluded 

from an entire trial, over the accused's objection, only to prevent the disclosure of classified information. The authority to exclude should be cautiously exercised, and the right of the accused to a trial completely open 

to the public must be weighed against the public policy considerations justifying exclusion. In most instances, it is proper to exclude only those persons 

falling within a limited category for which good reasons exist for exclusion. 

For example, it would be proper to exclude minors when the evidence is likely 

to involve scandalous or indecent matter which would have an 'adverse effect 

on immature minds, to exclude those persons that would cause an overcrowded 

courtroom or displace those with a special concern in the trial, and to exclude 

any person who interferes with the administration of justice. Further, it woulcl 

be proper to exclude all spectators temporarily when a child witness cannot 

coherently testify before an audience. 

Persons other than the accused have no standing to object to the exclusion 

of spectators. 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, broadcasting of the proceedings from the courtroom by radio 

or television, or the recording of the proceedings by recording or similar devices 

for public release or broadcast will not be permitted. 

The release of information with respect to suspected offenses and trials by 

courts-martial will be in accordance with regulations of the Secretary of n 

Department. 

f. Witnesses. Ordinarily, witnesses other than the accused should be 

excluded from the courtrooin except when they are testifying. To prevent the 

false sllnping of testimony through collusion, coercion, or other means, the military judge, or the president of a special court-martial without a military judge, 
GENERAL PROCEDURAL RULES ll 54a 

upon his own motion or upon motion of counsel 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. Opportunity 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 present argument should not be abused, and the 

military judge or president of a special court-martial without a military judge f

may as a matter of discretion limit or refuse to hear argument when it is trivial, 

mere repetition, or made for the purpose of delay. Arguments throughout the 

trial may be oral, in writing, or both. See 826 (4) in this connection. 

h.Explanation of rights of accused. Ordinarily, the military judge, or the 

president of a special court-martial without a military judge, 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 

military judge, or the president of a special court-martial without a military judge, will satisfy himself that the accused is aware of any right to 

which he is entitled by inquiry of counsel or by explaining that right. The 

rights of the accused with respect to the statute of limitartions (68c; Art. 

43) will, when applicable, be explained to the accused unless it otherwise affirmatively appears that the accused is aware of these rights. See 7071 for the procedure to be followed as to guilty pleas. An accused who is not represented by 

legally qualified counsel should be advised of his rights to remain silent, testify 

as a witness, or make an unsworn statement as appropriate at the proper stages 

of a trial (75c(2), 140a, 148e, and 149b). When an accused is represented by 

legally qualified counsel, it may be assumed that he has been correctly advised 

of these rights, and it is unnecessary to inquire if the accused has been so advised 

or to explain the right to the accused. Any inquiry or explanation as to the 

rights of the accused to testify in a court-martial with a military judge shall be 

made out of the hearing of the court members. See appendix 8 for forms of 

instructions. 

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 military judge, or the president of a special court-martial 

without a military judge, will direct the trial counsel to take appropriate aiction 

to provide the accused with a competent interpreter. The latter will interpret 

for the accused all proceedings had in open session 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 chapter XXII as to oaths generally. 

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 for the defense in rebuttal, witnesses for the court. The order of 

examining each witness is usually direct examination, cross-examination, 
ll 540 CHAPTER X 

redirect examination, recross-examination, and examination by the court. In a 

court-martial with a military judge, the examination by the court is ordinarily 

conducted by the military judge; thereafter, if necessary, members of the court 

may ask questions of the witness. The court should protect every witness from 

improper questions, insulting treatment, and unnecessary inquiry into his private affairs. See 1496 in this regard. Also see 150 and Article 31 (a) and (c) for 

questions which a witness cannot be required to answer over his objection and 

148, 149, 151, and 153 for other rules respecting the examination of witnesses. 

b. Responsibility of the court. The court is not obliged to content itself 

with the evidence adduced by the parties. When that evidence appears to be 

insufficient for a proper determination of the matter before it or when not 

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 evidencs. The court may, for instance, require 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. In doing so, however, the court must be careful not to depart from 

an impartial role. The right of the members to cause the recall of a witness or to 

call for additional evidence is subject to an interlocutory ruling by the military 

judge or the president of a special court-martial without a military judge as 

to the propriety therefor. 

c. Exclusion of improper evidence. When offered evidence would be 

excluded on objection, the military judge, or the president of a special courtmartial without a military judge, may as a matter of discretion bring the matter 

to the attention of any party entitled, but failing, to objectto its admission. This 

aotion is particularly important when improper testimony is elicited by questions asked by a member of the courtthe 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, the military judge or the president of a special 

court-martial without a military judge may on his or its own motion exclude 

inadmissible evidence. 

Rules of evidence are stated in chapter XXVII and in various connections 

throughout this manual; for example, in 122c (Insanity), and 164 (Desertion). 

d. Documentary evidence. If a document is marked for identification but 

not admitted in evidence, it should be appended to the record for the information of the convening authority and appellate agencies. See 154c (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 will be substituted for the document and it will then be returned. Similar action may be 

taken to substitute an accurate description or photograph for an item of real 

evidence 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. I11 exceptional circumstances, the military 

judge or the president of a special court-martial without a military judge may 

as a matter of sound discretion authorize the court to view or inspect the prem- 
GENERAL PROCEDURAL RULES !I 560 

ises or place or an article or object if the 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 a court-martial with a military judge, the military judge. The view 

should not be undertaken if the members of the court are already familiar 

with the premises involved or if photographs, diagrams, or maps 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 ouh parrticular features 

to be noted by the court. Before entering on his duties as escort, he mill take the 

oath or affirmation prescribed in 114h. 

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 counsel, the authorized escort, members of the court, or the military judge will be recorded verbatim and constitute a part of the record of trial in any general court-martial case 

or in any special court-martial case in which a verbatim record is taken. Reenactments of the events involved or acts alleged to have been committed are 

not authorized upon a biew. 

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 that evidence 

is otherwise admissible. 

f. Znquirg 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. General. If during the trial it becomes manifest to the court 

that there is substantial evidence, either before the court or offered, tending to 

prove that the accused is guilty of some other untried offense not alleged in any 

specification before the court, the court must proceed with the trial of the 

offenses charged. A report of the matter may properly be made to the convening 

authority after the conclusion of the trial. 

b. Trial of new charges. When charges are preferred for an offense indicated by the evidence referred to in 55a, they may be referred to trial only to a 

court none of whose members participated in the previous trial. 

56. WITHDRAWAL OF SPECIFICATIONS; MISTRIALS. a. General. Although the convening authority may withdraw, or cause to be withdrawn, any specification or an entire case from the consideration of any court 

for any reason, both the grounds upon which the specification or case is withdrawn and the time at which the withdrawal is directed will have an effect upon 

the action that may subsequently be taken. Withdrawal is accomplished by the 

convening authority directing the prosecution to take the necessary action to 

remove from the consideration of a particular court s specification and, when 

appropriate, the charge under which it is laid or the entire case. This action may 

be taken only when directed by the convening authority, who may give such a 

direction either on his own initiative or on application made to him. In the case 

of a joint or common trial, the withdrawal may be limited to one or more of the 
11 56d CHAPTER X 

accused. In no event will a specification or case be withdrawn arbitrarily or 

unfairly to the accused. 

b. Grounds for withdrawal. Normally, less than all of the specifications 

may not be withdrawn after the trial proceedings have begun except upon a 

determination of the convening authority that the specifications so withdrawn 

should be dismissed or for other good cause determined by the convening authority and made a matter of record. Among the proper grounds up011 which 

a particular specification may be withdrawn are that the specification contains 

a fatal defect, that the evidence in support thereof is insufficient, or that one 

of the accused is to be used as a witness. 

Further, a convening authority normally should not withdraw an entire 

case after commencement of the trial with a view to further prosecution unless 

he determines that urgent and unforeseen military necessity requires that the 

trial be postponed or terminated, and it does not appear that the military situation will permit the rescheduling or resumption of the trial within a reasonable 

time. However, this action may sometimes be appropriate for other good cause 

in the interest of justice. See, for example, 122b (2). When a case is withdrawn 

with a view to future prosecution, a detailed statement of the reasons therefor 

must be included in the record. 

If, prior to trial, the accused has requested trial before a military judgc 

alone (53d(2)),the case may not be withdrawn with a view to further prosecution except for good cause shown in the record of trial. 

c. Effect of withdrawal. The withdrawal of a specification on proper 

grounds before the commencement of the trial in a case is not in itself a ground 

of objection or a defense in a subsequent trial for the-same offense. However, a 

future trial may be precluded for other reasons, such as a grant of immunity 

(68h and 148e). Although a specification should not be withdrawn after commencement of the trial without a showing of good cause in the record unless it 

is to be dismissed, a showing of good cause is especially important after the 

introduction of evidence bearing on the guilt or innocence of the accused as to 

the alleged offense, as withdrawal at this stage may bar future prosecution for 

that offense. See Article 44. Accordingly, if further prosecution is intended, the 

power to withdraw a specification or a case after commencement of the trial 

should be exercised only because of urgent and unforeseen military necessity or 

for other good cause in the interest of justice. 

d. Action of trial counsel upon a withdrawal. A withdrawal of a specification before trial is accomplished by the trial counsel lining out and initialing 

the withdrawn specification on the charge sheet and renumbering the remaining 

specifications or charges when appropriate. 

If less than all of the specifications are withdrawn after the ineinbers of 

the court are aware that those withdrawn had been referred to trial, the trial 

counsel should announce the withdrawal in open session and the military judge, 

or the president of a special court-martial ~vithout a milit,ary judge, should 

instruct the court not to consider those specifications for ally reason. When a 

specification is withdrawn after the trial of a case commences, but before the 

members of the court are aware that it had been referred to trial, the trial counsel sl~ould line out and initial the withdrawn specificatioil on the charge sheet, 

renumber the remaining specifications and charges when appropriate, and insure 
GENERAL PROCEDURAL RULES q57a 

that the withdrawn specification is not brought to the attention of the court 

members. 

e. Mistrials. (1) Gemral. Aside from the withdrawal of charges as provided for in 56a through d, the declaration of a mistrial acts to withdraw the 

charges from the court-martial. The military judge or the president of a special 

court-martial without a military judge may as a matter of discretion declare a 

mistrial when, after considering all the circumstances, that action is manifest1;y 

necessary in the interest of justice because of circumstances arising during the 

proceedings which cast snbstantial doubt upon the fairness of the trial. A mistrial may be declared respeoting the entire proceedings or respecting only the 

proceedings after findings. Examples of circumstances warranting this action 

are prejudicial misconduct by a court member and the improper disclosure to 

the court of inadmissible evidence, opinions, or information which is so highly 

prejudicial to either side that its effects cannot be removed by an instruction to 

the court to disregard the disclosure (57d (2)). (2) Procedure. When it appears to the military judge, or the president 

of a special court-martial without a military judge, that a mistrial may be in 

order or when either party moves for a mistrial, the military judge, or the president of a special court-martial without a military judge, shall immediately 

determine the position of both parties on the subject. In a court-martial with a 

military judge this should be done in a hearing conducted out of the presence 

of the members of the court. Counsel for each side should be give11 an opportunity to state whether he objects to the declaration of a mistrial and to argue 

upon the question if he desires. Thereupon, the matter will be ruled upon as 

an interlocutory question (57). . 

(3) Effect upon further proceedings. The declaration of a mistrial is 

within the sound discretion of the military judge or the president of a special 

court-martial without a military judge; and unless there has been an abuse 

of discretion, it does not preclude further prosecution for the same offense 

before another court-martial. Further, in no case does a mistrial granted 

with the consent of the defense preclude such a further prosecution. In any 

case in which a mistrial has been declared, a record of trial will be prepared showing the proceedings up to the time of the declaration of the mistrial. See generally 82 and 83. If a mistrial has been declared in a general 

court-mal.tial and further prosecution is not contemplated, the review of the 

staff judge advocate or legal officer should be limited to questions of jurisdiction. See 85b. If further prosecution is contemlplated, a review will not 

be prepared, but the convening authority, before directing trial by general 

court-martial, will again refer the charges to his staff judge advocate or legal 

officer for consideration and advice. See 35'b and c and Article 34(a). 

57. INTERLOCUTORY QUESTIONS OTHER THAN CHAC 

LENGES. a. General provisions. The military judge shall rule on all interlocutory questions arising during the proceedings. Any ruling by t,he military 

judge upon a question of law, including a motion for a finding of not guilty 

(71a), or upon any interlocutory question other than the factual issue of mental 

responsibility of the accused is final and constitutes the ruling of the court. 

He also rules finally as to challenges. See 62. The president of a special courtmartial without a military judge shall rule on all interlocutory questions other 

than challenges. See 62h(3) as to procedure for determining challenges. Any 

ruling made by the president of a special court-martial without a military judge 
ll 57b CHAPTER X 

on any question of law other than a motion for a finding of not guilty is final 

and constitutes the ruling of the court. 

The military judge or the president of a special court-martial without a 

military judge may change his ruling at any time during the trial. (Art. 51 (b) ). The following rules and procedures apply to both the military judge and 

the president of a special court-martial without a military judge : 

(1) Mental responsibility. When the factual issue of mental responsibility of the accused is raised as an interlocutory question (122b), the ruling 01the 

military judge or the president of a special court-martial without a military 

judge is final unless objected to by a member of the court. Before asking whether 

any member of the court objects to his ruling, he should give the court members 

such instructions as will enable tlzerwto understand the issue that is before them 

and the legal standards and procedure by which they will determine it if objection is made. If objection is then made, the court will be closed and the issue 

decided by a vote of the members (57f). In a court-martial with a military 

judge, he shall not be present while the court is closed to deliberate or vote. 

(2) Treatment of offered evidence. The military judge or the president 

of a special court-martial without a military judge may examine an offered 

item of real or documentary evidence before ruling on its admissibility. He will 

take care that an offered 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 held by 

the military judge outside the presence of the members of a court-martial. The 

military judge or the president of a special court-martial without a military 

judge should give the court members appropriate instructions to disregard 

evidence which, once having been admitted, is excluded by a subsequent ruling. 

He should also advise the court members of any limitations applicable to evidence which has been admitted for a limited purpose; for examples, see 1389, 

1406, and 1536 (2) (c). 

b. Applicability of this paragraph. This paragraph (57) applies to the 

disposition of questions of law and interlocutory questions, that is, to all questions other than the findings, sentence, and administrative matters such as declaring recesses and adjournments, arising during trial, except the question of 

whether a challenge should be sustained. It should be kept in mind, however, 

that these two categories may be overlapping in that a question may be both 

interlocutory and a question of law. 

All questions of law are ruled upon finally by the military judge. Except 

for a motion for a finding of not guilty, all questions of law are ruled upon 

finally by the president of a special court-martial without a military judge. 

Questions of the applicability of a rule of law to an undisputed set of facts 

are normally questions of law. Similarly, the legality of an act is normally a 

question of law. For example, the legality of an order when disobedience of the 

order is charged, the legality of restraint vhe11 there is a prosecution for breach 

of arrest, or the sufficiency of a pre-interrogation warning are customarily all 

questions of law. It is possible, however, for such questions to be decided solely 

upon some factual issue, in which case they -would be questions of fact. A11 

example is a question of whether the person who issued an order in fact occupied 

a position which would authorize him to issue it. 
GENERAL PROCEDURALRULES n 57c 

A question is interlocutory unless the ruling on it would finally decide the 

case on its merits. Questions that go to the ultimate issue of guilt or innocence 

are not interlocutory. Whether a question is interlocutory may vary with the 

context in which it arises. An issue is not purely interlocutory if an accused 

raises a defense or objection and the disputed facts involved go to the ultimate 

question of guilt or innocence. For example, if during a trial for desertion the 

accused makes a motion to dismiss for lack of jurisdiction and presents evidence 

tending to show that he is not a member of an armed force, his status as a military person reaches the ultimate question of guilt or innocence, and, if the 

motion is denied, the disputed facts must be resolved by each member of the 

court in connection with his deliberation upon the findings. If, on the other 

hand, the accused was charged with larceny and presented the same evidence 

as to his military status, the evidence would bear only upon his amenability 

to trial and the issue would be disposed of solely as an interlocutory question. 

Interlocutory questions may be questions of fact or questions of law. This 

distinction is important because generally the president of a special courtmartial without a military judge rules finally on interlocutory questions of law, 

but not on interlocutory questions of fact. On interlocutory questions of fact he 

rules subject to the objection of any other member. On mixed questions of fact 

and law, rulings should be made subject to objection by any other member to 

the extent that the issue of fact can be isolated and considered separately. Fbr 

example, a mixed question of fact and law could arise in connection with the 

admissibility of an out-of-court statement by the accused. If a conflict were 

to exist in the testimony, with a law enforcement agent testifying that he gave 

a certain preliminary warning and the accused testifying that no such statement 

was made at all, that would be a question of fact. A question could also exist as . 

to whether the agent's statement would, if in fact made, constitute a legally 

sufficient warning. This would be a question of law. In such a case, the admissibility of the accused's out-of-court statement would be a mixed question of 

law and fact. 

c. Rulings by the president of a special court-martial without a military judge. The president of a special court-martial without a military judge 

shall rule in open session upon all interlocutory questions (57b), other than 

challenges, arising during the trial, such as questions as to the admissibility of 

evidence offered during the trial, competency 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. His 

ruling upon any question of law other than a motion for a finding of not guilty 

is hal. For example, the ruling of the president upon instructions is final and 

is not subject to objection by a member. Any question as to whether the ruling 

of the president is conclusive shall be determined by him. Although he rules 

finally on all questions of law, his rulings on interlocutory questions of fact, 

including a factual issue of mental responsibility or mental capacity of the 

accused (1223 (2) ), are subject to objection by any member of the court. As 

to mixed questions of law and fact see 563. 

The ruling of the president on a motion for a finding of not guilty is final 

unless objected to by a member of the court. Before asking whether any member 

of the court objects to his ruling on a inotion for a finding of not guilty, the 

president should give the court such instructions as will enable them to under- 
ll 579 CHAPTER X 

stand the issue that is before them and the legal standards by which they will 

determine it if objection is made. See 71a. If, thereafter, a member objects to the 

president's ruling on a motion for a finding of not guilty, the court will be closed 

and the question voted on as stated in 57f. 

d. Rulings by the military judge. A ruling by the military judge on a 

question of law, including a motion for a finding of not guilty, or on an interlocutory question other than the factual issue of mental responsibility of the 

accused, is final so far as concerns the court and no repetlition of the ruling is 

necessary (57a). The military judge sl1~a11 determine whether a ruling made by 

him is final. 

e. Form of ruling. Each ruling by the inilitary judge and the president 

of a special court-martial without a military judge which is subject to objection 

should be prefaced by a statement such as,"Subject to objection by any member." 

f. Voting on interlocutory questions. When voting on any iilterlocutory 

question other than a cllallenge, the members of the court shall vote orally, 

beginning with the junior in rank, 'and the question shall be decided by n 

majority vote. A tie vote on a motion for a finding of not guilty or on a question 

relating to the sanity of the accused is a determination against the accused. A 

tie vote on any other question is a determination in fmr of the accused. See 

Articles 51(b) and 52(c). The voting is in closed session, but the president 

announces the decision in open session. See 62h(3) for the manner of voting 

on challenges by a special court-martial without a military judge. 

. g. Necessary inquiry to be made; preponderance of evidence controls. 

(1) General. The ruling or decision on an interlocutory question should 

be preceded by any necessary inquiry into the pertinent facts and law. For example, the party making the objection, motion, or request may be required 

to furnish evidence or legal authority in support of his contention. Upon such 

an inquiry, questions of fact are determined by a preponderance of the evidence. 

(2) Military judge. The military jndge is responsible for rulings made 

by him, but he may consult with the members of 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 coi~sult pertinent legal autl~orities before making his ruling. 

When sitting with members, the military judge should hear arguments 

of counsel on proposed instructions (73d), and, at the request of the defense, 

on matters concerning the admissibility of a pretrial statement of the accused. 

out of the hearing of the members of the court. Also, if it appears to the military 

judge that an offer of proof (154c), prslimiliaiy evidence or argument with 

respect to the admissibility of offered evidence, or any other proceeding not 

requiring the presence of the members may contain matters prejudicial to the 

rights of the 'accused or the Government, he should, upon his own moi7ion or 

upon motion of counsel, direct that the members of the court be excluded during 

these proceedings. Counsel for lnotli sides, the accused, and the reporter will 

be present during these proceedings, I\-hich will be fully recorded, transcrilbed, 

and incorporated in the record of trial. But see 82b (1) :~nd 8371. 

When, as 'a result of a liearilg held out of the presence of tlie members of 

tlie court, the military jndge rules that offered evidence is admissible, tlle 
GENERAL PROCEDURAL RULES ll58d 

evidence will be offered in open sessioil; in addition, if preliminary evidence 

adduced at sucll n hearing goes to the weight of the evidence admitted by the 

ruling of the military judge, both sicles will be given nn opportunity to present 

for the consideration of the members of the court ally competent evidence 

affecting the weight to be given to the evidence so admitted. I11this connectio~~. 

see 140a(2) and (3). 

I11lieu of, or in addition to, any oral arguments of counsel with respect 

to the admissibility of evidence, the military judge may also direct counsel to 

submit written arguments or briefs on questions of law. These written arguments should not be brought to the attention of the members of the court but 

should be made part of the record of trial. 

(3) President of a special court-nzartiaZ without a n~ilitmy judge. While 

the responsibility for a ruling rests with the president of a special court-martial 

without a inilitary judge, he may properly close the court and consult with the 

other members of the court before making his ruling, when such ~.uling is 

subject to the objeotion of any member of the court. 

58. POSTPONEMENTS AND CONTINUANCES. a. Postponement 

of trial. ~he'neceseit~for a formal continuance may often. be avoided by requesting the convening authority, the military judge or the president of a 

special court-martial without a iniliitary judge, whoever is appropriate, to 

postpone the initial session of the trial or by requesting an adjournment or recess. 

b. Continuances, general. The military judge or the president of a special 

court-martial without a inillit'ary judge should, upon a showing of reasonable 

cause, grant :a continuance to any party and for such time, and as often as, may 

appear to be just (Art. 40). Whether a request for continua.nce should be 

granted is *a,matter of sound discretion and is an interlocutory question (57). 

There is no limit to the number of continuances which may be granted. 

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 may, against his objection, be brought to trial before a general courtmartial within a period of five days after the service of the charges upon him, 

or before a special court-martial within a period of three days after the service 

of charges upon him (Art. 35). I11 computing these time periods, the date of 

service of the charges on the accused and the date of trial are excluded. Holidays 

and Sundays are not excluded. 

d. Effect of denying application for continuance. The refusal to grant it 

continuai1ce when reasonable cause is sho\vn 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 all accused l3ersoiis. Althougl~ the question of a contin~~ance is one within the sound discretion of the military judge or 

])resident of n special court-martial without :L military juclge, \\-henever it 

appears that there has beell an abuse of discretion and the :~ccnsecl lias been 

denied :L reasonable op1)ortunity to prepare for trial or otherwise perfect his 
U 58f CHAPTER X 

defense, the proceedings should be disapproved. A rehearing should be ordered 

only if the prejudice to the rights of the accused oan be cured thereby. 

e. Application for a continuance. The military judge or the president of 

a special court-martlial without a military judge acts upon the application for 

continuance as an interlocutory question (57).Both parties may present matters 

for and against bhe granting of the continuance, and the trial counsel may be 

directed, on behalf of the murt, to obtain and present information which will 

an informed decision. ThTs may include information obtained from the 

convening authority or other military sources. The determination of whether a 

continuance should be granted, liowever, rests with the military judge or the 

president of a special court-martial without a military jndge independently of 

the convening authority's preference. , 

Although the proper time for making an application for .a continuance is at 

an Article 39(la) session held prior to assembly or, if no such session is held, 

immediately after arraignment, an application made at any other time should 

be considered on its merits. 

f. Matters in support of application. Reasonable cause for the applicatioii 

must be shown. For instance, when a continuance is desired because of the 

absence of a witness, the application should show that the witness is material, 

that due diligence has been used to procure the testimony or attendance, that the 

party applying for the continuance has reasonable ground to believe that he will 

be able to procure the testimony or attendance within the period stated in the 

application, the facts which he expects to be able to prove by the witness, and 

that he cannot safely proceed with the trial without the witness. 

In general, the matters 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 information. 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 pertinent matters and to make an 

argument. 
Chapter XI 

ORGANIZATION OF THE COURT AND ARRAIGNMENT 


OF THE ACCUSED 

ATTENDANCE OF THE COURT-ATTENDANCE AND SECURITY OF ACCUSED- 


PRELIMINARY ORGANIZATION OF THE COURT-CHALLENGES-WITNESS 


FOR THE PROSECUTION-INVESTIGATING OFFICERARRAIGNMENT 


59. ATTENDANCE OF THE COURT. A general or special courtmartial reports in accordance with the order convening itthereahr awarding to adjournment. When this order, after dating the hour and date of the 

first meeting, adds the words "or as soon thereafter as practicable"; or when 

the court adjourns to meet at the call of the military judge or the presidenlt 

of a special court-martial without a military judge, the military judge or the 

president will fix the hour and date for the first or subsequent meding, as the 

case may be. He will advise the trial counsel in order that proper notice of the 

meeting may be given to all concerned. See58b (Postponement of trial). 

A court-martial may hold sessions ah any hour of the day, but it should not 

meet at unusual hours nor should the duration of the sittings be unusually protracted, unless the case is one of extraordinary urgency and such a measure is 

therefore warranted. 

60. ATTENDANCE AND SECURITY OF ACCUSED. The convening 

authority, the ship or stahion 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 mused before the court and will determine the nature and 

degree of any restraint to be imposed on the accused. However, physical restraint will not be imposed upon the amused during open sessions of the court 

unless prescribed by the military judge or the president of a special courtmartial without a military judge. The accused will be properly attired in the 

class 'of dress or uniform prescribed by the military judge or 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 ribbons towhich he is entitled. 

The presence of the mused throughou$t the proceedings in open court is, 

unless otherwise stated, essential. See llc (Effect of voluntary absence from 

trial). 

61. PRELTMINARY ORGANIZA'TION OF THE COURT. a. Informal 

inquiry. A court-martial should not be called to order for any session of the 

trial of a new cnse until the military judge, or the president of a special courtmartial without a military judge, after examining the order convening the 

court and making an informal inquiry of the personnel present has determined 

that the accused and, if the presence of the members is required at such ses- 
ll 610 CHAPTER XI 

sion, a quorum of the court are present for the trial of the case, and that the 

detailed members of the prosecution and defense (are apparently qualified, as 

prescribed by Article 27 (b) or (c), to conduot the prosecution and defense of 

the case. In determining the presence of a quorum of the court, the military 

judge or president should consider whether an enlisted amused 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 conneotion, see 36c(2) 

and 41d(2). 

The military judge should also inquire into the existence of a request by 

tho accused for trial by the military judge alone in appropriate cases. See 

53d(2). 

b. Seating of personnel and the accused. When the court is ready to 

proceed, it is called to order by the military judge or the president of a special 

court-mlartial without a military judge. The members will. be seated with the 

president in the center and other inembers 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 military judge will sit apart from the court. Depending 

upon the size and arrangement of the courtroom, other personnel and the 

accused will be seated as the military judge or the president of a special courtmartial without a military judge may direct, except that the accused will be 

permitked to sit with his counsel. See appendix 86 for suggested seating arrangements for general courts-mantial. 

c. Announcing personnel of the court and the accused. After the court 

is called to order for the trial of a ne\\- case, tlle trial counsel will announce 

the name of the accused and will state by \$-hat order, including any amendment 

thereof, the court is convened. He will then annouilce the names of the military 

judge if one has been detailed; the members, if ally are present; and counsel 

who are present. The trial counsel will also announce the names of members 

absent, when the presence of members is required, and of counsel who are absent. 

Similar announcement will be made whenever there is a replacement of the 

military judge, the members or co~ulsel present, either through the appearance 

of new personnel or personnel previously absent or through the absence of 

personnel previously present. When the court meets after an adjournment or 

recess or after it has been closed for any reason, the trial counsel will state for 

the record whether a11 parties to the trial who were present at the time of the 

adjournment or recess, or at the time the court~closed, are present. 

d. Swearing reporter and interpreter. After accounting for the above 

personnel, the trial counsel mill ascertain as a matter of record whether or not 

the reporter and interpreter, if any, have previously been sworn in accordance 

wit11 regulations of the Secretary conceriled (Art. 42(a)). If not previously 

sworn, the reporter and interpreter, if nay, will be sworn purs~lant to regulations of the Secretary concerned. See chapter XXII as to oaths generally. A 

siinilar procedure will be follon-ed in the case of any new 1.eporter or interl2reter 

who may be detailed or employed during the course of a trial. 

e. Introduction of prosecution counsel. A general cour't-martial is not 

legally constit~ited unless tlle detailed trial counsel has beell certified as competent to perform such duties by the Judge Advocate General of the armed 
TRIALGATTENDANCE OF COURT-ARRAIGNMENT ll 61f 

force of which he is a member (Art. 27(b) ). The trial counsel will next announce whether the legal qualifications of tlie members of the prosecution are 

other than as stated in the order convening tlie court and whether any member 

of the prosecution has acted as investigating officer (64), military judge, 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 disqualified by reason of prior participation in the case, the 

military judge, or the president of a special court-martial without a military 

judge, will initiate an inquiry to determine whether the individual concerned 

is, in fact, disqualified and, if so, whether he has acted for the promution 

(6a). 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 be adjourned and the facts reported to the convening authority. If the disqualified member has iiot acted for 

the prosecution, the proceedings may continue, but tlie disqualified member 

will not be permitted to act for the prosecution during any future stage of 

the proceedings and he will be excused forthwith. Wlien, as a result of excusing 

a disqualified member of the prosecution, no qualified trial counsel or assistant 

trial counsel remains, tlie court sh0111d be adjourned and the facts reported to 

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 mles as to legal qualifications. A general court-martial is not legally constituted unless tlie detailed 

defense counsel has been certified as competent to perform such duties by the 

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

27 (b)). Similarly, a special court-martial is iiot legally constituted if the 

accused has not been afforded the opportwiity to be represented by counsel 

qualified under Article 27(b) unless such counsel cannot be obtained because 

of physical conditions or military exigencies (6c). If qualified defense counsel 

cannot be obtained because of physical conditioils or military exigencies or if 

the accused has declined qualified counsel, a special court-martial is not legally 

constituted unless the following jurisdictional requirements are also satisfied : 

(a) If the detailed trial counsel or any assistant trial counsel is 

qualified to act as counsel before a general court-martial, the detailed 

defense counsel shall be a person similarly qualified (6c; Art. 27(c) (2) ) ;or 

(6) If the detailed trial counsel or any assistant trial counsel is a 

judge advocate, or a law specialist, or a member of tlie bar of a Federal 

court or tlie highest court of a State, the detailed defense counsel shall be 

one of the foregoing (6c;Art. 27 (c) (3) ). (2) Ascertaining bgal puuZijications of counsel for thR defense. After 

the court has ascertained the qualifications of the members of tlie prosecutioii, 

the military judge 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 tlie detailed nientbers of the defense are other than as stated 

in the order convening the court. 
11 61f CHAPTER XI 

If the accused introduces counsel of his own selection and the qua1ifica.- 

tions of that counsel are not shown in the order convening the court, his 

selected counsel will be asked to state whether he has been certified 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 qualifications 

enumerated in Article 27(b) (1).See 48a regarding qualifications of counsel 

before general and special courts-martial. 

(3) Action when defeme cmeZ is not ZegaZZy quaZi&d. If the detailed 

defense counsel of a general court-martial has not been certified as competent 

to perform these duties by the Judge Advocate General of the armed force of 

which he is a member (Article 27(b) ), the military judge will adjourn the court 

and report the matter to the convening authority. If the accused in a trial by 

general court-martial has selected as individual counsel a person who is neither 

qualified under Article 27(b) nor otherwise qualified as a lawyer, the military 

judge will advise the accused that he may not be represented by a person who 

does not have the requisite qualifications and will not permit the unqualified 

counsel to represent the accused at the trial. See48a. 

At a special court-martial, the military judge or the president of a 

special court-martial without a military judge will adjourn the court and report 

the matter to the convening authority when it appears: 

(a) That the accused has not been afforded the opportunity to be represented by counsel qualified under Article 27(b) unless such counsel 

cannot be obtained because of physical conditions or military exigencies 

(66; Art. 27(c) (1)) ;or 

(6) That the detailed trial counsel or any assistant trial counsel is 

qualified to act as counsel before a general court-martial, but the detailed 

defense counsel is not so qualified (6c; Art. 27 (c) (2) ) ;or 

(c) That the detailed trial counsel or any assistant trial counsel is a 

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 detailed defense counsel is 

not one of the foregoing (6c ;Art. 27 (c) (3)). When the equivalency requirements of (6) and (c) have been satisfied 

by the detailed counsel, the trial may not proceed without the presence of 

such counsel unless the accused expressly states at the trial that he does not 

desire his presence. If the accused does not so state, the court will adjourn 

pending procurement of a detailed defense counsel who has the requisite 

qualifications. The accused may also defend himself or be represented by 

individual counsel. If the special court-martial may legally adjudge a 

bad-conduct discharge (156), the accused may not be represented by an 

individual counsel who is not qualified as a lawyer (48a). Regzzrdless of 

the legal qualifications of individual counsel, the detailed defense counsel 

and assistant defense counsel shall, if the accused so desires, act as his 

associate counsel; otherwise, they shall be excused by the military judge or 

the president of a special conrt-martial withont a military judge (Art. 

38 (b) ). (4) Prior ;~,articipation of defense counsc.7 in sanze case. After the court 

has determined that the defense counsel has the requisite legal qualifications, 

the trial counsel will ask the connsel representing the accnsed to state whether 

any member of the defense present, including individual counsel, is the 
TRIALbATTENDANCE OF COURT-ARRAIGNMENT ll 611 

accuser or has acted in the same case as a member of the prosecution (6a, d), or 

as investigating officer (64), military judge, or court member. If it appears that 

any member of the defense'has previously acted in the same case for the prosecution, he will be excused forthwith. If a member of the defense is the accuser 

or has participated in the same case as an investigating officer, military judge, 

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 accused is left 

without counsel having the requisite legal qualifications, the court will (be 

adjourned and the matter reported to the convening authority. 

g. Announcement of request for trial by the military judge alone. 

When it has been ascertained that counsel representing the prosecution and defense are qualified to perform their respective duties, the military judge or the 

president of a special court-martial without a military judge will so state. 

In every case in which a military judge has been detailed and in which the 

death penalty may not be adjudged (14a), the military judge should ascertain 

whether the accused has been advised of his right to request trial by the 

military judge alone. If the accused has not been so advised, the military judge 

should insure that the accused is properly advised and, after consultation with 

counsel, given an opportunity to submit a request at that time. See appendix fie 

for form of request. 

h. Announcement of request for enlisted members. After the announcement of the qualifications of counsel and if the accused is not to be tried 

by a military judge alone, the trial 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 before 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 before or at this time, 

the court may not be assembled 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 471 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 military judge or the 

president of a special court-martial without a military judge will take action 

similar to that prescribed when a motion to sever has been granted. In this 

connection, see 69d. 

i. Oaths. The oaths for military judges, court members, counsel, reporters 

and interpreters shall be prescribed in regul~ations of the Secrehary concerned 

(.Art.42 (a)).See chapter XXII as to oaths generally. 

It must be established in open session whether the members of the court if 

any, or properly qualified counsel, or the military judge if any, have previously 

been sworn pursuant to regulations of the Secretary concerned. Any such personnel, including individual defense counsel, not previously sworn should now 

be sworn in accordance with regulations of the Secretary concerned. When an 

oath is being administered to any of the above personnel, all persons in the 

courtroom will stand. 

j: Assembly of the court. Following the procedure outlined by this 

paragraph (61), the military judge or the president of a special court-martial 
ll62b CHAPTER XI 

without a military judge may announce that the court is assembled. The court 

is assembled when, after the members have gathered in the courtroom to start! 

the trial, the military judge or the president of a special court-martial mithout 

a military judge has announced that the court is assembled. In a court-martial 

consisting of a military judge alone, the court is assembled at the time announced 

by the millitary judge. See appendix 8b. 

k. Applicability to Article 39(a) sessions. Immediately after coimencing an Article 39 (a) session (53d), the military judge should insure t11:tt the 

co~~rt is properly constituted by follo~ving the procedure in b, c, d, e, f, and i 

above. After insuring that the court is properly constituted, the military judge 

may proceed to take up the matters in g and h above. See appendix 8a. 

62. CHALLENGES. a. Statutory provisions. The military judge and 

members of a general or special court-martial may be challenged by the accused 

or the trial counsel for cause stated to the court. The military judge, or if none 

has been detailed, the court members shall determine the relevallcy and validity 

of challenges for cause, but a challenge may not be received to more than one 

person at a time. Challenges by the trial counsel shall ordillarily be presented 

and decided before those by the accused are offered. Each accused and the 

trial counsel is eiltitlecl to one peremptory challenge, but the military judge 

may not be challenged except for cause (Art. 41). 

b. Disclosing grounds for challenges. After the members of the court, 

the military judge, and counsel have been sn-orn, the trial co~nsel will announce 

to the court the general nature of the charges, the name of the accuser, the 

investigating officer, the officer or officers forwarding the charges to the convening authority, and the name of any court member or military judge who 

participated in any proceedings already had. He will then disclose in open session every ground for challenge believed by him to exist in the case and will 

request that the military judge and each member do likewise ~vith respect to 

grounds of challenge, whether against the military judge or member himself 

or against any others who are subject to challenge for cause. In disclosing 

wounds for challenge, personnel should state only the ultimate nature of the 

-.circumstances which in their opinion makes them subject to challenge, and not 

details such as derogatory information regarding the accused. Among the 

grounds for challenge which a member or military judge 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 military judge; and the trial counsel, any member, 

or the military judge mill disclose any such ground at any time during the 

proceedings that he becomes aware of it. 

Without challenging for cause, the trial or defense couilsel may question 

the court, or individual members thereof, and the military judge concerning 

the existence or nonexistence of facts ~vllich may disclose a proper gromld of 

challenge for cause. Thus, the defense counsel nlay question the court, or individual members thereof, with respect to ~vhether they kilo\\- the accused and, 

if so, whether they are hostile or friendly toward him. It is optional with the 
TRIALSATTENDANCE OF COURT-ARRAIGNMENT 11 62f 

questioning party whether the member being questioned shall be sworn totestify 

as to his competency as a member before answering these preliminary questions. 

In any case referred to a court-martial composed of a military judge and 

members, the military judge may direct that the examination of a member be 

conducted out of the presence of the remaining members of the court, and he 

should do so in any case in which the information elicited may be derogztory to 

the accused and may disqualify the other members. In a special court-martial 

without a military judge, the questioning of a member should be free enough to 

provide the court members with sufficient information to pass upoh the impartiality of the member concerned, but disclosure of information derogatory to 

the accused may disqualify the other members who hear it. If the members are 

disqualified by a disclosure, the president should adjourn the court and report 

the matter to the convening authority. 

c. Action upon disclosure. If it appears from any disclosure that the 

military judge or a member is subject to challenge on any ground stated in 

clauses (1) through (8) of 62f, and the fact is not disputed, the military judge 

or member will be excused forthwith. If the military judge is excused or the 

court is reduced below a quorum, the court will adjourn pending detail of a 

new military judge or additional members. Except as just stated, no action is 

required under this subparagraph (62c) 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 mde; reconsideration; opportunitg to challenge new member. In any case i11 which an Article 39(a) session is held prior to assembly, 

challenge of the military judge should be made during the Article 39 (a) session. 

Whenever counsel is aware of any possible grounds for challenge for cause of 

a member, he should raise the matter at the earliest practicable session of the 

court. In all other cases, challenges should be made immediately following 

assembly of the court. The military judge or the president of a special courtmartial without a military judge should, however, permit a challenge for cause 

to be presented at any stage of the proceedings. T11e 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. 

Full and timely opportunity will be given to challenge every new member or 

military judge. 

e. Peremptory challenges. A perempto~y challenge does not require any 

reason or ground therefor to exist or to be stated. It may be used behre, during, 

or after challenges for cause, or against a member unsnccessfully challenged for 

cause, or against a new member if not previously utilized in the trial. It cannot 

be used against the military judge. A member challenged perenlptorily will 

be excused forthwith. 

In a joint or common trial each :~ccusecl is entitled to one pera~nptory 

challenge. 

f. Challenges for cause-grounds for. Among the grounds of challenges 

for cause against members of special and general courts-martial and, unless 

otheiwise indicated by the context, the niilitary j~tdge are the follo\~ing : 

(1) That the challenged military judge or member is not eligible to 

serve as military judge or member, respectively, on courts-nlartinl. 

(2) That he is not a member or military judge of the court. 
!l62g CHAPTER XI 

(3) That he is the accuser as to any offense charged. See Article l(9) 

for definition of accuser. 

(4) That he will be a mitiless for the prosecution. See 63 for definition of 

witness for the prosecution. 

(5) That he was the investigating oficer as to any offense charged. See 

64 for definition of investigating officer. 

(6) That he has acted as co~ulsel for the prosecution or the accused as 

to any offense charged. 

(7) That upon a rehearing or a new or other trial of the case he was 

a member of the court which first heard the case. 

(8) That he is an enlisted member who is a member of the same unit as 

the accused. See 46 and Article 25 (c) (2) for definlitions of the word "unit." 

(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 guilt or innocence of the accused as to any offense charged, except that 

this shall not necessarily apply to a military judge who has formed or 

expressed such an opinion solely in his role is military judge sitting alone 

in a previous trial of the same or a closely related case. 

(11) That he has acted in the same case as the conveaing 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 inember or 

military judge in the interest of having the trial and subsequent proceedings free from substantial doubt as to legality, fairness, and impartiality. 

Examples of the facts which may constitute grounds for challenge are: 

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 of the 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 as a member or as counsel in the 

trial of a closely related case; that he is decidedly hostile or friendly to 

the accused; that, not having been present as a member ~vhe11 testimony on 

the merits was heard, or other important proceedings were held in the case, 

his sitting as a member mill involve an appreciable risk of injury to the 

substantial rights of an accused, which risk mill not be avoided by a reading 

of the record. In coilnection with this last example, see 41e and f, and 

62h(1). 

g. Limitations on inquiry as to eligibility of military judge. A challenge against a military judge based on the ground that he is not eligible to act 

as military judge (62f (1) ) will not be sustained unless it is shown : (1) That, 

he is not a commissioned officer; or (2) that he is not on active duty with an 

armed force; or (3) that he is not a inember of the bar of a Federal court or of 

the highest court of a State of t.he United States; or (4) that he has not been 

certified to be qualified for duty as a military judge (Art. 26(b)) ; or (5) that 
TRIALGATTENDANCE OF COURT-ARRAIGNMENT 762h 

in a general court-martial he is not designated and assigned in accordance with 

Article 26(c). The hearing on such a challenge will be limited to the issue of 

determining whether any one of the reasons enumerated above exists. I11this 

connection, it may be inferred that a person detailed as the military judge of a 

court-martial is a commissioned officer on active duty with an armed force, and 

the recital of his qualifications in the convening order is evidence of the facts 

recited therein. An inquiry into the general educational, legal, or judicial experience of the military judge isimproper. 

h. Procedure. (I) Manner of making challenges. After any challenges 

made by the trial counsel have been decided, he will, after complying 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 military judge 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 common 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 or- the merits or 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) Znpui~.If a member or the military judge is challenged for cause, 

the challenge, if not withdrawn, must be passed on by the military judge, or if 

none has been detailed, by the members of the court less the member challenged, 

after both sides have been given an opportunity to question the person challenged, to introduce evidence and to argue. The challenger may subject a 

challenged member to an examination which may be under oath as to the subject 

matter of the challenge. For form of the oath, see 1149. This examination may 

properly extend to any of the matters enumerated in 62f as constituting or 

possibly constituting a ground for challenge and any other matters which have 

a substantial or direct bearing on the rights of the accused or the Government 

to a fair and impartial court. The military judge will rule upon challenges as 

to his own participation in a case, and all interlocutory matters arising during 

the hearing on challenge. Any member, against whom a challenge for cause 

has been directed, will take no part in the hearings upon the challenge except 

when called to testify or to make a statement as to his competency. If the 

challenged member is president of a special court-martial without a military 

judge, he shall, subject to 57a and c, continue to rule upon interlocutory questions 

arising during the hearing although he may, at the time such a question arises, 

be testifying under oath as to his competency. In any case in which the military 

judge while making a statement or the president of a special court-martial 

without a military judge while testifying as to his competency, is required to 

rule upon an interlocutory question, he should preface any ruling by a statement such as,"As military judge (president) Irule that . . ." 

The military judge, or if 11011e has been detailed, the court should be 

liberal in passing on 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 grouncl is 
0 64 CHAPTER XI 

shown may require a disapproval on jurisdictional grounds or cause a rehearing 

because of error injuriously affecting the substantial rights of an accused. 

(3) Deliberation and voting by a special court-martid zuithmt a. miMtary judge. In a special court-martial without a military judge, deliberation and voting upon a challenge will be in closed session, and the challenged 

member will be excluded. Before closing the court, the president should instruct 

the court on the applicable law and procedure to be followed in deciding the 

challenge. The vote upon the challenge is by secret written ballot, which ballot 

may be in the form "Sustained" or "Not Sustained." See Article 51(a) as to 

counting and checking the vote and announciilg the result of the ballot. Deliberation on the challenge may properly include full and free discussion. The 

influence of superiority in rank mill 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 ballots cast by 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. 52(c)). Upon the court being opened, the president shall state that the challenge has 

been sustained or not sustained. When three members of a special court-martial 

without a military judge are present and one is challenged, the remaining two 

may vote 011 the challenge. 

(4) Action. If the challenge is sustained, the challenged member or 

military judge will withdraw from the court; otherwise he will resume his seat. 

The court will then proceed to consider the next challenge, if one is 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 military 

judge 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 military judge or any member of the court is called as a witness for 

the prosecution, he shall, before qualifying as a witness, be excused from 

further duty asmilitary judge or member, respectively, in the case. Whether the 

military judge 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 

cwe of doubt he will be excused as military judge 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." 

For the purpose of this paragraph, a witness includes not only one who 

\ testifies in court but anyone whose declaration is received as evidence for any 

purpose, including written declarations made by affidavit or otherwise. For 

example, a person who by his certificate has attested or otherwise authenticated an official record introduced in evidence by the prosecution, or who has 

authenticated any writing so introduced, is a witness for the prosecution even 

if he does not testify in person. 

64. INVESTIGATING OFFICER. Within the illealling of the fifth clause 

of 62f and Articles 25 (d) (2), 26 (a), and 27 (a), 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 investigated that offense or n 
TRIALS--ATTENDANCE OF COURT-ARRAIGNMENT n 651, 

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 investigation of a particular offense or a closely related offense 

with a view to prosecuting or defending it before a court-martial. But see 6a 

and 62f (6). 

65. ARRAIGNMENT. a. General. Wlleli a general or special court-martial 

has been organized and both parties are ready to proceed, the trial counsel will 

present the court wit11 copies of the charges and specifications upon which the 

accused is about to be tried. See 56d in this connection and 79d for procedure 

of a summary court-martial. The trial counsel will then read to the accused the 

charges and specifications. Thereafter, each accused will be called upon to 

plead. This proceeding constitutes the arraignment. The pleas are not part of 

the arraignment. 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 mill 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. 

If an Article 39(a) session is conducted by the military judge prior to 

assembly, the arraignment may be held and the pleas of the accused accepted 

at that time if permitted by the regulations of the Secretary concerned. If the 

arraignment is held at such a session, the trial counsel may present the oourt 

members with copies of the charges 'and specifications immediately after assembly. See 3924 53d(1)and 7071for entering findings on a plea of guilty. 

6. Additional charges. After the arraignment of the accused upon certain 

charges, additional charges cannot be introduced at the same trial. However, 

additional charges can be introduced at any stage of the proceedings before the 

arraignment if all the usual pre-arraignment proceedings concerning those additional charges have been completed, including proceedings as to qualifying 

counsel and challenging and excusing the military judge and members of the 

court. In such a case, the accused may be arraigned on the additional charges as 

well as on the original charges, and the trial may proceed on both sets of charges. 

It is not necessary that any personnel of the court be resworn when additional 

charges are introduced. An application for a reasonable continuance should be 

granted. 
Chapter XII 

PLEAS AND MOTIONS 

GENERAGMOTIONS RAISING DEFENSES AND OBJECTIOXS-MOTIONS TO DISMISS-MOTIONS TO GRANT APPROPRIATE RELIEX-PLEASMOTION FOR 

FINDING OF NOT GUILTY; RES JUDICATA 

66. GENERAL. a. Pleas. Pleas in court-martial procedure are pleas of 

guilty, not guilty, and pleas corresponding to permissible findings (70, 746). 

Pleas are entered after arraignment. 

b. Motions. A motion is an application to the military judge or to bhe 

president of a special court-martial without a military judge for particular 

relief. Defenses and objections raised before a plea is entered shall be raised only 

by a motion to dismiss or to grant appropriate relief as provided in this 

chapter. Motions to dismiss (67a) normally are made before a plea is entered 

and motions for appropriate relief normally are made prior to plea or prior to 

the conclusion of any Article 39 (a) session held prior to assembly, whichever 

occurs earlier (676). Any defense or objection, however, 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 as well as by 

motion made at the appropriate time at trial. Reference of these matters to the 

convening'authority before trial is without prejudice to the renewal of the 

assertion by motion at the trial. 

67. MOTIONS RAISING DEFENSES AND OBJECTIONS. a. Defenses and objections which may be raised. 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 offense-before the conclusion of the hearing of the case constitutes a waiver. 

b. Defenses and objections 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. Failure to raise any such objection prior to plea or prior to the coilclnsion of any 

Article 39(a) session held prior to assembly, whichever occurs earlier, constitutes a waiver thereof, but the military judge or the president of a special 
8 67e CHAPTER XI1 

court-martial without a military judge may grant relief from the waiver for 

good cause shown. 

c. Form and content of motion. The motion should briefly and clearly 

set forth the nature and grounds 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. 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. 

d. Time of making motions. A motion raising any of the defenses and 

objections discussed in a and 71 above normally is made before the plea is entered 

or prior to the conclusion of any Article 39 (a) session held prior to assembly, 

whichever occurs earlier. See 53d. 

Motions for a finding of not guilty are made after the prosecution has 

rested its case or at the conclusion of all of the evidence. A motion to inquire into 

the mental condition of the accused (122) or to delay the proceedings on the 

ground that the accused lacks the requisite mental capacity (120d) may be 

raised at any time during the trial. 

e. Hearing on the motion. A motion raising a defense or objdion will 

be determined at the time it is made unless the military judge or the president 

of a special aourt-martial without a military judge defers action on the motion 

until a later time. If action is deferred, however, the military judge or the 

president of a special court-martial without a military judge should rule on bhe 

motion before the court closes to deliberate on the accused's guilt or innocenoe. 

Before action is taken on a contested motion, each side will be given an opportunity to introduce pertinent evidence ,and to make an argument. When trying a 

case with members, the military judge may conduct the hearing out of their 

presence; but, a hearing on a motion in which the mental responsibility of the 

accused is in issue should be conducted in the presence of the members. Although 

counsel may refer to the facts of other pertinent cases when arguing out of 

the hearing of the members of the coui.t, he may do so before the members only 

when the motion is one in which the ruling is made subject to the objwbion of 

any member of the court. Except as otherwise indicated in the discussion of 

motions (686, Statute of limitations) and elsewhere (122a, Insanity), the 

burden generally rests on the accused to support, by a preponderance of the 

evidence a motion raising a defense or objection. A decision on such a motion 

is always an interlocutory matter, but matters presented on such a motion may 

also raise a contested issue of fact of a kind which should properly be considered 

by the court in connection with its determination of the accused's guilt or 

innocence. See 576. For example, if,% specification alleges that an offense mas 

committed at a time which is witl~in the statute of limit~ztions and the accused 

makes a motion to dismiss on the kround that trial is barred by Article 43, 

asserting that the offense was committecl at an earlier time than that alleged, the 

time of the commission of the offense must, if the motion is denied, be specifically 

considered by each member of the court in connection ~vith his deliberation on 
PLEAS AND MOTIONS P 67f 

the findings of guilt or innocence. If by exceptions or substitutions the court 

finds that the offense was committed at an earlier time, the ruling denying the 

motion to dismiss must be changed to one granting the motion, provided the 

statute of limitations has run against the offense in view of the earlier time of 

commission found. See also 122 for a discussion of the question of the mental 

responsibility of the accused in connection with the findings on the general 

issue. 

f. Effectof 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 military judge or the president of a special court-martial 

without a military judge may reconsider any aotion in denying or sustaining 

a motion as long as the specification affected thereby is before the court. 

Except as otherwise indicated in the discussion on motions, an accused will 

not be required to plead to a specification or charge so long as the action of the 

court in granting 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, thh accused should enter a plea or, if he stands mute, 

a plea of not guilty should be'entered for him by the military judge or by the 

president of a special court-martial without a military judge. 

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 granted as to all but one specification 'and charge to 

which the plea is not guilty, tlie 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 to the convening authority. 

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 (Art. 62(a) ). This action should be taken only on 

application by the prosecution, with notice to the defense, after affording both 

sides an opportunity to be heard. The convening authority may not return the 

record to the court for reconsideration of a ruling which amounts to a finding 

of not guilty, as, for example, 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 (b) ).Likewise, the convening authority may not direct the milikary judge or the president of a special 

court-martial without a military judge to reconsider la ruling on a motion 

to grant appropriate relief or a ruling granting a request for a continuance. In returning the record of proceedings to ithe court, the convening 

authority will include a statement of his reasons for disagreeing, together 

with instructions to reconvene and reconsider the ruling with respect to the 

matter in disagreement. Except as provided in 125?6(3) he will not refer 

to or include in his communication any factual information relative to the 

ruling in question which is not already a part of the record nor will he direct 

the court to consider any evidence or information other than that which is 

already in the record. To the extent that the matter in disagreement relates 

solely to a question of law, as, for example, whether the charges allege an offense 
V68b CHAPTER XI1 

cognizable by a court-martial, the military judge or the president of a special 

court-martial without a military judge will accede to the view of the convening authority. If the matter in disagreement relates to issues of fact, 

as, for example, whether an officer exercising general court-martial jurisdictioi: has unconditionally restored la suspected deserter to duty without trial 

with knowledge of the alleged desertion (68f), the military judge or special 

court-martial withouh a military judge will exercise his or its discretion in 

reconsidering the motion. 

If the convening authority does not return the record for reconsideration, 

he will take the necessary action to conclude the case by publishing appropriate 

orders. See generally 82.83. and 85b. 

When a motion to grant appropriate relief has been granted by the military 

judge or the president of a special court-martial without a military judge, 

the convening authority may cause ~mppropriate action to be taken to remedy 

the defect and, if appropriate, may return the record to the court or another 

court for appropriate further action. If he does not return the record to the 

court or arrange for trial by another court, as when a motion for change of 

venue has been granted (69e), he will dismiss the charges to which the motion 

relates. 

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 which may be raised by this motion before entering a plea are 

lack of jurisdiction (686), failure of the charges to allege an offense (68b), 

running of the statute of limitations (68c), former jeopardy (68d), pardon 

(68e), constructive condonation of desertion (68f), former punishmeilk (68g), 

immunity (68h), and unreasonable denial of speedy trial (68i). See 57 for 

finality of rulings. 

b. Lack of jurisdiction; failure to allege an offense. (1) General. If 

the court lacks jurisdiction or if the charges fail to allege any offense under the 

code, the proceedings are a nullity. These objections cannot be waived and may 

be asserted at any time. 

(2) Lack of jurisdiction. A motion to dismiss on the ground of lack of 

jurisdiction is ordinarily based on an assertion that the court is not properly 

constituted because it was not convened by an official empowered to convene 

J it or on an assertion that the accused is not a person who properly may be tried 

by court-martial. See 8 as to requisites for court-martial jurisdiction and 9 as 

to jurisdiction of courts-martial as to persons. With respect to jurisdiction of 

an offense committed before a fraudulent discharge, a final conviction of having fraudulently obtained the discharge in violation of Article 83 (2) may be 

shown by the prosecution as a final adjudication of the fraudulent discharge, 

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 3 (b) . (3) Pailwe to allege an offense. By a motion to dismiss, the accused 

niay object to the failure of a specification to allege any offense triable by courtmartial. With the exceptions stated in 14a, courts-martial do not have jurisdiction to try any offenses not cognizable under the code. Unless the specificatioi~ 

of a charge alleges an offense of which a court-martial may take cognizance, n 

motion to dismiss should be granted as to the specification. If the motion is 
PLEAS AND MOTIONS f 60c 

granted, the military judge, or the president of a special court-martial without 

a military judge, will direct that the specification be striken and disregarded. 

c. Statute of limitations (Art. 43). Except for certain offenses for which 

there is no limitation as to time (Art. 43(a)), a person charged with an offense under the code is not liable to be tried by court-martial, unless the statute 

of limitations has been tolled (Art. 43 (d) ),extended (Art. 43 (e) ),or suspended 

(Art. 43 (f) ), if sworn charges have not been received by the officer exercising 

summary court-martial jurisdiction over the command within the period of 

time-either two or three years after the commission of the offense-specified 

in Article 43. See 215d for a discussion of the substantive rules with respect to 

the statute of limitations. 

When it appears from the charges or from the evidence introduced at the 

trial that the statute has run against an offense charged or, in the case of a continuing offense, a part of the offense charged, the military judge, or the president of a special court-martial without a military judge, mill bring the matter 

to the attention,of the accused alld advise him of his right to assert the statute 

unless it atherwi's~affirmatively appears that the accused is aware of his rights 

in this regard. See 53h. If the accused pleads guilty to a lesser included offense 

against which the statute of limitations has apparently run, the military judge, 

or the president of a special court-martial without a military judge, will advise 

the accused of his right to interpose the stsutute in bar of trial 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 commissioil of the 

offense and the date when sworn charges and specifications were received by an 

officer exercising summary court-martial jurisdiction over the command, the 

motion should be granted unless the prosecution shows by a preponderance of 

evidence that the statute does not apply because of periods which, under the 

provisions of Article 43 (d) ,are to be excluded in computing the three years. 

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 a waiver. If an accused pleads guilty to an 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 included offense, the plea of guilty, as long as it 

stands, is a waiver of his right to interpose the statute of limitations. Under these 

circumstances he may not, after a finding of guilty of the included offense, assert the statute of limitations. 

The defense of the statute of limitations generally is raised by a motion to 

dismiss. However, the defense also may be raised under a plea of not guilty by 

introducing evidence during the trial in those cases involving contested i.;s ues 

of fact which must be considered by the members of th,e court in connection with 

the issue of guilt or innocence. See 67e for an example of a case in which it is 

appropriate to raise the defense under a plea of not guilty. In such a case, however, the accused should advise the military judge or the president of a special 
16881 CHAPTER XI1 

court-martial without la military judge that he is insisting upon the defense of 

the startute of limitations under his plea of not guilty, as failure to assert the 

defense during the hearing may constitute a waiver. 

See 74h for the procedure to be followed when the accused is found guilty 

of a lesser included offense to which he has not entered a plea of guilty and 

against which the statute of limitations has run. 

d. Former jeopardy. No person may, without his consent, be tried a second time for the same offense (Art. 44(a)). See 215b for a discussion of the 

substantive rules with respect to the defense of former jeopardy. Former 

jeopardy by court-martial, in support of a motion to dismiss, may be established in appropriate cases by the order publishing the results of the trial. 

Former jeopardy before a civilian court may be established by the indictment 

and record of conviction or acquittal. 

e. Pardon. A pardon is an act of the President which exempts the individual on whoin it is bestowed from the punishment the law inflicts for a crime 

he has committed. A pardon may be interposed in bar of trial by a motion to 

dismiss. The usual rules as to documentary 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 defense may introduce other evidence tending to establish 

the pardon. 

f. Constructive 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 trial 

subsequently ordered. If an officer exercising general court-martial jurisdiction 

has 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 punishment. Nonjudicial punishment previously imposed 

under Article 15 for a minor offense and punishment imposed under Article 13 

for a minor disciplinary infraction may be interposed in bar of trial for the 

same offense or infraction. For a definition of "minor offenses," see 12% See 

2156 for a discussion of the substantive rules with respect to the defense of 

former punishment. 1, 

h. Grant or promise of immunity. An authority competent to order a 

person's trial by general court-martial may grant or promise him immunity 

from trial. A grant of immunity may be interposed as a bar to trial if the trial 

in question is contrary to the grant. A promise of immunity may also be interposed as a bar to trial if the trial is contrary to the terms of the promise. 

i. Speedy trial. An accused has the right to a speedy trial, the denial of 

which may be asserted by a motion to dismiss. See 215e for a discussion of the 

substantive rules with respect to the right to n speedy trial. When the accused 

moves for a dismissal of certain charges on the ground that there has been an 

unreasonable delay as to those charges, the prosecution has the burclen of establishing that the delay was not unreasonable. Objections based on the lack of a 

speedy trial may be 11-aived by a failure to make a timely motion to dismiss 

the affected charges. 
PLEAS AND MOTIONS ll69b 

69. MOTIONS TpO GRANT APPROPRIATE RELIEF. a. 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 conducking his defense. Among the objections which may be raised by such #a motion 

are defects in charges and specifications which do a& amount to a failure of 

the charge to allege an offense (696), a substantial defect in the conduct of the 

pmtrial investigation (see 34, 69c, Art. 32), prejudicial joinder in a joint 

trial (69d), misjoinder in a common trial (331,69d), and a general atmosphere 

of prejudice at the place of trial (69e). In general these objections are waived 

if not asserted before the entry of a plea or the conclusion of an Article 39(a) 

session held prior to assembly, whichever occurs earlier, but relief from the 

waiver may be granted for good cause (676). The motion should briefly and 

clearly set fofih the nature of and grounds for the request, abjection, 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. For examples of other 

motions to grant appropriate relief which may be made during the trial, see 

69f. See 57 for finality of rulings. 

b. Defects in charges and specifications. (1) General. If a specification, 

although alleging an offense cognizable by courts-martial, is defective in matters of form, as when it is inartfully drawn, indefinite, or redundant or when 

it misnames the accused, is laid under the wrong article, or does not contain 

sufEcient allegations as to time and place, the objection should be raised by a 

motion for appropriate relief. 

(2) When accused is not mbled. If it clearly appears that the accused 

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 charge or specification. 

(3) When accused may be misled. If the specification is defective to the 

extent that it does not fairly apprise the accused of the particular offense 

charged, the military judge or the president of a special court-martial without 

a military judge, when the defect is raised, 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 io as to 

cure the defect and continue the case for such time as in the opinion of the 

military judge or the president of a special court-m~artial without a military 

judge will enable the accused properly to prepare his defense in view of the 

amendment. 

In determining which of the courses mentioned in tlie preceding subparagraph is to be followed, the military judge or the president of a special 

court-martial without a military judge will exercise discretion in the light of 

the circumstances of each case. The following discussion is intended to provide 

pidance only and is not to be considered as providing a solution for every case. 

When a defective specification alleges a relatively minor offense and one 

or more specifications remain before the court alleging serious offenses as to 

which a delay of the trial might prejudice the interests of the accused or the 

Government, the military judge or the president of a special court-martial 
U 69d CHAPTER XI1 

without a military judge may strike the defective specificartion and proceed 

with the trial of the remaining offenses. 

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 particulars to enable the accused properly to prepare his defense. 

When 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 military judge or t.he president of a special court-martial without a military 

judge may continue the case in order to permit the trial couilsel to refer the 

matter to the convening authority. This procedure is 'also appropriate in any 

case when there is 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 granted only if the accused shows that the defect in the conduct of the investigation has in fact prevented him from properly preparing for trial or has 

otherwise injuriously affected his substantial rights. If the motion is granted, 

the military judge may direct 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 his 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. Ocoasion 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 military judge or the president of a special court-martial without 

a military judge may properly be more exacting than in other cases as to 

whether the facts established in support of the motion canstituta good oause. 

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, 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 inilitai-y judge or the president of a specilal 

court-martial without a military judge mill decide which accused will be tried 

first and, in the case of joint charges, direct ail 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 
PLEAS AND MOTIONS !I70a 

an offense, the specificati~on 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 forrndly 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 816. When, as a result of actioi~ on a motion to sever, 

trial of one lor more accused is deferred, the trial counsel will report the facts at 

once to the convening authority so that he may take appropriate action to try 

the deferred accused or to make other disposition of the charges as to that 

accused. 

e. Change of venue. If the accused demonstrates that there exists at the 

place of trial where the prosecution is pending so great a general atmosphere 

of prejudice against him that he cannot obtain a fair and impartial trial in 

that place, he is entitled, upon a motion for a change of venue, to be tried at 

some other place. When such a motion is granted, the charges shall be returned 

to the convening authority for arrangements for trial elsewhere. 

f. ~iscellaneousmotions for relief. In addition to the grounds for motions discussed above in this paragraph (69), there are others which may be 

made for the purpose of raising a specific objection on the merits before 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 ordinarily not be granted. But see 266. 

70. PLEAS. a. General. In court-martial procedure, pleas include guilty, 

not guilty, and pleas corresponding to permissible findings of included offenses. 

See 746 (3). The military judge, the president of a specical court-martial without 

a military judge, or summary court-martial 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 chfarge. 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 tho~gh he had 

pleaded not guilty (Art. 45 (a) ) . The tern1 "irregular pleading" includes such 

contradictory pleas as guilty without criillinality or guilty to a charge after 

pleading not guilty to all specificatilons thereunder. 

A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged (Art. 

45(b) ; 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 

admission or waiver involved in a plea of guilty t.o any offense has effective 

existence only as long as the plea stands. A plea of not guilty or guilty ~vill, in 

the absence of a motion to grant appropriate relief, be regarded as a waiver of 
11 70b CHAPTER XI1 

any objection which must be raised by such a, motion before plea, including any 

objection based on a misnomer of the accused whether under an alias or otherwise. See 676. By standing mute, 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 more than a statement that he stands upon his riglit to cast upon the 

prosecution the burden of proving his all'eged guilt. 

A plea of guilty does not exclude the taking of evidence, and if there are 

aggravating or extenuating circumstailces not clearly shown by the specification 

and plea, any available and admissible evidence as to those circumstances may 

be introduced. If a plea of guilty to an included offense is entered, the trial 

counsel shall proceed with the prosecution of the offense charged. 

b. Procedure if plea of guilty is entered. The following procedure is 

prescribed for all cases in which a plea of guilty is entered : 

(1) In general and special court-martial oases, the plea of guilty will 

be received only after the accused has had an opportuni%y to consult with 

the counsel detailed for or selected by him. If the acc~~sed has refused 

counsel, the plea should not be received. 

(2) The military judge, the president of a speci<al court-martial without a military judge, or summary co~~rt-martial should explain to the accused the meaning and effect of any plea of guilty made by him. This 

explanation should include the -Eollowing : 

The elements of the offense to which the plea of guilty relzutes; 

That, as to the offense to which the plea of guilty relates, the plea 

admits every element charged and every act or omission alleged and 

authorizes conviction of the offense without further proof ; 

The maximum authorized punishment, including permissible ad&- 

tional punishment (1276, Section B), as appropriate, which may be adjudged upon conviction of the offense ;and 

That the maximum authorized punishment may be adjudged upcm 

conviction of the offense. 

(3) A plea of guilty will not be accepted unless the military judge, the 

president of a special court-martial without a military judge, or summary 

court-martial, after the acc~~sed has been questioned, is satisfied not only 

that the accused understands the meaniilg and effect of-his plea and admits 

the allegations to which he has pleaded guilty but also that he is voluntarily 

pleading guilty because he is convinced that he is in fact guilty. See appendix 86 for \an example of the procednre which may be followed. 

(4) The explanation made and the replies of the accused thereto will be 

set forth verbatim in the record of trial when a verbatim record is kept. In 

other records of trial, the substance of the explanation and replies will be 

set forth in the record of trial. I11records of trial by summary court-martial, 

the fact that a plea of guilty was explained will be recorded in the spaprovided. 

(5) The question whether the plea will be received is an interlocutory 

one. 

In a trial by court-martial with members to which a military judge has 

been detailed, the explanation of the meaning and effect of a guil,ty plea and 
PLEAS AND MOTIONS U 7la 

any inquiry into the providence of a guilty plea should be accomplished by the 

military judge out of the presence of the members of the court-mantial. 

When an accused in the course of a trial following a plea of guilty makes a 

statement to the court, in his testimony or otherwise, inconsistent with the plea, 

the milhary judge, the president of a special court-martial without a military 

judge, or the summary court-martial will inquire into the providence of the 

plea. If as a result of this inquiry it appears that the accused in fact entered 

the plea inprovidently or through lack of understanding of its meaning and effeot, or if the accused does not voluntarily withdraw his inconsisten,t statement, 

a plea of not guilty shall be entered ancl the trial will proceed as though he 

had pleaded not guilty. See Article 45 (a). If before the sentence is announced 

in a trial by &nerd or special court-mal~tial the accused asks permission to 

withdraw a plea of guilty and substitute a plea of not guilty or a plea to a 

lesser included offense, the military judge or the president of a special courtmartial without a military judge may, as a matter of discretion, permit him to 

do so. As to the procedure at a trial by summary court-martial, see 79d(2). If 

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 because of the plea of guilty. See 81b (2) as to the procedure 

when an accused asks permission to ~vithdra~v a plea of guilty during a rehearing on the sentence only. 

If the accused is being tried by a military judge alone or by a summary 

court-martial, a finding of guilty may be entered immediately following the 

acceptance of the plea. In a trial by a court-martial with members, a finding of 

guilty of the charge and specifications may, if permitted by regulations of the 

Secretary concerned, be entered immediately without vote after a plea of guilty 

has been accepted by the military judge or the president of a special courtmartial without a military judge. The findings will be entered by the announcement that the accused has been found guilty in accordance with his pleas. See 

Appendix 86. 

71. MOTION FOR FINDING OF NOT GUILTY; RES JUDICATA. a. 

Motion for finding of not guilty. On motion of the defense, a finding of not 

guilty may be entered as to any offense charged after the evidence on either side 

is closed if the evidence is insuhcient to sustain a conviction of that offense. 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. Rut if all the evidence in the record, whether 

adduced by the defense or the prosecution, or both, is sufficient to sustain a conviction, the conviction need not be set aside upon review merely because the 

court erred in denying the motion for a finding of not guilty at the time it was 

made. 

The military judge, or the president of a special court-martial without a 

military judge, in his discretion may require that the motion specifically indicate 

wherein the evidence is legally insufficient. The matter will be determined as 

an interlocutory question. See 57 and Article 51 (b). If there is any evidence 

which, together with all inferences which can properly be drawn therefrom 

and all applicable presumptions, could reasonably tend t~o establish every essential element of an offense charged or included in any specification to which the 

motion is directed, the motion will not be granted. The military judge, or the 
1[ 71b CHAPTER XI1 

president of a 'special court-martial witliout a military judge, in his discretion 

may defer action on any such motion as to any specification and permit the trial 

counsel to reopen the case for tlie prosecution and to produce any availsable 

evidence. If the motion is granted as to any specificatioli, the ruling amounts to 

a finding of not guilty of that specificatioii and, when appropriate, of the 

proper charge. 

The ruling of the military judge upon a motion for la finding of not guilty 

is final and constitutes the ruling of the court, but the president of a special 

court-martial without a military judge rules subject to objection by ally 

member of the court (Art. 51(b) ) . ~fter'ruling initially and before asking 

whether any member objects to the ruling, the president shall instruct the court 

as to the elements of the offense and any lesser included (offenses, the test to be 

applied in determining whether the motion should be granted, and any other 

matters which properly warrant instruction at that time (5'7~). 

b. Res judicata. The doctrine of res judicata provides that a matter put in 

issue and finally determined by a court of competent jurisdiction cannot be disputed between the same parties in a subsequent trial, even though the determination mas based upon an erroneous view or application of the law. Res judicata 

applies only to the matter determined and not to any principle of law announced 

by the court which may have led to the determination of the matter. In criminal 

trials, the doctrine of res judicata precludes the prosecution from relitigating a 

matter determined in the accused7s favor by a previous final judgment or ruling, 

whether the present trial is for the same or a different offense and whether the 

previous proceeding culminated in an acquittal, a conviction, or otherwise. The 

accused may invoke the doctrine by asserting a motion to dismiss on the basis of 

a matter finally determined in his favor at a previous trial or by objecting to 

evidence which is offered to prove a matter which was finally determined in his 

favor at a previous trial. The former adjudication may be proved by the record 

of trial in which it appears. Whether res judicata applies to a certain matter is 

an interlocutory question. See 57. The accused may invoke the doctrine of res 

jndicata as to matters finally determined in a previous trial by court-martial or 

in any previous trial in which the United States or any governmental unit 

deriving its authority therefrom was a party. The doctrine may not be asserted 

by the prosecution. See, however, 68b (2). 

As an example of the operation of the doctrine of res judicata, if the 

accused is being tried by court-martial for the murder of A, he may successfully 

object to the introduction of evidence that he shot A if lie had been acquitted at 

n previous trial by court-martial of a charge of having assaulted A by shooting 

him on the same occasion, and this is so even though the defense of former 

jeopardy (684 might not be available to the accused. As another example, the 

accused may successfully object to the introduction of a confession against him 

if that confession was excluded as being inadmissible'against him at a previous 

trial by court-martial, even if the confession \vns excluded under ail erroneous 

concept of the law. 
Chapter XIII 

MATTERS RELATED TO FINDINGS AND SENTENCE 

,\ ARGUMENTS-INSTRUCTIONS TO A COURT-MARTIAL WITH MEMBERSFINDINGS-PRESENTENCING PROCEDURE-SENTENCECONCLUSION OF THE 

TRLAL 


72. ARGUMENTS. a. General. After both sides have rested, arguments -

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 closing argument, the defense should be afforded an opportunity to reply thereto, but this will not preclude the trial counsel from presenting a final argument. See 75e as to argument on the sentence. 

If the arguments indicate that a plea of guilty was entered improvidently, 

the military judge or the president of a special court-martial without a military 

judge 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 military judge, or the president of a 

special court-martial without a military judge may as a matter of discretion 

limit argument when it is trivial or mere repetition. In arguments on findings 

and sentence, as discussed in this paragraph and 75e, and as distinguished from 

arguments on other matters (53g and 578(2) ), neither counsel may cite legal 

authorities or the facts of other cases, except when arguing before the military 

judge sitting alone. 

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, conduct, motives, and evidence of malice on the part of witnesses 

may, so far as disclosed by the evidence, be commented upon. It is improper to 

state in an argument any matter of fact as to which there has been no evidence. 

:I party may, however, argue as though the testimony of his own witnesses 

conclusively established facts related by them. 

The prosecution may not comment upon the fail~lre 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 fads in that testimony to deny or explain 

specific facts of an incriminating lanture that the evidence of the prosecution 

tends to establish with respect to that offense, such a failure may be commented 

upon. When an accused is on trial for a number of offenses and has testified 
ll73a CHAPTER Xlll 

to one or more of them only, no comment can be made on his failure to testify 

as to the others. Trial counsel may not comment on the exercise by the accused 

of his rights under Article 31(b), the conduct of the defense at the Article 

32 investigation, nor upon the probable effect of the court's findings on 

relations between the military and civilian communities. 

Refusal of a witness to answer a proper question may be commented upon. 

But see 148e and 1506. 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 military judge or the president of a special court-martial without 

a military judge to order that the argument be confined to proper matters, and 

that any improper part already made be disregarded. 

73. INSTRUCTIONS TO A COURT-MARTIAL WITH MEMBERS. 

a General.After closing arguments have been concluded, the military judge, 

or the president of a special court-martial without a military judge, will give the 

court those instructions which are required by the law in the light of the circumstances of the case. He will instruct the court as to the elements of the 

offense charged in each specification and the elements of each included offense in 

issue. The elements of the offense, for instructional purposes, are those issues 

of fact related to the offense which must be determined by the members of the 

court on the question of the guilt or innocence of the accused. When the question 

of insanity is reasonably raised by the evidence, he must instruct the court as to 

this issue. He should give instructions on the law governing each affirmative 

defense reasonably in issue under the evidence and on the meaning of each term 

having a special legal connotation employed in the instructions. For example, 

in offenses of murder or manslaughter, instructions on self-defense (216c) 

must be given if that defense is reasonably raised by the evidence; and in the 

case of offenses requiring proof of specific intent or actual knowledge, instructions on the possible effect of intoxication (154a(3) ) must be given when this 

is an issue reasonably raised by the evidence. If any evidence, including evidence 

of other acts of misconduct of the accused, has been admitted for a limited 

purpose, he should instruct the court concerning the limited pilrpose for which 

it was received. See chapter XXVII as to instructions concerning other 

evidentiary matters. 

Information as to the elements of certain offenses and included offenses may 

be obtained from the subparagraphs entitled LLDiscussions" and "Proof" which 

appear in the discussion of the punitive article relating to each. See chapter 

XXVIII. A mere reading of the elements of proof from applicable subparagraphs will not, however, in most cases be sufficient to apprise the court of what 

must be proved to warrant a conviction, nor will it provide other necessary 

instructions, such as those on affirmative defenses in issue. Instructions should be 

tailored to fit the circumstances of the individual case. If the military judge, or 

the president of a special court-martial without a military judge, entertains 

ally doubt as to the elements of a particular offense, the lam governing an affirmative defense, what matter should be included in any instruction, or any other 

question relating to instructions, he may call upon trial and defense counsel 

to produce any law available on these matters, including citations and 

authorities. 
TRIALGFINDINGS AND SENTENCE II 73d 

If there is an accepted plea of guilty to an offense and a hding of guilty 

has not been entered without vote, the military judge, or the president of a 

special court-martial without a military judge, may invite the attention of the 

court to the fact that no further proof of the offense to which the plea relates 

need be introduced by the prosecution to warrant a finding of guilty of that 

offense. See70b. 

All instructions given by the military judge, or the president of a special 

court-martial without a military judge, will be given in open session in the 

presence of the accused and counsel for both sides. 1.. 


b. Charging the court. After instructing the court as set forth in 73a,the 

military judge, or the president of a special court-martial without a military 

judge, shlall, in all cases in which a not guilty plea has been entered and, when 

appropriate, !in cases in which a plea of guilty to all charges rand specifications 

has been entered, 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 must be resolved in favor of the 

accused and he must 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 United States. 

c. Military judge's summarizing and commenting upon the evidence. 

%Then the military judge 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, tin an appropriate case, make an orderly statement of the issues of fact, 

summ~arize and comment upon the evidence on each side of those issues, and 

discuss the law 'applicable thereto 'at greater length than required by 73a. 

In summarizing or commenting upon the evidence, the military judge 

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 the prosecution land the defense. He should not depart from the role 

of an 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 confliding, as €0 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. 

d. Preparing instructions. If the military judge, or the president of a 

special court-martial without a military judge, deems it necessary or desirable, 

he may recess the court so that he may have time to prepare his instructions, and 

he may request counsel for both sides to furnish him with proposed instructions 

as to a particular issue in the case or as to any or all of the offenses charged. 

Counsel may submit proposed instructions without such a request, however, and 

need not submit them even when requested to do so. If either counsel submits 

proposed instructions or requests instructions on any matter, the military judge, 

or the president of a special court-martial without a military judge, should 
P 74a CHAPTER Xlll 

provide instructions on the matter if it is in issue and has not been adequately 

covered elsewhere in his instructions. Any proposed instructions submitted 

by counsel will be presented in writing and copies will be furnished to the 

opposing counsel. The military judge, or the president of a special court-martial 

without a military judge, 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 submitted 

by counsel, subject to the limitations above. In giving an instruction proposed by counsel, he should not identify its source. He will cause all proposed 

instructions to be marked for identification and appended to the record of 

trial for consideration on review. Counsel may be permitted to present argument upon proposed instructions. The military judge will exclude the members 

during the presentation of any argument upon a proposed instruction. The 

argument should be recorded and incorporated in the record. 

Normally, written instructions are not taken into closed session by the 

court, but any copy which is taken into closed session must be appended to the 

record of trial as an appellate exhibit. 

74. FINDINGS. a. General. The following principles apply to findings 

whether made by the military judge alone or by the members : 

(1) Basis of findings. Only matters properly before the court as a whole 

may be considered. 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 153a (Credibility of witnesses) and 1536 (Impeachment of witnesses). 

(3) Reasonable dozbbt. In order to convict of an offense, the court must 

he satisfied beyond a reasonable doubt that the accused is guilty thereof. By 

"reasonable doubt" is intended not a 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 n doubt suggested 

by the ingenuity of counsel or court and unwarranted by the testimony, nor 

:I 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 

rneaning of the rule is that the proof must be such as to e2clude 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 mat,hematical certl~intybut a moral certainty. 

The rule as to reasonable doubt extends to e~ery elenlent of the offense. 

If, in a trial for desertion with intent to remain away permanently, a reasonable 

doubt exists as to that intent, the accused cannot properly be convicted as 

charged, although he might be convicted of the lesser included offense of 
TRIALS--FINDINGS AND SENTENCE ll74b 

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. 

If a reasonable doubt exists as to the mental responsibility of an accused 

for an offense charged, the accused cannot legally be convicted of that offense. 

See 1206 as to the standard of mental responsibility and 122 as to the burden 

of proof and presumption of sanity. See the fourth paragraph of 214 as 

to the burden ofiproof when a special (affirmative) defense is in issue. 

A reasonable doubt may arise from the insufficiency of direct as well as 

circumstantial evidence. There is no general rule for contrasting the weight 

of direct and circumstantial evidence. See 1386. The rule as to reasonable 

doubt applies equally to cases supported by direct evidence and those in which 

the only competent evidence is circumstantial. 

b. Findings as to the specifications. (1) General. Permissible findings 

include guilty; not guilty; guilty 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 ~vithout criminality should not be made. 

When two or more accused are tried jointly, the findings as to each accused 

should be stated separately. Any different findings as to two or more joint 

accused should be consistent with one another. Thus, if A and B are joint 

accused and the court finds 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 was 

a joint one. 

(2) Exceptions and substitutions. One or more words or figures may be 

excepted and, when necessary, others substituted, provided the facts as so 

found constitute an offense by the accused which is punishable by the court 

and provided such an action does not change the 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 indicktes an offense not charged, see 55. 

(3) Inc7,tded offenses. If the evidence fails to prove the offense charged 

lnut does prove the commissioil 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 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 a discussion of included offense, 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 same act or transaction. The accused 

may be found guilty of two or more offenses arising out of the same act or 

transaction, without regard to 11-hether the offenses are separate. I11 this connection, however, see 76a(5). 
774d CHAPTER Xlll 

c. Findings as to the 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 only absence without leave 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 Srticle 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 that charge does not require any 

finding of the charge as to it. Thus, upon finding an accused guilty of one of 

the two specificatiolls 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. 

d. Procedure for courts-martial with members. (1) General. In every 

case tried by a court-martial with members in which findings of guilt or innocence are to be made, the members must vote on the findings unless regulations of the Secretary concerned permit a finding of guilty to be entered without 

vote upon the acceptance of a plea of guilty. After the military judge, or the 

president of a special court-martial without a military judge, has instructed 

the court as prescribed in 73, the court will close to deliberate and vote on the 

findings. Only the members 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 control the independence of members in the exercise of their judgment. 

(2) Voting. Voting shall be by secret written ballot (Art. 51(a)) and is 

obligatory for all charges and specifications for which findings have not been 

entered without a vote (Art. 45(b) ). 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 all 

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 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. 51(a)) . (3) Numbers of aotes required. No person may be convicte-d of an offense 

for which the death penalty is made mandatory by law (see, for example, Art. 

106), except by the concurrence of all the members of the court-martial present 

at the time the vote is taken. No person may be convicted of any other offense, 

when voting is required (74d (1)), except by the concurrence of two-thirds of 

the members present at the time the vote is taken (Art. 52). If, in computing 
TRIALGFINDINGS AND SENTENCE 11 74f 

the number of votes required, a fraction results, the 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; however, a court 

may reconsider any finding before the same is formally announced in open 

session. The tour$-may also reconsider any finding of guilty on its own motion 

at any time before it has first announced the sentence in the case. Any member 

of a court may propose that a finding be reconsidered. If a reballot is proposed 

by any member as to a finding of guilty of an offense for which the death 

penalty is mandatory by law, an additional ballot shall be taken immediately. 

Otherwise, the question shall be determined on secret written ballot, and a reballot shall be taken on a prior not guilty finding when a majority of the members vote in favor thereof or on a prior guilty finding if more than one-third of 

the members favor reballoting. 

e. Requesting additional instructions. If during their deliberation on 

the findings, the members of a court-martial with a military judge are in doubt 

as to the applicability of the law or the effect of certain evidence in a case, such 

as whether they may make a finding of guilty of a specification by substitutions 

and exceptions, or whether there is any lesser included offense of which they 

may find the accused guilty, the court may be opened and additional instructions 

requested from the military judge. These instructions will be given in open 

session in the presence of the accused and counsel for both sides and will be 

made a part of the record. 

If a special court-martial without a military judge desires additional information on the subjects mentioned above, it may open and request counsel for 

both sides to present legal authorities on the question or direct the trial counsel 

to obtain the information. The proceedings, including any information that is 

given the court by the trial counsel pursuant to such direction, will be in open 

session in the presence,of the accused and his counsel and will be made a part 

of the record. 

f. Form of Findings. (1) Court-martial with a military judge and members. After a court-martial with a military judge detailed has finally voted on 

the findings in closed session, the court may open and ask the military judge for 

assistance so that it may put the findings in proper form. The military judge 

should first require the president to state whether the court has reached its 

findings and, if so, what those findings are. This statement of the president does 

not constitute the announcement of the findings. The military judge may require 

the president to submit the findings to him in writing in lieu of an oral statement. 

The president shall speak for the court members in discussing the findings with 

the military judge, and he shall be careful not to disclose the vot'e 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. If the 

court has not reached its findings, the military judge may give such additional 

instructions as the court members may require to assist them in arriving at 

findings. 

(2) Special court-~nurtial withotit r/ military judge. L4special courtmartial without a military judge shall put its findings in proper form in closed 

session, following the forms indicated in appendix 86 and the instructions coiltained in 7'4 '4 and c. 
ll 74i CHAPTER Xlll 

(3) Court-martial composed of a military judge alone. The military 

judge sitting alone shall put his findings in proper form following the forms 

indicated in appendices 8b and 8f and the instructions contained in 74 b and c. 

(4) Reason for @dings. No finding by a court-martial with members 

should include any indication of the reasons for making it. For memorandum of 

decision and special findings by the military judge sitting alone, see 74i and 

appendix 8f. 

g. Announcing the findings. As soon as a court-martial with members 

has determined the findings in a oase, it will anllounce them in open session in 

the presence of the military judge, if any, counsel, and the accused. Only the 

required percentage of members IT-IIQ coilcurred in findings of g~~ilty should be 

announced. If it is discovered before the concl~~sion of a trial that ithere was an 

error made in announcing the actual findings of the court, the error may be 

remedied by the announcement of the correct findings. This does not amount 

to a reconsideration by the court. See 74d(3) as to when reconsideralioiz is 

proper. In any case tried by a military judge ~x~ith members, the nlilitaiy judge 

may require the president to submit the findings to him in open session in 

writing prior to their announcement. 

When the military judge who is trying the case alone has deter~llined the 

general findings, he will announce them in open sessioil in the presence of counsel 

and the accused (744. 

h. Statute of limitations. If by exceptions and substitutions an accused is 

found guilty of an included offense to which he has not entered a plea of guilty, 

and against which it appears that the statute of limitations (Art. 43) has run, 

the milikary judge, or the president of a special court-martial without a military 

judge will, as soon as such a finding is announced, advise him in open session of 

his right to avail himself of the statute. If an accused interposes the statute, the 

issue will be determined in subst~antially the same inanner as a motion to dismiss 

on the grounds of the statute of limitation (68c), and if it is determined that 

the statute has run against the offense, the military judge, or the president of a 

special court-martial without a military judge, will set aside the findings and 

dismiss the specification. 

However, if an accused has pleaded guilty to an included offense and has 

persisted in his plea after the meaning and effect thereof have been explained 

to him, including his right to interpose the statute of limitations as to that 

offense, he has thereby waived the right to interpose the statute of limitations 

for the offense as long as his plea of guilty stands. Under these circumstances 

an accused may not, after a finding of guilty of such an included offense, assert 

the statute. 

i. Court-martial composed of a military judge alone. The military judge 

sitting alone decides the guilt or innocence of the accused. He shall make general findings as indicated in 74b and c and inny make such special finding as he 

deems appropriate. Upon request, however, special finclings shall be made of 

factual matters reasonably in iesue. The special findings will'iisually iilclude 

findings as to the elements of the offenses of ~\-hich accusecl may be found guilty, 

findings on the question of mental responsibility if raised by the evidence, and 

findings oil special defenses reasonably in jssue. A request for special findings 

must be made prior to the announcement of geneaal findings by the military 
TRIALS--FINDING AND SENTENCE ll75b 

judge and must specify the matter to be determined. Only one set of special 

findings may be requested by a party in any case. The military judge may 

require that a request for special findings be submitted in writing. The general 

findings, when determined, must be nnnounced in open count witih all parties 

present and special findings may be announced at that time. If the military 

judge files an opi@on or memorandum of decision, however, it is sufficient if 

the special findings appear therein. 

Requested special findings need not be made in the event of an acquittal of 

an offense, or relating to the principal offense, if conviction is of an included 

offense. 

If the accused so requests, the military judge may announce his special 

findings prior to the presentencing procedure; otherwise the special findings 

may be attached to the record witkin a reasonable time after sentencing and 

before authentication of the record. The military judge may file an opinion 

or memorandum of decision at any time prior to authentication although the 

general and special findings were,previously announced. 

75. PRESENTENCING PROCEDURE. a. General. After the findings 

of guilty have been announced, the prosecution and defense may present appropriate matter to aid the court in determining the kind and amount of punishment to be imposed. If the accused mas tried loly a military judge sitting alone, 

the presentencing procedure may begin after the military judge announces the 

findings of guilty. See 74i. 

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 the findings 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, action should be 

taken as outlined in 70. 

b. Matter presented by the prosecution. (1) Data as to service. The trial 

counsel will read to the court from the charge sheet the data as to the age, pay, 

and service of the accused and the duration and nature of any restraint imposed 

before trial. If the defense objects to the data as being inaccurate or incomplete 

in a specified material particular, or as containing certain specified objectionable matter, the military judge or the president of a special court-martial without a military judge shall determine the issue. Objections not asserted may be 

regarded as waived. 

(2) Evidence of previous convictiom. The trial counsel will next introduce evidence of any previous convictions of the accused by courts-martial. This 

evidence is not limited to offenses similar to the one of which the accused stands 

convicted. The evidence must, however, relate to offenses committed during the 

six years next preceding the commission of any offense of which the accused 

stands convicted. In computing the six-year period, periods of unauthorized 

absence as shown by the findings in the case or by the evidence of previous 

coizvictions should be excluded. 

Unless the accused has been tried for an offense within the meaning of 

Article 44(b), evidence as to the offense is not admissible as evidence of a 

previous conviction. See 68d (Former jeopardy). Therefore, no proceeding in 

which an accused has been found guilty by a court-martial upon any charge 

or specification shall, as to that charge or specification, be admissible as a 
n 75~ CHAPTER XIII 

previous conviction until the finding of pilty has become final afiter review 

of the case has bwn fully completed. A pending request to the Judge Advocate 

General to vacate or modify the findings and sentence of a court-martial on 

grounds of newly discovered evidence, fraud on the court, liack of jurisdiction 

over the accused or the offense, or error prejudicial to the substantial rights of 

the accused (Art. 69) is not a part of the review within the meaning of Article 

76 (108), and does not affect the admissibility of that court-martial as a previous 

conviction. 

Ordinarily, previous convictions are proved by the record of previous 

convictions or the personnel records of the accused or an admissible copy or 

extract copy thereof. They may also be proved by the order promulgating the 

result of trial. The rules as to documentary evidence (143) apply to the proof 

of previous convictions as discussed in this subparagraph. A vacation of a suspended sentence does not itself qualify as a previous conviction and is not 

admissible as such. 

(3) Matter showing aggravation of an offense to which a plea of gdlty 

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 int,roduced before the findings, the prosecution may introduce 

that evidence after the findings are announced. See 70 in this connection. 

c. 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 mihigation offered by the defense, the military judge or the 

president, of a special court-martial without a militiary judge 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. 

(2) Statement 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 unsworn 

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 evidence. The statement 

may be oral or in writing, or both. It may be made by the accused, by counsel, 

or by both. The statement should not include what is properly argument, but 

ordinarily the military judge or the president of a special court-martial without a military judge will not stop a statement on thak 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 circumstances surrounding the commission of the offense, including 

the reasons that actuated the accused but not extending to a legal justification 

or excuse. 

(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 nonjudicial punishment under Article 15 has been imposed and enforced against the accused may 
TRIALGFINDINGS AND SENTENCE !I 76a 

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 the punishment was imposed 

and enforced. See 68g. Matter in mitigation 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. Optional matter presented when court-martial constituted with 

military judge. Under regulations of the Secretary concerned the trial counsel 

may, prior to sentencing, obtain and present to the military judge any personnel 

records of the accused or copies or summaries thereof. Summaries of such 

records will be prepared and authenticated by the custodian thereof as provided 

in appendix 8g. Personnel records of the accused include all those records made 

or maintained in accordance with departmental regulations which reflect the 

past conduct and performance of the accused. If the accused objects to the data 

as being inaccurate or incomplete in a specified mderial particular, or as containing certain specified objectionable matter, the military judge shall determine the matter. Objections not asserted will be regarded as waived. The 

accused may submit in rebuttal any matter which reflects on his past conduct 

and performance. In cases where members determine sentence, the military 

judge may admit for their consideration any information from these records 

which reflects the past conduct and performance of the accused. 

e. Rebuttal evidence. After matter in aggravation, extenuation, or mitigation has been introduced, the prosecution or defense has the right to crossexamine any witnesses and to offer evidence in rebuttal. 

f. Argument. After, introduction of matters relating to the sentence, 

counsel for each side may,make argument for an appropriate sentence. Trial 

counsel may not, in this argument, purport to speak for the convening authority 

or any higher authority, refer to the views of these authorities, refer to any 

policy directive relative to punishment, or refer to any punishment or quantum 

of punishment in excess of that which can lawfully be imposed in the particular 

case by the particular court. 

76. SENTENCE. a. Basis for determining. In determining the kind and 

amount of punishment to be imposed, the following matters are applicable: 

(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 (1270). To the extent that punishment is discretionary, the sentence should provide a legal, appropriate, and adequate punishment. 

(2) When applicable, the Table of Maximum Punishments prescribes 

the maximum limits authorized for each offense listed therein, and it should 

not be interpreted as indicating what is an appropriate sentence in an individual 

case. Whether the maximum or a lesser sentence mill be imposed should be 

determined after a consideration of all the facts and circumstai~ces involved 

in the case, regardless of the stage of the trial at which they were established. 
n 76a CHAPTER XIII 

Accordingly, the court may consider evidence of other offenses or acts of misconduct which were properly introduced in the case, even if that evidence does 

not meet the requirements of admissibility in 75b (2) and even if it was introduced for a limited purpose before the findings. See 1389 and 1537, (2) (6). In 

the exercise of its discretion in adjudging a sentence, the court may consider 

evidence when properly introduced respecting the character of the accused as 

given in former discharges, the number and character of previous convictions, 

that a guilty plea is a mitigating factor, the nature and duration of any pretrial 

restraint, any evidence of mental impairment or deficiency (123), and the circumstances extenuating, mitigating, 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 145c and Article 

50 for limitations resulting from the use by the prosecution of testimony 

contained in a record of a court of inquiry. 

(3) 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*felonies, or of offenses of a military nature 

requiring severe punishment. See 127c, Section B, as to when a dishonorable discharge is authorized as an additional punishment. 

(4) A bad-conduct discharge may be imposed in any case in which a dishonorable discharge may be imposed as well as in cortain 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. See 127c, Section B, as to when a bad-conduct 

discharge is authorized as an additional punishment. 

(5) The maximum authorized punishment may be imposed for each 

of two or more separate offenses arising out of the same act or transaction. 

If one offense is included in the other, the offenses are not separate. Also, 

the general rule is that offenses are not separate unless each requires proof 

of an element not required to prove the other. For example, if an accused 

is convicted of escape from confinement (Art. 95) and desertion (Art. 85) 

which both arose out of the same act or transaction, the court may legally 

adjudge the maximum punishment authorized for each offense because an intent 

to 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; but if, in this example, the accused had been convicted of absence without leave instead of desertion, he could not be separately punished for the two 

offenses because absence without leave does not require proof of any element 

not also required to prove the escape. \ 

Care must be exercised in applying the general rule stated in the above 

paragraph as there are other rules which may be applicable, with the result that 

in some instances a final determination of whether two offenses are separate 

can be made only after a study of the circumstances involved in the individual 

case. The following are examples of rules under which offenses may not be 
TRIALS--FINDINGS AND SENTENCE 	 II 76b 

separate although each offense requires proof of an element not required to 

prove the other : 

(a) When the intent for each of severaZ offenses is to be inferred from 

the same fact. 

Exampb: 	An accused is convicted of desertion by an absence mith an 

intent to remain away permanently (Art. 85 (a) (1) ) and 

also of desertion by quitting his organization with intent to 

shirk important service (Art. 85 (a) (2) ),as the result of one 

absence. If the intent for each offense is to be inferred from 

' -	 the fact that the accused failed to comply with orders for 

overseas shipment, the offenses are not separate. 

, 

(6) When two offenses are committed as the result of a single impulse 

or intent. 

Example: 	An accused is convicted of unlawfully opening mail matter 

(Art. 134) and larceny (Art. 121) therefrom. If he opened 

the mail bag for the purpose of stealing money contained in 

a letter in the bag, the offenses would not be separate. 

The following are examples of rules which establish that offenses are separate 

whether or not each offense requires proof of an element not required to prove 

the other : 

(a) When the offenses involve violations of different social standards. 

Example: 	An accused is convicted of robbery (Art. 122) and conspiracy (Art. 81) to commit the same robbery. Even if the 

overt act set forth in the conspiracy is t.he consummated 

robbery, the offenses are separate. See 160. 

(6) 	When the offenses involve the breach of separate duties. 

Example: 	An accused is convicted of misbehavior before the enemy 

through cowardly conduct in wrongfully failing to join his 

unit in the front lines (Art. 99 (5) ) and the willful disobedience of the lawfiil order of a snperior officer to join his unit in 

the front lines (Art. 90(2)). The offenses are separate because in the first instance the accused had n duty to be mith 

his unit and in the second he had a duty to obey the order to 

join it. 

When an accused is convicted of two or more offenses which are not 

separate, the maximum punishment for all of those offenses which merge is 

the maximum prescribed in the Table of Maxinluln Punishments for the 

one carrying the most severe punishment. 

b. Procedure for courts-martial with members. (1) Jnstructions on. 

punishment. Before a court-martial closes to deliberate and vote on the sentence, 

the military judge, or the president of a special court-martial without a military 

judge, must give appropriate instructions on the punishment, to include a 

statement of the maximum authorized punishment which may be imposed. The 

instructions should be tailored to fit the facts and circumstance of the individual 

case and should fully inform the members of the court-martial on their sole 

responsibility for selecting an appropriate sentence and that the court-martial 

may consider all matters in extenuation and mitigation as well as those in aggravation, whether introduced before or after the findings; evidence admitted 

as to the background and character of the accused ;and the reputation or record 
!l76b CHAPTER Xlll 

of the accused in the service for good conduct, efficiency, fidelity, courage, 

bravery, or other traits of good character. The maximum punishment will be 

the lowest of the following : the total permitted by 127c for the offenses of which 

the accused stands convicted, or the jurisdictional limit of the court-martial (see 

Art. 19), or, in a rehearing or new or other trial of the case, the maximum authorized pursuant to 81d or IIOa(2). A court-martial must not be advised of 

the basis for the sentence limitation or of any sentence which might be imposed 

for the offense if not liniited as set forth above. If an additional punishment is 

authorized because of the provisions of 127c, Section B, however, the military 

judge or the president of a special court-martial without a military judge, 

should advise the court of the basis for the increased permissible punishment. If 

the president of a special court-martial without a military judge has any question as to the maximum punishment that may be adjudged in a case, he may 

request counsel for either or both sides to procure and present pertinent information concerning the matter for his consideration. This information will be 

given in open session in the presence of the accused and his counsel and should 

be made a matter of record. 

(2) Deliberation, and voting. The court sits in closed session during deliberation and voting upon the sentence. Only the members of the court will be 

present. Deliberation may properly include full and free discussion. The 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 each 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 of each member to vote for a proper sentence for the offense 

or offenses of which 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. If the required proportion of the court members 

are conscientiously unable to reach agreement on a sentence, this fact shall be 

announced in open session and a mistrial declared. The convening authority may 

thereafter direct a rehearing on the sentence before a different court. 

(3) Nu?nber of votes ~qequired. No person may be sentenced to suffer 

death, except by the concurrence of all the members of the court-martial present 

at the time the vote is taken. No person may be sentenced to life imprisonment 

or to confinement for more than ten years, except by the concuiynce of threefourths 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 52(b). If, in computing the number of 

votes required, a fraction results, the fraction will he counted as one; thus, if 

six members are to vote, a requirement that three-fourths concur is not met 

unless five concur. 
TRIALS--FINDINGS AND SENTENCE ll77a 

(4) Form of sentence. Forms of sentences appear in appendix 13. The 

sentence adjudged should follow one of those forms or a combination or modification of those forms. The court may be given additional instructions in open 

session concerning the sentence when it so requests or when otherwise appropriate to assist in 'a proper sentence determination. See 74e for the correct 

procedure on additional instructions. 

c. Announcing of sentence by court-martial with members. As soon as 

the court has dete~mined the sentence, the president will announce it in open 

session in the presence of the military judge, if any, the accused, and counsel 

for both sides. Only the required percentage of members who concurred in 

the sentence should be announced. If the military judge notes any ambiguity 

or apparent illegality in the sentence as announced by the couit, 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 Dhe sentence prescribed for the offense of which the accused has been 

convicted is mandatory (Art. 62(b) ). If it is discovered before the dispersal 

of a court, however, that there was an error made in announcing the sentence 

as actually determined by the court, the error may be remedied by announcing 

the correct sentence in open session. In appropriate cases, such an error may 

also be corrected in a similar manner by reconvening the co~~rt if the error 

is not discovered until after dispersal. In these situations it is unnecessary 

to have a reconsideration. These procedures may not be used when the sentence 

announced is the one actually determided but it is later discovered that it does 

not express the actual intent of the court members. In a trial by special courtmartial without a military judge, 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 paragraph, Dhe 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 

the military judge, if any, must be present. 

d. Procedure for reconsideration by a court-martial with members. 

Subject to the rules provided in c above, any member of the court may propose 

that a sentence be reconsidered. The question shall be determined by secret 

written ballot, and a reballot on the sentence with a view to increasing it will 

be taken only if a ma,jority of the members present vote in favor thereof; 

but a reballot on the sentence with a view to decreasing it will be taken if the 

vote therefor indicates that reconsideration is not opposed by the number of 

votes required for the sentence that was previously agreed upon. 

e. Court-martial composed of military judge alone. Following the presentencing procedure (75), the military judge sitting alone will, after deliberation, announce t,he sentence in open session in the presence of the accused aad 

counsel for both sides. 

77. CONCLUSION OF THE TRIAL. a. Recommendation for clemency. 

After the sentence has hen announced, the defense nmy submit in writing for 

attachment to the record any matters as to clemency which it desires to have 

considered by the military judge, the memjbers of the court or the convening 
n 77~ CHAPTER XIII 

authority. The rules of evidence are not applicable to these 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 m~ay be the basis of a recornmendati'on for clemency 

by the military judge who adjudged the sentence or 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 and 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 Taw, such a recommendation is made, it 

will not impeach 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 finding 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. 

b. 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 

military judge or the president of a special court-martial without a military 

judge. 

c. Post trial matters. See 48j (2) as to the right of the defense to submit a 

brief of the matters which it desires to have considered in.behalf of the accused 

on review. 

In those cases in which confinement at hard labor is included in the sentence 

adjudged, the accused may submit to the convening authority an application for 

the deferment of the service of t,he confinement. See 88f. 

As to the duty of trial oounsel to no ti^' the accused's commanding offiwr 

of bhe result of trial, see 44e. For preparation and authentication of the record, 

see chapter XVI. 
Chapter XIV 

PROCEDURE OF INFERIOR COURTS-MARTIAL 

SPECIAL COURTS-MARTIALSUMMARY COURTS-MARTIAL 

\\ 

78. SPECIAL COURTS-MARTIAL. The principal distinction in procedure between general and special courts-martial is that a military judge and 

a verbatim recording of the trial are required in every general court-martial, 

whereas they are not mandatory in all special courts-martial. The same procedure should be followed at a special court-martial with a military judge as at 

a general court-martial, including any Article 39(a) session that may be held 

(app. 8a and b). The procedure for a special court-mart.ia1 witho~~t a military 

judge may be provided for in regulations of the Secretary of a Department 

and will, so far as practicable, conform to that provided for general courtsmartial. With respect to the preparation of records of trial by special courtsmartial, sea 83 and appendices 9 and 10; as to the disposition of such rmrds 

by the convening authority, see 91b. 

79. SUMMARY COURTS-MARTIAL. a. Function. The function of a 

summary court-martial is to exercise justice promptly for relatively minor offenses under a simple form of procedure. The summary court will thoronghly 

and impartially inquire into both sides of the matter and will assure that the 

interests of both the Government and the accused are safeguarded. Unless otherwise stated herein or in regulations of the Secretary of a Department, the procedure prescribed for a general court-martial will, when applicable, serve as a 

guide for a summary court-martial. See appendix 86 in this connection. See 

also 137. 

b. Power to obtain evidence. A sun~mary 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 file. When charges are referred to a summary conrtmartial, 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 correct and initial slight errors or obvious mistakes in the charges. 

but if substantial changes are required, the court will refer the matter to the 

convening authority. See 33d. 
7i 79d CHAPTER XIV 

d. Trial procedure. (1) Determining jurisdiction. 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 

convened 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 mill assist him in every possible way to do so ; 

his right 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 court can adjudge if the accused is 

found guilty of the offense or offenses charged. 

The summary court will also advise him of his right to objeot to trial by 

summary court-martial (Art. 20) and will ask him whether he consents or 

objects to trial. After giving the accused a reasonable time to consider the 

question, the summary court will record his response in the space provided on 

the charge sheet. If the accused objects to trial, the summary court will note 

those facts on the charge sheet and will return the charges and allied papers to 

the convening authority. If the accused consents to trial, the summary court 

will proceed with the trial. 

(2) Arraignment and pleas. After complying with the provisions of the 

preceding paragraph (796(1) ) and determining that it has jurisdiction over 

the accused, the summary court will read or show the charges and specifications 

to the accused. Any necessary explanation of the charges may be made. The 

accused should then be asked how he pleads to each specification and charge. 

If the accused pleads guilty to any specificatioil or charge, the summary 

court should explain to him the meaning and effect of the plea. This explanation 

should include the following : 

The elements of the offense to which the plea of guilty relates; 

That, as to the offense to which the plea of guilty relates, the plea admits every element charged and every act or omission alleged and authorizes 

conviction of the offense without further proof ; 

The maximum authorized punishment which may be adjudged upon 

conviction ; and 

That the maximum authorized punishment may be adjudged upon 

conviction of the offense. See 706 (2). 

A plea of guilty will not be accepted nnless the summary court-martial 

after questioning the accused is satisfied not only that the accused understands 

the meaning and effect of his plea and admits the allegatioils to which he has 

pleaded guilty but also that he is voluntarily pleading guilty be~ause he is convinced that he is in fact guilt,y. See 706 (3). 

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 
TRIAL%INFERIOR COURTS (I 79e 

once to find the accused guilty. However, the court may, in the interest of justice, proceed with the trial and consider evidence on the merits. If, after hearing evidence on the merits, 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 esidence. If the accused has pleaded not guilty or 

if following a plea of guilty evidence on the merits or in extenuation or mitigation is to be receive& arrangements will be made for the attendance of necessary 

witnesses. Witnesses should be excluded from the courtroom until called to 

testify. Witnesses for the prosecution will be called first and examined under 

oath as to all matters relevant to the offense charged. The accused will be extended the right to cross-examine these 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 

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 mitigation. 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 accussed full opportunity to exercise his election. See appendix 86 

for form of explanation. 

(4) Findings wnd sentence. The applicable principles stated in 74 and 

76should 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 mitigati,on, including the making of an unsworn statement 

(756; app. 8). Before determining the sentence, the summary court will show 

or read to the accused any admissible evidence of previous convictions (756 (2) ) 

and the personal data appearing on the charge sheet and will ask him whether 

they are correct. If the accnsed claims they are not correct in any particular, the 

court will determine the issue (7'56 (I), (2) ) . The court will advise the accused 

of the sentence as soon as it is determined. If the sentence includes confinement, 

the summary court will take such action as may be prescribed by the convening 

authority to have the accused delivered to an appropriate place of confinement. 

The court will also advise the accused of his right to apply to the convening 

authority for deferment of service of the confinement. See 88f. 

e. Record. Unless otherwise prescribed by regulations of the Secretary of 

a Department, the procedures provided herein are applicable to summary courtmartial records. So much of the proceedings as relate to pleas, findings, and 

sentence must be recorded in the appropriate place on all copies of the charge 

sheet. The number of previous convictions considered and the fact that the 

accused was advised of the matters outlined in 79d will also be noted in the 

spaces provided on all copies of the charge sheet. Unless otherwise prescribed 

by the convening or higher anthority, 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 the charge sheet but who were not called to 

testify. If the testimony of witnesses other than those listed was considered, the 
U 79e CHAPTER XIV 

court should insert their names and addresses on all copies of the charge sheet 

and note whether they testified for or against the accused. The summary court 

will authenticate the record by signing each copy. He will forward all 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 

command, the record will so state, and that officer thereafter holds the record 

as convening authority for purposes of review. For disposition of summary 

court-martial records, see 91c. 
Chapter XV 

PROCEDURAL ASPECTS OF REVISION PROCEEDINGS, 

REHEARINGS, AND NEW OR OTHER TRIALS 

REVISION-REHEARINGS AND NEW OR OTHER TRIALS 

80. REVISION. a. General. The procedure of a general or special courtmartial 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 is the proper action for correcting an erroneous 

record to show the true proceedings. In this connection, see 86c (Correction of 

record). 

b. Personnel. Proceedings in revision may be taken only by the members 

of the court, or, if trial was by a military judge alone, the military judge who 

adjndged the findings and sentence. These proceedings may not be taken if the 

court has been dissolved. In this connection see 37c(1). The military judge, the 

accused, and counsel for both sides must be present during the open sessions 

of the court in revision. In those cases which mere tried by a court with members, the absence of a member of the court who participated in the findings and 

sentence does not invalidate the proceedings if a quorum is present (five for 

a general court-martial-three for a special court-martial). In such cases, the 

same military judge should be present, but, unlike a case tried by the military 

judge alone, the legality of the proceedings will not be affected if a nem7 

military judge is properly detailed to the court, sworn (or it has been ascertained as a matter of record that he has previously been sworn in accordance 

with regulations of the Secretary concerned) and, opportunity to challenge him 

for cause having been afforded counsel, he has familiarized himself with those 

portions of the record which are to be considered by the conrt in taking its 

action in revision. Similarly, the legality of the proceedings is not affected if 

a member of the prosecubion or defense is present who was previously absent 

from, or who has been newly detailed to, the court, provided he has the requisite 

legal qnalifications and has been sworn (or it has been ascertained as a matter 

of record that he has previously been sworn in accordance with regulations of 

the Secretary cfoncerned) . 

c. Procedure. In cases in which the court has not reconvened on its own 

motion, the trial counsel will read in open session the communication from 

the convening authority returning the record and clirecting the recoiivening. 

The iiiilitary judge, or the pl-esident of a specimd court-martial .~vithout :L 

military judge should give the court any instructions necessary for the proper 

acconiplishment of the revision action. If the ineiiibers of a court-martial to 
I[ 81b CHAPTER XV 

which a military judge has been detailed have any doubt as to the action which 

they may take, the military judge should be requested to give them additional 

instructions. If the president of a special court-martial without a milibary judge 

has any doubt as to the court's action in such a case, he may direct the trial 

counsel to produce in open session such legal authority and other information 

as may be necessary. The instructions will be given in open session and will be 

made a matter of record. If necessary, the court will then close to consider 

and determine the app~opriate action to be taken on the matter [before it. As 

soon as it has determined its action, the court will announce that action in the 

presence of the military judge, if any, the accused, and counsel for both sides. 

In this connection, see 74f (Form of findings) and 766 (4) (Form of sentence). 

The court 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 military 

judge, or the trial counsel of a special court-martial without a milibary judge, 

may invite the attention of the court to any ambiguo~~s orapparently illegal 

action taken by it. 

d. Record. All proceedings in open session will be in the presence of the 

military judge, if any, 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 convening order detailing a new military judge to a 

court with members or counsel will be incorporated in the record of revision. 

See 826 (Contents of record) and appendices 8d (Revision procedure) and 

96 (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 procedure in revision by summary courts-martial. 

81. REHEARINGS AND NEW OR OTHER TRIALS. a. Related provisions. See 92 (Ordering rehearing or other trial), 94a(2) (Review of records 

of trial pursuant to Article 65(c)), 109 and 110 (New trial), and 1456 (Former 

testimony) ;Articles 63, 66(d), and 67(e) (Rehearings), and 73 (New trial). 

b. Procedure. (1) New or other trials and rehercrings in full. In new or 

other trials and in rehearings which require findings on all charges and specifications referred to a court-martial, the procedure in general is the same as in 

an original trial. 

(2) Rehearings on sentence ody. In a rehearing on the sentence only 

(92), the procedure in general is the same as in any trial, but the portion of 

the procedure usually occurring after challenges, through and including the 

findings, is omitted. The court is advised of the offenses of which the accused 

stands convicted and for which they shall impose sentence. No new evidence 

of guilt or innocence not presented at the original trial shall be presented, 

but the matters covered in 75 are proper, The prosecution and defense may 

establish the content of the record of the original trial, relative to the evidence 

on the merits relating to the offenses of which the accused, stands convicted 

but not sentenced. This may be done by stipulation (1546), or it may be done 

by reading from the record of the original hearing, whether or not testimony 

so read would be admissible as fornler testimony under the former testimony 
TRIALS--REVISIONS, REHEARINGS, NEW TRIALS II 81d 

exception to the hearsay rule (1456) and whether or not the testimony was 

given through an interpreter. Matters excluded from the record or improperly 

admitted at the previous hearing will not be brought to the attention of the 

court. The accused at such a rehearing may not withdraw any plea of guilty 

upon which the findings of guilty now before the court were based. However, 

if he establishes that such a plea mas improvident (70b), the hearing will be 

suspended and the matter referred to the authority directing the rehearing 

on the sentence, for appropriate action. 

(3) Combined rehewings. When a rehearing on sentence is combined 

with a trial on the merits of some of the specifications referred to the court, 

whether or not those specifications are being reheard, the trial will first proceed 

on the merits without reference to the rehearing on sentence. After the court has 

announced its findings, it will then be advised of the offenses on which the 

rehearing on sentence is being held, additional challenges for cause will be 

permitted if appropriate, and the principles set forth in 81b(2) will apply as 

to those offenses. The court will then continue with its sentencing procedure 

and will adjudge a single sentence as to all offenses under consideration. 

See 81d(l). 

c. Examination of record of former proceedings. No member of a general or special court-martial upon a rehearing or upon a new or other trial should 

be permitted to examine the record of the former proceedings or any document, other than the charges, referred with the charges to the trial counsel, 

except when received in evidence ak the rehearing or new trial. But see 81b (2) 

as to the procedure for reading from the record on rehearings on sentence. 

The president of a special court-martial without a military judge, however, 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 law involved. 

In this connection, see the ninth paragraph of 92a. Such a part of the record 

may be read to the court when necessary for it to pass upon a ruling made 

subjeot to objection by any member under Article 51 (b). See 5'1 and 67f. 

The military judge may examine the record of the former proceedings and 

may read to the court such parts as may be necessary for the court to pass up011 

a ruling made subject to objection by any member. 

d. Rules relating to sentence. (1) Rehearings and new triab. Before a 

court-martial retires to determine a sentence upon a rehearing or new trial, it 

will be advised of the maximum sentence it may impose (766 (1)). See Article 

63(b) as to limitations on sentence with respect to rehearings and llOa(2) 

with respect to new trials. 

Offenses on which a rehearing or nen- trial is held shall not be the basis 

for punishment in excess of or more severe than the legal sentence upon a 

previous hearing or trial, as ultimately reduced by the convening or other 

proper authority when any such action has been taken. Thus, if the sentence 

in the previous proceeding to dishonorable discharge, confinement at hard 

labor for three years, and total forfeitures was modified by a convening or 

other proper authority to bad-concluct discharge, confinement at hard labor 

for two years, and total forfeitures, based upon considerations of appropriateness or clemency, the sentence as modified is the most severe which can be 

predicated on findings of guilty of the reheard offenses. I11adjudging a sentence 
I[ 8ld CHAPTER XV 

not in excess of or more severe than the one imposed at a previous hearing 

or trial, a court-martial is not limited to adjudging the same or a lesser form 

or amount of the same type of punishment formerly adjudged. When a rehearing is combined with a trial on additional charges (92), the maximum sentence 

is computed by combining the inaxiinuin punisl~rnents, as determined above, 

for the reheard offenses with the maximum for the additional offenses of which 

the accused is found guilty, subject to t,he applicable provisions of 126 and 127. 

The court shall not be advised of the basis for the sentence limitation. 

If the accused is found guilty upon any charge and specification upon a 

new trial under Article 73 or a rehearing the court will, subject to the pertinent 

limitations above, 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. See 89c(7) (a) (Action on rehearing) for the action 

of the convening authority with respect to the sentence adjudged on a rehearing. 

See 89c(7) (6) and 1106 for such action on the sentence adjudged upon a new 

trial. 

(2) 0th~trials. The term "other trial" refers to another trial of a case 

in which the original proceedings were declared invalid because of lack of jurisdiction (8) or failure of the charges to allege any offense under the code (686). 

The other trial of a case is subject to the sentence rules provided for rehearings 

in (1) above, except that no sentence limitations apply if the original trial was 

invalid because a summary or special court-martial improperly tried an offense 

involving a mandatory punishment or one otherwise considered capital. See 

15a and 16a. 
Chapter XVZ 

RECORDS OF TRIAL 


GENERAL COURTS-MARTIALINFERIOR 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 direction of the court, but the persons authenticating the record are responsible for its accuracy. See Articles 38 (a) and 54(a). 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 any 

stenographic or other notes or any mechanical or electronic recordings from 

which the record of trial mas prepared for snch a period as may be prescribed 

in appropriate regulations. 

b. Contents. (1)General. The record of the proceedings in each case will 

be separate and complete in itself and independent of any other document. The 

record mill show all the essential jurisdictional facts. It will set forth a verbatim 

transcript, except as provided below, of all proceedings had in open sessions 

of the court, all sessions held by the military judge, and hearings held out of 

the presence of the members. See 74f (1) and Article 39. Unless otherwise prescribed by regulations of the Secretary concerned, transcripts need not be 

verbatim in the following cases :if the proceedings have resulted in an acquittal 

of all charges and specifications or if terminated prior to findings with prejudice 

to the government, the record need only contain sufficient information to establish lawful jurisdiction over the accused and the offenses; if the court has 

adjudged a sentence not including discharge, and not in excess of that which 

can otherwise be adjudged by a special court-martial, and if not affecting a 

general or flap officer, the 1-ecorcl shall contain the same matter as prescribed 

by 836 in special court-martial cases. If testiiiiony is given through an interpreter, the record n-ill so state. When a trial is terminated before findings or 

sentence, the record of trial will sllolv the proceedings up to the time of the 

termination. For details of contents and certain exceptions to the foregoing 

rules, see appendices 9 and 10. 

(2) Matter stricken from the record. Although not considered by the 

court as evidence, any remarks or testimony ordered to be stricken or disregarded 

will nevertheless be fully recorded. 

(3) Record of revision proceedings. MThen a record is amended in revision 

proceedings, the record of the proceedings in revision mill 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 original 

record. See 80cl and appendix 8d. 
!I 82e CHAPTER XVI 

(4) Arguments and briefs. All oral arguments and statements of counsel 

made during the trial shall be set forth verbatim in the record. If the speed of 

an oral argument is such that the reporter is unable to record it verbatim, the 

military judge should direct counsel either to reduce the speed of his argument or 

to submit the argument in writing. A written brief or statement of counsel may 

be read to the court if appropriate and thereafter attached to the record as an 

exhibit. 

(5) Appendages. Accompanying the original record-securely bound together-will be ths 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 new or other trial of the case, 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 (77a); offered exhibits were excluded as not adrnissible in evidence (544 ; proposed instrnctions and any arguments made thereon 

(73d); the certificate of a medical officer as to the physical condition of an accused who has been sentenced to confinement 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 496 (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. Security 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 pertinent regulations to assign a proper security classification to the record. However, convening authorities, staff judge advocates, and legal officers will be on 

t,he alert to downgrade or declassify a record of trial which does not contain 

data requiring seczcrity protection. If the papers accompaiiying the record of 

trial include classifiecl matter which is not material to the inquiry, this matter 

should be withdra~vn from the papers to be bo~uld with the record if the withdrawal will permit downgrading or declassification of the record. If the accompanying papers include classified matter which is material to the inquiry, 

action should be taken to have this matter declassified or downgraded when 

that action is possible and will permit do\vngracling or declassification of the 

record. 

e. Correction of record. After the record has been transcribed and before 

it is authenticated, the trial couiisel should examine it carefully for errors or 

omissions. If any are discovered, he should make and initial those changes 

which are necessary to make the record show 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. 
RECORDS OF TRIAL I[ 82g 

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 

bring the suggestions to the attention of those who authenticated the record. 

At any time before bhe record is forwarded to the convening authority, the 

persons who authenticate the record may change it to make it show the true 

proceedings. Those changes, as well as any changes made by the trial counsel, 

should be initialed by the persons who authenticate the record. 

f. Authentication. The record in each case shall be authenticated by the 

signature of the military judge wE;o was actually present at the conclusion of 

the proceedings. If the record cannot be authenticated by the military judge 

by reason of his death, disability or absence, it shall be authenticated by the 

signature of the trial counsel who was actually present at the conclusion of the 

proceedings or by that of a member if the trial counsel is unable to authenticate 

it by reason of his death, disability or absence. In a court-martial consisting of 

only a military judge the record shall be authenticated by the court reporter 

under the same conditions which impose such a duty on a member under this 

paragraph. See appendix 96 for forms of authentication. 

g. Disposition. (1) DeZiuery to accused. Subject to the exceptions noted 

below with respect to security matters, the trial counsel will arrange for the 

accused to be furnished with a copy of the record of trial and all documentary 

exhibits received in evidence as soon as the record is authenticated. See 54d 

143n(2), appendix 9f, and Article 54(c). 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 mill attach to the original 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. I11this case, the receipt of the accused \I-ill be forwarded to the convening authority as soon as it is obtained. 

The accused is also entitled to an authenticated copy of a record i11 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, mill forward the accused's copy to the convening authority. 

The latter mill excise or withdraw from the accused's copy any matter requiring security protection (82d) and will, thereafter, cause the expurgated copy 

to be delivered to the accused together with H 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 Depart- 
n 83b CHAPTER XVI 

ment under such regulations as may be prescribed by the Secretary concerned. 

The certificate will list : 

(a) The pages from which matter has been deleted; 

(6) The pages which have been removed in their entirety; and 

(G) 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'the expurgated copy, shali be attached to the original 

record of trial. 

(2) Forwarding to convening authority. The original record and accompanying papers and the necessary copies of the record will be forwarded to the 

convening authority or to his successor in command or, if the court was convened by the President of the United States or the Secretary of a Department, 

to the Judge Advocate General of the Department concerned. See Articles 

17(b) 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 when the available original 

notes or other sources enable the preparation of a complete and substantially 

accurate record of the case. I11any case of loss of a record before action by the 

convening authority, the trial counsel or other proper person mill fully inform 

the convening authority as to the facts and as to the action, if any, taken. 

i. Loss of notes or recordings of the proceedings. If the notes or recordings of the proceedings in court are lost before the record of trial has been 

prepared, 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 co.de 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 finding 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 set fonth in appendices 8 and 0, a record of trial by special court-martial in which n badconduct discharge is adjudged will contain a verbatim transcript of all proceedings held in open session and, if a military judge is detailed, a11 sessions and 

hearings held by him out of the presence of the members. 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 appendix 971. 

b. Special court-martial records not involving bad-conduct discharge. 

When a bad-conduct discharge is not adjudged, and the proceedings have not 

resulted in an acquittal of dl charges and specifications, and have not been 

terminated prior to findings with prejudice to the Government, a record of trial 
RECORDS OF TRIAL 183c 

by special court-martial need contain only a summarized report of the 

testimony, objections and other proceedings (app. 10). In such a case, however, 

if a reporter was detailed 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. Unless otherwise provided by regulations of the Secretary concerned, if the trial has resulted 

in an acquittal of all charges and specifications or if terminated prior to findings with prejudice to the Government, the record of trial need contain only 

sufficient information to establish lawful jurisdictioii over the accused and the 

offenses. The notes or recordings sf the original proceedings need not be 

retained after the record sf trial has been authenticated, unless otherwise provided by regulations of the Secretary concerned. The form of the summarized 

record of trial and instructions as to its preparation, authentication, and 

disposition will be as prescribed b.y the Secretary of a Department. 

c. Summary courts-martial. For the preparation, authentication, and 

disposition of records of trial by summary courts-martial, see 79e. 
Chapter XVPI 

INITIAL REVIEW OF AND ACTION ON RECORDS OF 


TRIAL 

WHO MAY TAKE INITIAL ACTION-REFERENCE TO STAFF JUDGE ADVOCATE 

OR LEGAL OFFICER-ADDITIONAL 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 

84. WHO MAY TAKE INITIAL ACTION. a. General. After every trial 

by court-martial, including rehearings and new and other trials, the record 

shall be forwarded to the convening authority for initial review and action. 

As used in this chapter, the term "convening authority" includes the person 

who convened thw60urt, a commissioned officer commanding for the time being, 

a successor in command, or any person 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 person who convened the courtmartial which adjudged the sentence in a particular case normally is the convening authority who takes initial action on the record of trial of that case. 

The power of a convening authority to take initial action 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 commissioned officer temporarily 

succeeding to command during that absence is, within the meaning of Article 

60, the officer commanding for the time being and, as such, is authorized to take 

initial action as convening authority on a record of trial of a court convened 

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 convened by his 

predecessor. 

c. Officer exercising general court-martial jurisdiction. When it is 

impracticable for the person who convened the court, the commissioned officer 

commanding for the time being, or a successor in command to take initial action 

upon a record of trial, this action may be taken by any officer exercising general 

court-martial jurisdiction. For example, in a case in which a command has 
r85b CHAPTER XVll 

been inactivated or has been alerted for immediate overseas movement action 

upon a sentence adjudged by a court-martial convened 'by the commander prior 

to the inactivation or movement may be taken by any officer exercising general 

court-martial jurisdiction. Similar action would be appropriate if the person 

who normally would take action as convening authority is disqualified, as when 

he has granted immunity to a witness for the prosecution or when a member 

of the court-martial which tried the accused subsequently became the officer 

commanding for the time being or the successor in command. In these cases, 

the normal convening authority will forward the record of trial-ordinarily 

through the chain of command-to an officer authorized to exercise general 

court-martial jurisdiction. For purposes of regularity, the record should 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 taken by only one 

convening authority. When, however, the convening authority who has approved a sentence of bad-conduct discharge adjudged by a special court-martial 

does not exercise general court-martial jurisdiction, the officer exercising general 

court-martial jurisdiction over the commaild within which the accused was tried 

by special court-martial ordinarily also reviews and takes action upon the record 

in the same manner as on a record of trial by general court-martial. See 94a(3) 

and Article 65 (b). In such a case, tht; 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 976. 

A6 to the deferment of service of a sentence to confinement, see 88f. 

85. REFERENCE TO STAFF JUDGE ADVOCATE OR LEGAL 

OFFICER. a. General. Before acting upon a record of trial by general courtmartial, or a record of trial by special court-martial which involves a sentence 

of bad-conduct discharge, a convening authority who exercises general courtmartial jurisdiction will refer it to his staff judge advocate or legal officer for 

review and advice. See Articles 61 and 65(b). 

No person who has acted as member, military judge, trial counsel, assistant 

trial counsel, defense counsel, assistant defense counsel, or investigating officer 

in any case may later act as a staff judge advocate or legal officer to any reviewing (convening) authority upon the same ease (Art. 6(c) ). 

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. 6 (c)) ,he may request the assignment of a staff judge advocate or legal officer to review the record, he may 

forward the record for action to an officer exercising general court-martial 

jurisdiction as provided in 846, or, if permitted by appropriate regulations, 

he may forward the record to the .Judge Advocate General concerned for review and advice before acting thereon. 

b. 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 n 

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 
REVIEW-INITIAL ACTION ON RECORD II 86a 

both the opinion and the recommendation will be stated. The review may include matters outside the record of trial which, in the opinion of the reviewer, 

may have a legitimate bearing on the action of the convening authority in the 

exercise of his discretion to disapprove all or a part of the findings, but resort 

may not be had to these matters to support a finding of guilty. Matters outside the record may be included in the review to assist the convening authority 

in determining his action on the sentence. However, if an adverse matter from 

outside the record is included, the accused must be afforded an opportunity 

to rebut or explain the matter, unless he supplied the information himself or 

may be charged with knowledge that the information might be used against 

him, as when it appears in a record of nonjudicial punishment. 

If the final 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). The review should also be limited to questions of jurisdiction when, after 

trial has begun, the proceedings were terminated without findings, and no 

further action is contemplated. See.356, 56e (3), and 826 (I). 

c. Disagreement between convening authority 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 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 force concerned for advice. In any case which is forwarded 

to the Judge Advocate General, if the convening authority takes an action different from that recommended by his staff judge advocate or legal officer, he 

should state the reasons for his action in a letter transmitting the record to 

the Judge Advocate General (91a). 

d. Disposition of review. The original of the review of the staff judge 

advocate or legal officer will be attached to the original record of trial, and 

other copies of such review will be prepared in such number and distributed 

as prescribed in regulations of the Secretary of a Department. 

86. ADDITIONAL POWERS AND DUTIES OF THE CONVENING 

AUTHORITY. 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, 71 (d) ). Express approval of the findings is unnecessary and, 

in the absence of express approval of the sentence, is not sufficient to give the 

sentence legal effect. In acting on the findings and sentence of a court-martial, 

the convening authority may 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 indi- 
II 86c CHAPTER XVll 

cates 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 considered on review. (1) When proceedings resulted 

in findings of guilty. Before he may approve a finding of an offense or the seatence adjudged therefor, the convening authority must determine: 

(a) That the court 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 commission of the offense (ch. XXIV, especially 124) ; 

(c) That the competent evidence of record (87a(3) ; ch. XXVII) 

established beyond a reasonable doubt each element of the offense of which 

the accused was found guilty (ch. XXVIII) ; 

(d) That the sentence was within the power of the court to adjudge 

(ch. IV) and within the prescribed limitations on punishments (110a(2) : 

Art. 63(b) ;ch. XXV) ; 

(e) That there were no errors which materially prejudiced the substantial rights of the accused (87c). 

(2) Pinding of not guilty or ruling 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. 

He should neither approve nor disapprove the action of the court in such a 

case. Disapproval cannot in any event affect the finality of a legal acquittal 

or a ruling of the court that amounts to a legal acquittal. 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), 89c (I), and 92. 

No action may be taken by the conveaing authority that 'would amount 

to censure of the court 01.member, military judge, or counsel thereof. See Article 

37. 

For action when the convening authority differs with the court with . respect to a ruling which does 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 11-hen it fails to show that 

the members of the court were sworn or that the required number of members 

concurred in the vote on the finding or sentence. Thc 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 shew the true proceedings. It may be returned to the military judge, 

or to the president of a special court-martial without a military judge, or to 
REVIEW-INITIAL ACTION ON RECORD U 87a 

the summary court-martial for a mrtificate of correction to relate the true 

facts. The certificate will be authenticated in the same manner as the record 

of trial. See 82f, 83c, and 79e. In general and special court-martial cases, the 

authenticated certificate will be attached to the record of trial after the original 

signatures authenticating the record, the accused will be furnished a copy of 

the certificate of correction, and his receipt will be obtained and attached to the 

record of trial. See 82g(l) and appendix 9. If, in accordance with regulations 

of the Secretary of a Department, the accused is furnished a copy of the 

summary court-martial record of trial, he will also be furnished a copy of the 

certificate of correction. The certificate will be attached to the record of trial 

together with the accused's receipt. A copy of the certificate will be attached to 

all other copies of the record which were prepared. See 79e and appendices 9f 

and 10d. A certificate of correction may be used only to make the record correspond to that which actually occurred at the trial. If the court mas 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 sentence which can be rectified without material ~rejudice to the substantial 

rights of the accused, the convening authority may return the record to the 

court for appropriate action (Art. 62(b)). For example, 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-martial 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 62(b) as to 

matters that cannot be reconsidered. Except for the purpose of making the 

record show the true proceedings and the exceptions stated in Article 

62(b) (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 insanity indiccited. For action to be taken by the convening authority when it appears from the record or from any other source 

that the accused may have been insane at the time of the conln~ission 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. The convening authority must make a specific and 

independent determination with respect to each finding of guilty. 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 6. 

(2) Legal suficiency of the specification. If a specification of which 

the accused has been found guilty fails to allege any offense under the code, 

the proceedings as to that specification are a nullity and will be declared 

invalid (863 (2), 89c (1) , 92 ; app. 14, form 27). If a specification alleges an 

offense under the code, the proceedings as to that specification should not be 

held invalid solely because the specification is defective; however, if it appears 
ll 87c CHAPTER XVll 

from the record that the accused was in fact misled by the defect or that his 

substantial rights were in fact otherwise materially prejudiced thereby, appropriate corrective action will be taken. See 87c. 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 28,698, and appendix 6. 

(3) #uff;ciency of the evidence. 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. In considering the evidence he should recognize that the trial court saw 

and heard the witnesses, and he will be guided by the principles stated 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 

must disapprove the finding. 

(4) Lesser included offense. When the evidence, although insufficient to 

establish the guilt of the accused of the offense of which he was found guilty, 

is sufficient to support a finding of guilty of an included offense, the convening 

authority may approve so much of the finding of guilty as involves a finding of 

guilty of the included offense. I11 this connection, see 158, appendices 12 and 

146 (forms 15-18), and Article 59 (b) .In approving only so much of a finding 

of guilty as involves 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 to the charge. Although the guilt of 

the accused is, in general, determined by the findings as to the specification, 

there should be a consistent finding as to the chargeunder which the specification is laid. If the finding as to a specification is not consistent with the 

finding as to the charge, and the inconsistency raises a reasonable doubt as to 

the intent of the court (as when the court finds the accused guilty of a proper 

specification, but finds him not guilty of, or makes 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, 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 coiivening 

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. The convening authority may not 

approve a finding of guilty if, as a result of an error affecting that finding, the 

substantial rights of the accusecl were materially prejudiced. See Article 59. In 

determining whether the substantial rights of the accused have been materially 

prejudiced, the convening authority must determine what effect the error had or 

reasonably may have had on the court's decision. The test is not merely whether 

there was sufficient competent evidence to support the result. Rather, the test 

is whether the competent evidence of record is of such quantity and quality that 
REVIEW-INITIAL ACTION ON RECORD (I 88c 

a court of reasonable and conscieiltioi~s men would have reached the same result 

had the error not been committed. Regardless of the compelling nature of the 

competent evidence of record, however, if the error amounts to so flagrant a 

violation of a fundamental right of the accused that he has not had a fair trial, 

the finding must be disapproved. 

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 that reason. 

88. POWERS OF THE CONVENING AUTHORITY WITH RESPECT TO THE SENTENCE. a. General. The convening authority has the 

power to disapprove a legal sentence in whole or in part, as well as the power to 

reduce the sentence in quality and quantity and to change a punishment to one 

of a different nature, so long as its severity is not increased. However, neither 

the convening authority nor any other authority is authorized to increase 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 is in excess of the legal limits, that part included in the adjudged sentence which is legal may be approved. See chapter XXV for limitations on sentence. See 81d regarding sentence limitations upon a rehearing or 

new or other trial. With respect to action on a rehearing or new or other trial, 

see also 89c (7). 

The disapproval of a sentence nullifies it as a basis for punishment; affirination of a disapproval is not required. For iimitations upon ordering a rehearing 

after disapproval of a sentence, see 92. A11 approval or disapproval of a sentence 

should be express and explicit and should not be left to iinplication. For example, in approving "only so much" of a sentence as involves a reduced sentence, 

the entire sentence intended to be approved should be set forth clearly in the 

statement of approval. 

b. Determining what sentence should be approved. In determining 

what sentence, or- part thereof, should be approved, the convening authority will 

be guided by the principles stated in 76. The seiltellce approved should be that 

which is warranted by the circuinstances of the offense and the previons record 

of the accused. Appropriate action should be taken to approve a less severe 

sentence when the sentence, though legaal, appears unnecessarily severe. I11 

approving sentences, consideration should be given to all factors, inclnrling the 

possibility of rehabilitation as well as the possible deterrent effect. I11coasidering matters outside the record, the provisions of 85b will apply. 

The convening authority should collsiden. as a basis for approving only a 

part of a legal sentence all matters relating to clemency, such as long confinement pending trial. 

The convening authority will consider in taking his action that an accused 

who is not serving confineinent should not be deprived of more than two-thirds 

of his pay, for any nlonth as a result of one or more sentences by court-martial 

or other stoppages or deductions, unless requested by the accused. See 88d(3) 

and 126h (5) concerning deferral of forfeitures. 

c. Approval of a part of a sentence. The convening authority may, subject to the liinitations in 88a or elsewhere below, approve any sentence -\~liicll 
ll 88d CHAPTER XVll 

is no more severe than that adjudged by the court-martial. He may change the 

nature of the punishment adjudged by the court-martial but may not approve 

any sentence which the court-martial might not itself legally have adjudged in 

the case. However, when a court has adjudged a mandatory sentence, such as 

imprisonment for life (Art. 118(1) and (4) ), the convening authority may 

approve a lesser sentence. 

In determining whether the part of a 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, and, if a rehearing or new 

or other trial is involved, by 81d. For example, a sentence as approved may not 

provide for restriction in excess of two months or hard labor without confinement for more than three months. 

d. Execution of sentence. (1) Authority to order. Except in the case of 

a new trial (llob), 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 order all other parts of the sentence into execution unless any part thereof requires the approval of the President under 

Article 71 (a) or the Secretary concerned under Article 71 (b) . The authority ordering the execution of a sentence of death issues instructions concerning the time and place of execution. Any designations or instructions in this particular matter by the court or the convening authority will be 

disregarded. 

(2) To con$mment. See 126 j concerning the effective date of the running 

of a sentence to confinement and 976 and 88f as to the interruption thereof in 

cedarin instances. \ 

(3) To forfeitures of pay or alZowances. If a sentence as approved'by 

the convening authority does not include confinement or if the sentence to confinement is to be suspended, any approved forfeitures may not be applied until 

the sentence is ordered into execution. See 126h(5) and Article 57. In those 

cases where a sentence which includes forfeitures may not be ordered into execution by the convening authority in his initial action because of Article 71, 

the forfeitures will nevertheless apply to pay or allowances becoming due 01: 

or after the date the sentence is approved by the convening authority when the 

approved sentence also includes confinement not suspended, unless the convening authority specifically defers the application of the forfeitures. See 

Article 57 (a) . Approved forfeitures may not be applied during any period in which 

the service of a sentence to confinement is deferred. In the action or order 

deferring the service of confinement, the officer directing such action should, 

when forfeitures have also been 'adjudged, include a statement bo the effect that 

the npplicatioii of the remaining forfeitnres is deferred until the sentence is 

ordered into execution, unless such defern~ent is sooner rescinded. When deferment of confinement is rescinded, or the sentence to confinement is ordered into 

execution, the order promulgczting such action should state whether the for- 
REVIEW-INITIAL ACTION ON RECORD 1[ 88e 

feitures are to apply effective the date of the rescission or at a subsequent date. 

See appropriate forms in appendices 14 and 15. 

If the convening authority is authorized to order forfeitures applied or 

executed at the time he takes his initial action, his action should state, as appropriate, whether the forfeitures are to be executed, suspended, applied as of 

the date of his action, or deferred until some future date. 

e. Suspension of execution of sentence. (1) General. See 97b for the 

procedure involved in the vacation of a suspension, and 97a for the general 

rules affecting suspensions. 

At the time he approves a sentence, the convening authority may suspend 

for a stated period of time the execution of all or any part of it except a sentence of death. The purpose of suspending the execution of a sentence is to 

grant the accused a probationary period within which he inay by refraining 

from further misconduct earn the remission of his sentence. However, the 

period of suspension should not be unreasonably long and no suspension may 

extend beyond the current enlisthent or period of service. The period for which 

the execution of a sentence may be suspended may be further limited by regulations of the Secretary of a Department. The convening authority should suspend the whole of a sentence, except death, when it appears to him that this 

action will promote discipline and-aid in the rehabilitation of the accused. 

A part of a sentence should not be suspended if it would be contrary to 

the custoins of the service to execute the portion of the sentence that remains 

nnsuspended. For example, with respect to a sentence of dishonorable or badconduct discharge, forfeiture of all pay and allowances, and confinement 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 total 

forfeitures into execution. See the last paragraph of 886 in this regard. 

(2) Types of suspensions. (a) General. Except as otherwise provided 

in this paragraph (88e) or as may be provided by regulations of the Secretary 

of a Department, the convening authority may, at the time he approves a sentence, suspend its execution for a specific term, for example, for a number of 

months or nntil a certain date, or he may suspend it until the occurrence of 

an anticipated future event. In either case, he should provide in his action 

that unless the suspension is sooner vacated the expiration of the period of 

suspension shall operate as a remission of the suspended portion of the sentence. 

An appropriate authority may, before the expiration of the period of suspension, remit any part of the sentence, including a suspended part; reduce the 

period of suspension; or, for a proper reason, vacate the suspension. In this 

connection, see 97a, 105b, and Article 74. 

(6) Suspending dishonora6Ze or bad-conduct discharge when sentence also includes confinenzent. If the approved sentence involves a dishonorable or bad-conduct discharge and confinement, the convening authority may 

determine that the execution of the punitive discharge should be suspended to 

the end that the accused inay 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 pe- 
!l88f CHAPTER XVll 

riod thereafter, and provide in his action for the remission of the suspended 

portion of the sentence as indicated in the preceding subparagraph. 

(c) Suspendkg the execution, of forfeiture. See 88d (3). 

(3) Terqnination of suspension 6y remissirm. The expiration of the period specifically provided in the action suspending a sentence or part thereof 

remits the suspended portion unless the suspension is sooner vacated. However, the unauthorized absence of an accused interrupts the running of the 

period of suspension of a sentence. The death, a discharge which terminates 

status as a person subject to the code, or the release from active duty of a 

persm under a suspended sentence shall operate as a remission of the suspended 

portion of the sentence. 

f. Deferment of service of sentence to confinement. Deferment of service of a sentence to confinement is a postponement of the running of the sentence. It is to be distinguished from suspension of the execution of a sentence 

to confinement. Deferment is not a form of clemency, nor does it have any such 

connotation. Under the provisions of Article 57(d), the officer who convened 

the cou~% or, if the accused is no longer under his jurisdiotion, the officer 

exercising general court-martial jurisdiction over the command to which the 

accused is assigned, may, in his sole discretion and upon application by the 

accused, defer an accused's service of a sentence to confinement, whiclh has not 

been ordered executed. A court-martial is not empowered to defer the service 

of a sentence to confinement. The deferment is terminwked and the sentence to 

confinement begins to run or resumes running when the sentence is lapproved 

and ordered executed. The officers so empowered to defer the service of sentences to confinement should bake into consideration all relevant factors in 

each case and grant or deny deferment based upon the best interests of the 

accused and the service. Deferment should not be granted, for example, when 

the accused may be a danger 60 the community or when the likelihood exists 

th'at he miay repeat the offense or flee to avoid service of his sentence. The discretion to defer confinement is sole and plenary. The power to take such action 

vests in the office, not in the person, of he authority QO aoting. Application 

may be made to the officer exercising genenal court-n~artilal jurisdiction only 

when the accused is no longer under the jurisdiction of the officer who convened the count. I11 this event, application is made to the officer exercising 

general court-martial jurisdiction over the commland to which the accused is 

then assigned, whether or not this officer exercises sup&visory authority over 

the case within the meaning of 94. 

Application for deferment of the service of confinement may be made by 

an accused or through his counsel, tat any time after the adjournment of the 

court \vhich imposed the sentence. 

The epplication for deferment and the gr'anting or denying of such application must be in writing. This correspondence will be included, or forwarded 

for inclusion, in the record of the trial. 

The granting of an applicaltion for deferment, together with bhe date 

upon whioh it mas granted, will be set forth in the convening authority's 

action in those cases in which the granting of the application takes pllace prior 

to or concurrently wihh the action being signed. See appendix 14 for appropriate forms of aotion. I11 all other cases the granting of an application for 

deferment will be promulgnted in supplementary orders and such orders will 

be included, or forwarded for inclusion, in the record of trilal. See appendix 15. 
REVIEW-INITIAL ACTION ON RECORD U 89b 

When deferment is granted, no form of restriction to specified liinik or 

any other limitation on .the accused's liberty shall be ordered as a substitute 

for the confinement so deferred. The deferring of a sentence will not in and 

of itself give rise to any other form of limitation on an accused's liberty. An 

accused may, however, be restricted to certain specified limik or have his 

liberty curtailed during the period of a deferred sentence to confinement for 

any independent reason which ~vould warrant this action being taken. See 

202 and 6. 

The deferment is terminated when the sentence is ordered into execation. 

The confinement may at this time be suspended but it may not be further 

deferred. 

Deferment of the service of confinement and suspension of confinement 

cannot exist concurrently. When the service of a sentence to confinement at 

hard labor has been deferred and the confinement is thereafter suspended, the 

deferment is thereby terminated and only the suspension of the sentence to 

confinement is operative. 

g. Rescission of deferment of sentence to confinement. The officer granting the deferment or, if the individuaLis no longer under his jurisdiction, the 

officer exercising general court-martial jurisdiction over the command to which 

the accused is assigned, has sole and plenary discretionary a~~thority to rescind 

it at any time. This power likewise vests in the office, not in the person of the authority so acting. Rescission of a deferment occurring prior to or concurrently 

with the taking of the initial action in the case, will be set forth in khe action, 

together with the dates of the granting of deferment and the rescission thereof. 

See appendix 14 for appropriate forms. Rescission of a deferment taking place 

after the convening authority's action will be promulgated in supplementary 

orders and such orders will be included, or forwarded for inclusion, in the 

record of trial. See appendix 15. 

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 the case as summary court. See 5c and 79e. The action will be 

signed personally by the convening authority. 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 officially notified thereof. When, as a1 incident of the review of a record of trial pursuant to Articles 65(b), 66, or 6'7, or examin~t' ' 1011 

of a record of trial pursuant to Article 69, any incomplete, ambiguous, void, 

or inaccurate action of the convening authority is noted, this action mill be 

modified by him in accordance with the advice or instructions of a higher reviewing authority or the Judge Advocate General. See 95. Any supplen~ent~ry 

or corrective action taken by the convening authority shall be signed personally 

by the convening authority. 
(I 89c CHAPTER XVll 

c. Action on findings and sentence. (1) General. 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, qr any of them, to allege any offense cognizable by courtsmartial. In this connection, see 866 (2), 87a (2), and 926. 

(2) Disapproval of sentence. As disapproval of the entire sentence, mithout 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 will 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 therefor, mill 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. This action would be appropriate, for example, when 

a finding of guilty is disapproved because of the insanity of the accused (I%), 

or because trial of the offense was barred by the statute of limitations (68c; 

Art. 43), or if a finding of guilty of desertion is disapproved. The reasons for 

t,he disapproval of a finding of guilty may be set forth in any case. 

(3) ApprovaZ 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 89c(2) for the 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; suspension. A statement of the approval of all or a part 

of the sentence should be followed in the action by a statement, 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, however, 88d(3) 

as to deferral of forfeitures. Also, see appendix 14 for forms. The reasons for 

the approval, execution, or suspension of all or any part of a sentence need 

not be stated in the action. 

(5) Place of co.nfi.nement. If the convening authority orders a sentence 

of confinement at hard labor into execution, the place of confinement, as prescribed in pertinent regulations of the Secretary of a Department mill be 

designated in his action. When a sentence of confillelllent is ordered into execution subsequent to the initial action of the convening authority, the authority 

ordering the execution mill designate the place of confinement. In this connection, see 93. 

(6) Cwtody or confinement while atuniting ~eszllt of appellate review. 

When a record of trial involving an approved sentence is required to be forwarded to the appropriate Judge Advocate General (Art. 65 (a), (b) ), the 

convening authority will, nnless he orders any approved sentence of confinement into execution and designates a place of confinement, provide in his action 

for the temporary custody or confinement of the accused pending final disposition of the case upon appellate review. See appendix 14 (form 41) for form of 

action and 96 for action to be taken in event the place of tenlporary custody or 

confinement is changed prior to final disposition of the case upon appellate 

review. 
REVIEW-INITIAL ACTION ON RECORD U 89c 

(7) Defemnt of service of sentence to confinement. Whenever the 

service of the sentence to confinement is deferred by the convening authority 

prior to or concurrently with his initial action in the case, the action will include 

the date on which the deferment became effective. The reason for the deferment 

need not be stated in the action. Deferment of the service of confinement subsequent to initial aobion is accomplished by supplementary orders. See 88f 

generally and appendices 14 and 15 for 'appropriate forms. 

(8) Action on rehearing or m u or other trial. (a) Rehearing or othe~ 

trial. In acting on a rehearing or other trial, the convening authority is subject 

to the sentence limitations prescribed for the court in adjudging a sentence. 

See 81d. Additidnally, except when t~ rehearing or other trial is combined with 

a trial on additional offenses, if any portion of the original sentence was suspended and the suspension was not; properly vacated (976) before the order 

directing the rehearing, the convening authority shall take the necessary suspension action to prevent an increase in the same type of punishment as was 

previously suspended. 

The convening authority' may approve a sentence adjudged upon a rehearing or other trial without regard to whether any portion or amount of 

the punishment adjudged at the former trial has been served or executed. 

However, in computing the term or amount of punishment actually to be s~rvecl 

or executed under the new sentence, the accused will be credited with ,ny 

portion or amount of the former sentence included within the new 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 confinement has been served (Art. 57(b)) but no pay has been forfeited, and the sentence adjudged upon the rehearing is identical to the original 

sentence, the person charged with administrative execution of the new sentence 

would credit the accused with one month's coafinement; the accused mould 

have a balance of confinement for five months and forfeitures for six months 

yet to be executed. To insure that credit shall be given in proper cases, the convening authority shall, if he approves any part of a sentence adjudged upon a 

rehearing or other trial, 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 19 and 45). 

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 11-hich was based on 

these findings, he will, unless a further rehearing is ordered, provide ill his 

action that a11 rights, privileges, and property affected by any executed portion 

of the sentence adjudged at the former hearing shall be restored. The same 

restorative action will be taken if the court, at a rehearing, acquits the accused 

of all charges and specifications which were tried at the former hearing. See 

Article 75 and appendix 14 (forms 10 and 24). 

(6) New trial. Insofar as authorized and practicable, the action of 

the convening authority, on a new trial, will conform to the rules prescribed 

in (a) above. See 110a(2), 6, d, and f for rules regarding action on a new trial. 
II 9Ob CHAPTER XVll 

(9) Reprimand; admonition. Any reprimand or admlonition provided 

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 71(a) or the Secretary 

concerned under Article 71 (b), 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. Unless otherwise prescribed by regulations of the Secretary of a Department, orders promulgating the result of trial and action by the convening or higher authorities 

on the record will be prepared, issued, and distributed as indicated herein (90). 

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 the 

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 (906 (1)). In the latter case, the order will bear the date this officer took action on the 

record of trial, 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. By whom issued. (1) Initial 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 hd-conduct discharge is forwarded 

to the officer exercising general court-martial jurisdiction over the command 

under the provisions of Article 65(b). In the latter case, the promulgating order 

will be issued by the officer exercising general court-martial jurisdiction who 

takes action on the record. 

(2) Orders issued subsequent lo initial action of the convening authority. 

Action taken on the findings or sentence subsequent to the initial acbion thereon 

by the con~lening authority shall be promulgated by appropriate orders. The 

officer or official empowered to take subsequent actionmill vary according to 

the nature of the action taken. According to the circumstances, the officer or 

official having authority to act may include one or more of the following: the 

collvening authority who trook the initial action, the officer exercising general 

court-martial jurisdiction over the accused, the Secretary concerned, and an 

Under Secretary, Assistant Secretary, Judge Advocate General, or commanding 
REVIEW-INITIAL ACTION ON RECORD II 91a 

officer designated under Article 74. As to authority to modify the initial action 

and to publish pnomulgating orders required thereby, see 891, (Modification of 

initial action) and 95 (Correction of records of trial subject to appellate review) ; as to the authority to take other actions and to publish promulgating 

orders required thereby, see 94 (Review of sentences !of special and summary 

courts-martial), 97a (Remission and suspension), 976 (Vacation of suspension), 

88f (Deferment of execution of sentence to confinement), 889 (Rescission of 

deferment of confinement), 1001, (Action when sentence is set aside), 100c 

(Action when sentence is affirmed in whole or in part), 107 (Court-martial 

orders), and 110 b, d, and e (New trial) ; as to authority of the Judge Advocate 

General to vacate or modify findings or sentence in cases finally reviewed, see 

110A (Powers of the Judge Advocate General after final review). 

c. Orders containing classified information or matter unfit for publication. 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 

which 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 where 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 confined, if confinement is involved, are to be complete. 

All other copies are prepared to eliminate, by use of asterisks, sufficient 

data to avoid the necessity of classification and snch obscene matter as may be 

unfit for open publication. 

d. Distribution. Distribution of promulgating orders will be in accordance with pertinent regulations of the Secretary of a Department. In this 

connection, however, see 91a, 916, and appendices 9e and 106. 

e. Summary court-martial. An order promulgating the result of a trial 

by summary court-martial need not be issued. However, the action of the convening authority will be shown on all 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; if a promulgating order is not used, action on the 

other copies either will bear the signatnre of the convening authority or will 

be prepared and certified as true copies of the original. 

Any action taken on a summary court-martial case subsequent to the initial 

action of the convening authority will be promulgated in appropriate orders. 

91. DISPOSITION OF THE RECORD AND RELATED MATTERS. 

a. General court-martial. A record of trial by general court-martial, with the 

action of the convening authority thereon, ordinarily will be transmitted without letter of transmittal directly to the Judge Advocate General of the armed 

force concerned. However, if the convening authority has taken a11 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 85c. 

With the original record of trial will be forwarded the accompanying 

papers (826) and, unless otherwise prescribed by regulations of tlie Secretary 

of a Department, 10 authenticated copies of the order promulgating the result 
ll 91c CHAPTER XVll 

of trial as to each accused and 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 delivered to the accused for any reason, the copy prepared 

for him mill also be attached to the record with an explanation of the reason 

for nondelivery. 

See appendix 9e as to the arrangement of the record and accompanying 

papers for forwarding. 

b. Special court-martial. (1) Cases including an approved bad-conduct 

discharge. After taking action thereon, a special court-martial convening authority who does not also exercise general court-martial jurisdiction will forward the original and two copies of a special court-martial case that includes an 

approved bad-conduct discharge directly to the officer who exercises general 

court-martial jurisdiction over the command. No orders promulgating this 

initial action need be published (906(1)).If n copy of the record cannot be 

delivered to the accused for any reason, the copy prepared for him will also 

be attached with a statement of the reasons for nondelivery. See appendix 9e 

as to the arrangement of a verbatim record. 

The officer exercising general court-martial jurisdiction receiving such a 

record, or who has himself convened a special court-martial which has adjudged a bad-conduct discharge, will, after receiving the advice of his staff 

judge advocate or legal officer (85), take appropriate action upon the findings 

and sentence. If the sentence as approved includes a bad-conduct discharge, the 

record will be disposed of in the manner prescribed in 91a for records of trial 

by general courts-martial. ,* 

(2) Other cases. A convening authority who does not exercise general 

court-martial jurisdiction will forward all records of trial by special courtmartial in which the sentence as approved by him does not include a bad-conduct discharge directly to the officer exercising general court-martial jurisdiction over the command for review (94).With the record will be forwarded the 

accompanying papers and, unless otherwise prescribed by regulations of the 

Secretary of a Department, four authenticated copies of the order promulgating the result of trial (906). See appendix lob as to the arrangement of these 

records. 

c. Summary court-martial. Unless otherwise prescribed by regulatims 

of the Secretary of a Department, a record of trial by summary court-martial 

will be disposed of as indicated herein (91c). 

The original and two copies thereof will, after action by the convening authority, be delivered to the custodian of the personnel records of the unit, who 

will, in the case of an approved sentence, enter the essential data on the service 

record of the accnsed and on any other records as required by regulations. A 

notation that the entry has been made will be recorded on all copies of the 

record of trial. \ 

The original and one copy will be forwarded, ordinarily without letter of 

transmittal, to the officer exercising general court-martial jurisdiction over the 

command. The remaining copy will be retained in the unit files until disposed 

of in accordance with pertinent regulations. 
REVIEW-INITIAL ACTION ON RECORD Q Ylc 

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 and n copy of this certificate will be attached to each copy of the record. 
Chapter XVIII 

\ 

ACTION 

ORDERING REHEARING OR OTHER TRIAL-PLACE OF CONFINEMENT 

92. ORDERING REHEARING OR OTHER TRIAL. a. Rehearing. If 

the convening authority disapproves the findings of guilty and the 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 which case he shall state 

the reasons for disapproval (Art. 63 (a)). A rehearing may not be ordered in 

a case in which there is a lack of evidence in the record 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 was 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 an officer having 

supervisory authority (94a(2) ), an officer authorized to convene general courtsmartial (94a (3) ), a Court of Milibary Review (Art. 66 (d)), or the Court of 

Military Appeals (Art. 67(e)).If a rehearing has been ordered, but the convening authority hcls 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 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, when appropriate, will be included in the action on the 

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. 

In addition t6 having the power, as indicated above, to order a rehearing in 

full which requires findings on all charges and specifications referred to the 

court-martial (816 (1) ) ,the convening authority or a reviewing authority may 

order a rehearing on the sentznce only based on the sustained findings (816 (2) ) 

or a combined rehearing which requires findings by the court-martial on only 

some specifications and sentencing based on those of which the accused is con- 
U 92a CHAPTER XVlll 

victed at the rehearing combined with those which have been sustained on 

review (81b(3) ). When such a combined rehearing is ordered by an authority 

superior to the convening authority and the latter finds a rehearing impracticable on any specification, he may reassess and approve a sentence on the basis 

of the findings which were approved or affirmed, if not otherwise precluded from 

so doing, for example, when the reviewing authority in ordering a rehearing 

on certain specifications also sets aside the sentence. In the latter event, or in 

any case in which he finds it to be more appropriate, he may order a rehearing 

on the sentence based on the findings which have been approved or affirmed. 

As to procedure and rules relating to the sentence imposable in each of 

the three types of rehearings, see 81. 

Additional charges (246) may be referred for trial together with charges 

as to which a rehearing has been directed. 

Every rehearing, including a rehearing on the sentsnce only, shall take 

place before a court-martial composed of members who were not members of 

the court-martial which previously heard the case. The military judge at a 

rehearing may be the same military judge who presided over a previous trial 

of the same case. See 62f (10).The existence or absence of a request for trial by 

the military judge alone at the previous hearing has no effect on the composition of the court at the rehearing. In any rehearing which is referred to a court 

with a military judge and members, the accused may request that the oase be 

heard by the military judge alone. Upon a rehearing the accused shall not be 

tried for any offense of which he was found not guilty by the first court-martial 

and the sentence shall be limited as provided in 81d (1). 

If at a previous trial the accused was guilty of an included offense, a rehearing may properly be ordered only as to that included offense or as to an 

offense necessarily included in that found. If, however, a rehearing is ordered . improperly on the original offense charged and the accused is found guilty 

thereof, that 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 a previous trial, a rehearing may be ordered as to any offense necessarily 

included therein, provided there is evidence in the record which tends to prove 

that 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 made at the 

former hearing which have necessitated the rehearing, not only the charges 

but also the record of the former proceedings and all pertinent accompanying 

papers, together with a copy of any decision of the Court of Military Review 

or the Court of Military Appeals, the review of the staff judge advocate or legal 

officer, and the statement by the convening authorihy of his reasons for disapproving the original sentence. 

A rehearing on the sentence only may not be referred to a court-martial of 

a different kind from that which made the original findings. The three kinds 

of courts-martial are summary, special, and general courts-martial. See Article 

16. 

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 with respect to summary court-martial cases and special court-martial 
ACTION U 93 

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 and 110. 

b. Other trial. If the convening or higher authority finds the original 

proceedings to be invalid because of lack of jurisdiction (8) or failure of the 

charges to allege any offense cognizable by courts-martial (68b), that authority 

will, in his action, state the basis for declaring the proceedings invalid. For 

form, see appendix,l4. This type of case mill be referred to a court none of 

whose members has participated in the former trial. If the case is referred to a 

court with a military judge and members, the accused may request that the 

case be heard by the military judge alone. The military judge at the other 

trial may be the same military judge who presided over a previous trial of the 

case. See 62 f (10). See 81b(1) and d as to the procedure and sentence limitations applicable to other trials. 

93. PLACE OF CONFINEMENT. For action of the convening authority 

in providing for the temporary custody or confinement of the ,accused pending 

final disposition of the case upon appellate review, see 89c (6) and appendix 14. 

When the service of a sentence to confinement at hard labor has been deferred 

and the deferrment is subsequently rescinded, the place of confinement will be 

designated in the convening authority's initial action on the sentence or the 

order which rescinds the deferment. 

The authority who orders a sentence to confinement into execution shall 

designate the place of conhement in accordance with pertinent departmental 

regulations. Under such instructions as the Secretary concerned may prescribe, 

a sentence of confinement adjudged by a court-martial or other military tribunal, 

whether or not the sentence includes discharge or dismissal, and whether or 

not the discharge or dismissal has been 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. Persons so 

co~lfined in a penal or oorrectional institution not under the control of one of 

the armed forces are 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 of Columbia, or place in which the institution is situated (Art. 

58(a) 1. 
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. Review. (1) General. 

The officer immediately exercising general court-martial jurisdiction over a 

command and such other authority as may be designated by the Secretary concerned have supervisory powers over special and summary courts-martial in 

that command. Except as specifically provided ia this paragraph (94), the 

manner of exercising these supervisory powers shall be as prescribed in regnlations of the Secretary concerned. 

(2) Review of records of trial pursuant to Article 65(c). When forwarded to him for review (91), the officer having supervisory authority will 

cause a judge advocate, or a law specialist or lawyer of the Coast Guard to 

review records of trial by summary court-martial and records of trial by special 

court-martial which do not include approved sentences to bad-conduct discharge 

(Art. 65(c)). If the action of the court has resulted in an acqnittal of all 

charges and specifications, or if the convening authority has disapproved the 

hdings 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 shall act only with respect to the findings of guilty and the sentence 

as approved or appioved and suspended, in whole or in part, by the convening 

authority and as found correct in law and fact pursuant to Art. 65(c) and 

may, in the interest of justice, take any action with respect to such findings and 

sentence as may be taken by a convening authority in the latter's initial action 

on the record, including suspending the sentence in whole or in part or ordering 

a rehearing. See chapters XVII and XVIII. When, however, a review made 

pursuant to this subparagraph indicates that proceedings in revision (Art. 

62(b)) are necessary, the record normally will be returned to the convening 

authority with advice concerning the necessary action. An officer having supervisory authority may order the restoration of any rights, privileges, and property affected by'such part of the sentence as he may set aside. See 106. 

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 alld the sentence, 

and either direct a rehearing or dismiss the charges pnrsnant to Article 63. 

See 92. After a hding of guilty upon a rehearing, the court will adjudge an 
n 95 CHAPTER XIX 

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 original sentence. 

See 81. Persons charged with tlze'administrative duty of executing a sentence 

adjudged upon a rehearing after the sentence 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 ~unishment actually to be executed 

pursuant to the sentence adjudged upon the rehearing. See Article 75 (a). 

When, upon review pursuant to this paragraph and any further review 

and procedures which may be ~rovided in regulations of the Secretary concerned, 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) Reviezo of special coz~rt-martiaZ records pzcrszcant to articZe 65(b). 

If the sentence of a special court-martial as approved by a convening authority 

who does not exercise general court-martid 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 tlie same manner as a record of trial by a general 

court-martial (Art. 65 (b) ).The Secretary conceriied may, however, provide by 

regulation for forwarding of the record in appropriate cases to any officer 

exercising general court-martial jurisdiction, who shall be considered "the 

officer exercising general court-martial jurisdiction over the command" within 

the meaning of Article 65 (b). The reviewing authority shall act only with respect to the findings of guilty and the sentence as approved, suspended, or 

deferred by the convening authority. If the sentence as approved by an officer 

exercising general court-martial jurisdiction, either as the convening authority 

(Art. 60) or as prescribed in this subparagraph, 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 Court of Military Review 

(Art. 65 (b) ).If the sentence as approved by the officer exercising general courtmartial jurisdiction does not include a bad-conduct discharge, the record of 

trial shall thereafter be treated as a special court-martial record not involving 

a bad-conduct discharge. 

b. 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 concerned may prescribe by regulation. Special court-martial records which 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. When a record of trial by general court-martial, or a record 

of trial by special court-martial -11 which a sentence to bad-conduct discharge 

has been approved, has been forwarded by a convening authority to higher 

aathority and error of the kind mentioned i11 86c and d is noted by the higher 

authority, the record mill be returned to the convening authority (Art. 60) 

with directions for tlie correction of tlze record or revision of the proceedings. 

When, as an incident of the review of a record of trial pursuant to Articles 

65(b), 66, 67, or 69, it is noted that tlie action of the coizvening authority or 

of a higher authority is incomplete, ambiguous, or contains clerical errors, tlze 
ACTION AFTER PROMULGATION 11 97b 

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 

authority. 

96. REPORTS IN CERTAIN CASES. In the case of an officer, immediately upon promulgation of any sentence of a court-martial which does not require appellate review under Article 66 but which involves any 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, reduced, or deferred and the date of promulgation thereof. 

Whenever an accused person under a court-martial sentence subject to 

review under Article 66 is transferred from the general court-martial jurisdiction which has been designated as the command having temporary custody of 

the accused (89c(6)) before the accused has been notified of the decision of 

the Court of Military Review, the officer ordering the transfer will, by prompt 

means, notify the appropriate Judge Advocate General. 

97. MISCELLANEOUS MATTERS. a. Remission and suspension. As 

to the power of the convening authority to reduce, change the nature of, or 

suspend a sentence at the time he takes his action or orders the sentence into 

execution, see 88 and Articles 64 and 71(d). As to the powers of the supervisory authority, and the powers of the reviewing authority of a special courtmartial the sentence of which includes a bad-conduct discharge, to reduce, 

change the nature of, or suspend a sentence at the time he takes his action, see 

94a (2) and 94a (3). 

Under Article 74(a) the Secretary concerned 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 unexecuted part of any sentence, including all uncollected forfeitures, other than 

a sentence approved by the President, except as provided in 105b. The officials 

authorized by the Secretary concerned to exercise these powers after the sentence has been ordered into execution shall be designated in departmental regulations. The officer having supervisory authority (94n(l) ) and the commanding 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 part of any sentence by summary court-martial 

or of a sentence by special court-martial which does not include a bad-conduct 

discharge. Such action may be taken without regard to whether the person 

acting has previously approved the sentence. Suspension actions taken under 

the authority of this paragraph (97) and Article 74(a) are subject to the rules 

set forth in 88e, 

The Secretary concerned 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. 74(b) ). 

b. Vacation of suspension. Before the vacation of the suspension of a special court-martial sentence which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special courtmartial jurisdiction over the probationer shall hold a hearing on the alleged 
!l97c CHAPTER XIX 

violation of probation. The probationer shall be represented at the hearing by 

counsel if he so desires (Art. 72 (a) ) . 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 for a form of record of this proceeding 

and a procedural guide. 

The record of the hearing and the recommendations of the officer having 

special court-martial jurisdiction shall be sent for action tp the officer exercising general court-martial jurisdiction over the probationer. If this officer vacates the suspension, any unexecuted part of the sentence affected by the vacation shall be executed, unless the sentence then extends to dismissal, or includes, 

unsuspended, dishonorable discharge, bad-conduct discharge, or confinement 

for one year or more, and has not been affirmed by a Court of Military Review 

and, in cases reviewed by it, the Court of Military Appeals. See Articles 71 (b) 

and (c).Also, if the sentence extends to dismissal, no part of the sentence may 

be ordered into execution until approved by the Secretary concerned (Art. 

71(b) ) and a vacation of a suspension of a dismissal is not effective until approved by the Secretary concerned (Art.72 (b) ) . 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 72 (c) . An act of misconduct, in order to serve as a basis for vacation of suspension of a sentence, must occur within the period of suspension. Similarly, the 

order of vacation of the suspension must be issued prior to the end of the 

period of suspension even though, in certain cases, it may not be effective as 

an order of execution of the suspended sentence until the completion of appelate review or action by the Secretary concerned. See the second paragraph 

of 97b. The running of the period of suspension of a sentence is, however, interrupted by the unauthorized absence of the accused. 

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, or deprivation of privileges is continuous until the term expires, 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, the delivery, if followed 

by conviction in a civil tribunal, interrupts the execution of the sentence 

of the court-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 his sentence (Art. 14(b)). 

When a prisoner serving a court-martial sentence to confinement is 

later convicted by a court-martial of another offense for which he is sentenced to confinement, the subsequent senteil/ce interrupts the running of 

the prior sentence to confinement. Any unremitted remaining portion of 

the prior sentence will be served after the subsequent sentence has been 

fully executed. 
ACTION AFTER PROMULGATION ll 97f 

Periods during which the person undergoing such a sentence is absent 

without authority, or is absent under a parole which proper authority has 

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 confinement is suspended or deferred shall be excluded in computing the service of the term of confinement (Art. 57(b)). 

d. Changes in place of confinement. Subject to pertinent regulations, the 

authority who designated the place of confinement, higher authority, or any 

other authority authorized by pertinent regulations may change the place of 

conhement 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 regulations of the Secretary of n 

Department. 

f. Powers of the Judge Advocate General after final review. See llOA 

and Article 69. 
Chapter XX 

APPELLATE REVIEW-EXECUTION OF SENTENCES 

GENERAGPRELIMINARY ACTION-REVIEW BY THE COURT OF MILITARY 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-RESTORATION-COURT-MARTIAL ORDERS-FINALITY OF COURT-MARTIAL 

JUDGMENTS 

98. GENERAL. A sentence of a court-martial may not be executed until 

approved by the convening authority (Arts. 60, 61, 64, 65, 71(d) ). A special 

court-martial sentence which, as approved by the convening authority, includes 

a bad-conduct discharge must, generally, also be approved by an officer exercising general court-martial jurisdiction (94a(3) ; Art. 65 (b) ). In addition to 

this approval, certain sentences may not be executed until approved or affirmed 

by higher authority. 

No court-martial sentence extending to death or involving a general or 

flag officer may be executed until &rrned by a Court of Military Review and the 

Court of Military Appeals and approved by khe President (Arts. 66(b), 

67 (b) (1)and 71 (a) ).No sentence extending to the dismissal of a commissioned 

officer (other than s general or flag officer), cadet, 'or midshipman may be 

executed until affirmed by a Court of Military Review and, in cases reviewed by 

it, the Co~~rt of Military Appeals, and approved by the Secretary concerned 

or such Under Secretary or Assistant Secretary as may be designated by him 

(Arts. 66 (b) ,71(b)). No sentence to dishonorable or bad-oonduct discharge, 

whether or not suspended, may be executed until affirmed by a Court of Military 

Review and, in cases reviewed by it, the Court of Military Appeals. No sentence 

which includes, unsuspended, a disl~onorable or bad-conduct discharge, or 

confinement for one year or more may be ordered executed until affirmed by a 

Court of Military Review land, in owes reviewed by it, the Court of Milibary 

Appeals (Arts. 67(b), 71(c) ,72 (b) ) . All other court-martial sentences, unless 

suspended, may be ordered executed by the convening authority when approved 

by him (Art. 71(d) )). See 88d ns to the effect of a suspension on the execution 

of some sentences. 

99. PRELIMINARY ACTION. All records of trial by general courtsmartial and records of trial by special courts-martial which, as approved by 

the convening authority and by an officer exercising general court-martial jurisdiction, include a bad-conduct discharge shall be sent after approval by the 

proper authority to the Judge Advocate General of the armed force of which 

the accused is a_ member (Arts. 17(b), 65 (a) and (b)). In these cases, a 

general or special court-martial order announcing the result of the trial and the 

action of the convening or higher authority will be promulgated before 

forwarding. 
n 100b CHAPTER xx 

100. REVIEW BY THE COURT OF MILITARY REVIEW. a. General. 

Each Judge Advocate General shall establish a Court of Military Reviencomposed of appellate military judges. For the coniposition of trliese courts, the 

qualificatioiis of the appellate military judges, the grounds for their ineligibility and the restrictions upon the official relationship of a member of the court 

to other members, see Article 66. 

The Judge Advocate General shall refer to a Court of Military Review the 

record in every case of trial by court-martial in which the sentence, as approved, 

affects a general cjr flag officer or extends to death, dismissal of a commissioned 

officer, cadet, or midshipman, dishoiiorable or bad-conduct discharge, or confinement for one year or more (Art. 66 (b) ). In a case referred to it, the Court 

of Military Review may act only with respect to the findings and sentence as 

approved by proper authority. It may affirm only such findings of guilty or 

such part of a finding of guilty as includes an included offense, and the sentence 

or such part of the sentence, as it finds correct in law and fact and determines, 

on the basis of the entire record, should be approved. It has generally the same 

powers with respect to modification of a sentence as does the convening authority (88c), but it does not have authority to suspend a sentence or any part 

thereof. However, it may reduce the period of a suspension prescribed by a 

convening authority. It does not have the authority to defer the service of a 

sentence to confinement. In considering the record, it may weigh the evidence, 

judge the credibility of witnesses, and determine controverted questions of fact, 

recognizing that the trial court saw and heard the witnesses (Art. 66(c) ). 

A finding or sentence of a court-martial may not be held incorrect on the 

ground of an error of law unless the error materially prejudices the substantial 

rights of the accused (Art. 59 (a)). 

b. Action when sentence is set aside. (1) If the Court of Military Review 

sets aside any findings of guilty or the sentence, it may, except as to &dings set 

aside for a lack of sufficient evidence in the record tosupport the findings, order 

the applicable type of rehearing (816) or reassess the sentence as appropriate 

under the circumstances of the case. If it sets aside all the findings and the 

sentence and does not order a rehearing, it shall order that the charges be 

dismissed. See Articles 59 (a) and 66(d). (2) In his discretion, the Judge Advocate General may forward the 

decision of the Court of Milikary Review land the record of trial to the Court of 

Military Appeals for review with respect to any matter of law (Art. 67(bl) (2), 

67(d)). In these cases, he will cause a copy. of the decision of the Court of 

Military Review and his order of reference to be served upon the accused aiid 

upon the appellate defense oounsel. 

(3) If the Judge Advocate General does not order the case forwarded 

to the Court of Military Appeals, he shall advise an appropriate convening 

authority (see 84 and Article 60) to take action in accordance with the decision 

of the Court of Military Review. If the Court of Military Review has ordered a /' rehearing tlie record sh'all be sent to an appropriate convening authority. If 

he finds a rehearing impracticable, he may dismiss the charges (Art. 66 (e) ) . Ordinarily, the final action will be promulgated by an appropriate convening 

authority. If the charges are dismissed, all rights, privileges, aiid property 

affected by (anexecuted portion of the sentence which has been set aside, except 

an executed dismissal or discharge, shall be restored. (Art. 75 (a) ). See llOd 
APPELLATE REVIEW n IOOC 

as to the taction which may be taken if an executed dismissal or dishoi~oralb~e 01: 

bad-conduct discharge is not sustained on a new trial. 

c. Action when sentence is affirmed in whole or in part. (1) Sentences 

which do not require the approval of the President. (a) If the sentence, as 

affirmed by the Court of Milibary Review extends ho dismissal, dishonorable or 

bad-conduct discharge, or confinement for one year or more, the Judge Advocate 

General, in his discretion, may take the action prescribed in lOOb(2) above. 

Otherwise he will transmit a copy of the preliminary court-martial order 

(906 (1) ) and two copies of the decision of the Court of Military Review, with 

i such instructilons as to future action as may be appropriate (Art. 66(e) ) 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 

accused. This copy will bear an indorsement notifying the accused of his right 

to petition the Court of Military Appeals for review with respect to any matter of law within 30 days from the time he is notified of the decision of the 

Court of Military Review, and that any petition for review will be forwarded 

through the officer immediately exercising general court-martial jurisdiction 

over the accused and through the appropriate Judge Advooate General. Either 

the receipt of the accused for the copy of the decision of the Court of Military 

Review or a certificate of service upon him, showing the date of service will 

be transmitted in duplicate by expeditious means to the appropriate Judge 

Advocate General. The latter mill forward one wpy of the receipt or certificate 

of service to the Clerk of the Court of Military Appeals when required by the 

court. If the officer who exercises immediate general court-martial jnrisdiction 

over the accused is not the officer who convened the court, or his successor ill 

command, the Judge Advocate General shall also transmit a copy of the decision 

of the Court of Military Review to the convening authority who convened the 

court for his information. 

The accused has 30 days from the time when he is notified of the decision 

of a Court of Military Review to petition the Court of Military Appeals for 

review. The placing of a petition for review in proper military channels divests 

the Court of Military Review of jurisdiction over the case, and jurisdiction is 

thereby conferred on the Court of Militmy Appeals. If the accused does not so 

petition, the convening authority, or the officer immediately exercising general 

court-martial jurisdiction over the accused, or the Secretary concerned (Art. 

60) may order any sentence which, as affirmed by the Court of Military Review, 

extends to dishonorable or bad-conduct discharge or confinement for lone year or 

more into execution or take other authorized appropriate action (Art. 74(a) ) 

as the circumstances may warrant. 

(6) If an accused, whose sentence as affirmed by the Court of Military 

Review extends to dismissal, does not forward 'a timely petition for review, the 

Judge Advocate General will transmit the record, the decision of the Court of 

Milibary Review, 'and his recommendations to the Secretary concerned lor to the 

appropriate Under Secretary or Assistant Secretary for action under Article 

71 (b) . He shall approve the sentence or such part. amount, or commuted form 

of the sentence as he sees fit, and may suspend the exec~~tion (of any part of the 

sentence as approved by him. In time of war or nahional emergency he may commute a sentence of dismissal to reduction to any enlisted grade. A person so 
11 101 CHAPTER XX 

reduced may be required to serve for the duration of the war or emergency and 

six months thereafter (Art. 71(b) ). The action of the Secretary concerned 

will be promulgated by departmental court-m~artial orders. 

(c) If the accused forwards a timely ~etition for 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 approval of the President. If the Court 

of Military Review affirms any sentence which affects a general or flag officer or 

which, as affirmed by it, extends to death, the Judge Adovcate General shall 

transmit the record of trial and the decision of the Court of Military Review 

directly to the Court of Military Appeals. Re shmall cause a copy of the decision 

of the Court of Military 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 Courts of Military Review shall be prescribed by the Judge Adovcates 

General of the armed forces (Art. 66 (f)) . 

101. REVIEW BY THE COURT OF MILITARY APPEALS. Under 

such rules as it may prescribe, the Court of Military Appeals shall review the 

record in the following cases (Art. 67 (b) ) : 

(1) All cases in which the sentence, as affirmed by a Court of Military 

Review affects a general or flag officer or extends to death; 

(2) All cases reviewed by a Court of Military Review which the Judge 

Advocate General orders sent to the Court of Military Appeals for review ; 

and 

(3) All cases reviewed by a Court of Military Review in which, up011 

petition of the accused and on good cause shown, the Court of Military 

Appeals has granted a review. But see103and Art. 69. 

In any case reviewed by it, the Court of Military Appeals may 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 Court of Military 

Review. In a case which the Judge Advocate General orders sent to the Court of 

Military Appeals, that 'action need be taken only with respect to the issues raised 

by him. In a case reviewed upon petition of the accused, that action need be 

taken only with respect to issues specified tin the grant of review. The Court of 

Military Appeals shall take action only with respect to matters of law (Art. 

67(d) ). 

If the Court of Military Appeals sets aside any findings of guilty or the 

sentence, it may, except as to findings set aside for a lack of sufficient evidence 

in the record to support the findings, order the applicable type of rehearing 

(816) or reassessment of the sentence as appropriate under the circulnstances 

of the case. If it sets aside all the findings and the sentence and does not order 

a rehearing, it shall order that the charges be dismissed. See Articles 59(a) 

and 67 (8). 

After it has acted on a case, the Court of Military Appeals may direct the 

Judge Advocate General to return the record to the Court of Military Review 

for further review in accordance with the decision of the court. Otherwise, 

unless them is to be further action by the President or the Secretary concerned, the Judge Advocate General shall instruct an appropriate convening 
APPELLATE REVIEW ( 102b 

authority to take action in accordance with that decision. If the court has 

ordered a rehearing, but the convening authority to whom the record is transmitted finds a rehearing impracticable, he may discuss the charges. (Art. 67 

(f)).If the sentence, as affirmed by the Court of Military Appeals, requires the 

action of the Secretary concerned, action thereon will be taken in accordance 

with the procedures prescribed in 100c(l) (b). If the sentence as affirmed by 

the Court of Military Appeals extends to death or affects a general or flag officer, the record of triql, the decision of the Court of Military Review, the recommendations of the Judge Advocate General, and bhe decision of the Court of 

Military Appeals shall be transmitted to the Secretary concerned for the action 

of the President pursuant to Article 71 (a). 

102. APPELLATE COUNSEL. a. Detail. The Judge Advocate General 

shall detail in his office one or more commissioned officers as appellate Government counsel, and one or more commissioned officers as appellate defense counsel, who are qualified under Article 27(b) (1) (Art. 70(a) ). 

b. Duties. The appellate Government counsel shall represent the United 

States before the Court of Military Review or the Court of Military Appeals 

when directed to do so by the Judge Advocate General (Art. 70 (b) ). The appellate defense counsel shall represent the accused before the Court 

of Military Review or the Court of Military Appeals (Art. 70 (c) )-

(1) when he is requested to do so by the accused; 

(2) when the United States is represented by counsel ;or 

(3) when the Judge Advocate General has sent a case to the Court of 

Military Appeals. 

For duties of the defense counsel who conducted the defense at the trial 

with respect to advising the accused of his right to be represented by the appellate defense counsel in connection with the appellate review of his case, see 

48j(3). 

If his opinion is requested, the appellate defense counsel will, to the best 

of his professional knowledge, advise the accused as to whether there are meritorious grounds for petitioning the Court of Military Appeals for review. If 

the appellate defense counsel is convinced that there are no substantial questions of law presented by the record of trial with respect to the findings of 

guilty and the sentence as affirmed by the Court of Military Review, he should so 

advise the accused. Regardless of his personal opinion as to the merit of the 

issues which oan be raised, the appellate defense counsel 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 review. He is authorized 

to communicate directly with the accused and with his counsel in the field. These 

communications are privileged. 

In any case in which the sentence as affirmed by the Court of Military 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 connectio~l 

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. 
11 105b CHAPTER XX 

c. Civilian counsel. The accused has the right to be represented before the 

Court of Military Appeals or the Court of Military Review by civilian counsel 

if provided by him (Art. 70 (d) ) . 

103. REVIEW IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL. Every record of trial by general court-martial, in which there has been 

a finding of guilty and 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 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 Court of Military Review in accordance with Article.66, but in that event 

there may be no further review by the Court of Military Appeals unless the 

Judge Advocate General orders the record sent to the Court of Military Appeals 

under Article 67(b) (2) (Art. 69). 

When a record by trilal by general court-martial is referred to a Court of 

Military Review under Article 69, the Judge Advocate General shall advise the 

appellate defense counsel of the reference if such a counsel must be detailed 

under Article 70(c) (1) or (2). See 48j (3). Additionally, if an accused has not 

been adv+sed of his right to representation before the Court of Military Review 

and mlade la request in this regard, he shall be advised of the reference and of his 

right to representation before the Court ,of Military Review under Article 70, 

provided he forwards a prompt request therefor. 

If the Judge Advocate General forwards a case to the Court of Military 

Appeals for review, he will take the action prescribed in 1006 (2). 

104. BRANCH OFFICES. Courts of Military Review established in 

branch offices of the Judge Advoaate 'General and the Assistant Judge Advocate 

General in charge of these offices may perform their duties in the manner prescribed for the Judge Advocate General and the Court of Military 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 sent directly to the Judge Advocate General without action in the 

branch office. 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 Prehident and by the Secretary concerned or such an Under Secretary or Assistant Secretary as may be designated 

by him. See Article 71(a) and (b). See also 886 for the powers of convening 

and reviewing authorities to change the nature of a punishment. 

b. Remission and suspension. If the Judge Advocate General is of the 

opinion that a sentence as affirmed by the Court of Military 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 (1), transmit the record of trial and the decision of the Court of,Milibary Review with hic 

\ recommendations to the Secretary concerned for action pursuant to Article 74, 

or take such action as may be authorized by the Secretary concerned under 

Article 74 (a). See also 97a. 

After the President has commuted a death sentence to a lesser punishment, 

the Secretary concerned may remit or suspend any remaining part or amount 
APPELLATE REVIEW ll 108 

of the unexecuted portion of the sentence of a person convicted by a military 

tribunal under his jurisdiction. 

106. RESTORATION. See llOd as to action which may be taken when the 

sentence adjudged upon a new trial is set aside or disapproved. 

In other cases all rights, privileges, and property affected by an executed 

part of a court-martial sentence which has been set aside or disapproved by any 

competent authority shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new 

trial or rehearing (Art. 75(a) ). Ordinarily. any restoration should be announced in the court-martial order promulgating the final results of the proceedings (9071 (2), 107;app. 155). 

10'7. COURT-MARTIAL ORDERS. General court-martial orders publishing the final results of proceedings in cases in which the President or the 

Secretary concerned has taken final action are promulgated by departmental 

orders. In other cases, the final action may be promulgated by an appropriate 

convening authority or the Secretary concerned. 

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 under sentences by courts-martial following approval, review, or affirmation as required 

by the code, are final and conclusive. Orders publishing the proceedings of 

courts-martial and all action taken pursuant to those proceedings are binding 

upun 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, to 

action by the Judge Advocate General on the ground of newly discovered 

evidence, fraud on the court, lack of jurisdiction over the accused or the 

offense, or error prejudicial to the sub~tantia~l rights of the accused as provided 

in Article 69, and to adion by the Secretary concerned as provided in Article 

'14, and the authority of the President (Art. 76). See 756 (2). 
Chapter XXI 

NEW TRIAL, RELATED AND OTHER MATTERS 

THE PETITION FOR NEW TRIAGCONDUCI' OF NEW TRIAL AND SUBSEQUENT 

ACI'ION-POWERS OF THE JUDGE ADVOCATE GENERAL AFTER FINAL REVIEW-RIGHT OF DISMISSED OFFICER TO TRIAL BY COURT-MARTIAL 

109. THE PETITION FOR NEW TRIAL. a. General. At ,any time 

within two years after approval by the convening authority of a court-martial 

sentence, the accused may petition the Judge Advocate General for a new trial 

on the ground of newly discovered evidence or fraud on the court (Art. 73). 

A petition may not be submitted after the death of an accused. 

The execution of a sentence need not 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. 

b. Who may petition. A petition for a new trial may be submitted either 

by the accused or by his counsel or representative regardless of m-llether the 

accused is in the service or has been separated therefrom. See 109e. 

c. Who may act on petition. If the mused's case is pending before a 

Count of Military Review or the Court of Military Appeals, the Judge Advocate 

General shall refer the petition to the appropriate court 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, 

at the time of trial and sentence from which the 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, that is, either 

by the Judge Advocate General of the Navy or the General Counsel of the 

Department of Transportation, as the case may be. See Article 73. 

d. Grounds for new trial. (1) General. A new trial under 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 

only if within the discretion of the authority considering the petition all the 

facts and information before that authority, including, but not limited to, 

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) Newly ddiscovered evidence. A new trial will not be granted on the 

grounds of newly discovered evidence unless the petition shows : 

(a) That the evidence is in fact newly discovered, that is, discovered 

since the trial ; 
1 l09f CHAPTER XXI 

(6) That the evidence is not such that it would have been discovered 

by the petitioner at the time of trial in the exercise of due diligence; 

(c) That the newly discqvered 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 unless 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 fmding of not guilty or a failure of proof of the offense alleged. 

(6) Willful concealment by the prosecution from the defense of 

evidence favorable to the defense which, if produced and considered by 

the court in the light of all the other evidence, would probably have 

resulted in a hding of not guilty. 

(c) Willful concealment of a material ground for challenge of the 

milihry judge or any member of the court or of the disqualification of any 

official of the court or the convening authority, when that ground or disqualification was not known to the defense at the time of trial. 

e. Form of petition. The petition will be in writing. It will be signed under 

oath or affirmation by the accused, by a person possessing the power of attorney of the accused for that purpose, or by a person with the authorization 

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 : 

(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) Affidavits pertinent to the facts asserted in (5 )above. 

(7) The affidavit of each person whom the accused expects to present 

as a witness in the event of a new trial. Each affidavit should set fort11 

briefly the relevant facts within the personal knowledge of the affiant. 

f. Action upon petition. In cases referred to a Court of Military Review, it 

shall take action in accordance with the rules of procedure prescri'bed under 

Article 66 (f). In cases referred to it, the Court of Military Appeals slii~ll b~lce 

:~ction in accordance with its rules. The authority considering the petition nzay 

cause snch additional investigation to be made ~nd such additional inform:~tion 

to he secured as he may deem appropriate. 

Upon written request and within his discretion, the authority considering 

the petition may allow oral argument upon a petition. If the petition is con- 
NEW TRIAL AND RELATED MATTERS ll110c 

sidered by the Judge Advocate General, the hearing may be before him or 

before an officer or officers designated by him. 

If the Judge Advwate 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 take action under that article when authorized or transmit 

the petition and related papers to the Secretary concerned with his recommendations. The Judge Advocate General may also, in those cases which have been 

finally reviewed but have not been reviewed by a Court of Military Review, 

take action under Article 69. See llOA. 

A new trial sho~lld not be granted by a Court of Military Review or the 

Court of Military Appeals if a consideration of the record of trial indicates 

that appropriate action should be taken under Articles 66 (d) or 67 (e). 

110. CONDUCT OF NEW TRIAL AND SUBSEQUENT ACTION. a. 

Conduct of new trial. (I) 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. 

(2) Every new trial shall take place before a court-martial composed 

of members who were not members of the court-martial which first heard the 

case. The military judge at a new trial may be the same military judge who 

presided over a previous trid of the same case. See 62f(10). The existence or 

absence of a request for trial by the military judge alone at the previous trial 

has no effect on the comlmsition of the court at the new trial. In any new trial 

mhich is referred to a court with a military judge and mexibers, the accused 

may request that the case, be heard by the military judge alone. 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 shall be adjudged in excess of or more severe than the legal sentence upon 

the previous trid, as ultimately reduced by the convening or other proper 

authority when any such action has been taken. 

(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 tllc prior execution of any part of the sentence. See 81d (I). 

b. Action by the convening authority upon the record. The convening 

authority's actio 1 iq f11esame as in other cases except that he may not order 

any part of the se~~lenccb executed. See 88d(l), 89, and appendix 14. 

c. Disposition of record of new trial. Irrespective of the result of the new 

trial, the record Ihel.eof shall be for\\-arded to the appropriate Judge Advocate 

General after action by the convening authority and, in special court-martial 

cases reviewed by him, by the officer exercising general court-martial jurisdiction 

over the command, or by another officer having supervisory authority (94a). 

d. Restoration; disposition of original sentence. Except as hereafter 

provided: the Secretary 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). The Secretary shall set aside so much of the findings and so much 

of the sentence adjudged upon the original trial as may be appropriate. 
n 110~ CHAPTER XXI 

If a previously executed sentence of dishonorable or bad-conduct discharge 

is not imposed on a new trial, the Secretary concerned shall substitute therefor 

a form of discharge authorized for administrative issuance unless the accused 

is to serve out the remainder of his enlistment (Art. 75(b) ). If a previously executed sentence of dismissal is not imposed on a new trial, 

the Secretary concerned shall substitute therefor a form of discharge authorized 

for administrative issue, and the commissioned officer dismissed by that sentence 

may be reappointed by the President alone to such commissioned grade and 

with such rank as in the opinion of the President that former officer would have 

attained had he not been dismissed. The reappointment of such a former officer 

shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the.President may direct. All 

time between the dismissal and the reappointment shall be considered as actual 

service for all purposes, including the right to pay and allowances (Art. 75(c) ). 

e. Court-martial orders. Court-martial orders promulgating the ha1 

action taken as a result of a new trial including any restoration of rights, privileges, and property, shall be promulgated by departmental orders. See appendix 156. 

f. Action bg persons charged with the execution of the sentence. Persons charged with 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 included within 

the new sentence in computing the term or amount of punishment actually to 

be executed pursuant to the new sentence. For example, if one year of an original 

sentence to confinement 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 

confinement for two years of the new three-yesr sentence yet to be executed. 

llOA. POWERS OF THE JUDGE ADVOCATE GENERAL AFTER 

FINAL REVIEW. The findings or sentence, or both, in a court-martial case 

which has been finally reviewed, but has not been reviewed by a Court of 

Military Review, may be vacated or modified, in whole or part, by the Judge 

Advocate General on the ground of newly discovered evidence, fraud on the 

court, lack of jurisdiction over the accused or the offense, or error prejudicial to 

the substantial rights of the accused (Art. 69). Each Judge Advocate General 

shall provide appropriate procedures for considering all cases properly submitted under this paragraph. An accused need not make a request in order for 

the Judge Advocate General to exercise these powers, but each Judge Advocate 

General may prescribe the manner and form by which application for this relief 

may be made and, if requested by a person other than the accused, may require 

that the applicant establish his authority to act on behalf of t.he accused. 

The procedure by which a case may be considered by the Judge Advocate 

General under this paragraph is not part of the appellate review within the 

meaning of Article 76 (see 756 (2) ).Court-martial orders promulgating action 

taken under this authority will be as designated by the Secretary concerned. 

See 906(2). 
NEW TRIAL AND RELATED MATTERS 11 111 

The authority granted to the Judge Advocate General under this provision 

of Article 69 does not limit the powers of the Judge Advocate General to grant 

a new trial under Article 73 nor of the Secretary concerned acting through 

boards established under 10 1J.S.C. 1552 to correct an error or remove an 

injustice. 

111. RIGHT OF DISMISSED OFFICER TO TRIAL BY COURTMARTIAL. The President may dismiss a commissioned officer of any armed 

force in time of war under 70A Stat. 89, 10 U.S.C. $1161. See Article 4 for 

the details regarding the right of a commissioned officer so dismissed to trial 

by court-martial. 
Chapter XXII 

OATHS 

OATHS IN TRIALS BY COURTS-MARTIALAUTHORITY TO ADMINISTER OATHSFORMS OF OATHS 

112. OATHS IN TRIALS BY COURTS-MARTIAL. a. General. The 

word "oath" includes the word "affirmation." In the administration of an affirmation, the words "So 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. All court-martial personnel, which includes the military judge, members of general and special courts-martial, trial 

counsel, assistant trial counsel, defense counsel, ,assistant defense counsel, reporters, and interpreters, shall take an oath to perform their duties faithfully 

(Art. 42 (a) ). Additionally, an individual defense counsel, military or civilian, 

shall take a similar oath.,E,ach witness before a court-martial shall be examined 

on oath (Art. 42(b) ). All persons whose testimony is taken by deposition, oral 

or written, shall be examined on oath (117~; Art. 49(c) ). See 114 for forms of 

other specialized oaths. 

c. Secretarial regulations. As to all court-martial personnel required to 

be sworn, Article 42 ('a) specifically provides that regulations of the Secretary 

concerned shall prescribe the following: the form of the oath; the time and 

place of the taking thereof; the manner of recording same; and whether the 

oath shall be taken for all cases in which these duties are to be performed, or for 

a particular case. Such secretarial regulations may also prescribe similar provisions as to the oath to be taken by individual counsel, military or civilian. In 

the case of certified legal personnel (Art. 26 (b) ;Art. 27(b) ),these secretarial 

regulations may provide for the administration of an oath on a one-time basis 

(Art. 42(a) ). Unless provided otherwise by regulations of the Secretary concerned, it is not required that the oaths to court-martial personnel be admillistered in the presence of the accused. 

See also 61i concerning that point in the proceedings at which it is usually 

ascertained that the required oaths have previously been taken, or are then 

administered. 

d. Procedure for administering oaths. There is no particular procedure 

which must be used in administering an oath. Any procedure which appeals to 

the conscience of the person to wliom the oath is administered and ~vhich binds 

him to speak the truth, or, in the case of one other thnn a witness, properly to 

perform his duties, 2 sufficient. The customary p~ocedure in administering the 

prescribed oath consists (1)of requiring the person taking it to place a hand 

upon a Bible while the oath is administered or (2) of the raising of the right 

hand by both the individual administering the oath and the individual taking 
11 114b CHAPTER XXll 

the oath at the time of the reading thereof and the response.thereto. Persons 

who recognize special forms or rites as obligatory may be sworn in their own 

manner or according to the ceremonies of the religion they profess and declare 

to be binding. 

In those instances when the prescribed oath is administered in open court 

to the military judge, or the court members, or the trial and defense counsel or 

their assistants, or the individual counsel (military or civilian), all persons 

present in the courtroom will stand. While any other person is being sworn, 

such as a reporter, interpreter, or witness, he and the person administering the 

oath will stand. In those rare instances when the trial counsel testifies as a 

witness, the prescribed oath will be administered by the military judge, or, by 

the president of a special court-martial without a military judge, or as prescribed 

in regulations of the Secretary concerned. If the assistant trial counsel testifies 

as a witness, the trial counsel will administer the oath. 

113. AUTHORITY TO ADMINISTER OATHS. The following persons 

on active duty may administer oaths necessary in the performance of ltheir 

duties: The president, military judge, trial counsel, and assistant trial counsel 

for all general and special courts-martial; the president and the counsel for 

the mu& of any court of inquiry; all officers designated to take a deposition; 

all pemns detailed to conduct an investigation; all recruiting officers; and all 

other persons designated by regulations of the armed forces or by statute (Art. 

136(b) ). For other persons who are authorized to administer oaths, see Articles 

49(c) and 136(a). 

114. FORMS OF OATHS. Unless otherwise prescribed by regulations of 

the Secretary concerned, the forms of oaths set forth in a through e below may 

be used for those instances in which the personnel concerned have not previously 

been sworn, and may be administered by the individual indicated. The remaining forms of oaths set forth herein (f-k below) are to be used in other specialized situations. 

a. Oath for military judge. The trial counsel shall administer the following oath to the military judge : 

"You (name of military judge) do swear (or affirm) that you will 

faithfully and impartially perform, according to your conscience and the 

laws applicable to trials by courts-martial, all the duties incumbent upon 

you as military judge of this court. So help you God." 

b. Oath for court-members. The following oath, as appropriate, will be 

administered to court-martial members by the trial counsel : 

"YOU (name(s) of member(s) ) 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 applicable to trials by courts-martial, 

the case of (the accusecl now before this court) (any accused brought before 

you) ;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 in due course of law. So help you God." 
OATHS ll 114i 

c. Oaths for counsel. The following oath, as appropriate, will be administered to trial counsel land to each assistant trial counsel, if any; and to defense 

counsel and to eaoh assistant defense counsel, if any : 

"You (name(s) of counsel) do swear (or affirm) that you will faithfully perform the duties of (trial counsel) (defense counsel) (in the case 

now in hearing) (in lany case referred to this court). So help you God." 

The following oath will be administered to individual counsel (military or 

civilian), if any : 

"You (name of counsel) do swear (or affirm) thah you will faithfully 

perform the duties of individual counsel in the case now in hearing. So help 

you God." 

In the case of any counsel not previously sworn, the oath will be administered 

by the military judge if one is detailed to the court; otherwise, by the president. 

d. Oath for reporter. The trial counsel shall administer the following 

oath to every reporter of the proceedings of a court-martial : 

"You swear (or affirm) that you will faithfully perform the duties of 

reporter to this court. So help you God." 

e. Oath for interpreter. The trial counsel or the summary court shall 

administer the following oath to every interpreter in the trial of any case before 

a court-martial before.he enters upon his duties : 

"You swear (or affirm) that in the case now in hearing you will interpret truly the testimony you are called upon to interpret. So help you God." 

f. Oath for witnesses. The trial counsel or the summary court shall administer the following oath to each witness before he first testifies in a case : 

"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." 

g. Oath for questioned member. When a member is challenged or is 

questioned concerning his competency to serve, the trial counsel shall administer, 

when appropriate (62b), the following oat.11 to the 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." 

h. Oath for escort. The escort on views or inspections by the court shall, 

before entering upon his duties as escort, take the following oath, 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 yon mill not 

speak to the court concerning (the alleged offense) ( ), except to 

describe (the place aforesaid) ( ). So help you God." 

i. Oath to charges. The form of oath to charges, which shall be administered by a commissioned officer of the armed forces authorized to aclminister 

oaths, is as follows : 

"You swear (or affirm) that you are a pcrson subject to the Uniform 

Code of Military Justice; that yon have personal knowledge of or have 
n 114k CHAPTER XXll 

investigated the matters set forth i11 the foregoing charge(s) and specification(~);and that the same are true in fact to the best of your knowledge 

and belief. So help you God.:' 

j. Oath to witnesses at Article 32 investigation. The oath administered 

by the investigating officer to witnesses in an investigation under Article 32 is as 

follows : I 

"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.",' 

k. Oath to person giving a deposition. Any person whose testimony is 

taken by deposition, whether on oral examination or by written interrogatories, 

shall, before he testifies, be examined on oath, administered by the officer, civil 

or military, taking 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 MAWERS 

ATTENDANCE OF. WITNESSES-EMPLOYMENT OF EXPERTS-DEPOSITIONS-


CONTEMPTS-EXPENSES OF COURTS-MARTIAL 


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 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, or the 

Territories, Commonwealths, and possessions (Art. 46) . The formal written instrument or process that serves to summon a witness 

to appear and testify is a subpoena. A subpoena cannot be used for the purpose 

of compelling a witness to appear at an examination before trial, except for the 

taking of a deposition. 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 cornpel the attendance of witnesses. 

The trial counsel will take timely and appropriate action to provide for the 

attendance of those witnesses who have personal knowledge of the facts at issue 

in the case for both the prosecution and the defense. He will not of his own 

motion take that action with respect to a witness for the prosecution unless 

satisfied that the testimony of the witness is material and necessary. The trial 

counsel will take similar action with respect to all witnesses requested by the 

defense, except that when 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 decjsion to the convening authority 

or to the military judge or the president of a special court-martial without a 

militmy judge according to whether the question arises before or after the 

trial begins. A request for the personal appearance of a witness 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 necessitate the personal appearance of the witness, and (3) any other matter showing that the expected 

testimony is necessary to the ends of justice. he decision on the request 

must be made on an individual basis in each case by weighing the materiality of 

the testimony and its relevance to the guilt or innocence of the accused, together 

with the relative responsibilities of the parties concerned, against the equities of 

the situation. If the convening authority determines that the witness will not be 

required to attend the trial, the request may be renew-ed at the trial for determination by the military judge or the president of a special court-martial without 

a military judge, ns if the question arose for the first time during the trial. 
11 115d CHAPTER XXlll 

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 

these facts or if they are unimportant. An application for the attendance of any 

witness may be withdrawn if the trial counsel and defense counsel enter into a 

stipulation as to the testimony of that witness. See 48d and 1546 (Stipulations). 

b. Military witnesses. 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. In 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 will, through regular channels, request the 

proper commanding 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. 

If practicable, a request for 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. Use and examination of documentary and other evidence in control 

of military authorities. If documents or other evidentiary materials are in the 

custody and control of military authorities, the trial counsel, the convening 

authority, the military judge, or the president of a special court-martial without a military judge will, upon reasonable request and withouk the necessity 

of further process, take necessary action to effect their production for use in 

evidence and, within any applicable limitations (see 1516 (1) and (3) ),to make 

them available to the defense to examine or to use, as appropriate under the 

circumstances. See also 44h. 

d. Civilian witnesses. (1) Issue, se~vice, and rekrn of su6poena. 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, or the Territories, Commonwealths, and possessions, and can compel the 

attendance of such a civilian (Art. 46). As to employment of expert witnesses, 

see 116. 

A subpoena normally is prepared, signed, and issued in duplicate on the 

official forms provided. 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 document 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 

inail the subpoena to the witness in duplicate, inclosing a postage paid envelope 
INCIDENTAL MATTERS l 115d 

bearing a return address, with the request that the witness sign the acceptance 

of service on the copy and return it in the postage paid envelope. 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 

will not be prejudiced by voluntary compliance with the request and that a 

voucher for fees and for 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 someone 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 officer 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. These commanders 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 

ordinarily will 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 

t.he form, will 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 postage paid 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. 

In foreign territory, the attendance of civilian witnesses may be obtained 

in accordance with existing agreements or, in the absence thereof, within the 

principles of international law. However, 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) Negbct 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 must 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). 

When it appears advisable, the trial counsel may address a written 

request or the senior officer present may address a written order, for the provision of fees, to a finance or disbursing officer under the command of the 

convening authority, or to a finance or disbursing officer of the same armed 

force as the convening authority and convenient to the place where the witness 

is found. On receipt of the request or order, the finance or disbursing officer 

will immediately provide the trial counsel, or any other 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 journey to and from 

the court. In this respect, see appropriate regulations of the Secretary of a 

Department. If an officer charged with serving a subpoena pays from his 
11 117a CHAPTER XXlll 

personal funds the necessary fees and mileage to a witness, taking a receipt 

therefor, he is entitled to reimbursement. 

(3) Warrant of attachment. I11 order to compel the appearance of a 

civilian witness in an appropriate case, the trial counsel will consult the convening authority, the military judge, or the president of a special court-martial 

without a military judge, 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 under Article 46. 

When it becomes necessary to issue a' warrant of attachment, the trial 

counsel will prepare it and, when practicable, effect execution through a civil 

officer of the United States. Otherwise, the trial counsel will deliver or send 

it for execution to an officer 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 this 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 accompanied by the orders convening 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 full and true 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 been duly 

tendered; and an affidavit of the trial counsel that the person being attached 

is a material witness in the case, that the 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 the failure to appear. 

In executing this process, it is lawful to use only such force as may be 

necessary to bring the witness before the court. When it appears that the use 

of force may be required or when travel or other orders are necessary, appropriate application to the proper commander for assistance or for orders will 

be made by the officer who is to execute the process. 

116. EMPLOYMENT OF EXPERTS. The provisions of this paragraph 

are applicable unless otherwise prescribed by regulations of the Secretary 

of a Department. 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 military judge or the president of a special 

court-martial without a military judge, request the convening authority to 

authorize the 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. When, in advance of 

trial: the prosecution or the defense knows that the employment of an expert 

mill be necessary, application should be made to the convening authority for 

permission to employ the expert, stating the necessity therefor and the probable cost. In the absence of a previous authorization, only ordinary witness 

fees may be paid for the employment of a persoil as an expert witness. 

117. DEPOSITIONS. a. Definitions. A deposition is the testimony of a 

witness in response to questions submitted by the party desiring the deposition 

and by the opposite party, which is reduced to writing and taken under oath 
INCIDENTAL MATTERS II 117b 

before a person empowered to administer oaths. Depositions normally are 

taken to preserve the testimony of witnesses whose availability at the time of 

the trial appears uncertain. See 30f and 34d. Written interrogatories are questions, prepared by the prosecution or defense or both, which are reduced to 

writing before submission to a witness whose testimony is to be taken by 

deposition. The answers, reduced to writing and properly sworn to, constitute 

t,he deposition testimony of the witness. Under Article 49(a), a deposition 

taken on oral examination constitutes an oral deposition, and a deposition 

taken on written interrogatories constitutes a written deposition. 

b. Rules and procedures generally applicable. In addition to the requirements under Article 49 and those contained elsewhere herein (117), the following rules apply to depositions, written or oral, to be used in trials by 

courts-martial : 

(1) Submission of request. At any time after charges have been signed 

as provided in Article 30, any party may request permission to take oral 

depositions or, with the approval of the other party, written depositions. 

Normally, before the taking of any deposition, a request for permission to do 

so will be submitted to the convening authority or, if impracticable, to another 

authority competent to convene a court-martial for the trial of the pending 

charges. If a request to take a deposition originates after the commencement 

of a trial, it will be submitted to the military judge or the president of a 

special court-martial without a military judge. Opposing counsel will be 

permitted to inspect the request and any accompanying papers before 

submission to such an authority. All requests will include the reasons 

for taking the deposition and the points desired to be covered therein. If the 

name of the person whose deposition is desired is unknovn, he may be 

identified by his office or position, for example, "Commanding Officer, Company 

C, 1st Battalion, 27th Infantry, Fort Adams, Vermont ;" "Commander, 3101st 

Maintenance Squadron, Reese Air Force Base, Lubbock, Texas;'' "Cashier, 

Commercial National Bank, Fort Leavenworth, Kansas." 

(2) Rights of the accused. The qualifications of counsel and the rights 

of the accused to counsel for the taking of a deposition are the same as those 

prescribed for trial by the type of court-martial before which the deposition 

is to be used (6a, 6. and c, 48a and 6). The accused and his counsel with whom 

he has established an attorney and client relationship shall be present at the 

taking of any deposition unless the accused consents tc the taking of the 

deposition in the absence of himself, his counsel, or both. If a deposition is to 

be taken before counsel have-been otherwise detailed to a case, the authority 

who approved the taking of the deposition will designate counsel, preferably 

the trial counsel and defense counsel of an existing court or their assistants, 

to represent the prosecution and the defense in taking the deposition of any 

witness. 

(3) Action on the request. A pretrial request for the taking of a deposition may be denied for good cause only by an authority competent to convene 

a court-martial for the trial of the pending charges. See Article 49(a). When 

the request for the taking of a deposition is submitted after the commencement 

of a trial, the military judge or the president of a special court-martial without 

a military judge shall rule as to whether it shall be taken (57). 
I 

11 117b CHAPTER XXlll 

(4) Notice. 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. 49(b)). Notice of the taking of a deposition 

for the prosecution may be given to the accused or his civilian or military 

counsel. 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. 

(5) Obtaining witnesses. If it is necessary to snbpoei~a a civilian witness, 

the person designated to take the deposition will cause the duplicate subpoena 

to be served personally upon the witness and will return the original to the 

trial counsel by an indorsement stating that the duplicate has been delivered. 

If the deposition of a person in the military service is required, the person 

designated to take the deposition or appropriate_military authority shall direct 

the witness to appear at the proper time and place. 

(6) Examination of witnesses in capital cases. When 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, in the same manner 

as a deponent in a case not capital. See 145a. 

(7) Taking the deposition. The person taking a deposition shall administer the appropriate oath to the witnesses and to the reporter and interpreter, if any (see 114; Art. 42), and in the presence of the witness shall record 

or cause to be recorded the testimony of the witness. Objections and motions 

made during the taking of a deposition shall not be ruled on by the officer taking 

the deposition, but they shall be recorded in the deposition, and the evidence 

objected to shall be taken aiid recorded. The person taking the deposition is 

responsible for maintaining order during the taking of the deposition and for 

protecting counsel and the deponent from annoyance, embarrassment, or oppression. When improper conduct of counsel or the deponent prevents the 

conducting of orderly and fair ~roceedings, the person taking the deposition 

should adjourn the proceedings and make a report of the circumstances to 

the court or the convening authority, as appropriate. 

(8) Authentication. 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. 49(c)). See 147a as to taking judicial notice of the seals of foreign 

notaries public with respect to the authentication of depositions taken before 

them, and of the signatures of persons authorized to administer oaths under 

Article 136 and chapter XXII. 

(9) Fees and empensas. A civilian who performs travel to give his deposition is entitled to the same fees and expenses as if he had personally testified 

before the court sitting at the place the deposition is taken. 

If a military officer takes a deposition, he will ordinarily complete and 

certify the voucher. When a deposition is taken by a civil officer, he should, if 

so requested, obtain aiid furnish with the return of the deposition the data 

necessary for the completioil of the witness vouclier. 

(10) Action on seceipt of compZetecl deposition. Upon receipt of the 

completed deposition the trial counsel will notify the accused or his counsel and 

will give the defense an opportunity to examine it. The trial counsel, as the 

legal custodian of the deposition, is responsible that no alteration whatever is 

made therein. 
I 

INCIDENTAL MATTERS 11 117d 

(11) Use at trial. See 79b concerning the use of depositions in trials 

by summary courts-martial. See 145a for the rules of evidence applicable to 

depositions. 

c. Written depositions. (1) Su6mission of interrogatories to opposition. 

The side desiring a deposition on written interrogatories will submit to opposing 

counsel a list of written interrogatories to be propounded to the absent witness. 

Opposing counsel may examine the interrogatories and will be allowed a reasonable time for the preparation of cross-interrogatories and objections, if any. 

(2) Sending out interrogatories. All interrogatories are entered upon 

any prescribed form as indicated by any notes and instrucitions thereon. The 

trial counsel normally should send the interrogatories to the commanding officer of the military station nearest the witness. According to circumstances, 

the interrogatories will be accompanied by such of the following as are advisable or necessary :A proper explanatory letter, an addressed ret~n-11 envelope, 

a subpoena in duplicate, and a voucher for fees and mileage. 

The return 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 voucher will be completed to the extent 

permitted by the known facts, and the latter will be accompanied by the required number of copies of the orders convening the court. 

(3) Action by person receiving interrogatories. When interrogatories 

are received by a military officer, he will take appropriate action with a view 

to the prompt and economical taking of the deposition by a competent person. 

It may be left to the person designated to take the deposition to indicate the 

time and place of the taking. 

In the event that the deposition cannot be taken promptly upon 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 will be taken. 

(4) Procedures. Before a witness gives his 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 witness 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. 

When the testimony is fully transcribed the deposition will ordinarily 

be submitted to the witness for examination or read to him. Appropriate changes 

in form or substance which the witness desires to make may be entered by the 

person taking the deposition. The deposition will then be signed by the 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 mill, over his olcn 

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 on the forms. 

d. Oral depositions. An oral deposition is taken by propounding oral questions which along with the answers thereto are reduced to xvriting or other 

verbatim record. The entire proceeding is recorded verbat,im, ancl the recorcl 

need not be signed by the witness but will normally be certified by the officer. 

taking the deposition. See 117b as to rules and procedures generally applicable. 
1T 118b CHAPTER XXlll 

118. CONTEMPTS. a. General. The power to punish for contempt is 

vested in general, special, and summary courts-martial. 

A court-martial, provost court, or military coinmission may punish for 

contempt any person who uses any menacing word, sign, or gesture in its 

presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for 30 days or a fine of $100, or both (Art. 48). 

The words "any person," as used i11 Article 48, include all persons, whether 

or not subject to military law, except the military judge and the members of the 

court. These excepted persons may be punishable as indicated in 41b. 

The conduct described in Article 48 constitutes a direct contempt. Neither 

indirect or constructive contempt, that is, that which is not committecl in the 

presence or immediate proximity of the court while it is i11 session, nor the 

conduct and the action described or referred to in Article 47(a) is punishable 

under Article 48. Having been duly subpoenaed, persons not subject to military 

law may be prosecuted and punished under 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 of the court or any party to the trial and 

when the court deems it advisable, the military judge,-the president of a special 

court-martial without a military judge, or a summary court-martial may warn 

a person that his conduct is improper and 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 warralits action under 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 will be given an 

opportunity to explain his conduct. The mere insistence by the person that his 

language or behavior was proper does not necessarily purge him of contempt. 

When the military judge is trying the case alone, he will determine whether 

a person shall be held in contempt, and if he so determines, he will proceed to 

determine an appropriate punishment within the limits authorized by Article 

48 and chapter XXV. 

When the court includes members, the preliminary question as to whether 

a person should be held in contempt will be disposed of by a ruling of the 

military judge, or the president of a special court-martial without a military 

judge, both of which mill be made subject to the objection of any member of 

the court. 

Before asking whether any member of the court objects to his ruling, 

the military judge, or the president of a special court-martial without a military 

judge, should give the court members such instr~~ction aswill enable them to 

nnderstand the issue that is before them and the leg~l standards and procedure 

by which they will determine it if objection is made. 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 conrt mill resume its regular proceedings. 

If any member objects to the ruling, the conrt will close and vote orally, 

beginning with the junior in rank, and the question shall be decided by a 

majority vote. A tie vote shall be a determination in favor of the person who is 

being proceeded against. 
INCIDENTAL MATTERS !l119 

If, as a result of the vote of the court, or a ruling of the military judge or 

the president of a special court-martial without a military judge that is not 

objected to, there has been a preliininary determination that the person be held 

in contempt, the court will close to determine, by secret written ballot, whether 

he shall be held in contempt. Before closing for a final determination, the court 

should be given any instructions considered appropriate by the military judge 

or the president of a special court-martial without a military judge. I11 the 

event of conviction, the court will also determine by secret written ballot 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 being authorized except for the automatic review by the convening authority. 

Before resuming the original proceedings, a record will be made in and 

as a part of the regular record of the case before the court, 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 the record to the convening authority, appropriate entries concerning this action being entered in and as a part of the regular record. For an 

example of proceedings in contempt, see appendix 86. 

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 convening 

authority may require the person to undergo any confinement adjudged (21d; 

Art. 57(b)). 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 this communication 

shall be furnished to such other persons as may be concerned with the execution of the punishment, and 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 may be allowed to continue to testify or to perform his functions before the court. 

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 designated by that officer. 

119. EXPENSES OF COURTS-MARTIAL. See appropriate regul a t' Ions 

of the Secretary of a Department. 
Chapter XXIV 

INSANITY 

GENERAL CON,SIDERATION-INQUIRY BEFORE TRIAGINQUIRY AND DETERMINATION BY COURT-EFFECT OF MENTAL IMPAIRMENT 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 he lacked mental repsonibility at 

the time of the offense as defined in 1206, or if he lacks the requisite mental 

capacity at the time of trial as stated in 120d. 

b. General 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 that 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 concerning the 

particular act charged both to distinguish right from wrong and to adhere to 

the right. The phrase 'Lmental 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 deprive the 

accused of his ability to distinguish right from wrong or to adhere to the right 

as to the act charged. Thus, 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 though it may demonstrate a diminution 

or impairment in ability to adhere to the right with respect to the act charged. 

Similarly, mental disease, in itself, 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 honiicide, 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 thereupon killed the supposed attacker under the delusion 

that it was necessary to kill the deceased to preserve his own life. 

c. Partial mental responsibility. A mental condition, not ainounting to 

a general lack of mental responsibility (1206), which produces a lack of mental 

ability, at the time of the offeilse, to possess actual knowledge or to entertain a 

specific intent or a premeditated design to kill, is a defense to an offense having 

one of these states of mind as an elen~ent. For example, if premeditated murder 

is charged and the court finds that, as a result of mental impairment, not 
11 122a CHAPTER XXlV 

amounting to a general lack of mental responsibility, the accused at the time 

of the offense lacked the mental ability to entertain a premeditated design to 

kill, the court must find the accused not guilty of premeditated murder, but it 

may find him guilty of the included offense of unpremeditated murder as a 

premeditated design to kill is not an element of the latter. 

d. Mental capacity at time of trial. No person should be brought to trial 

unless he possesses sufficient mental capacity to understand the nature of the 

proceedings against him and to conduct or cooperate intelligently in his defense. 

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 (120d) or was insane at the time 

of the alleged offense (120b), 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 a reasonable basis for the belief, the matter will be referred to a board 

of one or more medical officers for their observation and report as 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 s~sto be able concerning the particular acts charged to distinguish right from wrong (1206) 1 

b. Was the accused at the time of the alleged offense so far free from 

mental defect, disease, or derangement as to be able concerning t,he particular acts charged to adhere to the right (120b) 1 

c. Does the accused possess sufficient mental capacity to understand 

the nature of the proceedings against him and to conduct or cooperate 

intelligently in his defense (120d) 1 

To determine these questions the board should place the accused under observation, examine him, and conduct any further investigation that it deems 

necessary. 011the basis of this report, further action in the case may be suspended, the charges may be dismissed by an officer competent to convene a courtmartial appropriate to try the offense charged, administrative action 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 circumstances 

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 AND DETERMINATION BY THE COURT. a. Presumption of sanity; reasonable doubt; burden of proof. The accused is 

presumed initially to be sane and to llave been sane at the time of the alleged 

offense. This presumption authorizes the court to assume that the accusecl was 

and is sane until evidence is presented to the contrary. TVhen, liowevel-, some 

evidence which could reasonably tend to show that the accused is insane (120d) 
INSANITY 11 122b 

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. 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, and when the 

sanity of the accused becomes an issue, the prosecution should introduce any 

available evidence tending to prove his sanity. If, in the light of all the evidence, 

including that supplied by the inference of sanity (138a(2)), a reasonable 

doubt as to the mental responsibility of the accused at the time of the offense 

(1206) remains, the court must find the accused not guilty of that offense. If a 

reasonable doubt extends only to the accused's ability, at the time of the offense, 

to possess the actual knowledge, specific intent, or premeditated design to kill 

which is an element of the offense, the court must find the accused not guilty of 

that offense, but it may convict him of any included offense which does not require proof of one of these states of mind and as to which there is not otherwise 

a reasonable doubt. If a reasonable doubt as to the mental capacity of the accused at the time of trial (120d) remains, the court will adjourn and transmit to 

the convening authority the record of its proceedings with a statement of its 

determination of the issue of mental capacity. 

b. Procedure. (1) General. Different issues relating to the sanity of an 

accused may be raised in a variety of ways at any time during the course of a 

trial. The method of disposing of an issue depends upon the kind of issue and 

manner in which it is raised. 

(2) Inquiry.The lactilons and demeanor of the accused as observed by the 

court or the bare assertion from a rel'iable source that the accused is believed 

to lack mental capacity or is mentally irresponsible may be sufficient to 

warrant inquiry by the court. It should be remembered, however, that although 

a person who lsacks 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 s&cient to impose any burden of inquiry 

on the court or to raise the issue of insanity. 

A request or other action to cause the court to make inquiry concerning 

the accused's sanity may be initiated by the military judge or any member of 

the oourt, prosecution, or defense. The military judge rules finally as to whether 

an inquiry should be made into the mental capacity of the accused at the time 

of trial or into the mental responsibility of the accused at the time of the offense 

(Art. 51 (b) ;see 1226 (3) and (4) ) . The president of a special court-martial 

without a military judge rules finally on all questions of law but rules subject 

to objection by any member on all factual issues. Thus, if the issue of whether 

an inquiry should be made into the mental capacity of the accused at the 

time of trial or into the mental responsibility of the accused at the time of 

the offeilse invo1~-es only a legal determination, the president of a special 

court-martial without a military judge rules finally. When such an issue is solely 

one of fad, the president of a special court-martial without a military judge 

rules subject to objection by any member (Art. 51 (b) ; see 1226 (3) and (4) ) . As to mixed questions of law and fact, see 576. Before asking whether any 
11 122b CHAPTER XXlV 

member objects to a rulring which is subject to objection, the members should 

be given such instructions as wwlill enable them to understand the question that 

is before them and the legal standards and procedure by which they will determine it if objection is made. If thereafter, a member objects to the ruling, 

the court will close and vote on whether an inquiry should be made (57f). A 

tie vote of the members upon a motion relating to the sanity of tlie accused is 

a deterniination against the accused (Art. 52(c) ). If it is determined to make 

an inquiry, priority will be given to it, aiid the inquiry should exhsaust all 

reasonably available sources of information with respect to the mental condition 

of the accused. If it appears that the inquiry mill be protracted or if the court 

desires to Ilear expert testimony, the court may adjourn land report the matter 

to the conr~ening authority wvith its recommendations. These recommendations 

may include a recommendation that the accused be examined as provided 

in 121 and tliat the officer or officers cond~lctiiig the examination be mlade 

available as witnesses. As a result of a subsequent report of mental examination 

conducted under 121, the convening authority may withdraw the charges from 

the court, hold the proceedings in abeyance, refer the matter to the oourt for its 

consideration subject to the provisions of 122~. or take other appropriate 

action. 

(3) Issue of mental capacity at time of trial. Regardless of the manlier in 

which it is raised, the issue of mental capacity at the time of trial is always an 

interlocutory question, since a determination in favor of the accused has no 

effect on his guilt or iiu1ocence of an offense but only interrupts the trial until 

the incapacity no longer exists. A11 issue of mental capacity should be resolved 

as early in the trial as possible in order to prevent confnsioii if an issue of mental 

responsibility is also raised. The military judge rules finally on the issue of 

mental capacity at the time of trial (57d). In a special court-martial without 

a military jndge, the president rules subject to objection by any member of the 

court on the issue of mental capacity (57c). See 122b (2) for instructions to be 

given and methods of ruling aiid voting. If it is determined that a reasonable 

doubt exists as to the requisite mental capacity of the accused (Bod), this fact 

shall be recorded and the record of all proceedings held in the case forwarded 

to the convening authority. Otherwise, the trial shall contiime. If the coi1venii1g 

authority disagrees with the determination of the court or if he determines that 

the disability was temporary and tliat the accused has recovered his mental 

capacity, he may return the case to the court ,~\-ith instructions to reconsider the 

question and, if appropriate. to proceed with the trial. 

(4) Issue of nzenta7 raapon.sihility at time of offense. Regardless of 

whether the issue of mental responsibility is raised as an interlocutory matter 

by a motion to dismiss or by the introductioii of evidence on the question of 

guilt or iiinocence, the conrt must alwvays determine tlie issue in arriving at its 

findings on guilt or innocence. When the issue is raised by motion, howevgr, it 

may be considered as an interlocutory question at the discretion of the military 

judge or the president of a special court-martial wl-ithout a military jud0.e. The 

usual procedure is to submit the issue to tlie conrt for determination clurlng its 

deliberations on the findings. See 1222, (2) for the instructions to be given and 

the methods of ruling aiid voting ~r-hen the issue is treated as an interlocutory 

question. When tlie issue is so treated, both the military judge and the president 
INSANITY 11 123 

of a special court-martial without a military judge rule subject to objection by 

any member. 

If the court finds the accused not mentally responsible for his acts (120b) 

upon an interlocutory determination, it will forthwith enter findings of not 

guilty as to the proper charges and specifications, and forward the record of 

all proceedings held 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 

finds the accused sane, the defense is ilot precluded by this finding from offering 

further evidence on the issue of insanity. In considering its findings upon the 

issue of guilt or innocence, 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 (120b). 

c. Evidence. The issue of the sanity of the accused is one of fact, xnd the 

modes of proof and rules of evidence with respect to this issue are, generally, 

those prescribed in chapter XXPII. Although the testimony of an expeit 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 an 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. 

As in the proof of other matters, evidence may be presented by the testimony of witnesses in open session, depositions (145a,) stipulated testimony, 

or documentary evidence. 

So much of the report of a board of medical officers or any other lnedical 

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 (144b, 

G, and d) 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 or, in a proper 

case, as memoranda of past recollections recorded (146a). The report or any 

other pertinent matter, although not necessarily admissible in evidence, may 

nevertheless be examined by the military judge, or the president of a special 

court-martial without a military judge, for the limited purpose of determining 

whether further inquiry into the mental condition of the accused should be made. 

Before ruling, the military judge, or the president of a special court-martial 

without a military judge, should make available to the members of the court any 

portions of the document which are necessary for them to intelligently consider 

the ruling. The court should be instructed that this information is made available only for the limited purpose of determining if further inquiry into the 

mental condition should be made. 

For the rules of evidence as to expert witnesses, hypothetical questions, ancl 

similar matters, see 138e. 

123. EFFECT OF MENTAL IMPAIRMENT OR DEFICIENCY 

UPON SENTENCE. In arriving at its sentence, the court may consider any 

evidence with respect to the mental coildition of the accused which falls short 

of creating a reasonable doubt as to his sanity. The fact t,hat the accused is a 

person of low intelligence or that, by virtue of a mental or neurological condi- 
11 124 CHAPTER XXlV 

tion 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 or appropriate higher authority that a reasonable doubt exists as to the sanity of the 

accused, the findings of guilty affected by that doubt should be disapproved 

and appropriate action taken with respect to the sentence. If the doubt relates 

to mental capacity at the time of trial, a rehearing may be directed when the 

incapacity no longer exists. 

Convening or higher authorities will take the action prescribed in 121 

before taking action on the record of trial when it appears from the record or 

otherwise that further inquiry as to the mental condition of the accused is 

warranted in the interest of justice, regardless of whether the question was 

raised at the trial or how it was determined if raised. When further inquiry 

results in a determination that the accused lacks the mental capacity to understand the review proceedings, a conviction may not be approved or affirmed 

under Articles 64,65, or 66 until the accused regzins the requisite mental capacity. However, this should not cause a delay in making a determination in favor 

of an accused which will result in the setting aside of a conviction. When 

further inquiry after trial produces new information which raises an issue 

concerning mental responsibility at the time of the offense, the affected charges 

and specifications may be dismissed and appropriate action taken on the sentence or a new trial or rehearing may be directed, as may be appropriate under 

the circumstances of the case. 
- --- ---------------- -

----- -- - - -- - - - 

Chapter XXV 

PUNISHMENTS 

GENERAL LIMITATIONS-MISCELLANEOUS LIMITATIONS-MAXIMUM LIMITS 

OF PUNISHMENTS 

SYNOPSIS OF CHAPTER. In this synopsis the references on the left 

are to paragraphs; those on the right are to pages. 

Para. Page 

125. General limitations--_ - - --- --- - - --------------- ---- - - - 25-1 


126. Miscellaneous limitations ----- _----- -- ---------------- - - 25-2 


a. General comments----------------------- 25-2 


b. General courts-martial- ----------------- - ------------------ --_-_-__-­ 25-3 
 -

c. Special and summary courts-martial- --- ___ - --- ----_-___-____ --- _ _ _____-25-3

(1) Special courts-martial-- - - -- - -- - - - - --- - ---- - - - - - --- - - - - - - --- - - 25-3 


(2) Summary courts-martial ----_- -- - ------------ ..................... 25-3 


(3) Generalcomments-----______-----------------------------­25-3 
 -

d. Commissioned officers and warrant officers .............................. 25-4 


e. Enlisted members; prisoners sentenced to punitive discharge.. _ _ _ _ _ _ _ - - -- _ _ _ 25-4 


f. Reprimand; admonition- ___---__- --- - - - - 25-4 


g. Restriction to limits --_____-_____--------------------------­25-5 ---


h. Forfeiture; fine; detention of pay -_________---------------------­25-5 ---


(1) General.............................. 25-5 


(2) Forfeiture--__----------------------- 25-5 


(3) Fine-----------_---------------------------------------- 25-6 


(4) Detention ofpay----------------__-------------------------------- 25-6 


(5) Effective date of certain sentences--- .............................. 25-6 


i. Suspension from rank, command, or duty; loss of rank, promotion, numbers, 


orseniority----_-------------------------------------------­ ..------ 25-7 


a. Confinement at hard labor ------_-__-_-_-------------------­ 25-7 
 -

k. Hard labor without confinement .............................. 25-7 


127. Maximum limits of punishments-- .................... - - --- - - - 25-7 


a. Persons and offenses----------------------------------------- 25-7 


b. General limitations ................................................ 25-8 


c. Maximum punishments .............................................. 25-8 


(I) Applicability and use of Table of Maximum Punishments- - - - -- -_ - - - - 25-8 


(2) Applicability and use of Table of Equivalent Punishments---- ----- -- - 25-9 


(3) Computation of period of unauthorized absence -__--___------------ - 25-10

(4) Punitive discharges--- ....................... ----- - ---------------- 25-10 


(5) Automatic suspension of limitations- -- - _ _ _ _ _ _ _ _ _ -_ _ - _ - _ - _ _ _ _ _ _ _ _ _ _ 25-10 


(6) Arrangement of Table of Maximum Punishments ____-__-----------­ 25-10 
 -

Section A-Table of Maximum Punishments- _______--------- 25-10 


Section B-Permissible Additional Punishments- _ - - _ _ _ _ --- - -- - ---- - - - - ----- 25-17 


125. GENERAL LIMITATIONS. In all cases of conviction, a courtmartial should adjudge a legal, appropriate, and adequate punishment, with 

due regard for the reiuireinents of the code. See 76a and 127 for the basis of 

determining adequate punishment. The puiiishinent which a court-martial may 

direct for an offense may not exceed such limits as the President may prescribe 
U 126a CHAPTER XXV 

for that offense (Art. 56). See also 118 (Contempts), 126 (Miscellaneous limitations), and 127 (Maximum limits of punishments). 

No member of the armed forces may be placed in confinement in immediate 

association with enemy prisoners or other foreign nationals not members of the 

armed forces (Art. 12), nor, subject to the provisions as to the effective date of 

forfeitures set forth in 126h(5), may any person while being held for trial or 

the results of trial be subjected to punishment or penalty other than arrest or 

confinement upon the charges pending against him (see Art. 13). Prisoners 

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

executed will be accorded the facilities, accommodations, treatment, and training prescribed in pertinent regulations. During the period that he is held for 

trial or awaiting action on his sentence, an accused will not be required to 

observe either duty hours or training schedules devised as punitive measures, 

required to perform punitive labor, nor required to wear other than the uniform 

prescribed for unsentenced prisoners, except that during those periods he may 

be subjected to minor punishment for infractions of discipline (see Art. 13). 

Punishment by flogging, or by branding, marking, or tattooing on the body, 

or any other cruel or unusual pnnishment, may not be adjudged by any courtmartial 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 

custom 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 punishment by a court-martial. 

Confinement on bread and water or diminished rations may be adjudged 

only against enlisted members attached to or embarked in a vessel and shall not 

be adjudged in excess of three days. However, the categories of enlisted personnel upon whom this type of punishment may be imposed may be limited by 

regulations of the Secretary concerned. A court-martial may not adjudge a 

sentence to solitary confinement, but a sentence to confinement on bread and 

water or diminished rations may be carried into execution by confining the 

prisoner in a place where he can communicate only with authorized personnel. 

The ration to be furnished an enlisted member undergoing a punishment of 

confinement on diminished rations is that specified by the authority charged 

with the administration of the punishment, but the ration may not consist solely 

of bread and water unless this punishment has been specifically adjudged. When 

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 the accused, 

must be obtained before the sentence is ordered into execution. The certificate, 

which shall be attached to the record of proceedings, shall be in the following 

form : 

"Icertify that from an examination of -

and of the place where he is to be confined, I am of the opinion that the 

execution of the foregoing sentence to confinement on (bread and water) 

(diminished rations) will (not) produce serious injury to his health." 

1%. MISCELLANEOUS LIMITATIONS. a. General comments. The 

death penalty is mandatory in the case of spies (Art. 106) ;it is mandatory that 

either death or life imprisonment be adjudged for murder upon a finding of 

7 
PUNISHMENTS fl 126c 

guilty under subsections (1)or (4) of Article 118. Punishment as adjudged by 

the court must be in conformity with the article prescribing the offense, and 

may not exceed the inaximum authorized for the offense in the Table of Maximum Punishments, unless the limitations in the table have been suspended. For 

example, Article 85 (Desertion) authorizes such punishment other than death 

as a court-martial may direct, except in time of war when either death or such 

other punishment as a court-martial may direct is authorized. However, the 

maximum penalty that may be adjudged for desertion is also limited by the 

Table of Maximum Punishments unless the limitations in the table have been 

suspended by the President under the authority of Article 56, in which event 

only the limits prescribed in Article 85 would govern. See 127c(5) for offenses 

as to which the Table of Maximum Punishments is automatically suspended 

upon declaration of war. 

A court-martial may not adjudge the death penallty except for an offense 

made expressly so punishable by an article of the code (Art. 52 (b) (1) ). See 15a 

(2) for an enumeration of the particular articles. Although an offense may be 

made expressly 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 (f) ). With reference to the limitation on the imposition of the 

death penalty in the case of a rehearing or new or other trial, see 81d and 

llOa(2). See 145 for limitations on the use of depositions, former testimony, 

and records of courts of inquiry in cases involvincr the death sentence and on the b

use of records of courts of inquiry in cases involving the dismissal of a commissioned officer. 

In adjudging a sentence of death, a court-martial will not prescribe the 

method of execution. A dishonorable discharge is by implication included in a 

death sentence. A sentence to death which has been finally ordered executed 

will be carried into effect in the manner authorized or prescribed by regulations 

of the Secretary concerned. 

A court-martial may not adjudge an administrative separation from the 

service, and dishonorable or bad-conduct discharge or dismissal, as appropriate 

according to the status of the accused (see 126 d and e), are the only 4orms of 

punitive separations that may be adjudged. Concerning the appropriateness of 

a sentence to dishonorable or bad-conduct discharge, see 76a (3) and (4). 

b. General courts-martial. Subject to the provisions of this chapter 

(XXV), general courts-martial may adjudge any punishment not forbidden 

by the code, including the penalty of death when specifically authorized by the 

code, and, in appropriate cases, any punishment permitted by the law of war 

(Art. 18). See 14a for jurisdiction of a general court-martial composed of a 

military judge alone. 

c. Special and summary courts-martial. (1) Special courts-martial. See 

15b and Article 19 for the limitatioils on the juriscliction of a special courtmartial in adjudging punishments. 

(2) Summary courts-martial. See 166 and Article 20 for the limitations 

on the jurisdiction of a summary court-martial in adjudging punishments. 

(3) General comments. Special and summary courts-martial are not 

limited to the kinds of punishments set forth in Articles 19 and 20. See 16b as 
11 126f CHAPTER XXV 

to the apportionment that may be required if a summary court-martial wishes 

to adjudge both confinement and restriction. The Table of Equivalent Punishments (1276) will be used to make an apportionment. 

d. Commissioned officers and warrant officers. In general, any limitation as to the punishment that may be imposed on a commissioned officer by a 

court-martial is applicable in the case of a warrant officer. A commissioned or 

warrant officer may not be reduced in grade by any court-martial. However, in 

time of war or national emergency the Secretary concerned, or such 'CJnder Secretary or Assistant Secretary as may be designated by him, may commute a 

sentence of dismissal to reduction to any enlisted grade (Art. 71(b)). A commissioned officer or warrant officer may be punished by a punitive 

separation from the service when convicted by general court-martial of any 

offense in violation of the code. The separation from the service of commissioned officers, including commissioned warrant officers, when adjudged by 

the sentence of a general court-martial, shall be by dismissal. The separation 

from the service of all other warrant officers by sentence of a general courtmartial shall be by dishonorable discharge. 

Only a general court-martial may sentence a commissioned or warrant 

officer to confinement, and in no case shall the confinement exceed the maximum prescribed for enlisted members by the Table of Maximum Punishments. 

A commissioned or warrant officer may not be sentenced to hard labor without 

confinement in any case. 

e. Enlisted members; prisoners sentenced to punitive discharge. For 

the maximum limits of punishn~ent for certain offenses committed by enlisted 

members, see 127. Under Article 58a, unless otherwise provided in regulations prescribed by the Secretary concerned, a court-martial sentence of an 

enlisted member in a pay grade above E-1, as approved by the convening 

authority, that includes (1) a dishonorable or bad-conduct discharge, (2) 

confinement, or (3) hard labor without confinement reduces that member to 

pay grade E-1, effective on the date of that approval. If the sentence of a 

member who is thus reduced in pay grade is set aside or disapproved, or, 

as finally approved, does not include any of these punishments, the rights 

and privileges of which he was deprived because of that reduction shall be 

restored to him and he is entitled to the pay and allowances to which he 

would have been entitled, for the period the reduction was in effect, had he 

not been so reduced. Reduction effected under Article 58a is not a part of 

the sentence, but is an administrative result thereof. 

A court-martial is authorizes to sentence an enlisted member to be reduced 

to the lowest or any intermediate grade. But see 166 concerning the limitations on the power of summary courts-martial to sentence enlisted members 

above the fourth enlisted pay grade to a reduction. 

If a prisoner already under a suspended sentence to dishonorable or badconduct discharge is tried by a court-martial, dishonorable or bad-conduct 

discharge may be adjudged as well as other appropriate penalties. However, 

if a prisoner has been separated from the service by dishonorable or badconduct discharge, the adjudging of another punitive discharge would, in 

general, be futile. 

f. Reprimand; admonition. Theru is no restriction either as to the court 

which may adjudge a. reprimand or admonition as punishment or as to thc 
PUNISHMENTS 	 !I126h 

persons subject to the code upon whom this punishment may be imposed, but 

the court will not specify the terms or wording of a reprimand or admonition. 

g. Restriction to limits. There is no limitation either as to the court which 

may adjudge the punishment of restriction to limits or as to the persons subject to the code upon whom it may be imposed. It will 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. Any partid forfeiture, fine, or detention of pay should be adjudged in express terms and 

stated in dollars only rather than in dollars and cents, or in days' pay (see 

app. 13). In determining the amount of a forfeiture or fine, pa&cularly a 

large fine, the court shouJd consider the ability of the accused to pay. 

Fines and forfeitures accrue to the United States and cannot be adjudged 

by a conrt-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, including any liability to a government 

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) Forfeiture. A forfeiture is an appropriate form of punishment for 

all military personnel whatever their rank or status. Unless a total forfeiture is 

adjudged, a sentence to forfeiture deprives the accused of the amount expressly stated in the sentence and applies for the period of time expressly 

stated. Allowances are forfeited only when the sentence includes the forfeiture 

of all pay and allowances. Subject to the provisions of Article 57(a), 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 the sentence is adjudged. Forfeiture of a member's deposits or of the 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 United States. A general court-martial is not limited 

as to the amount of forfeiture it may adjudge. For the limit of jurisdiction of 

a special or a summary court-martial to adjudge a forfeiture, see 156 and 16b. 

The maximum amount of a partial forfeiture (app. 13) is computed 

by using the basic pay authorized for the cumulative years of service of the 

accused and, if no confinement is adjudged, any sea or foreign duty pay. When 

a sentence includes a reduction of an enlisted member, expressly or by operation 

of law (see Art. 58a) and whether or not suspended, the forfeiture must be 

based on the pay for the reduced grade. Additionally, any monthy contribution 

which an enlisted member is required to make, or will be required to make as 

the result of a sentence including a reduction, in order to entitle him to a basic 

allowance for quarters must be deducted before the amount of pay subject to 

forfeiture is computed. However, other allotments need not be deducted. The 

term "basic pay" includes 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 diving pay, or incentive pay for the performance of hazardous duties such as flying, parachute jumping, or duty on board 

a submarine. See appropriate regulations of the Secretary of a Department as 

. 	 to periods which may not be counted in computing increase of pay for length 

of service. 
ll 126h CHAPTER XXV 

The terms "forfeiture of all pay and allowances'' and "to forfeit all pay 

and allowances," as used in 88, this chapter (XXV), and appendix 13 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 

88d(3) with respect to the suspension or deferral of forfeitures in certain 

cases. See, generally, as to forfeitures, applicable regulations of the Secretary of 

a Department. 

(3) Fine. Whereas a forfeiture deprives the accused of all or part of his 

pay only as it accrues, a fine, when ordered executed, is in the nature of a judgment and makes him immediately liable to the United States for the entire 

amount of money specified in the sentence. All courts-martial have the power 

to adjudge fines instead of forfeitures in cases involving members of the armed 

forces. General courts-martial have the further power to adjudge fines in addition to forfeitures in appropriate cases. See Section B, 127c. Special and summary courts-martial may not adjudge any be in excess of the total amount of 

forfeitnres which may be adjudged in a case. A fine normally should not be 

adjudged against a member of the armed forces unless the accused was unjustly 

enriched as the result of the offense of which he is convicted. However, a fine 

may always be imposed as a punishment for contempt (Art. 48). 

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 may be 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 confined until a fixed period considered an equivalent punishment to 

the fine has expired (see app. 13, form 11). The total period of confinement so 

adjudged shall not exceed the jurisdictional limitations of the court (156, 166, 

1266). 

(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. The period for which the pay is to be detained may not exceed one year 

from the date the sentence is ordered executed. Summary courts-martial may 

not adjudge detention of pay of more than two-thirds of one month's pay. All 

other courts-martial may not adjudge detention of pay of more than two-thirds 

pay per month for three months. The rules prescribed in 126h(2) for determining maximum allowable partial forfeitures also apply in determining the maximuin detention that may be adjudged in a case. The amount of pay detained is 

returned to the accused at the expiration of the specified period of detention or 

the offender's term of service, whichever is earlier. 

(5) Effective date of certain sentences. See Article 57. Whenever a. sentence of a court-martial as appro\-ed includes n forfeiture of pay or allowallces 

in addition to confinement not s1isl)endecl or deferred, the forfeiture will apply 

to pay or allowances becoming due on and after the date the sentence is nppro~-ed 

by the convening authority. However, a convening nuthority may defer the 

effective date of forfeitures by providing sl~ec~ifically therefor in his action. See 

88d(8). No forfeiture shall extend to any pay or allo\vances accrued before the 

date n sentence is approved by the convening a~ithority. Except as provided 

above, all other sentences to forfeiture and sentellces to fine or detention of pay 

become effective on the date the sentence is ordered executed. 
PUNISHMENTS ll 127a 

i. Suspension from rank, command, or duty; loss of rank, promotion, 

numbers, or seniority. Sentences to suspension from rank, command, or duty 

are not authorized. 

Sentences to loss of rank or promotion are not authorized except as provided 

below. 

Sentences to loss of numbers, lineal position, or seniority are authorized 

only in cases of Navy, Marine Corps, and Coast Guard officers. All 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 courtmartial may be sentenced to confinement at hard labor. A sentence to conhement does not of itself automatically result in any fine or forfeiture 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 begins 

to run from the date the sentence is adjudged by the court-martial, but periods 

during which the sentence to confinement is suspended or the service thereof is 

deferred shall be excluded in computing the service of the term of confinement 

(Art. 57(b)). See also 97c, 88f and Article 14 concerning the interruption of 

the execution or the running of a sentence to confinement. 

Confinement without hard labor should not be adjudged. The omission of 

t,he words "hard labor" from any sentence of a court-martial adjudging confinement does not deprive the authority executing that sentence of the power to 

require hard labor as a part of the punishment (Art. 58(b)). 

k. Hard labor without confinement. Hard labor without confinement 

will not be adjudged in excess of three months. A summary court-martial will 

not adjudge hard labor without confinement in excess of 45 days. It may be 

adjudged only in the cases of enlisted members. Hard labor without confinement, adjudged as punishment by courts-martial, shall be performed in addition to other regular duties which fall to enlisted members; and no enlisted 

member shall be excused or relieved from any military duty for the purpose of 

performing it. A sentence imposing hard labor without confinement shall be 

considered satisfied when the enlisted member 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 thedesignated 

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 

offenses.The limits prescribed herein (127) will be applied by courts-martial 

in cases of enlisted members and prisoners sentenced to punitive discharge. 

These ljmitations, though not binding upon courts sentencing commissioned 

officers, warrant officers, aviation cadets, cadets, midshipmen, and civilians subject to military law, except as stated in 126d,may be used as a guide, subject to 
U 127c CHAPTER XXV 

any exceptions deemed warranted for determining the appropriate punishment 

for those persons. These limitations 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 (81d, 125, 126). In using the Table of Maximum 

Punishments to determine the maximum allowable sentence in a case, it must be 

remembered that summary and special courts-martial may not adjudge punishments in excess of those res scribed in 15b and 166 even when the table prescribes 

a maximum in excess thereof. See 766 and 81d for rules concerning sentence 

instructions when sentence limitations apply. 

c. Maximum punishments. (1) Applicability and use of Table of Maximum Punishments. The punishment stated opposite each offense listed in the 

Table of Maximum 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. However, if the offense is closely related to more than one listed 

offense, the maximum punishment for the most closely related offense shall be 

used in making this determination. 

Offenses not listed in the table and not included within an offense listed, 

or not closely related to either, are 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 authorized by the custom 

of the service. When the maximum punishment is thus determined by reference 

to the United States Code or the Code of the District of Columbia and the respective Code provides for confinement or imprisonment for a specified period 

or not more than a specified period, the maximum pucishment by court-martial 

includes confinement at hard labor for that period. If the period is one year or 

more, the maximum punishment by court-martial also includes a dishonorable 

discharge and total forfeitures; if six months or more, a bad-conduct discharge 

and total forfeitures. With respect to other matters which properly may be 

considered in fixing punishment, see 76a, 123, and 154a. 

The maximum punishment prescribed for the offense should be restricted to 

those cases in which, due to aggravating circukstances, the greatest permissible 

punishment should, in the discretion of the court, be imposed. In this connection, see 76a (Sentence-Basis for determining) and 886 (Determining what 

sentence should be approved). 

The limitations are for each separate offense, not for each separate charge. 

In this connection, see 76n(5). For several separate and distinct offenses, even 

though they are alleged under the same charge, the court may, in its discretion, 

xvhere the circuii~stai~ces warrant 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, the values as found in different specifications cannot 

be aggregated, as if alleged in a single specification, for the purpose of increasing the inaximum punishment. 
PUNISHMENTS ll 127c 

(2) AppZica6ility and use of Ta6b of Equivalent Punishments. The 

Table of Maximum Punishments, 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. In the case 

of enlisted members, the court in its discretion may substitute at the following 

rates other punishments for those listed in the table: 

Table of Equivalent Punishments 

Confinement on Codne- Hard labor Restricbread and water ment at without con- tion to Forfeiture Detention 

or diminished hard labor finement limits 

rations* 

4/2 day-----_------- 1day------ lf/z.days---- 2 days----- 1 day's 1%day's 

Pay Pay 

'Maximum authorized Is 3 days (126). 

The foregoing table may be used in a variety of ways to determine substitute punishments. Thus, if an enlisted member is convicted of an offense for 

which the maximum forfeiture is two-thirds of one month's pay, the court may 

substitute other punishments, at the above indicated rates, for all or part of 

the 20 days' forfeiture. For example, it may impose forfeiture of 10 days' pay 

and for the remaining 10 days' forfeiture it may substitute 10 days' confinement, or 15 days' hard labor without confinement, or 20 days' restriction. 

Similarly, if the authorized punishment for an offense is confinement at hard 

labor for one month and forfeiture of two-thirds of one month's pay, the court 

may, for example, by substitution adjudge hard labor without confinement for 

15 days (llh for I),restriction to limits for 40 days (2 for I),and forfeiture 

of two-thirds pay for one month. However, in making substitutions the court 

must observe the limitations on its jurisdiction and on particular types of punishment. For instance, the two examples given above would not be applicable 

in a trial by summary court-martial of an enlisted member above the fourth 

enlisted pay grade, as confinement or hard labor without confinement cannot 

be adjudged (165). Also, if the authorized punishment for an offense is 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 month's pay. Similarly, if the authorized punishment for an offense is confinement at hard labor for two months 

and forfeiture of two-thirds pay per month for two months, no court can 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 (166). Substituted punishments are of importance chiefly in cases of minor offenses. By 
f 127c CHAPTER XXV 

substituting additional forfeitures, or hard labor without confinement, the 

accused will be adequately punished but will not be prevented from performing 

his regular duties. 

(3) Computation of period of unauthorized absence. In computing time 

of absence without leave, any one continuous period 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. For example, if an accused is convicted of an 

absence without leave from 0600 hours, 4 April, to 1000 hours, 7 April, of the 

same year (76 hours), the maximum punishment would be based on an absence 

of four days. However, if the accused is convicted simply of an absence from 

4 to 7 April, the maximum punishment would be based on an absence of three 

days (72 hours). 

(4) Punitive discharges. A bad-conduct discharge may be adjudged upon 

conviction of any offense for which a dishonorable discharge is authorized in 

the table. In determining whether a bad-conduct discharge is more appropriate 

than a dishonorable discharge, see 76a (3) and (4). 

(5) Automatic suspension of limitations. 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(3), 87, 90, 91(1) and 

(2), 113, and 115 automatically will be suspended and will not apply until the 

formal termination of the war or until restored by Executive Order before 

formal termination. 

(6) Arrangement of TabZe of Maximum Punishments. The headings of 

the table and the descriptions of offenses therein are condensed for convenience 

of arrangement, are intended solely to identify the portions of this manual and 

the offenses to which they pertain, and do not define any offense. In the case of 

a discrepancy between a heading or description of an offense in the table and 

any other part of this manual, the other part shall be controlling. The descriptions of offenses 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 

Punishments 

Forfeiture 

Conlinement at of two Article 

Offenses Dishonorable 

discharge

forfeiture 6f 

Badeonduct 

discharge,

forfeiture of 

hard labor not to exceedthirds pay 

per month 

not to aU pay and 

allowances 

all pay and 

allowances 

exceedYears Months Months 

77 Principals. 1 

78 Accessory afterthe fact.= 

79 Conviction of lesser included offense. (See 168 and 

Art. 79.) 

1 Any person punishable under the code who aids, abets, counsels, commands, procures, or causes the commission 

of an offense punishable by the code shall, unless otherwise specifically prescribed, be subject to the maximum punishment authorized for the commission of the offensc. 

=Any person subject to the code who is found guilty as an accessory after the fact to an offense punishable by the 

code shall be subject to the maximum punishment authorized for the offense to which he is an accessory, except that in 

no case shall the death penalty be imposed nor the confinement autho~ized exceed more than one-half of the maximum 

confinement authorized for that offense, nor shall tho period of confinement in any case, including offenses for which 

ife imprisonment may be adjudged, exceed 10 years. 
PUNISHMENTS U 127c 

TABLE OF MAXIMUM PUNISHMENTS-Continued 

Punishments 

Forfeiture 

Conhement at of two- Article 

Offenses Dishonorable 

discharge

forfeiture 6f 

Bad-conduct 

discharge,

forfeiture of 

hard labor not to exceedthirds pay 

per month 

not to aU pay and 

allowances 

all pay and 

allowances 

exceed-

--- 

Years Months Months 

80 Attempts.8 


81 Conspiracy.' 


82 Soliciting or advising another: 


If the offense is not committed or attemptedTo desert ...................................... Yes....................... 3 ...................... 

To mutiny ................................. Yes....................... 10 ...................... If the offense is not committedTo commit an act of misbehavior before the Yes....................... 10 ...................... 

enemy. 

To commit an act of sedition. .........:....... Yes-.. .................... 10 ...................... 

83 Fraudulent enlistment: 

Procured by means of false representation con- Yes....................... 5 ...................... 

cerning, or failure fuUy to disclose, any detail of 

membership in, association 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. 

Other cases of .................................... Yes-...................... 1 ...................... 

Fraudulent separation ............................. Yes....................... 5 ...................... 

84 Effecting an unlawful enlistment or appointment: 

Of a person having membership in, association Yes....................... 5 ...................... 

with, or activities in connection with, any prohibited organization, association, movement, 

group, or combination listed in enlistment or 

appointment documents. 

Other cases of .................................... Yes....................... 1 ...................... 

Effecting an unlawful separation ................... Yes-...................... 5 ...................... 

85 Desertion: 

With intent to avoid hazardous duty or to shirk Yes....................... 5 ...................... 

important service. 

Other cases ofTerminated by apprehension--. ............... Yes-...................... 3 ...................... 

Terminated otherwise ......................... Yes-...................... 2 ...................... 

Attempted desertion: 

With intent to avoid hazardous duty or to shirk Yes....................... 5 ...................... 

important service. 

Other casesoL ................................... Yes....................... 1 ...................... 

86 Absence without leave: 

Failing to go to, or going from, the appointed .................................... 1 1 

place of,duty. 

From unit, organization, or other place of dutyFor not more than 3 days .......................................................... 1 1 


For more than3 days but not more than 30 days. .................................... 6 6 


For more than 30 days ......................... Yes....................... 1 ...................... 


From guard or watch ................................................................ 3 3 


With intent to abandon ...................................... Yes....---.......... 6 ............ 


With intent to avoid maneuvers or field exercises- .................................... 6 6 


87 Missing movement of ship, aircraft, or unit: 

Through design ................................ Yes-.- .................... 1 ...................... 

Through neglect ............................................. Yes................. 6 ............ 

89 Behaving with disrespect toward his superior .............. Yes................. 6 ............ 

commissioned officer. 

3 Unless otherwise provided in this table, any person subject to the code who is found guilty of an attempt to commit 

ally offense punishable by the code shall he subject to the same maximum punishment authorized for the commission of 

the offense attempted, hxcept that in no case shall the death penalty be imposed nor the authorized period of confinement 

exceed 20 yea ;. 4 Any person subject to the code who is found guilty of conspiracy shall be subject to the maximum punishmeut 

authorized for the offense which is the object of the conspiracy, except that in no case shall the death penalty be imposed. 
-- 

-- -- 

127c 	 CHAPTER XXV 

TABLE OF MAXIMUM PUNISHMENTS-Continued 

I Punishments 

Forfeiture 

Couiinement at of two- Ar- Offenses Dishonorable Badconduct hard labor not thirds pay 


ticle discharge discharge to exceed- per month 


forfeiture 6f forfeiture 6f 	 not to 

I all pay and I all pay and I I 1 exceedallowances allowances Years Months Months 

90 Striking, drawing, or Wing up any weapon or Yes....................... 10 ...................... 

offering any vfolence to his superior commissioned officer in the execution of his offlce. 

Willfully disobeying a lawful order of his superior Yes....................... 5 ...................... 

commissioned officer. 

91 Striking or otherwise assaulting, while in the 

execution of his office, a: 

Warrant offlcer ................................. Yes....................... 5 ...................... 

Noncommissioned or petty offlcer .............. Yes-...................... 1 ...................... 

Willfully disobeying the lawful order of a: 

Warrant officer ................................. Yes....................... 2 ...................... 

Noncommissioned or petty offlcer ............................ Yes.. ............... 6 ............ 

Treating with contempt or being disrespectful in 

language or deportment, while in the execution 

of his office, a: 

Warrant offlcer ............................................... Yes................. 6 ............ 

Noncommissioned or petty officer .................................................. 3 3 

92 Violating or failing to obey any lawful general order Yes.--. ................... 2 ...................... 

or regulation.5 

Knowingly fmng to obey any other lawful order 5-. .............. Yes-................ 6 ............ Being derelict in the performance of duties ............................................. 3 3 ' 93 Cruelty toward or oppression or maltreatment of Yes.................. ..... 1 ...................... 

any person subject to his orders. 

94 Mutiny, sedition, failing to report, etc. (See Art. 

94.) 

95 Resisting apprehension--. ....................................... Yes- ........ 1 ...................... Breaking arrest .................................................. Yes................. 6 ............ 

Escaping from custody or codnement ............. Yes........................ 1 ...................... 

96 Releasing, without proper authority, a prisoner Yes....................... 2 ...................... 

duly committed to his charge. 

Suffering a prisoner duly committed to his charge 

to escape: 

Through design ................................ Yes-...................... 2 ...................... Through neglect ............................................. Yes......... 1 ...................... 

97 Unlawful detention of another ..................... Yes....................... 3 ...................... 

98 Unnecessary delay in disposing of a case, or failing .............. Yes. .........,...... 6 ............ 

to enforce or comply with procedural rules. 

99 Misbehavior before the enemy. (8ee Art. 99.) 

100 Subordinate compelling surrender. (See Art. 100.) 

101 Improper use of countersign. (See Art. 101.) 

102 Knowingly forcing a safeguard. (See Art. 102.) 

103 Captured or abandoned property, failing to secure, 

give notice and turn over, selling, or otherwise 

wrongfully dealing in or disposing of: 

Of a value of $50 or less ...................................... Yes. ................ 6 ............ 

Of a value of $100 or less and more than $50. ................. Yes. ........ 1 ...................... 

Of a value of more than $100................... Yes....................... 5 ...................... 

Looting or pillaging. (Any punishment other than 

death.) 

104 Aiding the enemy. (See Art. 104.) 

105 Misconduct as a prisoner. (Any punishment other 

than death.) 

6 This punishment does not apply in the following cases: 

(1) 	Ifin the absence of the order or regulation which was violated or not obeyed the accused would on the same facts 

be subject to conviction for another specific offense for which a lesser punishment is prescribed in this table. 

(2) If the violation or failure to obey is a breach of restraint imposed as a result of an order. 

In these instances, the maximum punishment is that specifically prescribed elsewhere in this table for the offense. 
--- 

PUNISHMENTS 	 (I 127c 

TABLE OF MAXIMUM PUNISHMENTS-Continued 

Punishments - Forfeiture 

Conliuement at of twoAr-	 Offenses Dishonorable Badconduct hard labor not thlrds pay 

ticle 	 discharge discharge to exceed- per month 

forfeitureif forfeiture if not to all pay and all pay and exceedallowances allowances -

Years Months Months 

106 Spies. (See Art. 106.) 

107 Signing any false record, return, regulabion, order, Yes....................... 1 ...................... 

or other offlcial document. 

Making any other false official statement: 

By.8 noncommissioned or petty officer-.. ...... Yes.. ..................... 1 ...................... 

By any other enlisted member ..................................................... 3 3 

108 Selling or otherwise disposing of military property 

of the United States: 

Of a value of $50 or less- ............. .:....--...............Yes-. ............... 6 ............ 

Of a value of $100 or less and more than $50.. ................. Yes-. ....... 1 ...................... 

Of a value of more than $100 .................... Yes.. ..................... 5 ...................... 

Through neglect damaging, destroying, or losing, 


or through neglect suffering to be lost, damaged, 


destroyed, sold, or wrongfully disposed of, milt- 


tary property of the United States of a value or 


damage: 


Of$50orless....................................................................... 3 3 


Of $100 or less and more than W... ................................................ 6 6 


Of more than $100 ............................................ Yes-........ 1 ...................... 


Willfully damaging, destroying, or losing, or MU-


fully suffering to be lost, damaged, destroyed, 


sold, or wrongfully disposed of, military property 


of the United States of a value or damage: 


Of $50 or less ................................................. Yes................. 6 ............ 


Of $100 or less and more than $50 ............................. Yes-........ 1 ...................... 


Of more than $lM) .............................. Yes-...................... 5 ...................... 


109 Wasting, spoiling, destroying, or damaging any 


property other than military property of the 


United States of a value or damage: 


Of $50 or less ................................................. Yes................. 6 ............ 

Of $100 or less and more than $50- ........................... Yes......... 1 ...................... 

Of more than $100 .............................. Yes-...................... 6 ...................... 

110 Hazarding or suffering to be hazarded any vessel of 

the armed forces: 

Willfully and wrongfully (See Art. 110(a)). 

Negligently............................... Yes....................... 2 ...................... 

111 Operating any vehicle while drunk or in a reckless 

or wanton manner: 

Resulting in personal injury ................... Yes....................... 1 ...................... 

Otherwise................................................... Yes................. 6 ............ 

112 Found drunk on duty ................---..........--............ Yes-. ............... 9 . . - -- -.- .-.-


113 Misbehavior of sentinel or lookout: 

In areas designated as authorizing entitlement Yes....................... 10 ...................... 

to special pay for duty subject to hostile fire. 

In all other places. ............................ Yes. ...................... 1 ...................... 

114 Dueling........................................... Yes....................... 1 ...................... 

115 Feigning illness, physical disablement, mental Yes....................... 1 ...................... 

lapse, or derangement. 

Intentional self-idicted injury .................... Yes....................... 7 ...................... 

116 Riot............................................... Yes ....................... 10 ...................... 

Breach of the peace .................................................................... 6 6 

117 Provoking or reproachful words or gestures--. ......................................... 3 3 

118 Murder. (See Art. 118.) 

119 Manslaughter: 

Voluntary .................................... Yes....................... 10 ...................... 


Involuntary ................................... Yes....................... 3 ...................... 


17.0 Rape. (See Art. 17.0.) 

Wrongful carnal knowledge of a female under the 	 Yes....................... 15 ...................... 

age of 16 years. 
-- 

U 127c CHAPTER XXV 

TABLE OF MAXIMUM PUNISHMENTS-Continued 

Punishments I IForfeiture 

Confinement at of two- Ar- Offenses Dishonorable Bad+onduct hard labor not thirds pay ticle discharge discharge, to exceed- per month 

forfeiture 6f forfeiture of not to 

I all pay and ( 

all pay and / / I exceedallowances allowances 

Years Months Months 

Larceny of property: 

Of a value of $50 or less ...................................... Yes................. 6 ............ 

Of a value of $100 or less and more than $50- ................. Yes......... 1 ...................... Of a value of more than $100 or any motor vehicle, aircraft, or vessel ...................... Yes....................... 5 ...................... 


Wrongful appropriation of property: 


Of a value of $50 or less-- .......................................................... 3 3 


Of a value of $100 or less and more than $50 ........................................ 6 6 


Of a value of more than $100 ................................. Yes................. 6 ............ 
 Of any motor vehicle, aircraft, or vessel ........ Yes....................... 2 ...................... 


Robbery........................................... Yes....................... 10 ...................... Forgery............................................ Yes....................... 5 ...................... 

Check, worthless, making, drawing, uttering, delivering, with intent to defraud (for procurement 


of an article or thing of value), in the face amount 


of: 


$60 or less .................................................... Yes................. 6 ............ 
 $100 or less and more than $50 .................. .............. Yes-. ....... 1 ...................... 


More than $100 ................................. Yes....................... 5 ...................... 


Check, worthless, making, drawing, uttering, de- .............. Yes................. 6 ............ livering, with intent to deceive (for payment of 

past due obligation or any other purpose). 

Maiming........................................... Yes....................... 7 ...................... 


Sodomy: 

BY force and without consent .................. Yes..................... :. 10 ...................... 

With a child under the age of 16 years.......... Yes....................... 20 ...................... 

Other cases of .................................. Yes-...................... 5 ...................... 

Arson: 

Aggravated.................................... Yes....................... 20 ...................... 

Simple, where the property isOf a value of $100 or less-- ................... Yes-...................... 1 ...................... 


Of a value of more than $100. ................ Yes....................... 10 ...................... 
 Extortion.......................................... Yes....................... 3 ...................... 
 Assault. ...............................................................................3 3 


Upon a commissioned officer of the Air Force, Yes....................... 3 ...................... Army, Coast Guard, Navy, or a friendly 

foreign power, not in the execution of his 

office. 

Upon a warrant officer, not in the execution of Yes-...................... 1W ...................... 

his office. 

Upon a noncommissioned or petty officer, not .........:.... Yes.. ............... 6 ............ 

in the execution of his office. 

Upon any person who, in the execution of hh Yes....................... 1 ...................... 

office, is performing Air Force security police, 

military police, shore patrol, or civil law enforcement duties. 

Upon a sentinel or lookout while in execution Yes....................... 1 ...................... 

of his duty. 

Assault (consummated by a battery): 

On a child under the age of 16 years ............ .. Yes.. ..................... 2 ...................... 

Other cases of ...................................................................... 6 6 

Assault, aggravated: 

With a dangerous weapon or other means or force Yes-. ..................... 3 -.........--..-....... likely to produce death or grievous bodily 

harm. 

Intentionally idicting grievous bodily harm, Yes....................... 5 ...................... 
 with or without a weapon. 

Burglary........................................... Yes....................... 10 ...................... Housebreaking..................................... Yes....................... 5 ...................... 

Perjury............................................ Yes....................... 5 ...................... 
- 

-- - 

-- 

PUNISHMENTS 	 ll 127c 

TABLE OF MAXIMUM PUNISHMENTS-Continued 

Punishments 

Forfeiture 

Confhement at of two- Ar-	 Offenses Dishonorable Bad-conduct hard labor not thirds pay 

ticle discharge discharge, to exceed- per month 

forfeiture 6f forfeiture of not to all pay and all pay and exceedallowances allowances 

Years Months Months 

132 	 Frauds against the United States: 

In connection with making or presenting a Yes....................... 5 ...................... 

claim or obtaining the approval, allowance, 

or payment of a claim (Art. 132(1) and (2)). 

By delivering an amount less than called for by 


a receipt or by making or delivering a receipt 


without knowledge of the facts (Art. 132(3) 


and (4))- 


When the amount involved is $50 or less- ................ Yes-. ............... 6 ............ 

When the amount involved is $10d or less .............. Yes..---.... 1 ...................... 

and more than $$60. 

When the amount involved is more than Yes....................... 5 ...................... 

$100. 

134 	 Abusing a public animal ............................................................... 3 3 

Adultery.......................................... Yes....................... 1 ...................... 

Assault: 

Indecent....................................... Yes....................... 5 ...................... 


With intent to commit voluntary manslaugh- Yes....................... 10 ...................... 


ter, robbery, sodomy, arson or burglary. 

With intent to commit housebreaking .......... Yes....................... 6 ...................... 

With intent to commit murder or rape ......... Yes....................... 20 ...................... 

Bigamy ........................................... Yes....................... 2 ...................... 


Bribe or graft, accepting, asking, receiving, offer- Yes....................... 3 ...................... 


ing, or promising. 

Burning with intent to defraud .................... Yes. ...................... 10 ...................... 

Check, worthless, making and utteting @y dis- .............. Yes................. 6 ............ 

honorably failing to maintain smcient funds). 

Correctional custody: 

Escape from ................................... Yes---...... .............. 1 ...................... 

Breach of restraint during .................................... Yes................. 6 ............ 

Crhinal libel ...................................... Yes-...................... 5 ...................... 

134 Debt, dishonorably failtug to pay ................................ Yes-. ............... 6 ............ 

Disloyal statements undermining discipline and Yes....................... 3 ...................... 

loyalty, uttering. 

Disorderly: 

In command, quarters, station, camp, or on .................................... 1 1 

board ship. 

Under such circumstances as to bring discredit .................................... 4 4 

upon the military service. 

Drinking liquor With a prisoner- ..................................................... 3 3 

Drugs, habit forming, wrongful possession, sale, Yes....................... 10 ...................... 

transfer, use or intioduction into a military unit, 


base, station, post, ship or aircraft. 


Drugs, marihuana, wrongful possession, sale, trans- Yes-. ..................... 5 ...................... 

:er, use or introduction into a military unit, base, 

station, post, ship or aircraft. 

Drunk: 


Aboard ship ....................................................................... 3 3 


In command, quarters, station, or camp ..........................................- 1 1 


Prisoner found ............................................................. 3 3 


Under such circumstances as to bring discredit .................................... 3 3 


upon the military service. 

Incapacitating self to perform duties through .................................... 3 3 

prior indulgence in intoxicating liquor. 

Drunk and disorderly: 

Aboard ship ................................................. Yes................. 6 ............ 


In command, quarters, station, or camp ........................................... 3 3 


Under such circumstances as to bring discredit ..................................... 6 6 


upon the military service. 
1 127c CHAPTER XXV 

TABLE OF MAXIMUM PUNISHMENTS-Continued 

I Punishments 

Forfeiture 

Co~lflnement aaC of twoAr- Offenses Dishonorable Bad-conduct hard labor not thirds pay 

ticle discharge discharge to exceed- per month 

forfeiture Af forfeiture Af not to all pay and all pay and exceedI 

allowances 

I 

allowances I Years / Months / --

Months 

Falsa or unauthorized military pass, permlt, discharge certificate, or identmcation card: 

Making, altering, selling ....................... Yes....................... 3 ...................... 

Possessing or using with intent to defraud or Yes....................... 3 ...................... deceive. 

Other cases.- ................................................ Yes................. 6 ............ 

False pretenses, obtaining services under: 

Of a value of $60 or less...................................... Yes. ................ 6 ............ Of a value of $100 or less and more than $60- ................. Yes......... 1 ...................... 

Of a value of more than $loo-. ................. Yes-. ..................... 6 ...................... 

False swearing ..................................... Yes. ...................... 3 ...................... 


Firearm, discharging: 

Through carelessness- ...............--............................................ 3 3 

Wrongfully and willfully, under circumstances Yes-...................... 1 ...................... 

as to endanger Iife. 

Fleeing from the scene of an accident-. ............ .............. Yes.. ............... 6 ............ Gambling by a noncommissioned or petty officer, .............................................. 3 

with a person of lower military grade. 

Homicide, negligent- ............................................ Yes. ........ 1 ...................... 

Impersonating an omcer, warrant officer, nonwmmissioned or petty officer, or agent of superior 

I au$~%~ent to defraud ......................... 1 Yes.. .......I.. ... ..1 3 1 ..........1. ........... 

All other cases ............................................... Yes................. 6 ............ 

Indecent acts or liberties with a child under the Yes....................... 7 ...................... 

age of 18 years. 

Indecent exposure of person ............................................................ 6 6 

Indecent, insulting, or obscene language: 

Communicated to a female of the age of 16 Yes....................... 1 ...................... 

years or over. 

Communicated to any child under the age of Yes....................... 2 ...................... 

16 years.8 

134 Indecent or lewd acts with another ................Yes....................... b ...................... 

Mail matter in the custody of the Post Office De- Yes....................... 6 ...................... 

partment or in the custody of any other agency, 

or not yet delivered or received; taking, opening, 

abstracting, secreting, destroying, stealing, or 

obstructing. 

Mails, depositing or causing to be deposited obscene Yes....................... 6 ...................... 


or indecent matter in. 


Misprision of a felony-- .......................... Yes.. .:...............---- 3 ....--...............-


Nuisance, committing.-- .............................................................. 3 3 


Obstructing justice ................................ Yes....................... 6 ...................... 


Pandering......................................... Yes....................... b ...................... 


Parole, violation of ............................................... Yes................. 6 ............ 


Perjury, statutory ................................. Yes....................... 6 ...................... 


Perjury, subornation of-. .......................... Yes-...................... 6 ...................... 


Prisoner, allowing to do an unauthorized act........................................... 3 3 


Public record, willfully and unlawfully altering, Yes.. ..................... 3 ...................... 


concealing, destroying, mutilating, obliterating, 


removing, or taking and carrying away with in- 


tent to alter, conceal, destroy, mutilate, obliter- 


ate, remove, or steal. 


Quarantine, medical, breaking. ........................................................ 6 6 


Refusing, wrongfully, to testify before a court Yes....................... 6 ...................... 

martial, military commission, court of inquiry, 

board of officers, investigation under Article 32, 

or officer taking deposition. 

8 See indecent acts or liberties with a child when the offense is so charged as a result of an indecent, insulting, or ob- 


scene communication in the physical presence of a child. 

PUNISHMENTS !l127c 

TABLE OF MAXIMUM PUNISHMENTS-Continued 

Punishments 

Forfeiture 

Codnement at of two- Article 

Offenses Dishonorable 

discharge,

forfeiture of 

Bad-conduct 

discharge

forfeiture61 

hard labor not to exceedthird8 pay 

per month 

not to all pay and 

allowances 

all pay and 

allowances 

exceed-

--- 

Years Months Months 

134 Restriction, administrative or punitive, breaking.- .................................... 1 1 


Sentinel or lookout: 

Behaving in an insubordinate or disrespectful .................................... 3 3 

manner toward, while in the execution of his 

duty. 

Loitering or sitting down by, while on duty ........................................ 3 3 

Soliciting another to commit an offen~e.~ 

Stolen property knowingly receiving, buying, 

concealing: 

Of a value of $50 or less ...............:...................... Yes................. 6 ............ 

Of a value of $100 or less and more than $50 .................. Yes. ........ 1 ...................... 

Of a value of more than $100 ................... Yes....................... 3 ...................... 


Straggling-............................................................................ 3 3 


Threat, communicating ............................ Yes....................... 3 ...................... 


Transporting, unlawfully, a vehicle or aircraft in Yes....................... 6 ...................... 


interstate or foreign commerce. 

Unclean accouterment, arms, clothing, equipment, .................................... 1, 1 

or other military property, found with. 

Uniform, unclean, appearing in, or not in pre- .................................... 1 1 

scribed uniform, or in uniform worn otherwise 

than in manner prescribed. 

Unlawful entry .................................................. Yes-................ 6 ............ 

Weapon, concealed, carrying ..................................... Yes......... 1 ...................... 

Wearing unauthorized insignia, medal, decoration, .................................... 6 6 

or badge. 

, Wrongful cohabitation- ................................................................ 4 4 

7 Unless otherwise provided in the Table, any person subject to the Code who is found guilty of soliciting or inducing 

another person to commit an offense which, if committed by one subject to the Code, would be punishable under this 

Table, shall be subject to the maximum punishment authorized for the offense solicited or induced, except that in no 

ase shall the death penalty be imposed nor shall the period of confinement in any case, including offenses for which life 

mprisonment may be adjudged, exceed 5 years. 

SECTION B 

Permissible additional punishments. 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 adjudged by a court during the year next preceding the commission of 

any offense of which the accused stands convicted will authorize dishonorable discharge and 

forfeiture of all pay and allowances and, if the confinement otherwise authorized is less 

than one year, confinement at hard labor for one year. In computing the one-year period 

preceding the commission of any offense, periods of unauthorized absence as shown by the 

findings in the case or by the evidence of previous convictions should be excluded. See 

75b(2) as to further limitations on consideration of previous convictions. 

If an accused is found guilty of an offense or offenses for none of which dishonorable or 

bad-conduct discharge is authorized, proof of two or more previous convictions adjudged 

by a court during the three years next preceding the commission of any offense of which 

the accused stands convicted will authorize bad-conduct discharge and forfeiture of all 

pay and allowances and, if the confinement otherwise authorized is less than three months, 

confinement at hard labor for three months. See 15b concerning the limitations on the power 

of special courts-martial to adjudge a bad-conduct discharge and forfeitures and 75b(2) for 

limitations on consideration of previous convictions. 

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 
II 127c CHAPTER XXV 

substitution for these offenses is six months or more will, in addition, authorize bad-conduct 

discharge and forfeiture of all pay and allowances. But see 15b. 

A general court-martial may adjudge a fine as an additional punishment in an appropriate case. See 126h(3). 3 

If an enlisted member of other than the lowest enlisted grade is convicted by a courtmartial the court may, in its discretion, adjudge reduction to any inferior grade in addition 

to the punishments otherwise authorized. But see 16b concerning the limitations on summary courts-martial. See also 126e. Reprimand or admonition may be adjudged in any case. 
Chapter XXVZ 

NONJUDICIAL PUNISHMENT 

AUTHORITY-POLICIES APPLICABLE--EFFECT OF ERRORS-PUNISHMENTSRIGHT TO DEMAND TRIALPROCEDURE; RECORDS OF PUNISHMENTSUSPENSION, MITIGATION, REMISSION, AND SETTING ASIDE-APPEALS 

128. AUTHORITY. a. Who may impose nonjudicial punishment. Unless 

otherwise provided by this chapter or regulations of the Secretary concerned, a commanding officer may, pnder Article 15, impose disciplinary punishments for minor offenses, without the intervention of a court-martial, upon 

co~nmissioned officers, warrant officers, and other military personnel of his 

command. As used in this chapter, the term "commanding officer" or "cornmander" includes a warrant officer exercising command. 

Under regulations prescribed by the Secretary concerned, a commanding 

officer exercising general court-martial jurisdiction or an officer of general or 

flag rank i11 cominand may delegate his powers under Article 15 to an officer 

who is one of his principal assistants. Those regulations shall define what officers 

may be considered as principal assistants for these purposes. Unless otherwise 

prescribed by those regulations or the terms of the delegation, the officer to 

whom those powers are delegated has the same authority under Article 15 as the 

officer who delegated the powers. Subject to regulations of the Secretary concerned, a commanding officer having disciplinary authority under Article 15 

may limit or withhold the exercise by a subordinate commander of any disciplinary authority that subordinate commander would otherwise have under 

that article. 

In the Army and Air Force, authority under Article 15 may be exercised 

only by commanding officers and officers to whom this authority has been 

delegated. I11 the Navy, Marine Corps, and Coast Guard, that authority may 

be exercised by commanding officers and officers to whom this authority has 

been delegated. I11 addition, an officer in charge of any unit of the Navy, 

Marine Corps, or Coast Guard may impose upon enlisted members assigned 

to the unit of which he is in charge, and take action under 134 concerning, 

those punishments authorized to be imposed by a commanding officer who is 

below the grade of lieutenant commander or major which the Seccetary concerned may specifically prescribe by regulation. For the purposes of Article 15, 

the term "assigned," as used in the preceding sentence, has the same meaning 

as the term "of his cornmand." I11 matters within the authority of an officer 

in charge, the tern? L'co~nmanding officer" or "commander," as used in this 

chapter, includes an officer in charge. The Army and Air Force have no 

"officer in charge!' as that terin is used in Article 15 (c). 

b. Minor offenses. The term "offenses," as used in connection with the authority to impose disciplinary punishment under Article 15 for minor offenses, 
9 129a CHAPTER XXVl 

includes only those acts or omissions constituting offenses under the punitive 

articles of the Uniform Code of Military Justice. The nature of an offense, 

and the circumstances surrounding its commission, are among the factors 

which must be considered in determining whether or not it is minor in nature. 

Generally, the term "minor" includes misconduct not involving any greater 

degree of criminality than is involved in the average offense tried by summary 

court-martial. This term ordinarily does not include misconduct of a kind 

which, if tried by general court-martial, could be punished by dishonorable 

discharge or confinement for more than one year. The imposition and enforcement of disciplinary punishment under this article for an act or omission is 

not a bar to trial by court-martial for a serious crime or offense which grew 

out of the same act or omission and which is not properly punishable under 

this article. See 68g and Article 15 (f). However, the accused may show at the 

trial that he has been punished under Article 15 and, if he does, this fact must 

be considered in determining the measure of punishment to be adjudged if 

a finding of guilty results. 

c. Nonpunitive measures. Article 15 and this chapter do not apply to, 

include, or limit the use of those nonpunitive measures that a commanding 

officer or an 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, reproofs, and rebukes, 

written or oral, not imposed as punishment for a military offense. These 

nonpunitive measures may also include, subject to any applicable regulations, 

administrative withholding of privileges. 

d. Double punishment and increase in punishment prohibited. When 

punishment has been imposed upon a person under Article 15 for an offense, 

punishment may not again be imposed upon him for the same offense under 

Article 15 either by the commanding officer who imposed the punishment or 

by any other commanding officer. But see 1286. 

Once punishment has been imposed it may not be increased, upon appeal 

or otherwise. 

129. POLICIES APPLICABLE. a. General. Commanders are responsible 

for the maintenance of discipline within their commands. In the great majority of instances, discipline can be maintained through effective leadership 

including, when required, the use of those nonpunitive measures which a 

commander is expected to use to further the efficiency of his command or 

unit and which are not imposed under Article 15. See 12% When a minor 

offense has been committed and nonpunitive measures are considered insufficient, authority under Article 15 should ordinarily be used unless it is clear 

that only trial by court-martial will meet the needs of justice and discipline. 

If a commanding officer determines that his authority under Article 15 

is insufficient to make a proper disposition of the case, or if his authority to 

impose punishment under that article has been withheld (see 128a), he may 

refer the case to a superior commander for appropriate disposition. 

Before exercising authority under Article 15, the officer who is to exercise 

it must thoroughly evaluate each case on an individual basis. No policy may 

be established whereby certain categories of oflenses must be disposed of under 

Article 15 regardless of the circumstances, or predetermined kinds or amounts 
NONJUDICIAL PUNISHMENT ll 131b 

of punishments must be imposed for certain classificatioi~s of offenses that 

are proper for disposition under Article 15. 

b. Purpose and nature of action under Article 15. Punishments under 

Article 15 are primarily corrective in nature. In determining the appropriate 

kind and amount of punishment to be administered, commanding officers should 

consider the age, experience, intelligence, and prior disciplinary and military 

record of the offender, as well as all the other facts and circumsta~~ces of the case. 

Whsn selecting the appropriate kind or combination of punishments to be imposed, commanders should consider the nature and characteristics of the various 

forms of authorized punishment discussed in 131c. This information should 

also be used by superior authority to whom appeals from punishments imposed 

under this article are directed when he takes action on those appeals. 

In determining an appropriate punishment, commanders should consider 

the desirability of suspending probationally all or a portion of the punishment 

selected. Probational suspension of punishment normally is warranted in the 

case of first offenders or when persuasive extenuating or mitigating matters are 

present. Suspension not only provides a behavioral incentive to the offender but 

also affords the commander an excellent opportunity to evaluate the offender 

during the period of suspension. 

130. EFFECT OF ERRORS. A failure to comply with any of the procedural provisions of this chapter will ilot invalidate a punishment imposed 

under Article 15, except to the extent that may be required by a clear and affirmative showing of injury to a subst.antia1 right of the person on whom the punishment was imposed, which right was neither expressly or impliedly waived. 

131. PUNISHMENTS. a. General limitations. The Secretary concerned 

may, by regulations, place limitations on the powers granted by Article 15 with 

respect to the kind and amount of the punishment authorized (Art. 15 (a) ). Subject to 128a, and any limitations contained in regulations of the Secretary 

concerned, the kinds and amounts of punishment authorized by Article 15(b) 

may be imposed upon military personnel of any armed force as provided in this 

paragraph (131). 

b. Authorized maximum punishments. In addition to or in lieu of admonition or reprimand, one or more of the following disciplinary punishments 

may, subject to the limitations of 131d, be imposed upon military personnel of 

their commands by the categories of commanding officers designated herein : 

(1) Upon commissioned officers and zuarrant officers of his command. (a) 

by any commanding officer, restriction to certain specified limits, with or 

without suspension from duty, for not more than 30 consecutive days; 

(6) if imposed by an officer exercising general court-martial jurisdiction or an officer of general or flag rank in commandI. arrest in quarters for not more than 30 consecutive days ; 

2. forfeiture of not more than one-half of one month's pay per month 

for two months ; 

3. restriction to certain specified limits, with or without suspension 

from duty, for not more than 60 consecutive days; 

4. detention of not more than one-half of one month's pay per month 

for three months. 

(2) Upon other ?nili$ary pe~sonnel of his cosn?nnnd (n) by any commanding officer- 
W 131c CHAPTER XXVl 

I. if imposed upon a person attached to or embarked in a vessel, confinement on bread and water or diminished rations for not more than 

three consecutive days ; 

2. correctional custody for not more than seven consec~~tive days; 

3. forfeiture of not more than seven days' pay ; 

4. reduction to the next inferior pay grade, if the grade from which 

demoted is within the promotion authority of the officer imposing , 

the reduction or any officer subordinate to the one who imposes the 

reduction ; 

5. extra duties, including fatigue or other duties, for not more than 

14 consecutive days ; 

6. restriction to certain specified limits, with or without suspension 

from duty, for not more than 14 consecutive days ; 

7. detention of not more than 14 days' pay ; 

(6) if imposed by a commanding officer of the grade of major or 

lieutenant commander or above-- 

1. if imposed upon a person attached to or embarked in a vessel, 

confinement on bread and water or diminished rations for not more 

than three consecutive days ; 

2. correctional custody for not more than 30 consecutive days; 

3. forfeiture of not more than one-half of one month's pay per month 

for two months ; 

4. reduction to the lowest or any intermediate pay grade, if the 

grade from which demoted is within the promotion authority of the 

officer imposing the reduction or any officer subordinate to the one 

who imposes the reduction, but enlisted members in pay grades above 

E4 may not be reduced more than one pay grade, except that during 

time of war or national emergency declared by the Congress, this 

category of persons may be reduced two grades if the Secretary concerned determines that circumstances require the removal of this 

limitation ; 

5. extra duties, including fatigue or other duties, for not more than 

45 consecutive days ; 

6. restriction to certain specified limits, with or without suspension 

from duty, for not more than 60 consecutive days; 

7. detention of not more than one-half of one month's pay per month 

for three months. 

c. Nature of punishments. (1) Admonition and reprimand. When admonition or reprimand is imposed as punishment under Article 15, it should be 

clearly indicated that it is imposed as a punishment under that article. See 1280 

as to admonitions and reprimands imposed as purely administrative measures. 

In the case of commissioned officers and warrant officers, admonitions and 

reprimands given as punishment under Article 15 must be administered in 

writing. In other cases, unless otherwise prescribed by regulations of the Secretary concerned, they may be administered either orally or in writing. 

An admonition or reprimand may be imposed in lieu of or combined with 

other Article 15 punishments. 

(2) Restriction. This form of punishment is the least severe form of 

deprivation of liberty. Restriction involves moral rather than physical re-
NONJUDlClAL PUNISHMENT 1131~ 

straint. The severity of this type of restraint is dependent not only upon its 

duration but also upon the geographical limits specified when the punishment 

is imposed. A person undergoing restriction may be required to report to a 

designated place at specified times if it is considered reasonably necessary to 

insure that the punishment is being properly executed. Unless otherwise specified by the commanding officer imposing this form of punishment, a person in 

restriction may be required to perform any military duty. 

(3) Arrest in quarters. The authority to impose arrest in quarters as 


punishment under Article 15 may be exercised only by an officer exercising 


general court-martial jurisdiction or by a general or flag officer in command. 


Arrest in quarters as a punishment under Article 15 may be imposed only upon 


commissioned officers and warrant officers. 


As in the case of restriction, the restraint involved in this punishment is 

enforced by a moral obligation rather than by physical means. An officer undergoing this punishment may be required to perform those duties prescribed by 

regulations of the Secretary concerned. However, an officer so punished is required to remain within his quarters during the period of punishment unless 

the limits of his arrest are otherwise extended by appropriate authority. The 

quarters of an officer may consist of his military residence, whether a tent, 

stateroom, or other quarters assigned to him, or a private residence occupied by 

him when he has not been furnished Government quarters. 

(4) Correctional custody. Correctional custody is the physical restraint 

of a person during duty or nonduty hours, or both, imposed as a punishment 

under Article 15, and may include extra duties, fatigue duties, or hard labor. If 

practicable, this form of restraint will not be served in immediate association 

with persons awaiting trial or held in confinement pursuant to trial by courtmartial. A person undergoing correctional custody may be required to perform 

those regular military duties, extra duties, fatigue duties, and hard labor 

which may be assigned by the authority charged with the administration of the 

punishment. The conditions under which correctional custody is served shall be 

prescribed by regulations of the Secretary concerned. In addition, the Secretary 

concerned may, by regulations, limit the categories of enlisted members upon 

whom this kind of punishment may be imposed. The authority competent to 

order the release of a person from correctional custody shall be as designated 

by regulations of the Secretary concerned. 

(5) Conf;nement on bread and water or diminished rations. This punishment may be imposed only upon an enlisted person attached to or embarked in 

a vessel. See 132. Confinement on bread and water or diminished rations involves 

confinement in a place where the person so confined may communicate only 

with authorized personnel. The ration to be furnished a person undergoing a 

punishment of confinement on diminished rations is that specified by the 

authority charged with the administration of the punishment, but the ration 

may not consist solely of bread and water unless this punishment has been 

specifically imposed. When punishment on bread and water or diminished 

rations is imposed, a signed certificate of a medical officer (see 125), containing 

his opinion that no serious injury to the health of the person to be confined will 

be caused by that punishment, must be obtained before the punishment is 

executed. The categories of enlisted personnel upon whom this type of punishment may be imposed may be limited by regulations of the Secretary concerned. 
fl l3lc CHAPTER XXVl 

(6) Extra duties. This punishment involves the performance of duties 

in addition to those normally assigned to the person undergoing the punishment. Extra duties may include fatigue duties. Military duties of any kind may 

be assigned as extra duty (but see 125). Extra duties assigned as punishment 

of noncommissioned officers, petty officers, or any other enlisted persons of 

assimilative positions designated by regulations of the Secretary concerned, 

may not be of a kind which demeans their grades or positions. 

(7) Reduction in grade. Reduction in grade is one of the most severe 

forms of nonjudicial punishment which may be imposed as a penalty for misconduct. Accordingly, a commander's authority to effect a reduction should be 

utilized with discretion. 

As used in Article 15, the phrase "if the grade from which demoted is 

within the promotion authority of the officer imposing the reduction or any 

officer subordinate to the one who imposes the reduction" does not refer to the 

authority to promote the individual concerned but to the general authority to 

promote to the grade held by the individual to be punished. 

(8) Forfeiture of pay. Forfeiture involves a permanent loss of entitlement to the pay forfeited. The word "pay," as used with respect to forfeiture of 

pay under Article 15, refers only to the basic pay of the individual plus any sea 

or foreign duty pay. "Basic pay" includes no element of pay other than the basic 

pay fixed by statute for the grade and length of service of the individual concerned and does not include special pay for a special qualification, incentive pay 

for the performance of hazardous duties, proficiency pay, subsistence and 

quarters allowances, and similar types of compensation. If the punishment 

includes both reduction, whether or not suspended, and forfeiture of pay, the 

forfeiture must be based on the grade to which reduced. Also, any monthly 

contribution from his pay that an enlisted person with dependents is required 

by law to make to entitle him to a basic allowance for quarters must be deducted 

before the net amount of pay subject to forfeiture is computed. The amount to 

be forfeited will be expressed in dollar amounts only (not in dollars and cents) 

and not in a number of days' pay or fractions of monthly pay. If the forfeiture 

is to be applied for more than one inoath, the amount to be forfeited per month 

and the number of months should be stated. Forfeiture of pay may not extend 

to any pay accrued before the date of its imposition. 

(9) Detention of pay. Unlike a forfeiture of pay, a detention of pay 

involves only a temporary withholding of cay. The period for which the pay 

is to be detained, which may not be for more than one year from the date 

punishment is imposed, must be specified at the time the punishment of detention is imposed. As in the case of a forfeiture of pay, only basic pay plus sea 

or foreign duty pay may be detained. The amount to be detained will be 

expressed in dollar amounts only (not in dollars and cents) and not in a number 

of days' pay or fractions of monthly pay. If the detention is to be applied for 

more than one month, the amount to be detained per month and the number of 

months should be stated. If the punishment includes both reduction, whether or 

not suspended, and detention of pay, the detention must be based on the grade to 

which reduced. Any monthly contribution that an enlisted person with dependents is required by law to make to entitle him to a basic allowance for quarters 

must be deducted before the net amount of pay subject to detention is computed. 

The amount of pay detained is returned to the offender at the expiration of the 
NONJUDlClAL PUNISHMENT (I 131d 

specified period of detention or the offender's term of service, whichever is 

earlier. Deten.tion of pay may not extend to any pay accrued before the date of 

its imposition. 

d. Combination and apportionment. The punishments of restriction and 

extra duties may be combined to run concuwentZy, but the combination may not 

exceed the maximum duration imposable for extra duties. Neither restriction nor 

extra duties may be combined to run concurrently with correctional custody 

beyond the maximum duration imposable for correctional custody. The punishment of restriction in the case of an officer may not be combined to run concurrently with arrest in quarters beyond the maximui~i duration imposable for 

arrest in quarters. The punishment of correctional custody inherently includes 

a form of restriction and may include extra duties. 

As provided by Article 15(b), neither the punishments of arrest in quarters 

and restriction in the case of an officer, nor two or more of the punishments of 

correctional custody, extra duties, and restriction in the case of an enlisted 

person, may be combined to run conseeutiveZy in the maximum amount imposable for each. All of these punishments are in the nature of deprivation of 

liberty, and when they are combined to run consecutively there must be an 

apportionment in accordance with the provisions of this subparagraph (131d). 

Forfeiture of pay and detention of pay may not be combined to run either consecutively or concurrently without an apportionment. Both punishments amount 

to a deprivation of entitlement to pay, either permanently or temporarily. See 

example (2), below, for an illnstration of a properly apportioned combination 

Confinement on bread and water or diminished rations may not be imposed 

in combination with wrrectional custody, extra duties, or restriction. 

In those instances in which an apportionment is required when combining 

certain punishments, the following Table of Equivalent Nonjudicial Punishments, derived from the statutory maximum authorized punishments, will be 

used in substituting one form of punishment for another : 

Table of Equivalent Nonjudicial Punishments 

Upon commissioned and warrant 

offleers (To be used only by an Kind of punishment offieer with OCM jurisdiction, or Upon other personnel by a flag officer m command or his 

delegate) 

Arrest in quarters- .................................... 1 day.......................................................... 


Restriction............................................ 2 days- ............................... 2 days 


Extra duties ................................................................................... 1% days* 


Correctional custody .......................................................................... 1 day 


Forfeiture of pay ...................................... 1 day's pay ............................ 1 day's pay 


Detention of pay ...................................... 1% days' pay .......................... 136 days' pay* 


*The factors designated by asterisks in the table above are 2 instesd of 1% when the punishment is imposed by a 

commanding officer below the grade of major or lieutenant commander. The punishment of forfeiture and detention of 

pay may not be substituted for the other punishments listed in the table, nor may those other punishments be substituted 

for forfeiture or detention of pay. 

The use of the foregoing table is illustrated by the following examples: 

(1) A commanding officer in the grade of major or lieutenant commander, or above, may impdse punishment consisting of correctional custody 

for 10 days, extra duties for 15 days, and restriction to limits for 20 days to 

run consecutively, using the following calculation : the authorized maximum 
1132 CHAPTER XXV 

correctional custody imposable is 30 days, of which only 10 days have been 

imposed; 15 days of extra duties can be substituted for 10 of the unused days 

of correctional custody (1% for 1) ; and 20 days of restriction to limits can 

be substituted for the remaining 10 days of unused correctional custody (2 for 

1).Additionally, the commanding officer may impose a forfeiture or detention of 

pay, or a properly apportioned combination of those punishments, a reduction, 

and an admonition or reprimand. 

(2) A commanding officer in the grade of major or lieutenant commander, or above, may impose upon an enlisted person a forfeiture of 5 days' 

pay and a detention of 10 days' pay for the first month, the same forfeiture 

and detention for the next month, and a detention of 10 days' pay for the third 

month. This is calculated as follows: the total amount that may be forfeited 

is one-half of one month's pay per month for two months, or 30 days' pay. 

However, a total of only 10 days' pay has been forfeited, leaving a total permissible detention of 30 days' pay (20 x 1%). The monthly allocation of forfeitures and detentions, shown in the example, has been made because (A) 

the combination of punishments may not operate so as to deprive the offender 

of more than one-half of his monthly pay in any one month, and (B) the forfeitures may not be imposed beyond the second month. Other allocations, 

equally within the above principles, could be made. 

The Table of Equivalent Nonjudicial Punishments may be used only 

when punishment is initially imposed. It may not be used in mitigating punishment or at the time of vacation of suspension of punishments. For example, a 

punishment of 20 days' correctional custody may not, at the end of ten days, 

be mitigated to restriction for more than 10 days as only 10 days of the original 

punishment remains unserved. Also, a punishment of 20 days' correctional 

custody which has been suspended may not at the time of the vacation of the 

suspension be mitigated to restriction for more than 20 days. 

e. Effective date and execution of punishments. The punishments of 

reduction, forfeiture of pay, and detention of pay, if unsuspended, take effect 

on the date the commanding officer imposes the punishments. Other punishments, if unsuspended, will take effect and be carried into execution as prescribed by regulations of the Secretary concerned. 

132. RIGHT TO DEMAND TRIAL. Except in the case of a person attached to or embarked in a vessel, punishment may not be imposed under Article 

15 upon any member of the armed forces who has, before the imposition of the 

punishment under that article, demanded trial by court-martial in lieu of the 

punishment thereunder. He also has the right, in all cases, to refuse trial by 

summary court-martial (Art. 20; 16a; 79d(l) ). Thus, if a serviceman refuses 

both punishment under Article 15 and trial by summary court-martial, he may 

then be tried, if at all, only by a special or general court-martial. A person is 

attached to or embarked in a vessel if, at the time the nonjudicial punishment is 

imposed, he is assigned or attached to the vessel, is on board for passage, or is 

assigned or attached to an embarked staff, unit, detachment, squadron, team, air 

group, or other regularly organized body. If the member is attached to or 

embarked in a vessel, he does not have the right to demand trial by courtmartial in lieu of punishment under this article unless this right shall have 

been specifically granted by regulations of the Secretary concerned. 
NONJUDICIAL PUNISHMENT U 133a 

133. PROCEDURE; RECORDS OF PUNISHMENT. aProcedure for 

Army and Air Force. The commanding officer, upon ascertaining to his satisfaction after any inquiry he considers necessary that an offense punishable 

under Article 15 has been committed by a member of his command, will, if 

he determines to exercise his Article 15 authority, so notify the member of 

the nature of the alleged misconduct by a concise statement of the offense in 

such terms that a specific violation of the code is clearly stated and inform him 

that he intends to impose punishment under Article 15 for the misconduct 

unless, if such a right exists (132), trial by court-martial is demanded. Also, 

unless prohibited by regulations of the Secretary concerned, the commander 

may notify the member concerned of his intention to recommend to a superior 

commander that the member be punished under Article 15 for his alleged 

misconduct unless, if such a right exists (132), trial by court-martial is demanded. The notification will also inform the member that he may submit any 

matter desired in mitigation, extenuation, or defense. In every case, the member 

will be notified that he is not required to make any statement regarding the 

offense or offenses of which he is accused or suspected and that any statement 

made by him may be used against him in a trial by court-martial. An election 

to accept nonjudicial punishment constitutes a waiver of the right to demand 

trial. A demand for trial does not require that charges be preferred, transmitted, or forwarded, but punishment may not be imposed under Article 15 

while the demand is in effect. 

The member will be given a reasonable time to reply to the notification of 

intent to impose or recommend the imposition of Article 15 punishment, state 

whether he demands trial by court-martial, if that right exists (132), and 

submit any matter in extenuation, mitigation, or defense he desires to be 

considered. With respect to an offense or offenses as to which a right to trial 

by court-martial exists but has not expressly been demanded, punishment 

may be imposed immediately by the commander indicated in the notice as 

the commander who is to impose the punishment. Punishment may be imposed 

only by the personal action of the commander or officer delegated that authority 

in accordance with 128a. The member will be notified of the punishment imposed, informed of his right to appeal to the next superior authority, and 

directed to acknowledge receipt of the notification of punishment and to state 

his election regarding an appeal. 

The proceedings will be conducted in writing in all cases involving commissioned officers and warrant officers and in all cases in which the punishment 

includes reduction in grade, confinement on bread and water or diminished 

rations, correctional custody, restriction or extra duties for more than 14 days, 

or forfeiture or detention of pay. In other cases the proceedings may be in 

writing or may be conducted orally, following the same sequence. However, 

in any case the member may be permitted to appear in person before the officer 

authorized to impose the punishment, and that officer may personally interview 

witnesses. Any written statements or other documentary evidence pertaining 

to the case which have been considered by the officer authorized to impose the 

punishment shall be attaclied to the file in the manner prescribed by pertinent 

regulations. When oral proceedings are conducted, the commander will cause 

a summarized record to be made and filed. 
fl 133b CHAPTER XXVl 

b. Procedure for Navy, Marine Corps, and Coast Guard. Unless in 

appropriate cases (132), the accused has demanded trial by court-martial in 

lieu of nonjudicial punishment, the commanding officer will ordinarily inquire 

at the mast, or office hours, into the facts as to any ininor offenses allegedly committed by a'member of his command. If, where permitted under 132, the accused has demanded trial by court-martial, the commanding officer may proceed 

in accordance with 33 without a mast or office hours hearing, except that he may 

not impose nonjudicial punishment while the demand is in effect. An accused 

who does not demand trial by court-martial in lieu of nonjudicial punishment 

may nevertheless be tried by court-martial if the circumstances of the case so 

warrant. 

Subject to the foregoing, when the mast or office hours procedure is f01- 

lowed, the accused will be accorded a hearing which shall include the following 

elemental requirements : 

(1) Presence of the accused before the officer conducting the mast. 

(2) Advice to the accused of the offenses of which he is suspected. 

(3) Explanation to the accused of his rights under Article 31 (b) of the 

Uniform Code of Military Justice. 

(4) Presentation of the information against the accused, either by the 

testimony of witnesses in person or by the receipt of their written statements, 

copies of the latter being furnished to the accused. 

(5) Availability to the accused for his inspection of all items of information in the nature of physical or documentary evidence which will be considered. 

(6) Full opportunity to the accused to present any matters in mitigation, 

extenuation, or defense of the suspected offenses. At the completion of the 

hearing, the commanding officer may impose punishment under Article 15. 

Under extraordinary circumstances, the commanding officer may designate 

an officer to conduct the hearing, described above, and that officer shall thereafter promptly provide him with a summary transcript of all information presented at the hearing and having any bearing on the guilt or innocence of the 

accused and the quantum of punishment to be imposed. Upon the receipt of that 

transcript, punishment under Article 15 may be imposed without further 

hearing. 

The record of a court of inquiry or other fact-finding body, in which proceeding the accused was accorded the rights of a party with respect to an act 

or omission for which nonjudicial punishment is contemplated, may be substituted for the impartial hearing required above. 

A summary transcript of all information presented at a hearing and having 

any bearing on the guilt or innocence of the accused and the quantum of punishment to be imposed, or a copy of the report of a court of inquiry or other factfinding body, together with any additional information presented by the 

accused, shall be forwarded with any reference of a breach of discipline to a 

superior competent authority when that reference is made under the policy 

set forth in 129. If the superior competent authority imposes punishment under 

Article 15, the accused shall be notified personally or in writing as soon as practicable of the punishment imposed. 

The &cer imposing punishment shall cause the accused to be promptly 

and fully informed of his right to appeal from the punishment so imposed. 

Receipt of all written communications by an accused must be by written indorsement through proper channels. 
NONJUDICIAL PUNISHMENT ll 134 

Admonitions and reprimands imposed as punishments under Article 15 

shall be by written communication through proper channels in the case of a 

commissioiled officer or warrant officer, and may, in any case, be by written 

communication. 

c. Records of punishment. Consistent with the requirements of this chapter, records of nonjudicial punishment shall be in that form and contain that 

matter prescribed by regulations of the Secretary concerned. These regulations 

will also provide for the disposition of records of nonjudicial punishment. 

134. SUSPENSION, MITIGATION, REMISSION, AND SETTING 

ASIDE. Under Article 15(d), the officer who imposes the punishment or his 

successor in command may, at any time, remit or mitigate any part or amount 

of the unexecuted portion of the punishment imposed and may set aside in whole 

or in part the punishment, whether executed or unexecuted, and restore all 

rights, privileges, and property affected. He may also mitigate reduction in 

grade, whether executed or unexecuted, to forfeiture or detention of pay. In 

addition, he may, at any time, suspend probationally any part or amount of the 

unexecuted portion of the punishment imposed and may suspend probationally 

a reduction in grade or a forfeiture, whether or not executed. An uncollected 

forfeiture of pay shall be considered as unexecuted. A LLsuccessorin command," 

within the meaning of Article 15, shall be as prescribed by regulations of the 

Secretary concerned. 

Pursuant to Article 15 (a), relating to the promulgation of rules concerning the suspension of punishments, the following rules are prescribed : 

(1) An executed punishment of reduction or forfeiture may be suspended only within a period of four months after the date of its imposition. 

(2) Suspension of a punishment may not be for a period longer than six 

months from the date of the suspension, and the expiration of the current enlistment or term of service of the person involved automatically terminates 

the period of suspension. 

(3) Unless the suspension is sooner vacated, suspended portions of the 

punishment are remitted, without further action, upon the termination of the 

period of suspension. 

(4) Vacation of suspension may be effected by any commanding officer 

or officer in charge competent to impose upon the offender concerned punishment of the kind and amount involved in the vacation of suspension. 

Although a formal hearing is not necessary to vacate a suspension, if the 

punishment suspended is of the kind set forth in Article 15(e) (1)-(7), the 

probationer should, unless impracticable, be uiven an opportunity to appear &. before the officer authorized to vacate suspension of the punishment to rebut 

any derogatory or adverse information upon which the proposed vacation is 

based, and may be given the opportunity so to appear in any case. 

When mitigating- 

(1) arrest in quarters to restriction ; 

(2) confinement on bread and water or diminished rations to correctional custody ; 

(3) correctional custody or confinement on bread and water or diminished rations to extra duties or restriction, or both ; or 

(4) extra duties to restriction ; 

the mitigated punishment may not be for a greater period than the punishment 
1135 CHAPTER XXVl 

mitigated. For example, if a punishment of arrest in quarters for 15 days is to 

be mitigated to restriction to specified limits, the duration of the restriction 

may not exceed 15 days. Similarly, when mitigating forfeiture of pay to detention of pay, the amount bf the detention may not be greater than the amount 

of the forfeiture. When mitigating reduction in grade to forfeiture or detention 

of pay, the amount of the forfeiture or detention may not be greate? than the 

amount that could have been imposed initially under Article 15 by the officer 

who imposed the punishment mitigated. Thus, if a commander in a grade below 

major or lieutenant commander imposes a reduction and it is later mitigated by 

him or superior authority, the maximum mitigated punishment would be 7 

days' forfeiture of pay or 14 days' detention of pay (131). Restriction may not 

be mitigated to a lesser period of other punishments in the nature of deprivation 

of liberty, such as correctional custody or extra duties, for restriction is the 

least severe form of deprivation of liberty. 

The power to set aside punishments and restore rights, privileges, and 

property affected by the executed portion of a punishment should ordinarily 

be exercised only when the authority considering the case believes that, under 

all the circumstances of the case, the punishment has resulted in a clear injustice. 

Also, the power to set aside an executed punishment and mitigate a reduction 

in grade to a forfeiture or detention of pay should ordinarily be exercised only 

within a reasonable time after the punishment has become executed. In this 

connection, four months is a reasonable time in the absence of unusual circumstances. 

An application for suspension, mitigation, remission, or setting aside of 

the punishment in whole or in part not made within a reasonable time may be 

rejected by the authority to whom the application is made. In the absence of unusual or special circumstances, such an application made more than 15 days 

after the punishment was imposed may be considered as not having been made 

within a reasonable time. 

135. APPEALS. A person punished under the authority of Article 15 who 

considers his punishment unjust or disproportionate to the offense may, through 

the proper channels, 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 (Art. 15 (e) ). An appeal 

not made within a reasonable time may be rejected by the superior authority. 

In the absence of unusual circumstances, an appeal made more than 15 days 

after the punishment was imposed may be considered as not having been made 

within a reasonable time. Authority "superior" to a particular commanding 

officer is the authority normally superior in the chain of command or any other 

authority who may be designated as a superior for the purposes 'of Article 15, 

under regulations which the Secretary concerned may prescribe. However, 

when the punishment has been imposed under a delegation of a commander's 

power to impose nonjudicial punishment (see 128), the appeal will not be directed to that commander. 

Appeals will be made in writing and may include the appellant's reasons 

for regarding the punishment as unjust or disproportionate. Before acting on 

an appeal from any punishment of the kind set forth in Article 15(e) (1)-(7), 

the authority who is to act on the appeal shall refer the case to a judge advocate 

of the Army, Navy, Air Force or Marine Corps, or a law specialist or lawyer of 
I 

NONJUDICIAL PUNISHMENT (1 135 

the Marine Corps, Coast Guard, or Transportation Department for consideration and advice, and may so refer the case upon appeal from any punishment 

imposed under Article 15. When a case is referred to a judge advocate, law 

specialist, or lawyer for consideration, he is not limited to an examination of 

any written matter comprising the record of proceedings and may make any inquiries he determines to be desirable. If the authority to whom an appeal is 

made has no legal personnel of the categories mentioned above serving on his 

staff or otherwise available to him, he may either- 

(1) refer the case for consideration and advice by appropriate legal personnel of one of those categories serving on the staff of another commander 

or 

(2) refer the case for action to a superior authority who has appropriate 

legal personnel available to him for this purpose. 

In acting upon an appeal, the superior authority may exercise the same 

powers with respect to the punishment imposed as may be exercised under 

Article 15 (d) by the officer who imposed the punishment or his successor in command. Thus, under the conditions set forth in 134, he may suspend, remit, mitigate, or set aside in whole or in part the punishment imposed. After having considered an appeal, the superior authority will transmit to the appellant, through 

channels, a written statement of his disposition of the case. Under Article 15 (e), 

any superior authority may exercise the same powers as may be exercised by 

the officer who imposed the punishment or his successor in command under 134 

and Article 15 (d), whether or not an appeal has been made from the punishment. If authorized by regulations of the Secretary concerned, a superior 

authority who is a commanding officer exercising general court-martial jurisdiction, or is an officer of general or flag rank in command, may, under Article 

15(a), delega,te those powers he has as a superior authority under Article 15 (e) 

and this chapter to a principal assistant. 
Chapter XX VZZ 

RULES OF EVIDENCE 

136. SYNOPSIS OF CHAPTER. In this synopsis, the references on the 

left are to paragraphs; those on the right are to pages. 

Para. 	 Page 

137. General-----------_-----2------------------------------ 27- --------
 4 

138. 	Presumptions and permissible inferences; direct and circumstantial evidence; 


real evidence; testimonial knowledge; opinion evidence; character evidence; 


evidence of other offenses or acts of misconduct of the accused; evidence of 


habit or usage--------------L-------------- 27- 4 


a. Presumptions and permissible inferences ............................... 27- 5 


(1) Presumptions-------------------------- 27- 5 


(2) Permissible inferences- ............................ 27- 5 


b. Direct and circumstantial evidence ................................. 27- 6 


c. Real evidence------------------------------ 27- 6 


d. Testimonial knowledge ........................... 27- 6 


e. Opinion evidence ............................................ 27- 7 


f. Character evidence-Proof of character; character of the accused; of others-- 27- 8 


(I) Proof of character 	 27- 8 


(2) Character of the accused ................................ 27- 8 


(3) Character of persons other than the accused ...................... 27- 9 


g. Evidence of other offenses or acts of misconduct of the accused..- _ _ -------- 27-10 


h. Evidenceofhabitorusage----------­ ..-------------------------------- 27-13 


139. Hearsay rule---------------------------- 27-13 


a. General rule--------------------------------- 27-13 


b. Illustrations----_~~--------~­ 27-13 ---


c. Exceptions-----_____-__-------------­ --
 27-14 

140. 	Confessions and admissions; acts and statements of conspirators and accom- 


plices----__--__-_----------------------------------------------- 27-15 


a. Confessions and admissions-- -- - -- - _ __--- ---------------- -- ---------- - 27-15

(I) Definitions--_-----~-------------­ 27-15 
 -

(2) Voluntariness---_----------------------------------------- 27-15 


(3) 	Purported confession or admission of the accused claimed not to 


have been made by him-----------___-_------------------- 27-17 


(4) Admissions by silence .................................. 27-17 


(5) Corroboration of confessions and admissions -_-_- _ __ --- --- - ----- 27-18 


(6) Miscellaneous--____________------______-__­ ..---__-_­ _--------
 27-19 

b. Acts and statements of conspirators and accomplices ...................... 27-19 


141. Statements made through interpreters- -------- ------------ ------- -- - - 27-20 


142. 	Dying declarations; spontaneous exclamations; fresh complaint and lack of 


fresh complaint; statements of motive, intent, or state of mind or body; 


polygraph tests and drug-induced or hypnosis-induced interviews--- -- _ -_ _ -- 27-22 


a. Dying'declarations ...................... 27-22 


b. SpontaneoUsexclamations------_--------------------- 27-23 


c. Fresh complaint and lack of fresh complaint -----__--_------_-----_----­27-24 
 -

d. Statements of motive, intent, or state of mind or body -------___--------­-27-24 


e. Polygraph tests and drug-induced or hypnosis-induced interviews---- ---- _ -- 27-25 

f 136 	 CHAPTER XXVll 

Para. 	 Page 

143. 	Documentary evidenceproving contents of a writing; authentication of wrie 


ings; certain procedural matters relating to documentary evidence; definition 


of "writing"-----_----------------------- 27-25 


a. Proving contents of a writing ................................. 27-25 


(1) General rule, best evidence rule ................................. 27-25 


(2) Exceptions to the best evidence rule ----;--------­27-26 --_----

(a) Exceptions pertaining to writings lost, destroyed, infeasible to 


produce, or in the accused's possession and to machine, elec- 


tronic, or coded writings- - - - -- -- ------------ --,-- ------ - 27-26 


(b) Summarizations of numerous or bulky writings --------_----- 27-27 


(c) Copies and official publications of official records- ----------- 27-27 


(d) Summaries of official records ............................. 27-27 


(e) Copies of banking entries ................................. 27-28 


(f) Certificates of fingerprint comparison and identity--- -- - ---- 27-28 


(g) Evidence of absence of official record ..................... 27-28 


(h) Evidence of absence of business entry ------ ----__---------- 27-29 


(i) Copies of telegrams and radiograms.. -- - - _ - - - -- - -------_--- 27-29
 . . b. Authentication of wntings ................................ 27-29 


(1) General----------------------- 27-29 


(2) Authentication of official records ................................ 27-31 


(a) General provisions and definitions-_ _------- - ----- --------- 27-31 


(b) Military records ................................. 27-32 


(c) United States records ................................. 27-32 


(d) State records-- ........................ - - 27-33 


(e) Foreignrecords---------_------------_----- 27-34 


(f) Miscellaneous----------------------------- 27-34 


(3) Authentication of banking entries --_-- _-_-__------------- --- - --- 27-35 


c. Certain procedural matters relating to documentary evidence- ----- ---- - -- - 27-36 


d. Definition of "writing" -------------- - - - - - - - 27-36 


144. 	Official writings; official records; business entries; limitations as to the admissi- 


bility of official records and business entries; maps, photographs, sketches, 


charts, and fingerprints; business, professional, or public lists and directories- - 27-36 
 . . a. Officialwr~tings--_~--------~-------~-~~27-36 -~~-----


b. Official records---_-------------------~---------------- 27-36 


c. Business entries----___--_--------------------~ --
 27-37 

d. Limitations as to the admissibility of official records and business entries- - _ _ 27-39 


e. Maps, photographs, sketches, charts, and fingerprints-- ------------------ 27-41 


f. Business, profes~ional, or public lists and directories- -..................... 27-42 


145. Depositions; former testimony; records of courts of inquiry ------------------ 27-42 
 . . a. Depositions----------------------------- 27-42 


b. Former testimony ............................... 27-44 


c. Records of courts of inquiry ----------_-----------------­ ..-------­-----
 27-46 

146. 	Mem0randa;affidavits--_----------------- 27-47 


a. Memoranda .................................... 27-47 


b. Affidavits............................... 27-47 


147. Judicial notice; determination of foreign law ............................ 27-48 


a. Judicial notice- -................................ 27-48 


b. Determination of foreign law ..................................... 27-50 


148. 	Competency of witnesses ............................... 27-51 


a. General---------------------------------------~-- 27-51 


b. Children .................................. 27-51 


c. Mentali~rmity-------------------------------- 27-51 


d. Conviction of crime ................................... 27-51 


e. 	Interest or bias, and competency and privileges of husband and wife, the 


accused, and accomplices- ------- ------- -------- --- - 27-52 

RULES OF EVIDENCE 	 U 137 


Para. 	 PWe 

149. 	Examination of witnesses ............................... 27-53 


a. 	General--------------------------------- 27-53 


b. 	Cross-examination; redirect and recross-examination; examination by the 


court or a member----------------------------------------------- 27-54 


(1) Cross-examination ........................................... 27-54 


(2) Redirect and recross-examination- ------------- --------------- 27-55 


(3) Examination by the court or a member ......................... 27-55 


c. 	Leading questions; ambiguous and misleading questions; other objectionable 


questions-------_---------------------- 27-56 


(1) Leading questions- - -- ........................... 27-56 


(a) General rule- --------------- ------------------- 27-56 


(6) Exceptions.............................. 27-56 


(2) Ambiguous and misleading questions- --------------------------- 27-57 


(3) Other objectionable questions- - - ------------------------------- 27-57 


150. 	Degrading and incriminating questions- -- - -- - ---------------------------- 27-57 


a. Compulsory self-degradation-- - -- - ---------------- 27-57 


b. Compulsory self-incrimination- ---..................................... 27-58 


151. Privileged and nonprivileged communications--- ----------------------- --- - 27-59 


a. General------------------------------- 27-59 


b. Certain privileged communications- - - -- ------ ------ -------- -- --- 27-59 


(1) Military and state secrets, and informants ------------------- ---- 27-59 


(2) 	Communications between husband and wife, client and attorney, and 


penitent and clergyman-- - - ........................... 27-60 


(3) Confidential and secret evidence .............................. 27-61 


c. Certain nonprivileged communications ----_------------------- ------- - 27-62 


(1) Communications by wire or radio ........................ 27-62 


(2) Communications to medical officers and civilian physicians- - - - ---- 27-62 


152. 	Certain illegally obtained evidence- - - - ---_-_----------------------------- 27-62 


153. 	Credibility of witnesses; impeachment of witnesses- - - -..................... 27-65 


a. Credibility of witnesses ............................. 27-65 


b. Impeachment of witnesses ..................... 27-66 


(1) General----_-------------------------------------------- 27-66 


(2) Various grounds ------_-__-__---_----------­ 27-67 ---


(a) General lack of veracity ---- ------------------ 27-67 


(b) Conviction of crime .............................. 27-67 


(c) Inconsistent statements ----_------------------------_-__27-69 
 -

(d) Prejudice and bias .................................... 27-71 


(3) Effect of impeaching evidence ----- --_-__-------------27-71 


154. 	Miscellaneous matters-Guilty state of mind; stipulations; offer of proof; 


waiver of objections ....................... 27-71 


a. Guilty state of mind ................................... 27-71 


(I) General................................. 27-71 


(2) 	Effect of insanity, mental defects, and character and behavior 


disorders------------------------- 27-71 


(3) Effect of drunkenness ......................................... 27-71 


'(4) Effect of ignorance or mistake of fact ............................ 27-72 


(5) Effect of ignorance or mistake of law ............................ 27-72 


b. Stipulations-----_--------------------- 27-72 


(I) As to faets and the contents of writings ----_-___-_------------­ 27-72 --


(2) As to testimony .............................. 27-73 


-	 (3) Instructions concerning stipulations received in a joint or common 


' trial.................................. 27-73 


c. Offer of proof--------------------------------- 27-73 


d. Waiver of objections ............................. 27-73 

R 138 CHAPTER XXVll 

137. GENERAL. The rules stated in this chapter are applicable in cases before courts-martial, including summary courts-martial, and a summary courtmartial has the same discretionary power as a military judge concerning the reception of evidence. So far !as not other~vise prescri'bed 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 those rules, at common 

law will be applied by courts-martial. See 57 as to who shall make the rulings 

and decisions of the court with respect to the admissibility of evidence and 

other interlocutory matters in general and special court-martial cases. 

Unless it is shown that the relaxation of the rules of evidence might injuriously affect the substantial rights of the accused or the interests of the 

United States, the military judge or the president of a special court-martial 

without a military judge may as a matter of discretioil relax them asto interlocutory matters relating to an application for a continuance (see 58) or to the 

availability of witnesses (see 1456, c; Art. 49 (d)).For example, wit11 respect to 

these matters it is perinissible to receive in evidence affidavits, certificates of 

military and civilian officials, and other writings of similar apparent a~~thenkicity and reliability, such as a certificate of a physician as to the illness of a witness. See 7% as to matters in extenuation or mitigation, 122c as to matters concerning the question as to whether further inquiry into the mental condition of 

the accused should be made, and 1466 as to the use of affidavits or other ~vritten 

statements to prove the character of the accused. 

In court-martial trials conducted in foreign countries, certain categories 

of witnesses may, by virtue of treaty or executive agreement, have privileges 

in addition to those mentioned in this chapter. 

Evidence to be admissible (competent) must primarily be relevant. Evidence is not relevant, as that term is usecl in this manual, when the fact 1%-hich 

it tends to prove is not part of any issue in the case. Also, evidence is not relevant 

when, though the fact intended to be proved thereby is part of an issue in the 

case, the evidence itself is too remote to have any appreciable probative value 

for that purpose. As used in this manual with reference to the pertinency of 

evidence, "material evidence" has the same meaning as "relevant evidence." 

Evidence whicl~ is apparently irrelevant may be admitted provisionally 

at the discretion of the military judge or the president of a special court-martial 

without a military judge upon a statement of the party offering it that other 

facts later to be prol-ed will shotv its relevancy, but the evidence should afterward be exclucled, ancl the ineinbers of the court instructed to disregard it, if its 

relerancy is not ultimately she\\-n. It is generally more desirable, however, to 

require the party offering the evidence first. to prove the facts sho~ving its 

relevancy. 

The military judge or the president of a special court-martial without a 

military judge may as a matter of discretioil limit the number of wihnesses 

called by either side to testify to tlie same aiatter if it appears that the testimony of the excluded witnesses would be merely cumul a t' ive. 

138. PRESUMPTIONS AND PERMISSIBLE INFERENCES; DIRECT AND CIRCUMSTANTIAL EVIDENCE ; REAL EVIDENCE ; 

TESTIMONIAL KNOWLEDGE; OPINION EVIDENCE; CHARACTER 

EVIDENCE; EVIDENCE OF OTHER OFFENSES OR ACTS OF MISCONDUCT OF THE ACCUSED; EVIDENCE OF HABIT OR USAGE. 
RULES OF EVIDENCE 11 138a 

a. Presumptions and permissible inferences. (1) Presumptions. The term 

"presumption" is applied to facts which courts are bound to assume in the 

absence of adequate evidence to the contrary. Examples of presumptions areAn 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 to be sane at the time of trial, until a reasonable 

doubt of his sanity at the time in question is raised by the evidence. See also 

148 as to the presumption of competency of witnesses. 

These presumptions are procedural rules governing the production of evidence and do not themselves supply evidence. 

(2) Persnissible inferences. There are a number of permissible inferences 

encountered in the trial of criminal cases which are sometimes loosely referred 

to as "presumptions" but which actually are not presumptions at all but are 

merely well-recogniqed examples of the use of circumstantial evidence. The 

drawing of these inferences is not mandatory, and their weight or effect is to 

be measured only in terms of their logical value. The weight which should be 

given to any inference will depend upon all the circumstances attending the 

proved facts which give rise to the inference. The fact that evidence is introduced to show the nonexistence of a fact which might be inferred from proof 

of other facts does not, if the evidence can reasonably be disbelieved, necessarily 

destroy the logical value of the inference, but the rebutting evidence must be 

weighed against the inference. The same is true if the evidence is introduced 

to show the nonexistence of the facts upon which the inference is based. In 

drawing and weighing inferences, and in considering evidence introduced in 

rebuttal thereof, common sense and a general knowledge of human nature and 

the ordinary affairs of life should be applied. 

Some examples of common inferences, only the first example having a 

presumption also present, areSince most persons are sane, it may be inferred that a certain person 

is sane and that he was sane at any given time. Thus, it may be inferred that 

an accused was sane at the time of the offense and is sane at the time of 

trial. The inference of sanity permits consideration of all the evidence in 

the light of the general human experience that most persons are sane. 

It may be inferred that a sane persoil 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 

inferred that he was legally in office and that he performed his duties 

properly. 

It may be inferred that a condition shown to have existed at one time 

continues to exist. Thus, it may be inferred that a. person's residence remains 

unchanged; for instance, it may be inferred that at the time of trial a 

deponent continues to reside where he resided at the time his deposition 

was taken. Also, proof that a certain condition existed at one time will 

support an inference of its earlier existence if the subsequent condition 

is one which ordinarily would not exist unless it had also existed at the 

earlier 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 an inference that the lights had not been turned on at 

the time of the collision. 
V 138d CHAPTER XXVll 

Proof that a letter correctly addressed and properly stamped or franked 

was deposited in the mail will support an inference that it was delivered 

to the addressee, and a similar inference is permissible in regard to telegrams regularly filed with a telegraph company for transmission. 

Identity of name ordinarily will support an inference of identity of 

person. Whether or not this inference may be drawn in a particular case, 

and the weight to be given to it if it is drawn, Gill depend upon how common the name is and upon other circumstances. 

When it is shown that a person was in possession of receniy stolen 

property or a part thereof, it may be inferred that the person stole the 

property and, if it is shown that the property was stolen from a certain 

place at a certain time and under certain circum.stances, that he stole it from 

that place at that time and under those circumstances. 

It may be inferred that one who has assumed the custody of another's 

property has stolen the property if he refuses or fails to account for or 

deliver it when an accounting or delivery is due. 

The fact that one or more inferences contradict or are inconsistent with one 

or more other inferences does not necessarily neutralize or destroy the inferences on either side of the question. The relative weights of conflicting inferences should be assessed in accordance with the logical value of each in the 

light of all attendant circumstances. 

b. 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 or circumstances, one 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 wallet, testimony of 

a witness that he saw the accused take the wallet from the coat of the owner is 

direct evidence that the accused took the wallet, and testimony of a witness that 

he found the wallet 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 an eyewitness may 

be more convincing than contrary inferences that may be drawn from certain 

circumstances. Conversely, an inference drawn from one or more circumstances 

may be more convincing than a contrary assertion of an eyewitness. 

c. Real evidence. Physical objects, such as clothing, jewelry, weapons, 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. Evidence of this kind is called real 

evidence. If an item of real evidence which has been introduced in the case is not 

to be attachecl to the record of trial because of the impossibility or impracticability of doing so or for some other reason, the item should be clearly and 

accurately described for the record by. testimony, photographs, or other means 

so that it may be considered properly upon review of the case. See also 54d. 

d. Testimonial knowledge. Ordinarily, a witness is qualified to speak only 

of what he has learned through his senses. For instance, a sentry might testify 
RULES OF EVIDENCE U 1380 

that while on a sentry post at night he heard two shots and saw two persons 

running in the distance, but he may not proceed further and state that the shots 

killed a man and that one of the persons running was the accused if his information as to the effect of the shots and the identity of the persons running away is 

based on rumor and gossip heard the following day. 

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 (see, for example, 138e), goes only to the weight and not to 

the admissibility of whatever testimony he may be able to give with respect to 

that fact. 

A witness may testify as to his own age, including the date of his birth. 

Similarly, a witness who is a near relation or an adoptive parent of a person may 

testify as to the perqon's age, including the person's date of birth. 

e. Opinion evidence. It is a general rule that a witness must state facts 

and not his opinions or conclusions. However, if an inference drawn by a witness from certain facts personally obszrved by him is of a kind which is commonly drawn and which cannot, or ordinarily cannot, adequately be conveyed to 

the court by a mere recitation of the observed facts, the witness may state the 

inference, when the matter inferred is relevant, even though the inference 

amounts to an opinion or conclusion. Examples of admissible inferences of this 

kind 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 1226. See also 138f (1) as 

to opinion evidence concerning character, 138h concerning habit or usage, and 

143b(l) 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 had specialized training or 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 matter which is within his specialty and which is involved in the inquiry. Before being permitted to express 

his opinion, it should be shown that he is an expert in the specialty. A showing 

of expert qualifications may be waived, however, either expressly or by a failure 

to object on the ground of a lack of such a showing to the reception in evidence 

of testimony of an expert nature. 

Expert testimony may be adduced in several mays. A11 expert witness may 

be asked to state his relevant opinion shown to have been based on his personal 

observation or on an examination or study conducted by him, including an examination or study by him of reports of others of a kind customarily considered 

in the practik of the expert's specialty, without introducing in evidence or 

specifying hypothetically or otherwise in the question the particular data upon 

which the opinion was based and without showing the details of the expert's 

observation, examination, or study. The expert may be required, on direct or 

cross-examination, to specify the data upon which his opinion was based and to 

relate the details of his observation, examination, or study. If in the course of 

doing so he refers to matters which, if themselves regarded as evidence in the 
fl 138f CHAPTER XXVll 

case would be inadmissible and might improperly influence the members of the 

court, as when a psychiatrist testifies that his opinion as to the accused's mental 

responsibility was based in part on the accused's past criminal record, the 

military judge, or the president of a special court-martial without a military 

judge, should instruct the members of the court in open session that these makters are to be considered only with respect to the weight to be given to the expert 

opinion. 

An expert witness may also be asked to express an opinion .upon a hypothetical question-a question assuming 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 

military judge or the president of a special court-martial without a military 

judge as a matter of discretion so permits, on $acts which are later to be 

received in evidence. If evidence of these facts is not later introduced, the 

hypothetical opinion based on them should be excluded and the members 

of the court instructed to disregard it. The requirement that hypothetical 

questions, and the answers thereto, shall be based upon facts in evidence 

does not apply, however, to questions asked upon cross-examination for the purpose of testing the credibility of the expert witness. See 1496(1). 

An expert witness who to some extent has based an opinion upon his study 

of books or papers dealing with his specialty may be cross-examined as to that 

opinion by reference to any reputable works in his field, including works not 

relied upon by the expert witness in his testimony. 

An admissible opinion or conclusion may be regarded as evidence of the 

matter to which the opinion or conclusion relates. 

f. Character evidence-Proof of character; character of the accused; 

of others. (1) Proof of character. When proof of the character of a person is 

admissible, the opinion of a witness as to that person's character may be received 

in evidence if it is shown that the witness has such an acquaintance or relationship with the person as to qualify him to form a reliable opinion in this respect. 

Another method of proving character is by introducing evidence of reputation 

for the kind of character involved. By "reputation" is meant the repute in which 

a person generally is held in the community in which he lives or pursues his 

business or profession. Testimony concerning the reputation of a person in the 

community in which he lives or pursues his business or profession must come 

from someone whose knowledge of that reputation was gained from having 

himself been a member of the community in question. Thus, testimony of this 

kind by one who has merely visited the community of a person for the purpose 

of investigating his character is inadmissible. In the military service, "community" includes an organization, post, camp, ship, or station. 

See 14671 as to the use of affidavits or other ~vritten statements to prove the 

character of the accused. 

(2) Character of the c~ccused. Eridence that the accused has a bad inoral 

character may not be introduced for the purpose of raising an inference of guilt, 

although this evidence may be introduced for the purpose of rebutting evidence 

of good moral character introduced by the defense. 

To show the probability of his innocence, the accused may int,roduce evidence of his 01~11good character, iilcluding evidence of his military record and 

standing as shown by autlienticated copies of efficiency or fitness reports 01' 

otherwise and evidence of his general character as a moral, well-conducted per- 
RULES OF EVIDENCE U 138f 

son and law-abiding citizen. However, he may not, for this purpose, introduce 

evidence as to some specific trait of character unless evidence of that trait would 

have a reasonable tendency to show that it was unlikely that he committed the 

offense charged. For example, evidence of good character as to peaceableness 

would be admissible to show the probability of innocence in a prosecution for any 

offense involving violence, but it would not be admissible for such a purpose 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 properly 

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 character as to honesty, the 

prosecution may not show in rebuttal that the accused has a bad character as to 

general morality and conduct but will be limited, 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 character 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. 

The prosecution is not limited in its rebuttal of evidence of the accused's 

good character to the method of proving character used by the defense. Consequently, the prosecution may use opinion evidence of bad character in rebuttal 

of reputation evidence of good character presented by the defense and may use 

reputation evidence of bad character in rebuttal of opinion evidence of good 

character presented by the defense. Additionally, if a defense witness testifies 

as to the good reputation of the accused, the prosecution may cross-examine the 

witness as to his personal opinion of the character of the accused, provided the 

witness is qualified to express such an opinion. Also, if a defense witness testifies 

that in his opinion the accused has a good character, the prosecution may crossexamine the witness concerning the reputation of the accused, provided the 

witness is qualified to testify concerning the accused's reputation. In all these 

situations, however, the prosecution will be bound by the general limitations 

upon the introduction of evidence of bad character in rebuttal previously 

mentioned. 

The prosecution may not, for the purpose of rebutting evidence of the 

accused's good character, introduce evidence of other specific offenses or acts 

of misconduct of the accused unless that evidence is in rebuttal of evidence 

introduced by the defense that other offenses or acts of misconduct were not 

committed (see the seventh paragraph of 153b (2)(b) ) or is admissible under 

138g. See also 75d. 

If the accused testifies as a witness, the prosecution may, for the purpose 

of impeaching his-credibility, show that the accused has a bad character as to 

truth and veracity. If the credibility of the accused is attacked on this or any 

other ground, the defense may show that the accused's character as to truth and 

veracity is good. See 153b (2)(a). 

(3) Character of persons other than the accused. Evidence as to the character of persons other than the accused is admissible when it is relevant to an 

issue in the case. Thus, for example, when there is a question as to whether the 

" accused was acting in the heat of sudden passion caused by adequate provocation in taking the life of a person who purportedly attacked him (see 198a, 
(1 138g CHAPTER XXVll 

Voluntary manslaughter) or as to whether the accused was acting in selfdefense or in defense of another (see 216c), 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 had provoked the accused or as to 

whether the alleged victim had been the aggressor. It may also be shown in 

such a case that the accused, at the time of his act, was aware of the violent or 

peaceable character of the alleged victim or entertained a belief with respect to 

that character, for this evidence would have some bearing up011 the question as 

to the reasonableness and extent of the passion or apprehensi'on of danger on 

the part of the accused. When it may be shown, for example, that the alleged 

victim had a violent character, evidence of specific acts of violence of the alleged 

victim is admissible to show his violent character as well as opinion or reputation evidence of his violent character (see (1) above). Likewise, when the 

accused's knowledge or belief, possessed at the time of his act, that the alleged 

victim had a violent character has been shown, evidence that the accused at that 

time knew of specific acts of violence of the alleged victim or entertained a 

belief with respect to those acts is admissible. 

Proof of bad moral character of persons other than the accused, including 

his associates and confederates, is not admissible to raise an inference of the 

accused's guilt by an implication that he also must have been a person of bad 

moral character. 

See 15371 (2) (a) and the fifth paragraph of 153b (2) (b ) as to the admissibility of evidence of the character of witnesses and of alleged victims of sexual 

offenses. 

g. Evidence of other offenses or acts of misconduct of the accused. 

The general rule is that evidence of other offenses or acts of misconduct of the 

accused is not admissible as tending to prove his guilt, for ordinarily this evidence would be useful only for the purpose of raising an inference that the 

accused has a disposition to do acts of the kind charged 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 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 or is offered in proper rebuttal 

of matters raised by the defense, the reason for excluding the evidence is not 

applicable. For instance, 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 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 participated in the burglary of the other, for this evidence 

has a reasonable tendency to establish that he participated i11 

the burglary charged. 
RULES OF EVIDENCE 	 n 138g 

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: The accused is being tried for inducing X to turn over a large 

sum of money by a peculiarly ingenious fraudulent scheme. 

Evidence that the accused obtained money from Y by the 

sape scheme is admissible. 

(2) When it tends to prove a plan or design of the accused. 

Exampb: 	The accused is being tried for having obtained money from 

Z by going through a marriage ceremony with her, securing 

t,he funds on a false 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 knowledge or guilty intent in a, case in 

which these matters are in issue. 

ExampZe: The accused is charged with receiving stolen goods knowing 

them to have been stolen. Evidence that before the occasion 

charged he had received stolen goods under similar circumstances is admissible as tending to prove that on the occasion 

charged he knew that the goods which were then received 

by him had been stolen. 

Example: The accused is charged with larceny of property belonging 

to X. Evidence that the accused sold the property is admissible-even if the sale is itself an offensesince this evidence 

would tend to prove that he intended to deprive X of the 

property permanently. 

But: 	 On a charge of assaulting a person and intentionally inflicting grievous bodily harm, a former assault on a third person 

under entirely different circumstances would not be admissible, for it would have no bearing on the intent in the case 

charged. 

(4) When it tends to show the accused's consciousness of guilt of the 

offense charged. 

Ezampb: 	The accused is charged with homicide. Evidence that the 

accused had absented himself without proper authority 

shortly after the homicide is admissible as tending to show 

the accused's consciousness of guilt of the homicide. 

(5) When it tends to prove motive. 


Example: The accused is charged with desertion with intent to remain 


, 	 away permanently. The fact that at the time of the alleged 

desertion the accused had allegedly committed larceny and 

knew that he mas under investigation or awaiting trial for 

' that offense would be admissible as evidence of a motive to 

desert. 

ExampZe: The accused is charged with falsification of his accounts. 

Evidence that he had stolen soille of the goods to be accounted 

for is admissible as tending to show that he had a motive to 

falsify the accounts for the purpose of coiicealing the theft. 
1 1389 	 CHAPTER XXVll 

But: 	 On 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 moral character. 

(6) When it tends to rebut a contention, express or implicit, made by 

the accused that his participation i11 the offense charged wns the result of 

accident or mistake or was the result of entrapment. 

Example: 	The accused is charged with an offense involviizp an accusation 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 are so similar 

to the circumstai~ces of the act charged that the other acts 

tend to show that the act charged was not the result of 

accident or mistake. 

Example: 	The accused is charged with selling military property without proper authority. He defends on the ground of entrapment, claiming that the sale was solicited by a government 

agent. Evidence that on previous relatively recent occasions 

the accused had sold military property without proper authority is admissible to show that on the occasion charged the 

accused was not an otherwise unwilling participant. 

(7) When it tends to rebut any issue raised by the defense, unless its 

sole purpose (see the fonrth paragraph of 138f (2)) is to rebut evidence of 

the accused's good character. 

Example: 	The accused is charged with murder committed by stabbing 

the alleged victim with a knife, and he defends 011the ground 

that he took the life of the victim in self-defense. Evidence 

that shortly before the homicide the accused had threatened 

another person with a knife in the absence of any apprehension of harm is admissible as tending to show that the 

accused was the aggressor with respect to the homicide 

charged. 

If evidence of other offenses or acts of misconduct of the accused is admitted under the above provisions, the military judge, or the president of a 

special court-martial without a milikary judge, should instruct the ineinbers of 

the court in open session concerning any limitations upon the purpose for ~vhich 

the evidence may be considered. See 73a. 

Evidence that the accused has committed other offenses or acts of inisconduct not amounting to proof of conviction thereof is not /admissible, on crossexamination of the accused or otherwise, merely to impeach his credibility as a 

witness; but if that evidence is in rebuttal of evidence introduced by the defense 

that other offenses or acts of misconduct were not committed or is for some other 

reason admissible independently of impeachment it will also be admissible to 

impeach the accused's credibility as a witness, provided it has a tendency to do 

so. Evidence that the accused ~vas con~ictedof a crime involving moral turpitude 

or otherwise affecting his credibility is admissible to impeach his credibility 

if he testifies. See 1536 (2) (6). When evidence that the accused was coilvictecl 
- - 

RULES OF EVIDENCE II 139b 

of crime is introduced before the findings and is of a kind which is then admissible only for the purpose of impeaching his credibility as a witness, the military 

judge, or the president of a special court-martial without a inilikary judge, 

should instruct the members of the court in open session that in arriving at the 

findings they may consider the evidence only for the purpose of determining 

the credibility of the accused. 

h. Evidence of habit or usage. Evidence that a person was in the habit 

of doing a certain thing in a certain way, or that he had been doing a certain 

thing in a certain way as a matter of usage, is admissible as tending to prove 

that he acted according to his habit or usage on a specified occasion. Evidence 

of specific instances of behavior is admissible to prove habit or usage if the 

evidence is of a sufficient number of instances to warrant a finding of the habit 

or usage. The most common instance of admissible evidence of habit or usage is 

evidence of the regular course of action in a business or calling. 

See, however, 138f(2) and g as to the rule forbidding the drawing of an 

inference of guilt from evidence,of the bad moral character of the accused. / 139. HEARSAY RULE. a. General rule. A statement which is offered 

in evidence to prove the truth of the matters stated therein, but which was not 

made by the author when a witness before the court at the hearing in which it 

is so offered, is hearsay. The word "statement" means not only an oral or written 

expression but also non-verbal conduct of a person intended by him as a substitute for words in expressing the matter stated. Hearsay may not be recited or 

otherwise introduced in evidence, and it does not become competent evidence 

by reason of a mere failure to object to its reception in evidence. This rule simply means that a fact cannot be proved by showing that someone 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 will be subject to crossexamination, the scrutiny of the court, and confrontation by the accused. Hearsay as defined above includes the testimony of a witness given at the hearing 

that on another occasion he made a certain statement, if that statement is offered 

to prove the truth of the matters stated and has not been adopted by the witness 

as a part of his testimony at the hearing. 

The fact that a given statement was made may itself be relevant. If this is 

so, 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 had conducted a preliminary inquiry (326) 

into the alleged offense. Testimony by Lieutenant A at the trial that persons 

other than the accused stated certain facts at the inquiry would be inadmissible 

to prove those facts since the testimony of Lieutenant A would be hearsay if it 

was offered for this purpose. However, the testimony of any person who was 

present at the inquiry that he heard Lieutenant A warn the accused that he did 

not have to make any statement regarding the offense and that any statement 

made by him could be used as evidence against him in a trial by court-martial 

would be admissible for the purpose of showing that the warning was in fact 

given. 
U 139c CHAPTER XXVll 

A is being tried for assaulting B. The defense presents the testimony of C 

that just before the assault C heard B say to A that he was about to kill him with 

his knife. The testimony of C is not hearsay, for it is offered to show that A acted 

in self-defense because B made the statement and not 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 

lineup B indicated-verbally or otherwisethat A was her attacker. The testimony of C would not be admissible to prove that it was A who raped B, for if 

it was admitted for that purpose it would be hearsay. See, however, the fourth 

paragraph of 153a. 

Private A is being tried for disobedience of a certain order given him orally 

by Lieutenant B. C is able to testify that he heard Lieutenant B give the order 

to A. This testimony, including testimony of C as to the terms of the order, 

would not be hearsay. 

The 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 quarters in 

which the locker was located with a bundle resembling clothes about the same 

time the clothes were stolen. This testimony from A would not be admissible 

to prove the facts stated by B. 

B is being tried for wrongfully selling government 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 thereafter A asked the proprietor of the shop what the accused was doing there and the proprietor replied 

that the accused sold him some uniforms for which he paid the accused $30. Testimony by the policeman as to the reply of the proprietor would be hearsay if it 

was 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. 

A defense witness in an assault case testifies on direct examination that 

the accused did not strike the alleged victim, B. On cross-examination by the 

prosecution, the witness admits that at a preliminary investigation he stated 

that the accused had struck B. The testimony of the witness as to this statement, 

unless he further testifies that the statement is true and thus adopts it as part 

of his testimony at the trial, is inadmissible, to prove that the accused in fact 

struck B, for if it was received for this purpose it would be hearsay. See 1536 (2) 

(c) with respect to the use of such an inconsistent statement for impeachment 

purposes. 

Official statements made by an officer-as by the commanding officer of a 

battalion, squadron, or ship, or by a staff officer, in an indorsement or other communication-are not excepted from the operation of the hearsay rule merely by 

reason of the official character of the communication or the rank or position of 

the officer making it. Nor is such a statement excepted from the hearsay rule 

merely because it is among papers referred to the trial counsel with the charges. 

See 144. 

c. Exceptions. The principal exceptions to the hearsay rule applicable in 

court-martial trials are stated in 140 through 146. 
RULES OF EVIDENCE ll 140a 

140. CONFESSIONS AND ADMISSIONS; ACTS AND STATEMENTS OF CONSPIRATORS AND ACCOMPLICES. a. Confessions and 

admissions. (1) Def;nitions.A confession is an acknowledgment of guilt. An 

admission is a self-incriminatory statement falling short of an acknowledgment 

of guilt, even if it was intended by its maker to be exculpatory. 

(2) Vohntariness. To be admissible against him, a confession or admission of the accused must be voluntary. A confession or admission which was 

obtained through the use of coercion, unlawful influence, or unlawful inducement is not voluntary. See Article 31. 

Some instances of coercion, unlawful influence, and unlawful inducement 

in obtaining a confession or admission are: 

Infliction of bodily harm, including 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 was not made by the accused, or threats thereof if a 

statement is not made by him. 

Promises of immunity or clemency as to any offense allegedly committed by the accused. 

Promises of reward or benefit, or threats of disadvantage, likely to 

induce the accused to make the confession or admission. 

Obtaining the statement in violation of Article 31(b) or other warning requirements in this subparagraph (140a(2) ) as to the right to remain 

silent. 

Obtaining the statement in violation of the warning requirements in 

this subparagraph (140a(2) ) as to the right to counsel. 

1Q statement is obtained in violation of Article 31(b) if, without an adequate warning under that article, a person subject to the code or acting as an 

instrument of such a person or a unit of an armed force obtained it by official 

interrogation or request, formal or informal, from one who in connection with 

the interrogation or request was accused or suspected of the offense to which 

the statement relates. A statement is obtained in violation of other warning requirements as to the right to remain silent if any other official or agent of the 

United States or of any State thereof or political subdivision of either, or someone acting as an instrument of such an official or agent, obtained it by custodial 

interrogation from an accused or suspect without having, before any questioning, warned him of his right to remain silent and that anything said by him 

could be used against him in court. If before or during the questioning the accused or suspect indicates in any manner that he desires to exercise his right to 

remain silent and that desire remains in effect, any statement thereafter obtained from him by continued interrogation is considered to be the product 

of unlawful influence. and to be involuntary. 

A statement. is obtained in violation of the warning requirements as 

to the right to counsel if a person of the types described in the above paragraph 

obtained it by official interrogation from an accused or suspect when he was 

in custody without having, before any questioning, warned him of his right to 

consult, and to have with him at the interrogation, civilian counsel provided by 

him (or, when entitled thereto, civilian counsel provided for him) or, if the 

interrogation is a United States military interrogation, military counsel assigned to his case for the purpose. Even if such a warning and the warning 
1 140a CHAPTER XXVll 

of the right to remain silent were given, a statement obtained at the interrogation from the accused or suspect without the presence of counsel may be regarded as not being the product of unlawful influence, and as being voluntary, 

only if it is affirmatively shown that with respect to the statement the accused 

or suspect freely, knowingly, and intelligently waived his right to the assistance 

of counsel and to remain silent. 

A statement of an accused or suspect obtained from him in violation of 

any of the gbove warning requirements as to the right to remain silent or the 

right to counsel is considered to be involuntary, and therefore inadmisssuble 

against him, because of the violation alone, even if the accused or suspect knew 

that he had these rights despite the lack of warning. These warning requirements do not apply to the questioning of witnesses at a trial. 

A statement obtained from an accused or suspect in an interrogation 

conducted in accordance with all applicable rules is not involuntary because that 

interrogation was preceded by one which was not so conducted, if it clearly 

appears that all improper influences of the preceding interrogation had ceased 

to operate on the mind of the accused or suspect at the time he made the statement. See the last paragraph of 1506 as to the inadmissibility of evidence obtained as a result of information supplied by a statement obtained from thn 

accused by compelling him to incriminate himself, when the compulsion wap 

applied by certain persons acting in a governmental capacity. 

The admissibility of a confession or admission of the accused must be 

established by an affirmative showing that it was voluntary, unless the defense 

expressly consents to the omission of such a showing. If the statement of the 

accused was not obtained from him, but was made by him spontaneously, for example, without urging, interrogation, or request, it may be regarded as voluntary. However, when the statement was obtained from the accused, it may 

affirmatively be shown that it was voluntary by proof that its making was not 

induced by a threat, promise, or use of duress amounting to coercion, unlawful 

influence, or unlawful inducement and that any warnings required above as 

to the right to remain silent or to counsel were given. See the fourth paragraph 

of this subparagraph (140a(2)) as to the additional proof that is necessary 

in certain cases. 

The accused has the right to testify concerning the involuntary nature 

of his confession or admission without thereby subjecting himself to crossexamination upon other issues in the case or upon the truth or falsity of the 

statement, but he will be subject to proper cross-examination as to the voluntariness of the statement and as to his credibility. If he desires to exercise it, he 

should be accorded this right to testify before a ruling is made as to the admissibility of the statement. If he so requests, he should also be allowed, before 

such a ruling is made, to present other evidence for the purpose of showing 

that the statement was involuntary and to cross-examine any witness who has 

testified as to its voluntary nature. See 57g(2) as to hearings upon these matters 

conducted by the military judge out of the presence of the members of the court. 

A ruling of the military judge or the president of a special court-martial 

~\-ithout a military judge that a confession or admission of the accused is 

admissible does not establish for the members of the court that the statement was voluntary. Such a ruling, although it must be based on an interlocutory finding that the statement was voluntary, merely pl'ws the confession or admission before the members of the court, that is, the ruling is 
RULES OF EVIDENCE !I 140a 

final only on the question of admissibility. If a ruling has been made that a 

confession or admission of the accused is admissible and evidence raising an 

issue as to the voluntariness of the statement has been introduced in open 

session, the military judge, or the president of a special court-martial witllot~t 

a military judge, should instruct the court in open session that each member of 

the court, in connection wikh his deliberation upon the findings of guilt or innocence, should consider the evidence regarding the circumstaizces under which the 

statement was obtained with a view to determining whether the statement was 

voluntary and must disregard the statement entirely as evidence against the, accused if he is not convinced beyond a reasonable doubt that it was voluntary; 

that each member who so concludes that the statement mas voluntary should 

further consider the evidence regarding the circumstances under which the statement was obtained in determining the weight to be given to the statemeilk and 

should give weight to the statement only to the extent that he believes it to be 

truthful ; and that with respect to these matters each member should i11 no way be 

influenced by the ruling admitting the statement in evidence. So that the members of the court may properly apply the above instruction, the court should also 

be instructed concerning the legal aspects of voluntariness, including any requirement of a warning or understanding of a warning, pertinent to the case. 

(3) Purported confession or admission of the accused claimed not to 

hawe been made by him. The accused has the right to testify that he did not in 

fact make a confession ox admission asserted to have been made by him without 

thereby subjecting himself to cross-examination upon other issues in the case or 

upon the truth or falsity of the disputed statement, but he will be subject to 

proper cross-examination as to whether the statement was made by him and as 

to his credibility. If he so requests, the accused should be accorded this right 

to testify and an opportunity to show otherwise that the statement was not 

made by him before a ruling is made as to the admissiblity of the statement. 

See 57g(2) as to hearings upon these matters aonducted by the military judge out 

of the presence of the members of the court. If a confession or admission has 

been received in evidence as having been made by the accused and evidence 

has been introduced in open session raising an issue as to whether the statement 

was in fad made by the 'accused, the military judge, or the president of a special 

court-martial without a military judge, should instruct the court in 'open sessioil 

that each member of the court, in connection with his deliberation upon the 

findings of guilt or innocence, should consider the evidence as to whether the 

mused made the statement with a view to determining whether the statement 

was in fact made by the accused and, if he concludes that it was so made, with 

a view t9 determining the weight to be given to the statement; that he must 

disregard the statement entirely as evidence against the accused if he is not 

convinced beyond a reasonable doubt that it was in fact made by the accused; 

and that with respect to these matters he should in no way be influenced by the 

ruling admitting the statement in evidence. 

(4) Admission by silence. If an imputation against a person comes to 

his attention under circumstances that would reasonably call for a denial by 

him of the accuracy of the imputation if the imputation was not true, a failure 

on his part to utter such a denial mill support an inference that he thereby 

admitted the truth of the imputation. Thus, if a friend of A, in discussing the 

theft of a watch, says to A, "I saw you steal that watch last night," 

remains silent, competent evidence of these facts may, in a trial of A for 

and ,4 
ll 140a CHAPTER XXVll 

larceny of the watch, be introduced against A for the purpose of raising an 

inference that by his silence A admitted the truth of the imputation, for in 

such a case it could reasonably be concluded that A, if he was innocent, would 

have exclaimed to his friend that he had not stolen the watch. A person's 

failure to utter a denial of the correctness of an imputation concerning an 

offense for which, at the time of the failure, he was in confinement, arrest, or 

custody or for which, at that time, he was under official investigation cannot 

be made the basis for an inference of an admission of the truth of the imputation. The fact that on official questioning the accused, in the exercise of his 

rights under Article 31 (b) or its civilian counterpart (see the third paragraph 

of (2) above), r'emained silent or refused to answer a certain question is 

inadmissible against him. 

(5) Corroboration, of confessions and admissiom. It is a general rule that 

a confession or admission of the accused cannot be. considered as evidence 

against him on the question of guilt or innocence unless independent evidence, 

either direct or circumstantial, has been introduced which corroborates the 

essential facts admitted sufficiently to justify an inference of their truth. 

Other confessions or admissions of the accused, if they are themselves of a kind 

subject to this general rule, may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of some, 

but not all, of the essential facts admitted, then the confession or admission 

may be considered as evidence against the accused only with respect to those 

essential facts stated in the confession or admission which are so corroborated by 

the independent evidence. Although the independent evidence is usually introduced before introducing evidence of the wnfession or admission, the military 

judge or the president of a special court-martial without 'a military judge may 

as a matter of discretion admit the confession or admission in evidence prior to 

the introduction of the lindependent evidence upon the condition that the statement must be excluded and disregarded if the above requirement as to the introduction of independent evidence is not eventually met. The independent 

evidence need not of itself be suEcient .to establish beyond a rewonable doubt 

the truth of facts stated in the confession or admission. For example, if an 

accused charged with premeditated murder has voluntarily confessed that, 

intending 60 kill the alleged victim, he concealed himself so that he might 

surprise the vicbim at a certain place and, when the victim passed by,plunged 

a knife in his back, independent evidence that the victim was found dead as a 

result of a knife wound in his back at the place where, according to the confession, the incident occurred would support an inference of the truth of the 

essential facts 'admitted in the confession and would authorize consideration of 

the confession in determining whether the accused was guilty of premeditated 

murder. Although, to satisfy the requirement of corroboration of a confession 

or admission of an accused, the independent evidence need only raise an inference of the truth of the essential facts admitted, the accused cannot be convicted 

unless the confession or admission, together with the corrobotating and any 

other evidence, is sufficent to convince the court of the guilt of the accused beyond a reasonable doubt. The rule requiring independent corroborating evidence 

does not apply to a confession oradmission made by the accused before the court 

by which he is being tried. The rule requiring independent corroborating 

evidence also does not apply to statements made prior to or contemporaneously 
RULES OF EVIDENCE 1 140b 

with the act, nor does it apply to statements which are admissible to prove the 

truth of the matters stated under some rule of evidence other than that pertaining to the admissiblility of confessions and admissions. 

(6) MisceZZarwous. A confession or admission not made as testimony in 

the trial is admissible for the purpose of proving the truth of the matters stated 

in the confession or admission only when the person who made it is an accused 

in the case, and it is then admissible for that purpose only with respect to, and 

against, the accused who made it. These limitations do not apply, however, if 

the statement is admissible to prove the truth of the matters stated therein 

without regard to the fact that it is a confession or admission, as when in his 

testimony at a former trial of the accused an accomplice has made a confession 

damaging to the accused which is admissible as former testimony under 145b. 

If only part of a confession or admission or supposed confession or 

admission of the accused is shown, the defense by cross-examination or otherwise may introduce all other parts of the statement-which may consist of a 

connected series of statements-that are explanatory of, or in any way relevant 

to, that part. 

A voluntary oral confession or admission of the accused may be proved 

by the testimony of anyone who heard him make it, even if it was reduced to 

writing and the writing is not accounted for. 

A statement of the accused obtained from him in violation of Article 31 

or any of the warning requirements in (2) above, or through the use of coercion, 

unlawful influence, or unlawful inducement is not admissible in evidence even 

if it is offered against him for some purpose other than to establish a confession 

or admission. See Article 31 (d). For example, in a case in which a statement 

of the accused so obtained is charged as being false, it cannot be received in 

evidence to show that he made it. 

See 142e (Polygraph tests and drug-induced or hypnosis-induced 

interviews). 

b. Acts and statements of conspirators and accomplices. A statement, 

including non-verbal conduct amounting to a statement, made by one conspirator during the conspiracy and in pursuance of it is admissible in evidence 

for the purpose of proving the truth of the matters stated against those of his 

coconspirators who were parties to the conspiracy at the time the statement was 

made or who became parties to the conspiracy thereafter. The statement 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, the question as to 

whether the conspiracy existed and whether the statement was made in pursuance of it is, for the purpose of determining the admissibility of the statement, 

decided by the military judge or the president of a special court-martial without 

a military judge. However, at the discretion of the military judge or the president of a special court-martial without a military judge, the statement may be 

admitted in evidence without preliminary proof of these matters upon the 

condition that the statement must ultimately be excluded and disregarded if it 

is not afterwards shown to be admissible as coming within the rule under discussion or to be otherwise admissible. 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 
0 141 CHAPTER XXVll 

to prove the conspiracy, including evidence of statements offered for a purpose 

other than as tending to prove the truth of the matters stated, is admissible for 

the purpose of showing the existence of the conspiracy, and this is so even if the 

act or other conduct occurred after the conspiracy had ended. 

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 statemeht of Y or 

of Z made during the conspiracy and 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 seldom 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 was evidence of the conduct of a coconspirator. 

A statement made by one conspirator after the main objectives of the 

conspiracy have been achieved or abandoned does not become admissible against 

his coconspirators, for the purpose of proving the truth of the matters stated, 

merely because the statement was made in pursuance of a then existing common intent to conceal the conspiracy or otherwise avoid apprehension or punishment therefor. However, if it is shown that as part of the agreement constituting 

the conspiracy there existed an express agreement among the conspirators to 

continue, after the achievement or abandonment of the main objectives of the 

conspiracy, to act in concert with a view to concealing the conspiracy or otherwise avoiding its penal consequences, a statement made in pursuance of that 

express agreement by one conspirator after the achievement or abandonment 

of the main objectives of the conspiracy may be received in evidence against 

his coconspirators for the purpose of proving the truth of the matters stated 

if the statement is in other respects admissible for that purpose under the 

general rules set forth above. 

When two or more ,accused are tried at the same trial, evidence of a statement made by one of them which is admissible against him conly or against 

him and some, but not all, of his co-accused may not be received in evidence 

unless all references inculpating an accused against whom it is inadmlissible 

are effectively deleted or the maker of the statement becomes subject to relevant 

cross-examination. See also 1536(2) (c) as to the instruction which should be 

given in the case of inconsistent statements of a cc4conspirator or accomplice. 

Evidence that an accomplice of the accused was convicted of or pleaded 

guilty to the offense charged against the accused or an offense arising out of 

the same circumstances 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 INTERPRETERS. As a general rule, a statement made through an interpreter outside of a judicial proceeding 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, if other- 
RULES OF EVIDENCE n 141 

wise admissible, evidence of any of the following translations is admissible to 

prove the statement translated : 

A translation made by an agent of the accused, provided proof of the 

statement translated is to be used against the accused ; 

A translation made during and in pursuance of the common venture, 

but not necessarily'with knowledge of the venture, by an agent of a coconspirator or accomplice of the accused, provided proof of the statement 

translated is to be used against the accused ; 

A translation made by an agent of a witness, provided proof of the 

statement translated would tend to impeach the credibility of the witness. 

When admissible, evidence of a translation of a statement may be furnished by 

the testimony of any person who heard the trai~slation being made, or by a 

writing which contains the translation and which is admissible because acknowledged by the person who made the statement or for some other reason. When a 

party introduces evidence of only part of a translation of a statement, an 

adverse party may introduce evidence of all other parts of the translation that 

are relevant to that part. If a person who has carried on a conversation through 

an interpreter could have rejected the services of that interpreter or in any manner had agreed to his employment or to the accuracy of the translation, it may 

be considered that the interpreter was the agent of that person. The foregoing 

provisions as to statements made through interpreters relate only to permissible 

methods of proving the statements. Other rules should be consulted with respect 

to determining the admissibility of the statements themselves. See, for example, 

140a (Confessions and admissions), 1403 (Acts and statements of conspirators 

and accomplices), and 1533 (2) (c) (Inconsistent statements). 

When otherwise admissible, testimony given through a sworn interpreter 

at the trial in which it is offered may properly be received in evidence. Testimony 

of a witness given through an interpreter at another trial or hearing may be 

proved by the testimony of the interpreter. It may be also proved by the record 

of trial or hearing or by other evidence of the interpretation when the testimony 

of the witness is competent as former testimony under 1453, or otherwise, without a showing that the interpreter is unavailable. An interpretation may not be 

used to prove the truth of the testimony interpreted unless that testimony is 

itself competent as former testimony or is otherwise competent in the case being 

tried for the purpose of proving the truth of the matters stated. Subject to 

Arbicle 49, a deposition taken through a sworn interpreter may be read in 

evidence to the same effect that it could be had the deponent testified in the 

English language at the taking of the deposition (see 145a). Also, subject to 

Article 50, testimony through a sworn interpreter contained in a record of the 

proceedings of a court of inquiry may be read in evidence in a trial by courtmartial to the same effect that it could be had the testimony been given in the 

English language (see 1456). An interpreter who has made an affirmation to 

interpret truly is considered to be a sworn interpreter. 

Evidence of an interpreter's translation of a statement may be used, in a 

proper case, to enable the interpreter, or some other person who heard the statement being made and who understood it, to refresh his present recollection or 

show his past recollection concerning the statement, and this is so even if the 

evidence of the translation thus used would not itself be admissible to prove the 

statement. See 146a and the last paragraph of 149c(l) (b). 
11 142a CHAPTER XXVll 

A person who interprets at a trial is a witness with respect to the interpretation given by him. Consequently, under such limitations as the military judge 

or the president of a special court-martial without a military judge may 

proprly impose to prevent undue delay in the trial or to maintain an appropriate trial procedure in general, such a person is subject to the usual tests of 

credibility, including, in a proper case, cross-examination, impeachment, and 

contradiction by the testimony of other interpreters. See also 50. 

142. DYING DECLARATIONS; SPONTANEOUS EXCLAMATIONS; FRESH COMPLAINT AND LACK OF FRESH COMPLAINT; 

STATEMENTS OF MOTIVE, INTENT, OR STATE OF MIND OR 

BODY; POLYGRAPH TESTS AND DRUG-INDUCED OR HYPNOSISINDUCED INTERVIEWS. a. Dying declarations. In trials for homicide or 

for any offense resulting in the death of the alleged victim, whether or not 

homicide is charged, 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 those circumstances. To be admissible as a dying declaration, the declaration must have been made while the victim was in extremity and while he 

was under a sense of impending death and without hope of recovery. There is 

no requirement that death immediately follow the declaration, but if it was 

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. It may be 

shown that the victim was under a sense of impending death and was without 

hope of recovery by evidence that he made an assertion to this effect or by other 

competent evidence, including inferences from the nature and extent of the 

wound or illness. If not obtained by duress or under circumstances indicating 

that the declarant may have been misled, a dying declaration may be received 

in evidence even if it was made in answer to leading questions or upon urgent 

solicitation. The declaration may be by spoken words or intelligible signs or it 

may be in writing. 

*4 dying declaration is not admissible unless there is evidence that the 

declarant had an opportunity to observe the matters he purports to describe. 

Evidence that the declarant had such an opportuility may be supplied by assertions to that effect in the declaration itself or by direct or circumstantial 

evidence independent of the declaration. The fact that the declaration in question is in the form of a conclusion will not prevent it from being properly 

receivable in evidence as a dying declaration, unless it appears that the declarant was giving expression to suspicion or conjecture rather than to known facts. 

Except as otherwise indicated in the above second paragraph of this subparagraph, a dying declaration is not admissible in evidence as such if it would 

have been inadmissible as testimony given on the witiless stand by the declarant. 

For example, a dying declaration which was made by a person who would not 

have been competent as a witness is not admissible under this exception to tlze 

hearsay rule. 

Dying declarations are admissible both in favor of and against the accused. 

The utmost care should be exercised in weighing these declarations since they 

are often made under circumstances of nlental and physical debility and are not 

subject to the usual tests of veracity. A dying declaration and its maker may be 

contradicted and impeached in the same manner as o~ther testimol~y ancl wit- 
RULES OF EVIDENCE U 142b 

nesses (see 153b), and to discredit the declaration it may be shown that the 

declarant had a bad character either generally or as to specific traits or that he 

did not believe in future rewards and punishments. 

b. 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 participation in or observation 

of the event, as to warrant a reasonable inference that he made the utterance 

as an impulsive 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 cumpetent for this purpose. For example, in a prosecution for assault by 

stabbing, the testimony of a person who did not see the attack, but who came 

upon the alleged victim thereafter, that the victim, while visibly in agony as 

a result of the wounds received, cried out, "John Drew stabbed me !", is admissible to prove the exclamation of the victim, and the exclamation, thus shown 

to be a spontaneous exclamation, is admissible as tending to prove that the stabbing was done by a man named John Drew. 

An exclamation is not admissible as a spontaneous exclamation unless 

independent evidence of the startling event which gave rise to it and of an 

opportunity on the part of its maker to observe the event is introduced. The 

example given above of an admissible spontaneous exclamation made by the 

victim of a stabbing meets this requirement, for the testimony of the witness 

concerning the victim's wounds would supply independent evidence of both the 

startling event--the stabbing-and the opportunity for observation on the part 

of the vicitim. The fact that the exclamation is in the form of a conclusion will 

not prevent it from being properly receivable in evidence as a spontaneous exclamation, unless it appears that the person who made it was giving expression 

to suspicion or conjecture rather than to known facts. A spontaneous exclamation is not inadmissible because it was made by a person who is or would have 

been-by reason of infancy or mental infirmity, for exampleincompetent as a 

witness. 

Except as otherwise indicated in the above second paragraph of this subparagraph, a spontaneous exclamation is not admissible in evidence as such if 

it would have been inadmissible as testimony given on the witness stand by the 

person who made it. For example, a spontaneous exclamation is not admissible 

as such if the person who made it is 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). 

A spontaneous exclamation is admissible even though it was made by a person who is alive and whether or not he is available as a witness. It is not essential 

to the admissibility of a spontaneous exclamation that the event which called it 

forth be the act charged. 

The fact that the utterance was made in response to questioning does not 

necessarily indicate that it is not admissible as a spontaneous exclamation, but 

this fact should be considered in determining whether the utterance was impulsive and instinctive rather than the result of deliberation or design. Similarly, 

a lapse of time between the startling event and the utterance will not render the 
!l142d CHAPTER XXVll 

utterance inadmissible as a spontaneous exclamation if the person who made it 

was, at the time of making it, still in a condition of excitement, shock, or surprise 

caused by his observation of the event. 

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 made (see examples in 139b). The term res 

gestae cannot properly be used to describe any particular rule of evidence. 

c. Fresh complaint and lack of fresh complaint. In a prosecution for 

a sexual offense in which an alleged victim of either sex has testifiedkhat consent 

was lacking, evidence that the alleged victim made a complaint of the offense 

within a reasonable time after its commissioil is admissible for the purpose of 

corroborating the testimony of the victim, and this is so whether or not lack of 

consent is an element of the offense and even if the credibility of the victim has 

not been directly attacked. 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 is 

not admissible under this rule. However, a description of the details of the offense 

related during the course of making the complaint may be received in evidence 

if admissible as evidence of a consistent statement for the purpose of corroboration under 153a or if admissible under the spontaneous exclamation (142b), or 

any other, exception to the hearsay rule. 

In a prosecution for a sexual offense in which lack of consent is an element 

or in which the alleged victim has testified that consent mas lacking, evidence 

that the alleged victim failed to make a complaint of the offense within a reasonable time after its commission is admissible. If evidence of such a failure to 

make a complaint has been received, the military judge, or the president of a 

special court-martial without a military judge, should, upon request by the 

defense, instruct the members of the court in open session that this evidence may 

be considered only on the question of the credibility of the testimony of the 

alleged victim generally and, if lack of consent is (all element of an offense in 

issue, also on the question as to whether or not there was consent. 

Sexual offenses include all offenses of a sexual nature, such as rape, carnal 

kaowledge, sodomy, attempts to commit these offenses, assault with intent to 

commit rape or sodomy, and indecent assaults or acts. 

d. Statements of motive, intent, or state of mind or body. If a statement made 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 adduced by 

the prosecution or the court under this rule when the statement woulcl amount 

to an accusation that the accused coiilinittecl the act charged or that the act 

charged had been committed, even though the statement ~vould incidentally disclose a relevant motive, intent, or state of miiicl or bocly of the person ~vho made 

the statement. For example, in a case in which A is charwed with having mur- P clered B by poisoning him, and A maintains that the polson mas intentionally 

administered by R himself, the prosec~ltion may not show an absence of a 
RULES OF EVIDENCE 11 143a 

suicidal frame of mind on the part of B by introducing evidence that shortly 

before his illness B stated, '{I'm afraid A is putting poison in my food," or, 

"I'm afraid someone is putting poison in my food." On the other hand, had B7s 

statement been, "Iintend to buy a farm when I retire next year," evidence of 

that statement could be introduced by the prosecution 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 indicated by his statement that he is the 

Emperor Napoleon, the admissibility of evidence of the statement does not 

constitute an exception to the hearsay rule. Whatever the theory of admissibility, 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. 

The rule relating to the admissibility of evidence of statements of motive, 

intent, 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, unless the person whose motive, intent, or state of 

mind or body is so disclosed has in some manner approved of the statement. 

Thus, in a homicide case, evidence of a statement of the victim, not shown to 

have had the approval of the accused, to the effect that the victim was going to 

remain at home on the night of the homicide because the accused intended to 

visit him is not admissible to show an 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 person7s 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. 

Subject to the limitations pertaining to the admissibility of confessions or 

admissions (see 140a), evidence of statements of the accused tending to show a 

consciousness of guilt is admissible. Evidence of statements of the accused, not 

made under circumstances indicative of insincerity, tending to show a consciousness of innocence is also admissible, and this is so whether the statement 

was made before, during, or after the alleged offense. 

e. Polygraph tests and drug-induced or hypnosis-induced interviews. 

The conclusions based upon or graphically represented by a polygraph test and 

the conclusions based upon, and the statements of the person interviewed made 

during, a drug-induced or hypnosis-induced intervie~v are inadmissible in evidence in a trial by court-martial. 

143. DOCUMENTARY EVIDENCE-PROVING CONTENTS OF A 

WRITING; AUTHENTICATION OF WRITINGS ; CERTAIN PROCEDURAL MATTERS RELATING TO DOCUMENTARY EVIDENCE ; 

DEFINITION OF "WRITING". a. Proving contents of a writing. (1) Gen-
ll 143a CHAPTER XXVll 

eral rule, best evidence rule. A writing, to be admissible, must meet the requirements of one or more of the exceptions to the hearsay rule (see, for example, 

1446 as to official records and 144c as to business entries) or be otherwise 

admissible, must be properly authenticated (143b), and must, when applicable, 

meet the requirements of or fall within an exception to the best evidence rule. 

The best evidence wcle provides that, in proving the contents of a writing, the 

"original" of the writing is the best evidence of its own contents and must, 

therefore, be introduced except in certain situations described in 143a(2). The 

term "original" in this rule, in addition to its ordinary meaning, includes a 

carbon copy of a writing, as coniplete as the ribbon copy in all respects, including relevant signatures, if any, and includes an identical copy made by photographic or other dnplicating process for use as an original or as one of a number 

of originals. These copies are known as duplicate originals. Any other evidence 

of the contents of a writing, including testimony, is known as secondary 

evidence. 

In some cases, the terms of a copy or purported copy of a writing may 

themselves be relevant, without regard to the terms of-bhe original writing. In 

these cases, with respect to the operation of the best evidence rule, the copy in 

question is considered to be the "original." 

The best evidence rule applies only to methods of proving the contents of 

a writing, not to methods of proving matters which exist independently of a 

writing. Consequently, relevant matters existing independently of a writing 

in which they are recited may be proved by any competent evidence without 

regard to, or accounting for, the writing. Also, even if a writing satisfies the 

requirements of the best evidence rule or ail exception thereto, it may not be 

received in evidence to prove matters recited therein unless it is admissible for 

this purpose under some other rule of evidence. See, for example, 14471 (Official 

records) and 144c (Business entries). 

When evidence is offered to show the contents of a writing, any objection 

to the admission of the evidence on the ground that the document offered is not 

the original or a duplicate original and that the evidence offered is secondary is 

waived by a failure to object on that ground. Such a failure to object does not, 

however, necessarily constitute a waiver of other possible objections to the 

admissibility of the evidence. For example, it does not waive authentication of 

the writing (see 143b(l) as to waiver of authentication), nor will it render a 

writing competent if it would not otherwise be admissible for the purpose of 

proving the truth of the matters stated therein, such as a. writing which is 

hearsay and not within any of the exceptions to the hearsay rule. See 139a. 

(2) Exceptions to the best evidence rule. (a) Exceptions pertaining to 

zoritings lost, destroyed, infeasible to produce, or in the accused's possession and 

to machine, electronic, or coded writings. If it is shown that an admissible writing has been lost or destroyed or for any reason cannot feasibly 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 and can remember the substance of the writing. When the prosecution desires to introduce the contents of 

a writing the original of which has been shown to be in the possession of the 

accused, there is no requirement that a demand be made upon the accused for 

the production of the original before secondary evidence is admissible. Also, if 

an admissible machine, electronic, or coded writing (see 143d) is of a kind 
RULES OF EVIDENCE 5 143a 

which, without skilled interpretation, may be unintelligible or subject to misunderstanding, its contents may be proved and its meaning explained by the 

testimony of a witness sufficiently familiar with the system used in producing 

the writing to be able to interpret the writing accurately, or the contents of the 

writing may be proved by a machine "translation" authenticated by the testimony of a witness familiarwith the system used in producing the "translation." 

See also 143a(2)(c) and (e) and 1446 and c as to machine, electronic, or coded 

official records and business entries. 

(6) Summarization, of numerous or bulky writings. When admissible 

writings are so numerous or bulky that they cannot convenieiilly be examined 

by the court and the fact to be proved is the result of a summarizatioii of the 

whole collection, as ivhen the fact to be proved is the balance sliowii by account 

books, the collection may be summarized by a qualified person or group of qualified persons and he or a member of the group may testify as to the result of the 

summarization. In these cases, it must first be shown that the writings 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 result of a summarization 

of the whole collection; that the witness is qualified by training or experience 

to summarize the writings; that he or a group of which he was a member composed of persons qualified by training or experience for their respective tasks 

examined and summarized the whole collection; and that the opposite party had 

access to the writings on which the summarization was based. The writings may 

be examined and summarized by mechanical or electronic means. The opposite 

party may question the witness and his associates concerning the writings and 

may have as many of the writings, or authenticated copies thereof, as are necessary for this purpose produced in court. A showing of the qualifications of the 

witness, or of any person associated with him in the examination and summarization of the writings, can be waived by a failure to object on the ground of a 

lack of such a showing to the testimony of the witness. 

(c) Copies and official pu6licatiom of official records. An official record 

(1446) kept in official custody, if admissible for any purpose, may be evidenced 

by a properly authenticated (1436(2)) copy, without first proving that the 

original has been lost or destroyed and without otherwise accountiiig for the 

original. If the record is written in a spoken language or is pictorial (see 144e), 

only an exact (true) copy is admissible under this exception to the best evidence 

rule, although it &ay consist merely of an extract of those portions relevant to 

the case and handwritten portions may be copied in type when the handwriting 

is not to be evidenced by the copy. The copy may be made by photographic or 

other duplicating process. If the record is a machine, electronic, or coded record, 

the copy or extract copy may consist of an accurate written "translation" of the 

record, whether made by machine or by a person. See also the second paragraph 

of 1446 as to government records photographically or otherwise reproduced in 

the regular course of business. An official record, if admissible for any purpose, 

may also be evidenced by an official publication thereof, without accounting for 

any other form of the record. 

(d) Summaries of oflicial records. If the head of an executive or military department or independent governmental agency determines that it would 

be detrimental to the public interest to disclose the text or informational source 

of a certain official record kept under the authority of the department or agency, 

a properly authenticated (143b(2) (f) ) certificate or statement signed by him, or 
11 143a CHAPTER XXVll 

by his deputy or assistant, setting forth a summary of the record is as admissible 

in evidence as the record itself, provided that the certificate or statement contains a statement to the effect that the above-mentioned determination was made. 

Also, any admissible foreign official record may be evidenced by a properly 

authenticated (1433(2) (f)) written summary if the foreign jurisdiction will 

not furnish an exact copy or extract of the record. Unless otherwise indicated by 

a provision of this manual or by a rule of law generally applicable in criminal 

cases in the United States district courts, however, other summaries of official 

records are not admissible. 

(e) Copies of 6anking entries. A business entry (1440) of a business 

regularly but not necessarily exclusively engaged in public banking activities 

may, if the entry relates to these activities and is admissible for any purpose, 

be evidenced by a properly authenticated (1433(3) ) copy, without first proving 

that the original has been lost or destroyed and without otherwise accounting 

for the original. If the entry is written in a spoken language, only an exact 

(true) copy is admissible under this exception to the best evidence rule, although 

it may consist merely of an extract of those portions relevant to the case and 

handwritten portions may be copied in type when the handwriting is not to be 

evidenced by the copy. The copy may be made by photographic or other duplicating process. If the entry is a machine, electronic, or coded.entry, the copy or 

extract copy may consist of an accurate written "translation" of the entry, 

whether made by machine or by a person. See also the second paragraph of 

1440 as to business entries photographically or otherwise reproduced in the 

regular course of business. 

(f ) Certificates of fi.ngerprint comparison, and identity. A certificate 

or statement signed by a custodian of personnel or fingerprint records of an 

armed force of the United States, or by his deputy or assistant, that a qualified 

fingerprint expert on duty with the custodian has compared certain attached 

fingerprints-those which had been forwarded for the purpose of comparisonwith fingerprints in the custodian's custody of a person described in the certificate by name, military status, and service number, and that the attached fingerprints and the fingerprints with which they were compared have been found 

by the expert to be those of one and the same person, is admissible as evidence 

that the identity and military status of the person whose fingerprints are attached are as described in the certificate. A similar certificate or statement 

signed by a custodian, or by his deputy or assistant, of fingerprint records of 

any department, bureau, or agency of the Federal government of the United 

States is equally admissible. The attached fingerprints may be identified as 

those of a certain person by the testimony of the person who took them, by the 

testimony of anyone who observed the taking of the fingerprints, or by other 

competent evidence. 

(g) Evidence of a6sence of officiaZ record. A properly authenticated 

(1436(2) (f)) certificate or statement to the effect that after diligent search 

110 record or entry of a specified tenor was found to exist in certain official 

records designated by the certificate or statement, signed by the custodian of 

the records, by his deputy or assistant, or, as to foreign official records, by any 

person authorized in the place where the records are kept to make the certificate 

or statement, is admissible as evidence that the designated official records contain no record or entry of the specified tenor; ahd a properly authenticated 

certificate or written statement which is otherwise acceptable as proof of thc 
RULES OF EVIDENCE U 143b 

nonexistence of a record or entry under the law of the place where the official 

records are kept or under any law of the United States is likewise admissible. 

It may also be shown that certain official records contain no record or entry of 

a specified tenor by the testimony of the custodian of the records, by the testimony of his deputy or assistant, or by the testimony of any person who searched 

the records or was a member of a group which searched them and who is familiar with the product df the group and qualified to testify thereto. Official 

records may be searched by physical, mechanical, or electronic means. If a 

disputed fact or event is of a kind which within the scope of an official duty 

would have been made the subject of a record or entry in certain official records, 

proof that these records contain no record or entry of the fact or event may 

be received as evidence that the fact does not exist or that the event did not 

occur. 

(h)Esidence of absence of business entry. It may be shown that 

certain business entries contain no record or entry of a specified tenor by the 

testimony of the person in charge of the entries, by the testimony of his 

assistant, or by the testimony of aily person who searched the entries or was a 

member of a group which searched them and who is familiar with the product 

of the group and qualified to testify thereto. Also, as to those business entries 

of a business regularly but not necessarily exclusively engaged in public banking activities which relate to these activities, a properly authenticated (1436 (3) ) 

certificate or statement to the effect that after diligent search no record or entry 

of a specified tenor was found to exist in certain of these entries designated 

by the certificate or statement, signed by the person in charge of the entries 

in question or his assistant, is admissible as evidence that the designated business entries contain no record or entry of the specified tenor. The entries 

searched may be indicated in the certificate or statement as being in fact business entries relating to public banking activities in a manner similar to that 

described in 1433(3) with respect to a certificate or statement authenticating 

a banking entry or copy thereof. Business entries may be searched by physical, 

mechanical, or electronic means. If a disputed act, transaction, occurrence, or 

event is of a kind which in the regular course of business would have been 

made the subject of a record or entry in certain business entries, proof that 

these business entries contain no record or entry of that act, transaction, occurrence, or event may be received as evidence that the act, transaction, occurrence, 

or event did not take place. 

(i) Copies of tebgrams and radiograms. See the second paragraph 

of 143b(l) as to copies of telegrams and radiograms. 

b. Authentication of writings. (1) General. A writing that is not 

authenticated may not be introduced in evidence as being genuine, but authentication can be waived by a failure to object on the ground of lack of proof 

of authenticity to the reception in evidence of the writing. A mere failure to 

object on this ground to the reception in evidence of a writing, however, will 

add nothing to the evidentiary nature of the writing. For example, it will not 

render a writing competent if it would not otherwise be admissible for the 

purpose of proving the truth of the matters stated therein, such as a writing 

which is hearsay and not within any of the exceptions to the hearsay rule. 

See 139a. A writing may be authentic&ted by any competent proof that it is 

genuine-is in fact what it purports or is claimed to be. It may be authenti- 
U 143b CHAPTER XXVll 

cated by a. certificate or other written statement only when the certificate or 

statement is admissible for this purpose as an exception to the hearsay rule. 

See 1436 (2). (Authentication of official records) and 143b (3) (Authentication 

of banking entries). When so admissible and itself properly authenticated 

(see, for example, the second paragraph of 143b (2) (a)), the certificate or other 

written statement may be introduced in evidence to prove the truth of all 

authenticating facts stated or indicated therein, including the stated or indicated identity, position, and duties of the signer thereof. 

A letter or similar written communication, or a telegram or radiogram, 

purporting to be a reply from the addressee of a written or other type of 

message shown to have been communicated to that addressee or to have been 

placed in a reliable channel of communication may be inferred to be genuine. 

A purported reply, however, is not to be considered as evidence of the genuineness of the letter or other type of communication to which the reply was purportedly made. The contents of a telegram or radiogram in the terms in which 

it was filed for transmission may, if admissible, be evidenced by the original 

filed for transmission or, without accounting for that original, by any copy 

of the message, whether or not made as a memorandum or record, which was 

made in the regular course of business of a military or civilian transmitting 

or receiving agency, including such a copy delivered to the addressee of the 

telegram or radiogram. Any copy so made may be inferred to be an accurate 

copy of the original message. Likewise, the contenis of a telegram or radiogram in the terms in which it was received by the addressee may, if admissible, 

be evidenced by the copy received by the addressee or, without accounting for 

that copy, by the original filed for transmission or by any copy of the kind 

referred to above. See the third paragraph of 1446 for an application of the 

principle of inferred genuineness of replies in relation to checks returned with 

payment refused. 

%hen there is a question as to whether certain handwriting is that of a 

certain person, as when the question is whether a signature appearing on a 

check or on an admissible photographic copy thereof is in fact the signature 

of the person who purportedly signed the check, any proved-by evidence raising an inference of genuineness-or admitted specimen of the person's handwriting is admissible in evidence for the purpose of comparison by witnesses 

or the court to prove that the handwriting in question is or is not the person's 

handwriting. Also, when there is a question as to whether certain handwriting 

is that of a certain person, the opinion of a handwriting expert (see 138e), or 

of anyone acquainted with the person's handwriting, to the effect that the handwriting is or is not that of the person is admissible in evidence. Anyone who, 

under circumstances which enable him to form a belief as to the character of a. 

person's handwriting, has seen another write by hand or has seen handwriting 

which can reasonably be believed to be that of a person may be considered to be 

acquainted with the handwriting of that person. Examples of handwriting 

which can reasonably be believed to be that of a certain person are handwriting 

purporting to be his apparently written in the ordinary course of business and 

handwriting purporting to be his in a letter apparently written by him in reply 

to z letter shown to have been mailed to him. A failure by a party to object to the 

reception in evidence of a writing on the ground that the genuineness of a certain 

signature or certain other handwriting appearing thereon has not been ~110~~11 
RULES OF EVIDENCE 11 143b 

may be regarded as a waiver by him of that objection if he does not contest the 

general authenticity of the writing. 

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 authenticity upon 

the altered part may be received in evidence as being genuine unless the alteration is satisfactorily explained or authentication has been waived. 

Upon cross-examination of a witness who has testified concerning his opinion as to whether certain handwriting was that of a certain person, unidentified 

specimens of the handwriting or purported handwriting of that person or of 

others may be used for the purpose of testing the credibility of the opinion of the 

witness, whether or not the unidentified specimens had previously been authenticated in the case or would otherwise be admissible if authenticated. After the 

specimens have been so used, they may be authenticated and introduced by either 

party if this has not already been done in some other connection. In the interest 

of fairness s~lld orderly procedure, the miliitary judge or the president of a special court-martial without a milihary judge may impose reasonable conditions 

upon the use of this method of testing the credibility of the opinion of the handwriting witness, as by requiring that the witness be given adequate time and 

opportunity to study the unidentified handwriting specimens. 

(2) Authentication of official records. (a) General provisiom and definitim. Like any other writing, an official record (1443) or copy thereof must 

be properly authenticated if it is to be introduced in evidence as being genuine, 

although authentication can be waived by a failure to object on the ground of 

lack of proof of authenticity to the reception in evidence of the writing. Official 

records kept in official custody are ordinarily evidenced by properly authenticated copies. Original official records may be authenticated in the same manner 

as copies, except that if an attesting certificate is used for this purpose it will 

indicate that the attested writing is an original. See also the fourth paragraph 

of 1433 (2) (f). When used .in connection with a copy of an official record, 

an "attesting certificate'' is a certificate or statement, signed by the custodian 

of the record or his deputy or assistant, which in any form indicates that the 

writing to which the certificate or statement refers is a true copy of the record 

(or an accurate "translation" of a machine, electronic, or coded record) and 

that the signer of the certificate or statement is acting in an official capacity as 

the person having custody of the record or as his deputy or assistant. See, however, the last paragraph of 1433 (2) (e) as to the signer and form of a certificate 

or statement attesting a copy of a foreign official record. An "authenticating 

certificate" is a certificate or written statement which in any manner indicates 

that the signature on the attesting certificate is genuine. When an authenticating certificate or any certificate or written statement in the chain of authentication of an official record or copy thereof indicates the genuineness of the official position, of the purported signer of another certificate or statement in the 

chain, such an indication may be inferred to be also an indication that the 

signature on that other certificate or statement is genuine. 

A custodian of an official record is a person who has official custody 

thereof, that is, a person who is the official keeper of the record, as distinguished 

from a person who has mere manual possession of the record for official or 

other purposes. If a certificate or statement in the previously described form 

of an attesting certificate is itself properly authenticated, this official custody 

in the person indicated in the attestation as having clistody of the record, and 
U 143b CHAPTER XXVll 

the status as his deputy or assistant of one who has signed the attestation in that 

capacity, may be inferred. Some attesting certificates may be authenticated by 

taking judicial notice of the signature thereto. Others require authentication by 

a proper and judicially noticeable seal, by an accompanying certificate or statement in the chain of authentication having a proper and judicially noticeable 

signature or seal, or by other proof of genuineness, according to whatever procedure is adequate to authenticate the official record or copy thereof attested . 

and, consequently, the attestation. See the following provisions of 1433 (2) 

and see 147a (Judicial notice). An authenticating certificate, or any certificate 

or written statement in the chain of authentication, may be similarly 

authenticated. 

(b) Military records. A copy of an official record of the Department 

of Defense or any department, agency, bureau, branch, force, command, or 

unit thereunder, of the Coast Guard or National Guard or any of their subordinate commands or units, or of a military agency or unit of an ally of the 

United States may be authenticated by the seal, inked stamp, or other identification mark of that department, agency, bureau, branch, force, command, or 

unit or by an attesting certificate. Thus, an attesting certificate reading, "A 

true (extract) copy of the original in the custody of the [Adjutant General, 

First Infantry Division] [Director of Administrative Services, First Air 

Division] [Commanding Officer (USS) (USCG ) 1: 

/s/ John Smith, [Major (Asst Adjutant General, First Infantry Division) 

(Director of Administrative Services, First Air Division)] [LCDR, (U.S. 

Navy) (U.S. Coast Guard), Personnel Officer, (USS) (USCG 1 

1," may be considered to be an authentication of a copy of an 

official record in the custody of the custodian mentioned in the attesting 

certificate. 

(c) United States records. A copy of an official record of the United 

States, of a Commonwealth or possession thereof or any political subdivisioil 

of that Commonwealth or possession, or of the District of Columbia may be 

authenticated by : 

Any indication under the seal of the United States, the seal of the 

Commonwealth or possession or political subdivision thereof in which the 

record is kept, or the seal of the District of Columbia as to records kept 

therein that the writing is a true copy .(or an accurate "translation" of a 

machine, electronic, or coded record) ; 

Any authentication provided for by any law of the United States, 

including rules of criminal procedure for the United States district courts 

made pursuant thereto, or by any law of the Common~.vealth or possession 

or political subdivision thereof in which the record is kept or of the District 

of Columbia as to records kept under its authority ; 

An attesting certificate, without further authentication, as to records 

kept under the authority of any department, bureau, agency, office, or court 

of the Federal government of the United States ; 

An attest~ng certificate, under the seal of the department, bureau, 

agency, office, or court in which the record is kept or under the seal of office 

of an official or office having a seal of office and having supervision over 

the department, bureau, agency, or office in which the record is kept, or 

a11 attesting certificate, accompanied by an authenticating certificate uncler 

the seal of office of an official having a seal of office and having supervision 

27-3 2 
RULES OF EVIDENCE li 143b 

over the department, bureau, agency, or office in which the record is kept, 

and signed by such an official or his deputy or assistant; 

An attesting certificate, under the seal of a court, or the seal of a judge 

or clerk of a court, existing by authority of a law of the United States 

and located in the district, Commonwealth, or possession in which the 

record is kept or existing by authority of the Commonwealth or possession 

or political subdivision thereof in which the record is kept or of the District 

of Columbia as to records kept therein, or an attesting certificate, accompanied by an~authenticating certificate signed by a judge or clerk, including 

a deputy or assistant clerk, of such a court under the seal of the court or 

the seal of a judge or clerk thereof ;or 

An attesting certificate, accompanied by an authenticating certificate 

under the seal of office of an official having a seal of office and having duties 

by authority of the United States in the district, Commonwealth, or possession in which the record is kept, or having duties in, and by authority of, 

the Commonwealth or possession or political subdivision thereof in which 

the record is kept, or having duties in, and by authority of, the District of 

Columbia as to records kept therein, and signed by such an official or his 

deputy or assistant. 

The uncapitalized word "district" as used above means a judicial district 

of the United States. As used with reference to possessions of the United States 

in this subparagraph (143b (2) (c) ) and in 147a (Judicial notice), the word L Lpossession" includes, in addition to those possessions of the United States 

designated as such by law, any trust territory administered by the United States 

and any territory or area administered by the United States by treaty, executive 

agreement, or act of Congress, whether or not sovereignty thereover exists in 

the United States. 

A copy of an official record of a former Territory or possession of the 

United States or a political subdivision of such a former Territory or possession 

may be authenticated as though the record was originally an official record of 

the governmental unit having custody thereof at the time of authentication. 

(d) State records. A copy of an official record of a State of the United 

States or of a political subdivision of a State may be authenticated by : 

Any indication under the seal of the State or political subdivision 

thereof in which the record is kept that the writing is a true copy (or 

an accurate "translation" of a machine, electronic, or coded record) ; 

Any authentication provided for by the law of the State or 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, or the seal of a 

judge or clerk of a court, existing by authority of the State or political 

subdivision thereof in which the record is kept, or an attesting certificate, 

accompanied by an authenticating certificate signed by a judge or clerk, 

including a deputy or assistant clerk, of such a court under the seal of 

the court or the seal of a judge or clerk thereof ;or 

An attesting certificate, accompanied by an authenticating certificate 

under the seal of office of an official having a seal of office and having 

duties in, and by authority of, the State or political subdivision thereof 

in which the record is kept, and signed by such an official or his deputy or 

assistant. 

27-33 
143b CHAPTER XXVll 

(e) Foreign, records. A copy of an official record of a foreign country 

or political subdivision thereof may be authenticated by : 

Any indication under the great seal (seal of state) of the foreign 

country in which the record is kept that the writing is a true copy (or an 

accurate "translation" of a machine, electronic, or coded record) ; 

Any authentication provided for by the law of the foreign country 

or 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 and treaties to which the 

United States is a party; 

An attesting certificate, accompanied by an authenticating certificate 

signed by a United States secretary of embassy or legation, consul general, 

consul, vice consul, consular agent, or foreign service officer or by a diplomatic or consular official of the foreign country assigned or accredited 

to or recognized by the United States ;or 

An attesting certificate, accompanied by a certificate or statement 

signed by a United States secretary of embassy or legation, consul general, 

consul, vice consul, consular agent, or foreign service officer, or by a diplomatic or consular official of the foreign country assigned or accredited to 

or recognized by the United States, which indicates the genuineness of the 

signature of any foreign official whose certificate or written statement 

indicating genuineness of signature relates to the attestation or is in a 

chain of certificates or written statements indicating genuineness of signature relating to the attestation. 

As to the last two methods of authenticating a copy of a foreign 

official record set forth above, if armed forces of the United States or an 

ally thereof are stationed in, passing through, or occupying the foreign country 

or place in which the record is kept, the certificate or statement furnishing the 

authentication of a copy of the record may be signed by an officer commanding 

or administering any unit or agency of those armed forces or by his deputy or 

assistant or any judge advocate, law specialist, or legal officer or advisor serving 

under him, instead of by a diplomatic or consular official. Such an authentication is ha1 if made by a commissioned officer of the United States. If the 

person providing the authentication is not a commissioned officer of the armed 

forces of the United States, final authentication shall be furnished by a certificate or statement signed by a commissioned officer of the United States 

indicating that the signature on the authenticating certificate is genuine. 

If a foreign certificate or statement in the chain of authentication of 

a copy of a foreign official record is under the seal of a foreign official or agency, 

the seal, instead of the signature on the certificate or statement, may be indicated 

as being genuine by the next certificate or statement in the chain. 

A certificate or statement attesting a copy of a foreign official record 

may be signed by the custodian of the record or his deputy or assistant or by 

any person authorized in the place where the record is kept to attest a copy of 

the record, and the attestation may be in any form authorized in that place. If 

a certificate or statement attesting a copy of a foreign official record is itself 

properly authenticated, it may be inferred that the attestation and the form 

thereof are authorized in the place where the record is kept. 

(f) Miscellaneous. Copies of foreign, or other, official records and 

their attesting, authenticating, and other accompanying certificates or state- 
RULES OF EVIDENCE ll 143b 

ments, when written in a language other than English, may be translated 

through the testimony of one having linowleclge of the language concerned. 

Also, a written translation accompanyiag an attesting, authenticating, or other 

certificate or written statement in the chain of authenticatioii is as admissible as 

the writing translated aid may in the absence of an objection to its accuracy be 

inferred to be an accurate translation. 

In addition to the methods of authentication set forth in the foregoing provisions of 1432, (2), an official recorcl or a copy thereof may be anthenticated by the testimony of any person, based on his personal Irno\vledge, to the 

effect that the writing in question is an official record or mas obtained by him, 

as a record, from the proper official custody or that the writing is a correct copy 

of such a record or of :I record thus shown to be an official record by the testimony of another, as the case may be. Also, if an attesting certificate, or any certificate or written statement in the chain of authentication, is directly authenticated by admissible testimony or in any other manner, it need not 

be accompanied by whatever additional certificates or statements might otherwise be required by the foregoin& provisions of 1436 (2). Thus, if an attesting 

certificate, or any certificate or statement in the chain of authentication, is apparently signed by a proper person or is apparently under a proper seal and that 

signature or seal is sho~r-11 to be genuine by aclmissible testimony, the certificate 

or statement may be considered to be an authenticatioiz of the official record, or 

copy thereof, to which it pertains, provided that when the certificate or statement is not an attesting certificate the intervening written authentication meets 

applicable requirements. . 

If an original official record is subscribecl by a judicially noticeable 

signature or is under a judicially noticeable seal or symbol (see 147a), that 

original (or an aclmissible photographic or other. facsimile thereof, for example, a facsimile itself admissible as an official record) may be authenticated 

by taking judicial notice of the signature, seal, or symbol. 

A certificate or statement that no record or entry of a specified tenor 

was found to exist in certain official records (143a(2) (g)) may be authenticated in the same inanner as a certificate or statenzent attesting a copy of :L 

record taken from those official records. The inferences applicable to a properly 

authenticated attesting certificate (see the last paragraphs of 1433 (2) (0) ancl 

(e)) are similarly applicable to a properly authenticated certificate or statement 

of the nonexistence of an official record or entry. A certificate or statement of 

the head of an executive or military department or inclependent governmental 

agency, or his deputy or assistant, setting forth a suilimary of en official record 

the text or informational source of which should not be disclosed (1430 (2) (cl)) 

may be authenticated in the same manner as a certificate or staleinent attesting 

a copy of that record. A written summary of a foreign official record 

(143a(2) (d)) may be authenticated in the same inanner as a copy of the record, 

although an attesting certificate or other identification in this case will refer 

to a summary instead of a copy. A document that, on its face, appears to be an 

official publication of an official record is admissible as being in fact a11 official 

publication of the record unless it is shown to lack that character. 

(3) Autfientication of banking entries. A business entry, or copy thereof, 

of a business regularly but not necessarily exclusively engaged in public banking activities may, if the entry relates to these activities, be authenticated by a 

certificate or statement, signecl under oath before a notary public by the person 
ll 144b CHAPTER XXVll 

in charge of the business entry or his assistant, which in any form indicates that 

the writing to which the certificate or statement refers is the entry itself or a 

true copy thereof (or an accurate translation^' of a machine, electronic, or 

coded entry), as the case inay be, that' the entry mas made as a inemoranduin 

or record in the regular course of the business and relates to its public banking activities, and that the signer is the person in charge of the entry or his 

assistant, accompanied by a statement signed by the not,ary, under the seal of 

his office, which indicates that the certificate or statement was signed under 

oath before him. A certificate or statement that after diligent search no record 

or entry of a specified tenor was founcl to exist in certain entries of this kind 

(see 143a(2) (A)) also may be authenticated by an Ilccomparlying statement 

signed by a notary public, under the seal of his office, which indicates that the 

certificate or statement was signed under oath before him. When a certificate 

or statement of either of these two types is notarized as provided above, it inay 

be inferred that a person who has signed it as the person in charge of the business entry or entries referred to therein, or as his assistant, in fact occupies that 

status. 

A business entry, or copy thereof, of the kind mentioned above may also 

be authenticated in the same manner as any business entry. See 1440. 

c. Certain procedural matters relating to documentary evidence. See 

539, 54d7 and 579. Before a ruling is made upon an objection to the reception in 

evidence of a writing, the objecting party, on request, will be allowed to support 

t,he objection by argument, the presentation of evidence, and proper crossexamination of witnesses who have testified concerning the writing. 

A writing does not become admissible against a party merely because he 

requested its production or inspected it. 

d. Definition of "writing." The word "writing'! as used in this chapter 

(XXVII), means every method of recording data upon any medium. For 

example, it includes handwriting, typewriting or other machine writing, printing, and a11 documentary, pictorial, photographic, chemical, mechanical, or electronic recordings or representations of facts, events, acts, transactions, communications, places, ideas, or other occurrences or things, whether expressed by 

worcls, letters, numbers, pictures, signs, symbols, marks, or chemical, mechanical, or electronic media, including all types, of machine, electronic, or coded 

records, memoranda, or entries. 

144. OFFICIAL WRITINGS ; OFFICIAL RECORDS ; BUSINESS 

ENTRIES; LIMITATIONS AS TO THE ADMISSIBILITY OF OFFICIAL RECORDS AND BUSINESS ENTRIES; MAPS, PHOTOGRAPHS, SKETCHES, CHARTS, AND FINGERPRINTS; BUSINESS, 

PROFESSIONAL, OR PUBLIC LISTS AND DIRECTORIES. a. Official 

writings. The fact that a writing is an official writing docs llot in itself make 

the writing admissible in evidence for the purpose of proving the truth of the 

inatters stated therein. A11 official writing may be admitted in evidence for this 

purpose only when it comes within an exception to the hearsay rule. 

b. Official records. A writing made as a record of a fact or event, whether 

the writing is in a regular series of records or consists of a report, finding, or 

certificate, is admissible as evidence of the fact or event if it was made by any 

person within the scope of his official duties and those duties included a duty to 
RULES OF EVIDENCE Q 144c 

know, or to ascertain through appropriate and trustworthy channels of information, the truth of the fact or event, and to record such fact or event. It may be 

inferred that : 

A person who had these duties performed them properly ;and 

A foreign or domestic record of a fact or event purporting or indicated 

to have been officiglly made or kept meets all the above requirements for 

admissibility, if the record is properly authenticated or authentication is 

waived, in accordance with 143b (2). An official duty is any duty included 

in a military or civilian governniental function. 

Examples of military records containing entries which may be admissible 

under this exception to the hearsay rule are enlistment papers, physical examination papers, outline-figure and fingerprint cards, morning reports, service 

records, officer and enlisted qualification records, records of court-martial convictions, logs, unit personnel diaries, individual equipment records, guard 

reports, daily strength records of prisoners, and rosters of prisoners. 

If admissible under this exception, an official record is not subject to objection on the grouncl that it mas copied or compiled from notes, memoranda, or 

other writings or from other official records, nor is it otherwise subject to objection on the ground that it is secondary evidence. See 143n(2) as to those copies 

and summaries of official records which are not themselves admissible as official 

records but are admissible under an exception to the best evidence rule. 

If a machine, electroaic, or coded official record is of a kind ~vhich, without 

skilled interpretation, may be unintelligible or subject to misunderstanding, its 

contents may be proved and its meaning explained by the testimony of a witness 

sufficiently familiar with the system used in producing the record to be able to 

interpret the record accurately, or the contents of the record may be proved by 

a machine "translation" authenticated by the testinlony of a witness familiar 

with the system used in producing the "translation." Also, written "translations" of machine, electronic, or coded official records, whether made by machine 

or by a person and however properly authenticated, are admissible if they are 

otherwise within an exception to the best evidence rule (see 143u(2) (c) ) or if 

they were themselves made as official records. 

c. Business entries. Ally writing or record, whether in the form of any 

entry in a book or otherwise, made as a memorandunl or record of any act, 

transaction, occurrence, or event is admissible as evidence of the act, transaction, 

occurrence, or event, if made in the regular course of any business and if it was 

the regt~lar course of that business to make the memorandum or record at the 

time of the act, transaction, occurrence, or event or within a reasonable time 

thereafter. All other circumstailces of the lnaking of the writing or record, 

including lack of personal knowledge by the entrant or inaker, may be shown to 

affect its weight, but these circumstances ~vill not affect its admissibility. The 

term "business," as used with respect to business entries, includes a business, 

profession, occupation, or calling of any kind. 

If in the regular course of business or activity any business, institution, 

department or agency of government, or member of a profession or calling has 

kept or recorded any rnemorandmn, ~vriting, entry, print, representation, or 

combination thereof of any act,, transaction, occurrence, or event, and in the 

regular course of business has caused any or all of the same to be recorded, copied, 

or reproduced by any photographic, photostatic, microfilm, microcard, minia- 
11 144c CHAPTER XXVll 

ture photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in 

the regular course of business unless its preservation is required by law or regulation. Such a reproduction, when satisfactorily identified, is as admissible in 

evidence as the original itself whether the original is in existence or not and an 

en1 argement or facsimile of the reproduction is likewise admissible in evidence 

if the original reproduction is in existence and available for inspection under 

the direction of the court. Also, whether or not the reproduction is available, a 

properly authenticated copy of the reproduction is admissible in evidence subject to the same conditions of admissibility that would apply to a properly 

authenticated copy of the original itself. See 143a (2) (c) and (e) . These rules 

relating to the destruction of originals and to the admissibility of reproductions 

and facsimiles, enlargements, and authenticated copies of reproductions, will 

not preclude admission of the originals or exclude from evidence any writing or 

copy thereof which is otherwise admissible under the rules of evidence. 

A writing purporting to be a memorandum or record of an act, transaction, occurrence, or event may be authenticated as a business entry by proof 

that it came through a reliable source from a business whose regular course 

it was to make a memorandum or record of the act, transaction, occurrence, 

or event, for it may be inferred from this proof that the writing was in fact 

inade as a memorandum or record in the regular course of that business. Also, 

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. Thus, if the holder of a check, draft, or other order for the 

payment of money upon a bank or other depository, or a person or organiz a t'ion 

acting on behalf of the holder, presents the instrument through regular banking 

channels for payment, collection, or deposit and the instrument is returned to 

the holder or his agent purportedly through regular banking channels with 

a notation in the form of a stamp, ticket, or other writing'either on the instmment itself or accompanying it, purportedly inade by the drawee or presenting 

bank or other depository or clearinghouse, indicating that payment of the 

instrument has been refused by the drawee because of insufficient funds of the 

inaker or drawer in the drawee's possession or control or for other reasons, proof 

of the above facts will support an inference of the authenticity of the notation 

as having been made as a memorandum or fecord in the regular course of a 

banking business. The notation if thus authenticated, is admissible under the 

business entry exception to the hearsay rule as evidence that payment of the 

instrument was refused by the drawee for the reasoils indicated in the notation, 

and this is so whether or not a similar notation also made as a memorandum or 

record was kept in the drawee or presenting bank or other depository or clearinghouse. See also 1433 (3) regarding the authentication of banking entries. 

If admissible under the business entry exception to the hearsay rule, a 

business entry is not subject to objection on the ground that it was copied or 

compiled from notes, memoranda, or other writings or from other business 

entries, nor is it otherwise subject to objection on the ground that it is secondary 

evidence. However, unless they are themselves writings made as business 

entries or are admissible under an exception to the best evidence rule, copies 

and written compilations of business entries are subject to objection on the 

ground that they are secondary evidence. The reproductions of business entries 
RULES OF EVIDENCE 11 144d 

mentioned as being admissible in the second paragraph of this subparagraph 

(144c) are examples of copies \vhich themselves are made as business entries. 

011 the other hand, the admissibility of eizlargemeizts, facsimilies, or authenticated copies of reproductions provided for in that paragraph constitutes an 

exception to the best evidence rule. See 143a as to the best evidence rule and its 

exceptions in general, and see 145a as to the use of copies of bnsiness entries 

in depositions. 

If a machine, electronic, or coded business entry is of a kind which, without 

skilled interpretation, may be uiziiztelligible or subject to misunderstanding, its 

contents may be proved and its meaning explained by the testimony of a witness sufficiently familiar with the system used in producing the entry to be 

able to interpret the entry accurately, or tlze contents of the entry may be proved 

by a machine "translation" authenticated by t.he testimony of a witness familiar 

with the system used in producing the "translation." Also, written "translations" 

of machine, electronic, or coded business entries, whether nzade by machine or by 

a person and however properly authenticated, are admissible if they are otherwise within an exception to the best evidence rule (see 143a(2) (e)) or if they 

were themselves made as business entries. 

A memorandum or record'which satisfies the requirements of the business 

entry exception to the hearsay rule is admissible under that exception regardless of whether it was made in a private or governmental capacity. 

d. Limitation's as to the admissibility of official records and business 

entries. Official records are admissible ia 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 'Lany act, transaction, occurrence, or event." The 

word 'Levent" may be considered to include the words "act," "transaction," 

and "occurrence," and to be included within the meaning of the word 'Lfact." 

Records or entries of "opinion" are not admissible under either the official 

record or the business entry exception to the hearsay rule. However, it is often 

difficult as a practical matter to draw the line between what is opinion and what 

is fact, and some assertions based on trained observation which, strictly speaking, might be considered statements of opinion so closely approximate statements of fact as to permit the law to place them in the latter category rather 

than in the former, at least to the extent of allowing a record of them to be 

admitted in evidence without incurring an appreciable risk of doing an injustice because of lack of opportunity to cross-examine. For example, if otherwise admissible as official records or business entries, entries in a physician's 

report setting forth his 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 pathologist 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. 011the other hand, entries in a report of a board 

of medical officers (psychiatrists) as to tlze mental condition of a certain person 

are not admissible to prove that mental condition, for a diagnosis of a person's 

mental condition involves opinion to such a degree as to require that those 

insking the diagnosis be subject to cross-examination. See 122c. 
11144d CHAPTER XXVll 

Under the official record exception to the hearsay de, the maker of the 

record must not only have acted within the scope of his official duties in recording the fact or eveilt but must, ill addition, have hacl an official duty to know or 

ascertain the truth of that fact or event. A some^^-hat correlative principle 

applies under the business entry exception to the hearsay rule. It is not suflicient 

that an entry was made in a regular course of conduct ~~hich hadsome relationship to business if it was not inacle ill the reg~~lar course of a business. "Regular 

course" of business must find meaning ill the inherent nature of the business 

in question aiid in the mchhods syste~natically employed for the conduct of the 

business as a business. Because of these liniitations and the opinion limitation, 

a pathologist's entry in an autopsy report as to wl~ether the death was caused 

by homicide, accident, or suicide, as distinguished from his entry as to the 

physical cause of death, is not admissible uncler either the official record or the 

business entry exception to the hearsay rule. The above-mentioned limitations 

apply in such a case because any official duty the pathologist might have to 

make an entry as to his finding in this respect would not fix upon him the a'dditional official duty of ascertaining the truth of circ~ims~ances st~l.rounding the 

occurrence of death reported to him by others but not observed by him during 

the course of his examinatioii, and it is obvious that it is not the reaular course 3
 of the business of a pathologist to make such an entry based on that kind of data ; 

and if the entry was based not on reported matkers but on a11 examination of 

the body by the patliol~ogist, the opinion thus expressed by hiin 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 ~.vritings or records made principally with 

a view to prosecution, or other disciplinary or legal action, as a record of, or 

during the course of an investigation into, alleged unla~vful or improper conduct. Thus, a report of a military policeman concerning his investigation of an 

offense and the statements of ~vitiiesses accompai~yii~g the report are not 

admissible under either of these exceptions as evidence of the truth of the facts 

stated therein, although an accompanying statement of the accused may be 

admissible if it constitutes a vol~ultary confession or admission of the accused 

contained in that statement (see 140a) aiid an accompanying statement of a 

person who later testifies may be used to show any inconsistent statement 

appearing therein (see 1536(2) (c) ). With t11e exceptions indicated below concerning the use of records ancl reports of preliminary judicial hearings, the 

same considerations apply to a record or report of an investigation coi~ducted 

under Article 32. 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 any unlawful conduct, his entries 

in the autopsy report as to the identification of the person 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 

limitation, and these entries may be adn~issible under either the official record 

or the business entry exception to the hearsay rule. Official record entries in 

morning reports, unit military strength balance reports, logs, unit personnel 

diaries, and service records as to absence without leave or the circuinstances of 

return to military control, and in the above records and in guard reports, daily 

strength records of prisoners, and rosters of prisoners as to escape from confinement, are not inadmissible because of this limitation, for these entries are 
RULES OF EVIDENCE U 1440 

made principally for the purpose of reflecting day to day events as they affect 

strength in personnel and other administrative matters not within the limitation. The limitatioil does not prohibit the use of clepositions to prove the 

deposition testimony of the deponent under Article 49, the use of records and 

reports of trials or preliminary judicial hearings, such as an investigation conducted under Article 32, to prove former testimony nnder the former testimony 

exception to the hearsay rule, or the use of records of courts of inquiry as contemplated by Article 50. See 145. Also, the limitation does not prohibit the use 

of depositions, records and reports of trials or preliminary judicial hearings, 

and records and reports of courts of inquiry to prove statements recorded or 

reported therein which, if proved by testimony given at the trial, would be 

admissible nnder the rules of evidence in general (see the last paragraphs of 145 

a, b, and c), nor does the limitation prohibit the use of records of conviction or 

imposition of nonjudicial punishment as proof of the conviction or imposition 

of nonjudicial punishment when this proof is otherwise admissible. 

e. Maps, photographs, sketches, charts, and fingerprints. Maps, photographs, x-rays, sketches, and similar projections of localities, objects, persons, 

and other matters are admissible when verified by any person, whether or not 

he made or took them, who is sufficiently familiar with the locality, object, person, or other thing thereby represented or pictured to be able from his own 

personal knowledge or observation to state that 'they faithfully represent the 

actual appearance of the subject matter in question. Such writings are also 

admissible when they come within either the official record or business entry 

exception to the hearsay rule. See 144b and 1446. See 143a, however, as to the 

admissibility of a photograph or other projection of a writing for the purpose 

of proving the contents of the writing. 

In cases involving complicated mathematical computations or compilations, charts showing these computations or compilations and the mathematical 

results thereof, authenticated by a witness qualified to understand and interpret 

the computations or compilations and prepared from data contained in writings 

and testimony properly received in evidence, are admissible at the discretion 

of the military judge or president of a special court-martial ~vithout aii~ilitary 

judge. The charts should not contain coilclusionary captions or statements other 

than those indicating the mathematical results of the computations or compilations, nor should the charts be in the possessioi~ of, or observable by, the members 

of the court during their deliberations in closecl session. Charts inay also be used 

in connection with the summarizations of numerous or bulky writings mentioned 

in 143a(2)(b). 

When a witness points or otherwise refers to certain parts of a map, photograph, sketch, or chart, the military judge, or the president of a special co~~rtmartial without a military judge, should require counsel examining the witness 

to have the witness mark the exhibit in some fashion and identify the mark in his 

testimony so that reviewing authorities may obtain a clear comprehension of the 

testimony of the witness. If a large map, photograph, sketch, or chart is being 

used so that it can be observed by all parties to the trial, the military judge, or 

the president of a special court-martial v-itlzout a military judge, should require 

that it, or a copy complete with all n~arks placed upon the original, be attached 

to the record of trial as an exhibit. A blackboard should not be used unless it 

can be photographed or reproduced in some manner. 
11 145a CHAPTER XXVll 

Fingerprints are admissible when they come within either the official 

record or the business entry exception to the hearsay rule or are in any manner 

properly verified, but evidence concerning the comparisoll of fingerprints must 

come from persons skilled in comparing fingerprints. 

f. Business, professional, or public lists and directories. A list, register, 

directory, catalogue, or other published compilation intellded for use in a line 

of business or a profession is admissible as an exception to the hearsay rule to 

prove the truth of any matter appearing therein, or the nonexistence of any 

matter not appearing therein but which could reasonably be expected to have 

been included had it existed, if it appears that the compilation is generally 

used and relied upon in the line of business or profession as being accurate. 

Also, a list, regist,er, or directory intended for use by the ~ublic at large, such 

as a telephone directory, is likewise admissible if it is common knowledge that 

the compilation is generally regarded by the public as being accurate. If, however, it is shown that a compilation intended for business, professional, or public 

use is not in fact generally accurate, it is not admissible under these rules. 

145. DEPOSITIONS ; FORMER TESTIMONY; RECORDS OF 

COURTS OF INQUIRY. a. Depositions. See Article 49. For procedure in 

taking depositions, see 117. To satisfy the conditions of admissibility set forth 

in Article 49(d) (2), it must appear that the witness, for one of the specific 

causes enumerated or for other reasonable cause, in fact is unable or refuses to 

appear and testify in person. For example, if nonamenability to process is the 

only ground advanced for the admissibility of a deposition, it must appear, 

either through a refusal of the witness to comply with a request for his attendance or otherwise, that the witness is in fact unavailable. The coildition set 

forth in Article 49(d) (3) cannot be considered as satisfied unless it appears 

that there has been an exercise of due diligence in attempting to locate the 

witness. Although not specifically so indicated in Article 49, a deposition is 

inadmissible against an accused if he was not afforded an opportunity to be 

present with his counsel at the taking thereof (see 117b(2) ),but such a defect 

may be waived. 

A case referred to a special court-martial for trial under 15a(l) is a case 

"not capital" within the meaning of Article 49. Under Article-49 (f), a case in 

which the death penalty is authorized by the code but is not mandatory for an 

offense of the kind charged is not capital \1711en the convening authority has 

directed that the case be treated as not capital. TJpon a rehearing or new or other 

trial thereof, a case in which the death penalty is iinposable under the code for 

an offense of the lrind charged is not capital mithin the meaning of Article 49 

if the legal sentence upon a previous hearing or trial of the case, as ultimately 

reduced by the convening or other proper authority when any such action has 

been taken, mas other than death. Although an offense is p~ulisllable by death 

under the article deno~~ncing it,the offense is not legally so punishable, ancl 

therefore is not capital, if the applicable limit of punishment prescribed by the 

President under Article 56 is less than death. In a trial upoil two or more 

specifications, the proceedings as to each constitute a separate "case." 

Testimony taken by deposition may be introduced by the defense in capital 

cases if otherwise admissible. If the defense calls for testimony to be taken by 

clepositioll in a capital case, the depoilent niay be cross-examined by written 

interrogatories, or otherwise, in the same manner as a deponent in a case not 
RULES OF EVIDENCE ll 145a 

capital. With the express consent of the defense made or presented in court, 

but not other~vise, competent deposition testimony not for the defense may be 

introduced in a capital case. When otlzerwise admissible, deposition testimony 

not for the defense may be admitted without the consent of the defense in a 

case not capital tried with a capital case if the testimony is not relevant to the 

capital case or, when it is relevant to the capital case, if the cases do not involve 

the same criminal transaction and the military judge instructs the court in open 

session that the testimony is not to be considered as to the capital case. 

If only part of a deposition is offered in evidence by a party, he should, at 

the request of the opposite party, be required to offer all of it that is relevant 

to the part offered. This should be done even though the prosecution may seek 

to use it to compel presentation of a deposition relevant to a capital case. If the 

party at whose instance a deposition has been taken does not offer it or offers 

only a part of it, any other party may offer the deposition or the parts not 

offered, except that (1)the prosecution may not thus offer, in a capital case, a 

deposition or part thereof witho~it the express consent of the defense inade or 

presented in caurt, and (2) in no case may a deposition or part thereof be used 

against a party, whether or not he initiated the taking of the deposition, who 

raises a valid objection to its use against him. For example, wlieiz the objecting 

party has introduced no part of the document as a deposition, no part may then 

be admitted o17er objection if it fails to meet any of the requirements of Article 

49(d) (I),(2), or (3) or if that party did not have notice of its taking. 

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. If the ground of an objection to 

the use of a deposition or a part thereof is one which might have been obviated 

or removed, either in connection with the deposition itself or by retaking the 

deposition, if presented at the time interrogatories were submitted to the objecting party or to the military judge or the president of a special court-martial 

without a military judge or at the time the deposition \\-as taken, a failure to 

have made the objection at that time is a waiver of the objection. It may be 

shown that an objectioil actually was made even if the objection is not notecl in 

the body of the deposition, but in the absence of such a showing it may be assumed that no objections were nzade other than those notecl. If the military 

judge or the president of a special court-martial without a military judge has 

ruled on an objection at the time interrogatories were submitted for acceptance, 

the objection shall again be considered at the time the deposition is read, if a 

request to do so is then made, without regard to the previous ruling. 

The same rules as to the competency of witnesses and the admissibility of 

evidence apply to the introcluction 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, ~~d~en 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. 

The copy, marked by the person taking the deposition in such a manner as 

to indicate that it is the copy identifiecl by the witness, mill accompany and be 

part of the deposition and shall be admissible in evideizce equally with the 

original. 
fl 145b CHAPTER XXVll 

A failure to object to the introduction of a deposition on the ground that 

it was not taken on reasonable notice or before a proper officer, on the ground 

that it does not appear that the deponent is unavailable as a witness, or on the 

ground that the accused was not afforded in connection ~vith the taking of the 

deposition an opportunity to be adequately represented by counsel and to confront and cross-examine the deponent may be regarded as a waiver of that 

objection. 

When it is stated that a deposition or a part thereof is "admissible" or may 

be "introduced" in evidence, this means merely that, in the terms of Article 49 

(d), the document or an appropriate part thereof "may be read in evidence.?' 

Except for inspection of the doc~~ment by the president of a special courtmartial without a military judge for the purpose of determiaiag the admissibility of its contents, the document itself is not sho~vn to the members of the 

court. However, after having been read to the court, the document will be 

marked as an appellate exhibit and included in the record. 

The limitations upon the use of deposition testimony mentioned above 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 exainl?le, a voluntary confession or admission of the accused made while a deponent or an inconsistent 

statement of a witness siinilarly 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. See, however, 141 for rules applying to proof of statements made through an interpreter. 

b. Former testimony. In any trial by court-martial, including a rehearing 

or new trial, the testimony of a witness given in a civil or militaiy court at a 

former trial of the accused in whjoh the issues were. substantially the same, 

except a former trial sho\vn by the objecting party to be ~7oid because of lack 

of jurisdiction as to the proceedings, may xvhen properly proved and otherwise 

admissible, be received in evidence to the same effect that it could be received 

if the ~vitness were given again to give the testimony in person at the present 

trial, provided that the witness refuses at the trial to testify concerning the 

matter in questi~on or it appears : 

That the ~vitness is dead, insane, or too ill or infirm to attend the 

trial ; 

That the witness is no~lamenable to process and not othern-ise available to testify at the trial ; 

That despite the exercise of due diligence ill trying to locate him the 

witness cannot be found ;or 

That due to military necessity or ot,her reasonable cause the witness 

is unable to attend the trial. 

The prosecution, however, may not introduce the former testimony of a witness 

unless, in addition to the above requirements having been met, the accused was 

afforded at the former trid an opportunity to be adequately represented by 

counsel and to confront and cross-exainilie the \\~itness and unless, in a capital 

case, it appears that the witness is dead or insane or is llonarnenable to process 

and not otherwise available to testify ,zt.the trial. Cases considered "~xot capital" 

in 145a are also considered "not capital" with respect to the ahiss?bility of 

former testimony. If refusal of a witness to testify is the ground upon which 
RULES OF EVIDENCE !l145b 

his former Wimony is to be introduced, his Eormw testimony will be 

admissible only insofar as it relates to the matters concerning ~vhich he has 

refused to testify. Former testimony given at a preliminary judicial hearing, 

such as an investigation conducted under Article 32, of an allegsution against 

the accused is admissible under the same conditions as testimony given at a 

former trial of the accused. 

A failure to object to the introduction of testimony given at a former trial 

or preliminary judicial hearing of the accused on the ground that the issues in 

the former trial or hearing were not substantially the same, on the ground that 

the accused was not afforded at the former trial or hearing an opportunity to be 

adequately represented by counsel ancl to confront and cross-examine the witness 

or on the ground that it does not appear that the witness is now unavailable 

may be regarded as a waiver of that objection. 

When former testimony of an accused is sought to be admitted or used to 

cure the error arising from the erroneous use of an inadmissible pretrial statement the ~overnment must affirmatively show that the prosecution's use of the 

inadmissible statement did not induce the accused's in court testinloay. The 

Government must affirmatively demonstrate the lack of causal relationship 

between the in court testimony and the inadmissible pretrial statement, ,zld 

must affirmatively dispel the inference that no testimonial utterance would have 

been made had not the prosecution introduced the illegally obtained statement. 

The testimony of a witness who has testified at a former trial or preliminary 

judicial hearing may be proved by a record of the testimony in an official or 

other admissible record of the former trial or hearing, by an admissible copy 

of such a record of the testimony, by an official or other admissible stellographic, 

mechanical, or electronic report of the testimony, or-whether or not any record 

or report of the testimony is available-by a person who heard the witness give 

the testimony and who remembers all of it, or the substance of all of it, that is 

relevant to the to-pic in question. Although a record or report of former testimony is not inadmissible to prove that testimony merely because of being 

nonverbatim, a record or report of former testimony of a \vitness which is not 

complete as to that testimony or its substance, whether or not an otherwise 

verbatim record or report, is, because of its incompleteness, inadmissible to 

prove the testimony unless the omissions are shown to be inconsequential or 

irrelevant to the purposes for which the testimony is offered. See 141 as to 

proving former testimony given through an interpreter. If only part of the 

former testimony of a witness is offered in evidence by a party, he should, at the 

request of the opposite party, be required to offer all of the former testimony of 

the witness that is relevant to the part offered. 

If the former testimony of a witness is to be provecl by the record of the 

former trial or hearing or other writing in which it appears, the testimony 

should merely be read in evidence from the writing. Except for inspection of 

the writing by the president of a special court-martial without a illilitary judge 

for the purpose of determiiliing the admissibility of its contents, the \vriting 

itself is not shown to the members of the court. See also 81c. However, the writing or the pertinent parts thereof will be properly included in the record as an 

appellate exhibit. 

If otherwise admissible under 145n and Article 49, a deposition taken 

for use or used at a former trial by co~trt-martial is admissible in a sltbsequent 

trial of the same person on the same issues. 
ll 145c CHAPTER XXVll 

The limitations upon the use of former testimony mentioned above do not 

apply mith respect to statements made at a former trial or preliminary judicial 

hearing, or a.t any trial or hearing, which are admissible under some rule of evidence other than that authorizing the .introduction of former testimony. Any 

such statement, for example, a voluntary confession or admission of the accused 

or an inconsistent statelllent of a witness, may be proved by any competent evidence, for instance, by the testimony of a. person who heard the statement being 

inade or by a record or report of the statement in an official or other admissible 

recorcl or report of a trial or preliininary judicial hearing at which it was made. 

However, a statement made by an accused at a trial in connection with an inquiry 

into the proviclence of his plea of guilty or in connection with the sentencing 

proceedings is 1104 in a subsequent trial of that accused for the saine or any 

other offense, admissible to prove his guilt or to impeach his credibility in regard 

to his testimony on the issue of guilt or innocence. See 141 for rules'applyiag 

to proof of statements made through an interpreter. As to the use of former 

testimony in connection with the sentencing proceedings in a rehearing on the 

sentence only or in a combined rehearing, see 816 (2) and (3). 

c. Records of courts of inquiry. See Article 50. The effect of the words 

"11ot capital ancl not extending to the dismissal of a coininissioned 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 adjudged. The introduction of the record of a 

court of inquiry by the defense ~vill not affect the punishment which may be 

:~djudged.It may be considerecl that a person's "oral testimony cannot be obtained" in the sense of Article 50 if the person refuses at the trial to testify concerning the matter in question or if it appears (1) that the person is dead, insane, 

or too ill or infirnl to attend the trial, (2) that he is nonamenable to process and 

is not otherwise available to testify at the trial, (3) that despite the exercise of 

due diligence in trying to locate hi111 he cannot be found, or (4) that due to 

military ilecessity or other reasonable cause he is unable to attend the trial. A 

iailure to object to the iiltroduction of testimony contained in a record of a 

court of inquiry on the ground that it does not appear that the oral testimony 

of the witness cannot be obtained may be regarded as a waiver of that objection. 

If only part of the testimony of a ~~itness contained in a record of a court of 

inquiry is offered in evidence by a party, he should be required, at the request 

of the opposite party, to offer all of the testimony of the witness contained in 

the record that is relevant to the part offered. 

hclmissible testimony contained in a record of a court of inquiry is, in the 

terms of Article 50, "read in eviclence." Except for inspection of the recorcl by 

the president of a special court-martial without a military judge for the purpose 

of determining the admissibility of its contents, the record itself is not shown 

to the members of the court. However, after testimoily contained in a record of 

a court of inquiry has been read to the court, a duly authenticated copy of the 

record or of pertilleat parts of the record mill be properly marlied as an appellate exhibit and iilcluded in the record of t,rial. 

The liniitntions meiltionecl above ancl ill ,4rt,icle 50 upon the use of testi- 

~llony containecl in a record of :L court of inquiry clo not apply mith respect to 

stntements macle before a court of inquiry ~vhich are ncl~nissible under some 
RULES OF EVIDENCE 11 146b 

rule of evidence other than that set forth in Article 50. Any such statement, 

for example, a voluntary confession or admission of the accused or an inconsistent statement of a witness, may be proved by n record or report of the 

statelnent in an official or other admissible record or report of the court of 

inquiry proceedings at which it was made or by other competent evidence. See 

141 for rules applying to proof of stateillents made through ail interpreter. 

146. MEMORANDA; AFFIDAVITS. a. Memoraqda. Memoranda may 

be used to enable a witness to supply facts once known by him but now forgotten or only uncertainly or incompletely remembered or to enable a witness 

to refresh his memory. Memoranda are therefore of two sorts. First, if the 

witness, after having used the memorandum in an attempt to refresh his memory, does not actually remember the facts or events or has only an uncertain 

or incomplete recollection of them and, accordingly, relies on the recital of 

the facts or eveilts set forth in the memorandum, as when a witness uses an 

old diary in this mainer, then the witness must be able to'state that the memorandum represents his past knowledge possessed at a time when his recollection 

mas reasonably fresh as to the facts or events recorded. It is not necessary that 

he should himself have made the memorandum if lie can state from his present 

memory that at a time when his recollection was reasonably 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 illemoranda 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 eveilts 

and uses the memorandum merely to refresh his present memory or a part of 

it, then the witness need not have had any previous connection with the 

memorandum. 

Even if not in itself otherwise adnlissible to prove the truth of the matters 

stated therein, a memorandum of the first sort may be received in evidence as 

a record of the past recollection of the witness, and it may be considered to be 

evidence of the facts or events shown by that past recollection. If it meets the 

requirements of a memorandum of the first sort, a newspaper account of an 

incident may be used to establish the past recollection of a ~vitness. 

If the memorandum is of the second sort, the party using the memorandum 

to refresh the memory of the witness may not introduce it in evidence unless 

it is otherwise admissible. However, the opposite party may iiltroduce it for 

the purpose of showing that it could not have refreshed the iiiemory of the 

witness. 

A memorandum of either the first or second sort used during the examination of a witness must, upon demand, be shown to the oppoilent for purposes 

of inspection and examination of the witness thereon. 

See also the last paragraph of 149c(l) (6). 

b. Affidavits.The general rule is that affidavits are not admissible as eviclence of the truth of the matters stated therein, for they are hearsay assertions. 

However, the defense may introduce affidavits, or other written statements, 

of persons other than the accused concerning the character of the accused. If 

the defense introduces affidavits or other written statements as to the character 

of the accused under this subparagraph, the prosecution may, in rebuttal, also 
f 147a CHAPTER XXVll 

introduce affidavits or other written statements regarding the accused's character. Character evidence of this type may be introduced by the defense or prosecution only if that evidence, aside from the fact of being contained in an 

affidavit or other written statement, would otherwise be admissible under 

138f (2). See 75c as to the use of affidavits aiid other written statemeiits in 

extenuation and mitigation. See also the second paragraph of 137. 

147. JUDICIAL NOTICE ;DETERMINATION OF FOREIGN LAW. 

a. Judicial notice. Certain kinds of matters need not be proved by the formal 

presentation of evidence, for the existence of these matters may be recognized 

without formal proof. This recognition is termed judicial notice. 

The following are the principal matters of which judicial notice may 

be taken: 

The ordinary divisions of time into years, months, weeks, and other 

periods; general facts and laws of nature, including their ordinary operations and effects; general faots of history; generally known geographical 

faots; such specific facts and propositions of generalized knowledge as are 

so universally known that they cannot reasonably be the subject of dispute ; 

suclz facts as are so generally known, or are of such coiiiinoii notoriety, in 

the area in which the trial is held that they cannot reasonably be the subject 

of dispute; and specific faots and propositions of generalized knowledge 

which are capable of immediate and accurate determination by resort to 

easily accessible sources of reasonably indisputable accuracy. 

The treaties of the United States, and executive agreements between 

the United States and any State thereof, foreign country, or iilternational 

organization or agency; and current political or de facto conditions of war 

and peace. 

The laws, and regulations published pursuant thereto, of the United 

States, of the District of Columbia, and of a State, Coinmoiiweal~th, or 

possession of the United States or any political subdivision of such a State, 

Commonwealth, or possession; the contents of official informational bulletins, manuals, and pamphlets and similar official publications of any agency 

of tlie Federal goverilment of the United States; inilitary custoi~l in an 

armed force of the United States; internatioiial law, inclttding tlie lam of 

war; general maritime law aiid tlie law of the air; and tlie coinilion la\\-. 

The political organization aiid the identity of the principal officials of 

the United States, of the District of Columbia, and of a State, Commonwealth, or possession of tlie United States or any political subdivisioii of 

such a State, Commonwealth, or possession ;the signatures of the principal 

officials of the Federal government of the United States purportedly written in their respective official capacities; and the signature of a person 

attesting or otherwise authenticating an official record or copy thereof, or 

a certificate or statement of the nonexistence of an official record or entry, 

that is or would be kept under the authority of any department, bureau, 

agency, office, or court of the Federal government of the United States. 

When on a certificate or statement furnishing a final authentication of 

a foreign official record or copy thereof or of a certificate or statement of 

the nonexistence of a foreign official record or entry, the signature of a 

United States secretary of embassy or legation, consul general, consul, vice 

consul, consular agent, or foreign service officer or of a diplomatic or con- 
RULES OF EVIDENCE ll 147a 

sular official of the foreign country assigned or accredited to or recognized 

by the United States. 

The seal of the United States, of the District of Columbia, or of a 

State, Commonwealth, or possession of the United States or any political 

subdivision of such a State, Commonwealth, or possession; the great seal 

(seal of state) of any foreign country, the seal of any court or judge or 

clerk thereof, and the seal of office of any official or office, of the United 

States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States or any political subdivision of such a State, 

Commonwealth, or possession; and the seal of a notaiy public, foreign 

or domestic. 

If not judicially noticeable on a more general basis, any signature, 

seal, or symbol furnishing an authentication of a foreign or domestic 

official record or copy thereof, or of a certificate or statement of the nonexistence of a foreign or domestic official record or entry, which is sufficient 

under the law of the place where the record is or would be kept or under any 

law of the United Ststtea. 

The organization of the Department of Defense and the departments, 

agencies, bureaus, branches, forces, commands, ancl units thereunder, of 

the Coast Guard and National Guard and their subordinate commands and 

units, and of military agencies and units of allies of the United Stat= ;the 

signature of a person attesting or other~vise authenticating an official record 

or copy thereof, or a certificate or statement of the nonexistence of an 

official record or entry, that is or would be kept under the authority of any 

of the foregoing; and, as to the foregoing, their locations, their seals, inked 

stamps, or other identification marks, and the contents of written regulations, written orders and directives, official infornlational bulletins, manuals, and pamphlets, and similar official publicatioils issued thereby or 

pertaining thereto, including general and special orders, circulars, price 

lists, and court-martial orders. 

The signatures of the Judge Advocates General and their deputies and 

assistants;the signatures of custodians of personnel or fingelyrint records 

of an armed force of the United States and their deputies and assistants; 

the signatures of custodians of fingerprint records of any department,' 

bureau, or agency of the Federal goverllnlellt of the United States and 

their deputies and assistants; the signature of any person authorized to 

administer oaths by Article 136 or any of the provisions of lam referred to 

in Chapter XXII, when affixed to a deposition or ally s\~-orn ~~ritiag to 

indicate the execution of that authority ; the signatures of authorities convening courts-martial, courts of inquiiy, or other military courts, coininissions, boards, or hearings of the United States, or an ally thereof, and the 

signatures of authorities acting upon, or giving official notice of, the proceedings or results of the proceedings of these courts, commissions, boards, 

or hearings; the signatures of persons authenticating records of the proceedings of the above courts, commissions, boards, or hearings, or copies 

of these records; and the signature of an official of an armed force of the 

United States, or an ally thereof, when on a certificate or statenlent furnishing a final authenticatioll of a foreign official 1.ecorcl or copy thereof, 

or of a certificate or statement of the nonexistence of a foreign official 

record or entry, in accordance with 1433(2) (e) and (f). 
ll 147b CHAPTER XXVll 

The actual duties of a person who has signed a writing in a capacity 

which would allow judicial notice to be taken of his signature. 

The principle of judical notice does not prohibit the court from receiving 

formal evidence of a inat.kr of which it is authorized to take judicial notice, 

and in taking or determining the propriety of taking judicial notice of a matter 

it may resort to any source of relevant information, whether or not that source 

or information would otherwise be admissible in evidence or was submitted by 

a party. Unless the matter to be judicially noticed is one of universal knowledge 

or one of common knowledge in the aimed forces of the United States or is a 

judicially noticeable signature, seal, or inked stamp, a party desiring the court to 

take judicial notice of a matter shonld ask the court to do so, at the same time 

presenting for the court's consideration the source of information upon which he 

relies with respect to the matter. For instance, when counsel asks the conrt to 

take judicial notice of a lav of a State of the United States, he should present 

for the court's consideration an official publication of that State, such as a statute 

book or book of reports, setting forth the law in question or, if an official publication of the State is not reasonably available, he should present for the court's 

consideration some other source, such as a generally recognized compilation, 

treatise, or textbook, setting forth that law. The court is not legally required, 

however, to reject a source of relevant information on the ground that a more 

primary source is or inay be available. A party intending to ask the court to take 

judicial notice of a matter on the basis of a certain source of information should 

give the opposite party sufficient notice to enable him to consider that source 

and to obtain other sources if he so desires. 

If a ~vriting is used by the court in aiding it to take judicial notice of a 

matter, the record should indicate that the writing was so used, and, unless it is 

a stah~~te of the United States, an executive order or proclamation of the President of the United States, or an official publication of the Department of Defense, the Departments of the Army, Navy, or Air Force, or the Headquarters 

of the Marine Corps or Coast Guard, the writing, or pertinent extracts therefrom, should be included in the record of trial as an exhibit. 

Because of their inherent nature, some matters can be judicially noticecl 

only in the sense that they inay be inferred to exist, to be true, or to be genuine, 

and this inference can be overcoine by adequate contradicting information. Examples of these matters are the various signatures, including the capacity in 

which the signer purports to sign the writing, and seals of which judicial notice 

can be taken and other juclicially noticeable matters which are reasonably subject to coi~tradictioi~. 

b. Determination of foreign law. For the purpose of this subparagraph 

(b), the term "foreign law" means the laws and regulations of foreign countries 

and their political snbdi~~isions and of international organizations and agencies. 

The court-that is, the military judge 01- the president of A special conrtinartial witlloul a military judge-will determine foreign law, and such a 

determination u~ill constitute a ruling on a question of law. I11 determining 

foreign law, the military judge or the president of a special court-martial without a military judge should require that it be established either by the testimony 

of a qualified persoil ~~110 is familiar with that law or by the presentatioil of 

materials or sources iiidicated below. 
RULES OF EVIDENCE 7 148d 

Although the court may consider any relevant material or source pertaining to foreign law whether or not it was submitted by a party, a party desiring 

that certain foreign law be determined by the court should present to1 the military judge or the president of a special court-martial without a military judge 

the material or source upon which he relies, having first given the opposite 

party sufficient notice to enable him to consider that material or source and to 

obtajn other materials and sources if he so desires. Any material or source 

received by the court for use in determining foreign law, or pertinenit extracts 

therefrom, should be included in the record of trial as an exhibit, but testimony 

as to foreign law should appear in the record where testimony usually appears. 

In addition to testimony, materials or sources pertaining to foreign law 

include, but are not limited to, official publications setting forth foreign law 

published by the foreign jurisdiction concerned, such as statute books, books of 

reports, journals, and gazettes; official publications setting forth foreign law 

published by an agency of the Federal government of the United States; and 

compilations, treatises, textbooks, and commentaries concerning foreign law. 

The court is not legally required to reject any relevant material or source pertaining to foreign law on the ground that more primary niaterials or sources are 

or may be available. 

148. COMPETENCY OF WITNESSES. a. Generat. A person of fourteen 

or more years of age is presumed to be generally competent to be a xvitness. If, 

upon an allegation of incompetency with respect to such a person, it does not 

appear by clear and convincing evidence that a specific ground of incapacity 

exists, the person should be allowed to testify. 

Any known objection to the competency of a person as a witness should be 

made before he is sworn. If it later appears that he is incompetent, hen-ever, an 

objection on that ground should be sustained or the military judge or the 

president of a special court-martial without a military judge should on his 

or its own motion refuse to hear him further and order that any testimony he 

may have given while incompetent be disregarded. 

b. Children. The competency of children as witnesses is not dependent 

upon their age. A child of any age is competellt as a witness if he knows the 

difference between truth and falsehood, understands the moral inlportance of 

telling the truth, and is sufficientJy intelligent to observe, recollect, and describe with reasonable accuracy the facts in question. This knowledge, understanding, and intelligence may appear upon such preliminary questioning of 

the child as the military judge or the president of a special court-martial without a military judge deems necessary or from the appearance of the child and 

the testimony that he gives in the case. A person below the age of fourteen, 

however, cannot be presumed to be competent as a witness. 

c. Mental infirmity. Although a witness may be suffering from mental 

infirmity, he is nevertheless competent to testify if he knows the difference between truth and falsehood, understands the moral importance of telling the 

truth, and has sufficient mental capacity to observe, recollect, and describe with 

reasonable accuracy the facts in question. 

d. Conviction of crime. Conviction of an offense does not disqualify a 

witness but ceutain coiivictions may be shown to diminish his credibilit,~. See 

1536 (2) (6). 
ll 1480 CHAPTER XXVll 

e. Interest or bias, and competency and privileges of husband and wife, 

the accused, and accomplices. 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 that 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. Although 

husband and wife are also competent witnesses against each other, the general 

rule is that each is entitled to a privilege prohibiting the use of one spouse as 

a witness against the other. The privilege also extends to the use of an extrajudicial statement, made by one spouse against the other which is offered as 

evidence of the maker's own statement to prove the truth of the matter stated. 

See 140a(4) for an example of when a statement of one spouse may be adopted 

as the statement of the other. There are certain limitations upon the privilege 

prohibiting the use of one spouse as a witness against the other, and prohibiting the use of one spouse's statement against the other. First,the privilege does 

not exist in favor of the accused spouse when the other spouse is the person or 

one of the persons injured by the offense charged, as in a prosecution for an 

assault by one spouse upon the other, for bigamy, unlawful cohabitation, or 

adultery, for abandonment of the wife or children or failure to support them, 

for mistreatment of a child of the other spouse, or for forgery by one spouse of 

the other's signature to a writing when the forgery is an injury to the legal 

rights of the other. Except as otherwise provided below, this limitation upon 

the privilege applies only to the accused spouse and only when the offense was 

committed after the mariage or, if before it, when the offense mas unknown to 

the other spouse at the time of the marriage. Second, the privilege does not 

exist in favor of either spouse and, consequently, cannot be asserted by either- 

(1) In n prosecution of the Ilusband for any of the offenses set forth 

in chapter 117, title 18, United States Code, when the wife is the victim 

or for any offense involving the using or transporting of the wife for "white 

slave" or other immoral purposes, regardless of whether the offense was 

conlmitted before or after the marriage. 

(2) In :Z prosecution under Section 2'78 of the Immigration and Nationality Act (66 Stat. 280; 8 U.S.C. $1328; Importation of alien for immoral 

purpose). 

(3) When the marital relationship was entered into wjth no intention 

of the parties to live together as husband and wife, but only for the purpose of using the purported marital relationship as a sham, and that 

relationship remains a sham at the time the t~stimony or statement of one 

of the parties is to be introduced against the other. 

(4) When, at the time the testimony or statement of one of the parties 

to the marriage is to be introduced in evidence against the other party, 

the witaess-party is dead or the parties are divorced. 

When the privilege exists, the spouse or spouses entitled thereto may consent to 

waive it either expressly or by implication. If an accused's spouse testifies in 

his favor, the privilege may not be asserted by either spouse upon cross-examiilation of the spouse who has so testified, provided the cross-exai11inatioi1 is 

limited to the issues concerning which the spouse llns testified oil direct exam- 
RULES OF EVIDENCE U 149a 

ination and the question of the credibility of the spouse. Also, if the defense, 

through the testimony of the accused or otherwise, introduces evidence concerning a communication between the accused and his spouse, the accused may 

not assert the privilege so as to prevent the use of his spouse as a witness in an 

attempt to contradict that evidence. However, except as indicated in the preceding sentence, an accused who testifies in his own behalf does not, merely by 

reason of so testifying, waive the privilege as it may apply with respect to the 

use of his spouse as a witness against him. See 15171 (2) as to the privilege relating to communications between husband and wife. 

The accused is at his own request, but not otherwise, a competent witness. 

His failure to make .such a request or to become a witness as to a particular 

offense charged will not create any inference against him. As to cross-examination of the accused if he testifies, see 149b (1). 

One of two or more accomplices or conspirators is competent to testify 

whether he is charged jointly or separately or not at all, whether he is tried 

jointly, in common, or separately, 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 150b (Compulsory self-incrimination). 

See also 1496(1) as to the extent to which the privilege of self-incrimination 

is waived by the accused when he testifies. 

The fact that an accomplice testifies for the prosecution 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 courtmartial. The fact that a witness has been granted or promised immunity does not 

make him incompetent 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 will 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. 

Witnesses other than the accused should be excluded from the courtroom except when they are testifying. However, at the discretion of the military 

judge or the president of a special court-martial without a military judge, exceptions may be made to this rule. The fact that prior to giving his testimony a 

witness was present in court under circumstances which might have colored his 

testimony may be commented upon in argument by either side in relation to the 

weight to be given to the testimony of the witness. See also 53f. 

Witnesses usually are 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, and 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 military judge 01-the president of a special court-martial without 

a military judge may permit or cause the recall of witnesses, including an accused, at any st,age of the proceedings; may permit or cause relevant testimony 

to be introduced by either party out of its regular order and-place; and may 
11 149b CHAPTER XXVll 

permit or cause a case once closed by either or both sides to be reopened for the 

introdudion of testimony previously omitted. See also 546. 

The military judge, or the president of a special court-martial without a 

military judge, should not excuse a witness until satisfied that neither party has 

any further questions to ask him. 

Refusal by a witness to answer a proper question is an offense under 

Article 134, or 133 in a proper case, if the witness is a person subject to the 

code or an offense under Article 47 if the witness is a person punishable under 

that article. If the witness is neither subject to the code nor punishable under 

Brticle 47, such a refusal may nevertheless constitute an offense under applicable provisions of the law in effect in occupied territory or of foreign law. 

It is never necessary for a party to ask through the military judge 

or the president of a special court-martial without a military judge. 

A witness should be required to limit his answer 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 objectioi~ will ordinarily be stated. 

With reference to questioning witnesses through an interpreter, see 50b. 

b. Cross-examination; redirect and recross-examination; examination 

by the court or a member. (1) Cross-exa?nination.Cross-examination of a witness is a matter of right. It should, in general, be limited to the issues concerning which the witness has testified on direct examination and the question 

of his credibility. Counsel often cannot know in advance what pertinent facts 

may be brought out on cross-examination, and for that reason it is to some 

extent exploratory. Reasonable latitude should be given the cross-examiner, 

even if he is unable to state to the court what facts his cross-examination is 

intendod to develop. The cross-examination of a witness need not be restricted 

merely because it appears to be repetitious of the questioning or testimony of the 

witness on direct examination, Leading questions may be used freely on crossexamination. 

The extent of cross-examination with respect to a legitimate subject of 

inquiry is within the discretion of the military judge or president of a special 

court-martial without a military judge. No obligation is imposed upon the 

military judge or president of a special court-martial without a military judge 

to protect a \~-it,ness, whatever his rank, office, or station in life, from being discredited upon cross-examination, so long as the interrogation falls short of an 

attempted invasion of his right, properly invoked, not to incriminate himself. 

The witness should, however, be protected from questions which go beyond the 

bounds of proper cross-examination merely to harass, annoy, or humiliate him. 

On the question of his credibility ancl \\-ithi11 the limits imposed by the privilege 

against self-incrimination with respect to requiring an answey, a witness may 

be cross-examined concerning any subject touching upon his ~vorthiness of 

belief. For instance, unless the military judge or president of a special courtmartial without a military judge determines as a matter of discretion that the 

particular subject of the inquiry would be so remote wit11 respect to the credibility of the witness as to be irrelevant, a \vitness may be cross-examined as to 

his relation to the parties and the issues in the case, his interest, motives, and 

inclinations, his way of life, affiliations, associations, acts of misconduct, habits, 
RULES OF EVIDENCE U 149b 

and prejudices, liis means of obtaining his knowledge of the facts about which 

he testifies and the manner in which lie has used those means, his powers of 

discernment, memory, and description, niid his physical defects, infirmities, and 

meirtal idiosyncrasies. I11 a proper case, he may be asked whether he has expressed animosity toward the accused, or he may, if a proper foundation has 

been laid, be asked whether he made a statement iiiconsistent with his testimony. 

See 1536 (Impeaclimenk of witnesses) generally and see 1533(2) (6) as to 

limitations applicable to cross-examination concerning acts of misconduct of 

the witness. 

An accused who voluntarily testifies as a witness becomes subject to crossexamination upon tlie issues conceriiiiig wliicli he so testifies and upon the question of his credibility. So far as the latitude of the cross-examination is discretionary with the military judge or presideilt of a specal court-martial without 

a military judge, a greater latitude lriay be allowed in his cross-examination 

than in that of other witnesses. See, however, the last paragraph of 138g as to 

lin~itations upon cross-examination of the accused concerning other offenses 

or acts of misconduct. When an accused voluntarily testifies as a witness, he 

thereby, with respect to the issues concerning which lie so testifies, waives the 

privilege against self-incriminatioli. Consequently, when an accused voluntarily 

testifies concerning the issue of his guilt or innocence of an offense for which 

he is being tried, as when he voluiitarily testifies in explanation or denial of 

such an offense, he cannot, upoii cross-examination as to matters relevant to 

that issue, justify a refusal to answer questions on the grouiid that his answers 

might tend to incriminate him. If the accused is on trial for two or more offenses 

and on direct examination testifies concerning the issue of his guilt or innocence 

of only one or some of them, he may not be cross-examined with respect to the 

issue of his guilt or iniiocence of the offense or offenses conceriring which he has 

not testified unless the cross-examination is relevant to an offense coiiceriiiiig 

which he testified. If an 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 t.lie issue of his guilt or 

innocence at all. See 140a as to the right of an accused who has made or is 

said to have made a confession or admission to testify concerning the involuntary nature of the statement or that the stateineat was not in fact made by him 

without thereby subjecting himself to cross-examiliation upoii other issues in 

tlie case or upon the truth or falsity of the statement. 

(2) Redirect 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 sliould be confined to the issues 

brought out on the redirect examination. 

(3) Exanailtation by the coztrt or (1 n~enaber. The general rule is that 

the court, including the military judge, and its members may ask a witiless any 

question that either side might properly aslr the witness. If new matter, not 

properly the subject of cross-examinntion of the witness on his previous testimony, is elicited by questions of the court or its members, both parties will be 

permitted to cross-examine the witness upon the new matter. In questioning 

witnesses, including an accused 11-110 has beco~ne a \~itness, the court and its 

members mnst be careful not to clepnrt from nil impartial role. 

In questioning an accnsed, the court and its members must confine them 

selves to questions which would be permissible on cross-examination of the ac- 
fl 149c CHAPTER XXVll 

cused by t8he prosecution. In questioning a witness concerning the character 

of the accused, the court and its members must confine theinselves to matters 

which could properly be inquired into by the prosecution. See also the first paragraph of 142cl (Statements of motive, intent, or state of mind or body). 

Questions by the court or its illeinbers and evidence elicited by these 

questions are subject to objection on proper grounds by either side. The military 

judge, or the president of a special court-martial 3%-ithout anzilitary judge, may 

require members to submit their questions to him either orally or in writing so 

that a ruling may be made on the propriety of the questions or course of 

questioning and so that the questions may be asked on behalf of the court in 

either their original or rephrased form by the military judge, president of the 

special court-martial 11-it.hout a inilitary judge, or trial counsel. See also 44g 

and 546, and c. 

c. Leading questions; ambiguous and misleading questions; other objectionable questions. (1) Leading questions. (a) General rule. Leading questions are questions which either suggest the ans~-er it is desired the witness 

shall make or which, embodying a material fact, are susceptible of being 

answered by a simple yes or no. ,\ leading question, except on cross-examination, 

should be excluded upon proper objection. For example, if a knife is introduced in evidence, a witness should not be asked on clirect 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 not --?" 

(6) Exceptions. 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 exaillinatioil of n 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 party calling him may use leading questions. The party calling a witness may also use leading questions in 

any situation in which the party may impeach that witness (see 1536, 

Impeachment). 

When it appears that a 11-itness has made an erroneous statement 

through a slip of the tongue or other inaclrertence, his attention may be directed 

to the matter by a leading questioil in order to give hiin :ti opportunity to correct the statement if he so desires. 

When, from the nature of the case, the iniild of the witness cannot be 

directed to the subject of the inquiry without specifying 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 R certain occasion in the hearing of certain 

other persons and these 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 military judge or the president of a special courtmartial without a military judge may, as a matter of discretion, allow liberal 

departures from the rule, as when the witness is obviously embarrassed and timid 
RULES OF EVIDENCE ll 150a 

through fear of strange surroundings or for other reasons, or when the witness, 

because of liis age or nieiital infirmity, is laboring under obvious difficulties in 

directing his mind toward the subject matter of tlze inquiry, or when the exact 

memiizg of words used by the witness is obscured by language clifficulties. However, in such cases, the \vitness should not be allowecl an opportuiiity to shape 

his testimony as he ~hinlrs the questioner desires, nor should tlie witness be 

:~llowed an opportunity to shape liis testimony to conform to tlie testinzoiiy of 

other witnesses from suggestions he ]nay gather during the examination. 

A witness who is not certain about, or does not recollect, a matter concerning xvliich he is called upon to testify may be permitted, on his direct or 

other examination, to refresh his present recollectioiz concerning the matter and 

then to testify froizi that present recollectioii or, if he cannot refresh his present 

recollection, to state that his past recollectioii as to the matter, possessed at a 

time when that recollectioiz ~vas reasonably fresh, is represented by certain data. 

So 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 the 

data or events on his memory. See 146a (Memoranda). 

(2) Anxbigtious nncl ~nisZencZi~xg ytcestione. A question which is ambiguous 

or misleading should never be permitted either on direct or cross-examination. 

Such a question is unfair to tlze witness, who may thereby be led into making 

nil uiiintentioiial misstatement. Moreover, his answer may give a wrong impression to the court. Included in ambiguous or misleading questions are those 

e,mbodying two or more separate elements or questions. Thus, the question "Did 

yon see the accused leave the quarters with a bundle under his arm?" really 

contains four questions. Under certain circumstaiices, the affirmative or negative answer of the witness inight be intended to apply to only one of the four 

questions iizrrolvecl and might be understood by the court to apply to all of them. 

Also included are qnestioizs ~vhich assume a fact to which the witness has not 

previously ,testified. Thus, tlie question "TVhen you saw the accused was anyone 

with him?" ~~onld be improper unless tlie witness has previously testified that 

he had seen the accused. 

(3) Othel~ 06 jectiorzable questions. Questions should iiot be asked for the 

purpose of suggesting matters that are known not to exist or that the rules of 

evidence clearly make inadmissible. 

150. DEGRADING -4ND INCRIMINATING QUESTIONS. a. Cornpulsory self-degradation. Under Article 31 (c), no person may be compelled 

t,o make n statement or produce evidence before any military tribunal if the 

statement or evidence is iiot material to the issne and may tend to degrade him. 

The privilege against compulsory self-degradation applies only to matters not 

material to the issue, whereas the privilege against compulsory self-incrimination applies to all matt,ers. When a \vitness refuses to answer a question on the 

ground that the answer thereto mould not be material to the issne and inight 

tend to degrade him, the military judge or the president of a special courtmartial without a. military juclge shall determine whether the question does or 

does not call for an answer material to the issue and if it is determined that it 

does, or that the answer could not tend to degrade the ~vitness, the witness may 

be required to answer the question. A question calls for an answer material to the 
U 150b CHAPTER XXVll 

issue when the answer might be expected to have some bearing upon any subject 

of inquiry legitimately before the court, including the credibiliky of witnesses. 

b. Compulsory self-incrimination. The fifth amendment to the Constitution of the United States provides that no person shall be compelled in any 

criminal case to be a witness against himself. The principle embodied in this 

provision applies to trials by courts-martial, and it is not limited to the person 

on trial but extends to any person who may be called as a witness. Also, Article 

31(a) provides that no person subject to the code inay compel any person to 

incriminate himself or to answer any question the answer to which may tend to 

incriminate him. 

If a witness states that the answer to a question may tend to incriminate 

him, he will not be required to answer unless it clearly appears to the military 

judge or the president of a special wurt-martial without a military judge that 

no answer the witness might make to the question could possibly have the effect 

of tending to incriminate him or that he has, with respect to the question, waived 

the privilege against self-incrimination. Altliough an answer to a certain 

question might normally be expected to incriminate a witness, he may be required to answer if he has been granted immunity. Also, the witness may be 

required to answer if, because of former trial, the i~~nning of the statute of 

limitations, or any other reason, he can successfully object to beiiig tried for any 

offense as to which the answer may supply information tending to incriminate 

him. 

The privilege of a witness to refuse to respond to a question the answer to 

which may tend to incriminate him is a personal one which 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 military judge, or the president of a special 

court-martial without a military judge, s11011ld advise an apparently uniaformed witiiess that lie has a right to decline to make ally answer which might, 

tend to incriminate him and that any self-iiicriminatii~g answer he might make 

can later be used as evidence against him. A witness who answers a question 

without having asserted the privilege and thereby admits a self-iiicriniiaatilig 

fact inay, at tlie trial in which the ans~ver was gi\~eii, be required to disclose all 

relevant details with respect thereto, so long as, in testifyilicr in answer to ally P particular question, there is no real danger of further self-iiicriminatioli. The 

~vitiless may be considered to have waived the privilege to this extent by having 

made the aiis~~er, but such waiver mill not extencl to :L rehearing or new or 

other trial. See the last paragraph of 149b(l) as to waiver of this privilege 

by an accused \3-11e11 he testifies. 

The fact that a witness has asserted the privilege against self-incrimination 

in refusing to answer a question cannot be considered as raising any inference 

unfavorable to either the accused or the Government. 

The l~rivilege against compulsory self-incriminatioi protects a person olily 

from beiiig compelled to testify against himself or to provide the Go~rernmeiit 

otherwise with evidence of a testin~onial or comm~uiicative nature and does 

not protect hiin from being coinpellecl by an order or force to exhibit his body 

or other physical characteristics 2s evidence. The privilege is therefore not 

vjolated, for example, by tlie use of compulsion in taking the fiii~erprints of b.

an accused or other person, in exhibiting or requiring him to exhibit a scar on 

his body, i11 l~lncing his feet in tracks or trying clothing or shoes on him or re- 
RULES OF EVIDENCE 11 151b 

quiring him to do so. Also, the privilege is not violated by the use of compulsion 

in requiring a person to produce for use as evidence or otherwise a record or 

writing under his control containing or disclosing matter incriminating him 

when the record or writing is under his control in a representative rather than 

a personal capacity, as when it is in his control as the custodian of a nonappropriated fund. 

A statement obtained from the accused by compelling him to incriminate 

himself is inadmissible against him regardless of the person applying the compulsion (see also 140u and Art. 31 (d)), and any evidence obtained as a result 

of information supplied by the statement is inadmissible against the accused if 

the compulsion was applied by, or at the instigation or with the participation 

of, an official or agent of the United States, or any State thereof or political 

subdivision of either, who was acting in a governmental capacity. Also, evidence 

obtained as a result of subjecting tlze accused to gross and brutal maltreatmentfor example, pumping out the contents of his stomach over his protest 

for the purpose of securing eviden,ce rather than of preserving his health-is 

inadmissible against him if the maltreatment was administered by, or at the 

instigation or with the participation of, an official or agent of the United States, 

or any State thereof or political subdivision of either, who was acting in a 

governmental capacity. The reason for this latter rule is that to admit evidence 

of this kind against the accused would violate due process. 

151. PRIVILEGED AND NONPRIVILEGED COMMUNICATIONS. 

a. General. A privileged communication is a communication made as an incident of rt confidential relation which it is the public policy to protect. Since 

public policy is involved, evidence of such a communicatioil should not be received unless it appears that the privilege has been waived by the person or 

government entitled to the benefit of it or that the evidence comes from a persoil 

or source not bound by the privilege. 

b. Certain privileged communications. (1) Military and state secrets, 

and informants. Official communications and documents containing military 

or state secrets, including diplomatic correspondence, are privileged from disclosure in a court-martial proceeding where in the opinion of the head of the 

executive or military department or government agency concerned such disclosure would be detrimental to the national interest. The deliberations of courts 

and of grand or petit juries are privileged, but the results of their deliberations 

are not privileged. The identity of persons supplying information to public 

officials engaged in the discovery of crime is privileged against disclosure, and 

the communications of these informants imparting the information are also 

privileged to the extent necessary to prevent disclosure of the informant's 

identity. 

The privilege pertaining to the identity and communicatioils of informants 

may be waived by appropriate governmental authorities. This privilege is no 

longer applicable once the identity of the informant has been disclosed to those 

who would have cause to resent his communication. Also, the privilege is not 

applicable with respect to ail informant the disclosure of whose identity is 

necessary to the accused's defense on the issue of guilt or innocence. Whether 

such a necessity exists will depend upon the particular circumstances of each 

case, taking into consideration the offense charged, the possible defenses, the 

possible significance of the informant's testimony, and other relevant factors. 
ll 151b CHAPTER XXVll 

Inen the prosecution uses an informant as a prosecution witness, the privilege 

pertaining to communications made by informants is waived by the Government with respect to statements or reports-of the informant which relate to 

the subject matter of the testimony of the witness, and therefore the privilege 

cannot be applied in opposition to an attempt by the defense to discover or 

disclose such a statement or report of the informant. See 1536 (Impeachmelit 

of witnesses). The principles expressed above, however, cannot be applied in 

opposition to a proper invocation of the privilege ~ertaining to diplomatic 

correspondence or to coinrnunications 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. In this 

connection, it should not be coiisiderecl that the mere fact of disclosure of the 

communications or identity of informants is, of itself and regardless of the 

nature of the disclosure, detrimental to the public interest. 

However, it should be recognized that invocation of such privilege might, 

depending upon the circumstances of the case, make it impossible to proceed 

with the trial where to do so would prejudice the substantial rights of the 

accused. See 33 f. 

(2) Commzcnications 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 separakion 

under a judicial decree, are privileged. However, a confidential commuiiication 

between husband and wife is not privileged when the marital relationship was 

a sham at the time the communication was made. See 148e (3) as to the meaning 

of "sham." Comniuiiications between a client or his agent and an attorney or 

his agent, such as the aittorney's clerk, stenographer, or other associate, are 

privileged when made while the relationship of client and attorney existed and 

in connection with that relationship, unless the communicatioiis clearly contemplated the future commission of a fraud or crime, for instance, perjury or 

subornation of perjury. Military or civilian counsel detailed, assigned, or otherwise engaged to defend or represent a person in a court-martial case or in any 

military investig~ztion or proceeding are attorneys, and the person is a client, 

with respect to the client aiid attorney privilege. Also privileged are communications between a person and a chaplain, priest, or clergyman, or assistant 

or other agent thereof, of any denomination made in the relationship of penitent 

and chaplain, priest, or clergyman, either &s a formal act of religion or concerning a matter of conscieiice. The person entitled to the benefit of the privilege 

pertaining to confidential commuilicatioiis 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; aiid the person entitled to the benefit 

of the penitent and clergyman privilege is the penitent. A conimunication made 

by one spouse to the other, by a client to an attorney, or by a penitent to a 

clergyman is not within these privileges if it was made intending that it be 

passed on to someone o~ttside the privileged relationship, nor is a communication 

between husband and wife, client and attorney, or penitent and clergyman 

within these privileges if to the knowledge of the spouse making it or the client 

or pel~iteilt it was made in the presence of someone outside the privileged 

relationship czipable of understanding the communication. A person interpreting 

the communication as the agent of either party thereto aiid a11 agent. of the 

client, attorney, or clergyman is not outside the privileged relationship. 
RULES OF EVIDENCE 1151b 

The general rule is that the disclosure of a privileged communication between husband and wife, client and attorney, or penitent and clergyman should 

not be required or permitted unless the person who is entitled to the benefit of 

the privilege consents to the disclosure of the communication or has otherwise 

11-aived the privilege, as when he has consented to a disclosure of the communication at a previous trial or hearing. To this general rule, there are the following 

exceptions : 

The privilege pertaining to confidential communications between husband and ivife will not prevent allowiiig or requiring such a communication to be disclosed at the request of the spouse to whom the communication 

was made if that spouse is an accusecl, and this is so even when the spouse 

who made the cominunication objects to its disclosure. 

The privilege pertaining to a privileged commuilication between husband and wife, client and attorney, or penitent ancl clergyman, which is 

based on a recognition of the public advantage that accrues from encouraging free communication in these circumstances, will not prevent allowing or 

requiring a person outside the privileged relationship who either by accident or design gainecl kilowledge of the commnilicatioil to testify concerning it, nor will it prevent the reception in evidence of a ~vriting containing 

the communication which was obtained by such a person either by accident 

or design. Rut see 152. However, this exception to the general rule does not 

apply if the person outside the privileged relationship who gained knowleclge of the ~rivileged comm~ulicationor who obtained the writing containing it did so, as to a communicatioil between husband and wife, with the 

connivance of the spouse to whom the commuilication was made, or, as to 

a corrrmunication between client and attorney or penitent ancl clergyman, 

with the connivance of the attorney or clergyman or agent thereof or in 

any other manner not reasonably to be anticipated by the client or penitent. 

Unless he voluntarily testifies concerning the communications, an accused 

who testifies in his own behalf, or a person who testifies under a grant or 

promise of immunity, does not, merely by reason of so testifying, waive any 

privilege pertaining to commui~ications between husband and wife, client and 

attorney, or penitent and clergyman to which he may be entitled. If the defense 

jntroduces evidence concerning a coinmunication between the accused and his 

spouse, the accused may not assert the privilege pertaining to confidential 

communications between husband and wife so as to prevent an attempt to 

contradict that evidence through the testimony of the accused's spouse or by 

other means. 

(3) Confidential and sec~et evidence. The Inspectors General of the 

various armed forces, and their assistants, are confidential agents of the military or executive departments concerned or of the military commander 011 

whose staff they may be serving. Their investigations are privileged unless a 

different procedure is prescribed by the authority ordering the investigation. 

Reports of these investigations and their accompanying testimony and exhibits 

are likewise privileged and copies thereof need not 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 examine for use, or to use, in a trial by court-martial or other 

military course of justice certain testimony, or an exhibit, accompanying the 

report of investigation, which testimony or exhibit may become material in 
11 152 CHAPTER XXVll 

the trial or course of justice, for example, to show an inconsistent statement of 

a witness, he should approve the application unless he is of the opinion that it 

would be contrary to public policy to divulge the information deshed. 

In certain cases, it may become necessary to introduce evidence of a c011fidential 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, adequate precautions should be taken to insure that no greater 

dissemination of the confidential or secret evidence occurs than the necessities 

of the trial require. The courtroom should be cleared of spectators while evidence of this nature is being received or commented upon, and all persons whose 

duties require them to remain should be warned that they are not to disclose the 

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. (1) Commwnications 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 

courts-martial as to wire or radio communications, and telegrams and radiograms may be brought before courts-martial by the usual process. But see 

1516 (1) and the next to the last paragraph of 152. 

(2) Communications to medical oflicers and civilian physicians. It is the 

duty of medical officers to supply medical services to members of the armed 

forces, to make periodical physical examinations as required by regulations, and 

to examine persons for appointment and enlistment, and medical officers may 

be specifically directed to observe, examine, or attend members of the armed 

forces. This observation, examination, or attendance is official and the information thereby acquired is 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 this 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 an unlawful search of the person or 

property of the accused conducted, instigated, or participated in by an 

official or agent of the United States, or any State thereof or political subdivision of either, who was acting in a Governmental capacity; or 

If it was obtained without the freely given consent of ,the accused as a 

result of an unZatufuZ search of another's premises on which the accused 

was legitimately present, and the search in question was conducted, instigated, or participated in by an official or agent of the United States, or any 

State thereof or political snbdivjsion of either, who was actink in a Governmental capacit,y ;or 

If it was obtained as a result of a seizure or examination of property 

of the accused upon an unlnwful sea~ch of anyone's property, unless the 

presence of the property of the accused was due to trespass, whether or not 

the accused was present, and the search in question was conducted, instigated, or participated in by an official or agent of the United States, or any 
RULES OF EVIDENCE R 152 

State thereof or political subdivision of either, who was acting in a Governmental capacity. 

Evidence obtained as a result of information supplied by illegal acts of 

the kinds mentioned above is itself considered as having been obtained as a 

result of the illegal acts. For example, if a search is unlawfnl becanse conducted 

11-ithout probable cause and a second search is conducted based on information 

supplying probable cause discovered during the first search, evidence obtained 

by the second search is inadmissible against an acc~~sed entitled to object to the 

evidence even if the second search would otherwise be lawful. Evidence is not 

considered as having been obtained as a result of the illegal acts merely because 

it would not have come to light bnt for those acts. Evidence is considered as 

having been obtained as a result of the illegal acts only if it has been acquired 

by an exploitation of those acts instead of by means sufficiently distinguishable 

to be purged of the taint of the illegality. 

The defense is free to deny all the elements of the case against the accused 

without thereby giving leave to the Government to introduce by way of rebuttal 

evidence which would be inadmissible against the accused under the above 

rules. If, however, the defense introduces evidence as to other matters, as when 

the accused testifies on direct examination that he has never committed an 

offense of the kind in question, contradicting evidence as to those matters which 

mas obtained as a result of an unlawfi~l search may be introduced in rebuttal, 

even if that evidence would otherwise be inadmissible against the accused because of the unlawful search. 

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 conducted as an incident of lawfully apprehending a person, 

which may include a search of his person, of the clothing he is wearing, 

and of property which, at the time of apprehension, is in his immediate 

possession or control, and a search of the place where the apprehension is 

made; but a search which involves an intrusion into his body, as by taking 

a sample of his blood for chemical analysis, may be conducted nnder this 

rule only when there is a clear indication that evidence of crime will be 

fo~uld, there is reason to believe that delay will threaten the destruction of 

the evidence, and the method of condncting the search is reasonable. See 

the example of an unreasonable method in the last paragraph of 150b. 

A search incident to a lawful hot pursuit of a person, including, when 

so incident, a search reasonably necessary to prevent his resistance or escape. 

A search of open fields or woodlands, with or without the consent of 

the owner or tenant. 

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 of one's person with his freely given consent, or of property 

with the freely given consent of a person entitled in the situation involved 

to waive the right to immunity from an unreasonable search, such as 

an owner, bailee, tenant, or occupant as the case may be under the 

circuinstt~nces. 

A search of any of the following three kinds which has been authorized 

upon probable cause by a commanding officer, including an officer in charge, 
11 152 CHAPTER XXVll 

having control over the place where the property or person searched is 

situated or found or, if that place is not under military control, having 

control over persons subject to military law or the law of war in that place : 

(1) A search of property owned, used, or occupied by, or in the 

possession of, a person subject to military law or the law of war, the 

property being situated in a military installation, encampment, or 

vessel or some other place under military control or situated in occupied 

territory or a foreign country. 

(2) A search of the person of anyone subject to military law or 

the law of war who is found in any such place, territory, or country. 

(3) A search of military property of the United States, or of 

property of nonappropriated fund activities of an armed force of 

the United States. 

The commanding officer may delegate to persons of his command, or made 

available to him, the general authority to order searches upon probable 

cause, and a search ordered by virtue of any such delegation is to be considered as having been authorized by the commanding officer. Any such 

delegation should be made to an impartial person. The person who orders 

a search need not himself make or be present at the search. 

The examples of lawful searches set forth above are not intended to indicate 

a limitation upon the legality of searches otherwise reasonable under the 

circumstances. 

To be lawful even under circumstances that n70uld permit a lawful search, 

searches by United States or other domestic authorities of a person's house, 

dwelling, automobile, effects, papers, or pel-son without his freely given consent 

must be for instrumentalities or fruits of crime, things which might be used 

to resist apprehension or to escape, property the possession of \vhich is itself 

a crime, or evidence which there is reason to believe will otherwise aid in a 

particular apprehension or conviction. This restriction does not apply to admiaistrative iizspections or inventories conducted in accordance with law, regulation, or custom. 

Probable cause for ordering a search exists when there is reason to believe 

that items of the kind indicated above as being properly the subject of a search 

are located in the place or on the person to be searched. Such a reasonable belief 

may be based on infornlation which the authority requesting perillission to 

search has received from another if the authority ordering the search has been 

apprised of some of the underlying circuiilstances froill which the iiifornlant 

concluded that the items in question were where he claiiiied they were and some 

of the tulderlying circumstances fro111 which the authority requesting permission 

to search concluded that the informant, whose identity need not be disclosed, 

was credible or his information reliable. 

When the accused objects to evidence obtained as a result of a search on 

the ground that the search was unlawful, the burden is on the Government to 

show, :LS :~n interlocutory matter, either that the search mas la\vful or that for 

some other reason the search would not render the evidence in question inadmissible against the accused. If the justification for using evidence obtained as 

a result of a search is that there was a freely given consent to the search, that 

consent must be shown by clear and positive evidence. 

Military courts have no authority to entertain a motion for or to orcler the 

return of property obtained as a result of an unlawful search or seizure or to 
RULES OF EVIDENCE 11 153a 

entertain a motion for or to order the suppression for use as evidence of property or information so obtained, as distinguished from ruling as to whether 

or not it is admissible against the accused. 

Evidence is inadmissable against the accused if it was obtained under such 

circumstances and in such a place that its use against him would be prohibited 

by section 2515, title 18, United States Code, pertaining to the prohibition of the 

use as evidence of certain intercepted mire or oral communic~tions, or by section 

605 of the Commuilications Act of 1934 (82 Stat. 223; 47 U.S.C. 5 605), as 

amended, pertaining to the unauthorized divulgence or publication of wire or 

radio communications. 

See also 140a and the last paragraph of 1506. 

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 from 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, from comparison of his testimony with other statements made by him 

and with the testimony of others, and from 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 not be warranted in accepting 

certain testimony as being sufficient to constitute a basis for a determination of 

guilt. For example, a conviction cannot be based solely upon self-contradictory 

testimony given by a witness other than the accused, even if a motive on the part 

of the accused to commit the offense charged is shown, if the contradiction is 

not adequately explained by the witness in his testimony. Also, a conviction cannot be based upon uncorroborated testimony given by an alleged victim in a trial 

for a sexual offense or upon uncorroborated testimony given by an accomplice in 

a trial for any offense, if in either case the testimony is self-contradictory, uncertain, or improbable. Even if apparently corroborated and apparently credible, 

testimony of an accomplice which is adverse to the accused is of questionable 

integrity and is to be considered with great caution. See also 210 and 213f (4) 

for special standards applying to proof of falsity in prosecutions for perjury 

and false swearing. When appropriate, the above rules should, upon request by 

the defense, be included in the general instructions of the military judge or the 

president of a special court-martial without a military judge. 

In general, a person gains no corroboration merely because he repeats a. 

statement a number of times. Consequently, a witness ordinarily may not be 

corroborated by showing that he made statements consistent with his testimony. 

Rut this is only a general rule, and there are some situations in which consisteilt 

statements are admissible to corroborate the witness. If the testimoily of a, witness has been attacked on the gronild that it ~vas due to a certain influence, el-idence of his statements or conduct, consistei~t with his testimony, made or occurring before the creatioil of that influence, may be iiltroduced for the purpose 

of corroborating his testimony. For example, if the credibility of a, witness has 

been attacked on the ground of bias due to a quarrel with the accused, the fact 
ll 153b CHAPTER XXVll 

that before the date of the quarrel he made an assertion similar to his testimony 

is admissible for this purpose. Similarly, if his impeachment has been sought 

on the ground of collusion or corruption, evidence of a consistent statement 

made by him prior to the collusion or corruption is admissible for the same 

purpose. Also, if the testimony of a witness has been attacked on the ground that 

he made one or more inconsistent statements or on the ground that it was a fabrication of recent date, evidence of a consistent statement made by him before there 

was a motive to misrepresent is admissible to corroborate his testimony. 

When in his testimony a witness identifies the accused as being, or not being, 

a participant in the offense or makes any other relevant identification conceraing a person in the courtroom, evidence that on a previous occasion the witness 

made a similar identification is admissible to corroborate his testimony as to 

identity, even if the credibility of the witness has not been directly attacked. 

I11such a case, the identifying witness himself and any person who has observed 

the previous identification may testify concerning it. An identification of an 

accused or suspect as being a participant in the offense, whether made at his trial 

or otherwise, which was a result of his having been subjected by United States 

or other domestic authorities to a lineup for the purpose of identification without the presence of counsel for him is inadmissible against the accused or suspect 

if he did not voluntarily and. intelligently waive his right to the presence of 

counsel. Concerning the determination as to whether the identification was a 

result of an illegal lineup, see the second paragraph of 152. However, when an 

identification was made at a lineup conducted in violation of the right to counsel, that identification is a result of the illegal lineup, and a later identification 

by one present at such an illegal lineup is also a result thereof unless the contrary 

is shown by clear and convincing evidence. 

If a consistent statement of a witness is admissible as an exception to the 

hearsay rule to prove the truth of the matters stated therein, the statement is 

also admissible to corroborate his testimony, and this is so even if the statement 

mould not otherwise be admissible for the purpose of corroboration. 

See also 142c (Fresh complaint and lack of fresh complaint). 

Evidence which raises an inference of the truth of other evidence "corroborates" that other evidence. 

b. Impeachment of witnesses. (1) GeneraZ. See 1496 (1) (Cross-examination). Impeachment is the process of attempting to diminish credibility. The 

credibility of any witness, including an accused who has become a witness 

may be attacked. 

The general rule is that a party is not permitted to impeach his own 

witness, tihat is, deliberately to attempt to discredit him. Inconsistencies which 

incidentially develop between witnesses for the same side are not impeachments 

prohibited by this rule. The general rule is subject to the following exceptions. 

If a party is compelled to call a witness because the law or the circumstances 

make his testimony indispensible or if the testimony of a witness proves 

unexpectedly adverse 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 

\I-itness has been surprised by adverse testimony, (riven by the witness. If 9 surprise is the only reason for permitting a party to ~mpeach his own witness, 

the party may directly attack the credibility of the \vitness only by proof of 

prejudice, bias, or other motive to misrepresent with respect to the adverse 
RULES OF EVIDENCE 11 153b 

testimony as to which the party was surprised, or by proof of statements or 

conduct of bhe witness inconsistent with that adverse testimony, and may not, 

for instance, show that the witness has a bad character as to truth or veracity 

or that the witness ha8 been convicted of crime. The surprise caused by adverse 

testimony given by a party's own witness which will allow the party to impeach 

him must be actual, not feigned, surprise. The party must have had an honest 

belief that the witness would testify as expected. The fact that the party was 

advised by a person other than the witness that the witness would testify in a 

certain manner is no basis for a claim of surprise when the witness fails to do so. 

In this respect, however, the party, unless he is in possession of information 

indicating that the witness is likely to testify otherwise, may rely upon statements purportedly made by the witness in the course of an official 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 character as to truth 

and veracity. If the credibility of a witness has been attacked, proof that the 

witness has a <rood character as to truth and veracity may be introduced. A P witness who glves competent testimony concerning a person's character as to 

truth and veracity may be asked whether he would believe the person on oath. 

See 138f (1) asto methods of proving character. 

(6) Conviction of crh77e. A witness may be impeached by showing 

that he has been convicted by a civil or military court of a crime-that is, any 

offense of a civil or military nature-which involves moral turpitude or otherwise affects his credibility. Proof of the conviction may be made by introducing 

in evidence an admissible record of the conviction, an admissible copy of such 

a record, or other competent evidence of the conviction. See also 147a as to the 

taking of judicial notice of court-martial orders. Another permissible method 

of proving that a witness has been convicted of an offense involving moral 

turpitude or otherwise affecting his credibility is to question him with reference 

to convictions of offenses of this type in general or with reference to a conviction of a specific offense of this type. Nonaccusatory questions regarding 

convictions of offenses of this type in general may properly be asked in an 

attempt in good faith to impeach the witness even if the questioner has no 

definite information that the witness has been convicted of any such offense. 

If. in reply to questioning, the witness admits a conviction, other proof of the 

conviction is unnecessary. When proof of a conviction of a witness has been 

received for the purpose of impeaching him, the ~itness, ifhe so desires, should 

be permitted to explain the circumstances of the conr~iction. Evidence as to any 

juvenile proceeding, adjudication, or conviction which involved an accused is 

not admissible against him under the rules provided above. Homer-er, see the 

seventh paragraph herein (1536 (2) (6)) as to when this evidence is admissible 

against an accused. 

See the last paragraph of 138g as to the instruction that should be 

given when evidence of a conviction of the accused is introduced before the 

findings and is of a kind which is then admissible only for the purpose of impeaching his credibility as a witness. 
ll 153b CHAPTER XXVll 

The following convictions are among those which are considered to 

be convictions of oflenses involving moral turpitude or otherwise affecting 

credibility : 

(1) A conviction by court-martial of an offense for which a punishment of dishonorable discharge or confinement at hard labor for more than 

one year is authorized, whether or not such a punishment was actually 

adjudged. 

(2) A conviction by a Federal civilian court of a felony, that is, of 

an offense punishable under the United States Code by confinement for 

more than one year, whether or not that punishment was actually adjudged. 

(3) A conviction by any other court of an offense similar to an offense made punishable by the United States Code as a felony or of an 

offense characterized by the jurisdiction in question as a felony or as an 

offense of comparable gravity. 

(4) A conviction of any offense involving fraud, deceit, larceny, 

wrongful appropriation, or the making of a false statement. 

Any conviction which has been disapproved, set aside, or otherwise 

revised, or which is undergoing appellate review, or as to which the time for 

appeal has not expired is not admissible for impeachment purposes. A pending 

request to the Judge Advocate General to vacate or modify the findings and 

sentence of a court-martial under Article 69 (llOA) is not a part of the review 

within the meaning of Article 76 (108). The time limitations upon the introduction of evidence of previous convictions set forth in 756 (2) do not apply 

to impeachment proceedings. 

In general it is not permissible, except on cross-examination of a 

witness who is not the accused, to impeach a witness on the ground that he 

has committed an offense involving moral turpitude or otherwise affecting his 

credibility by adducing evidence of the offense not amounting to proof of 

conviction thereof. However, in a prosecution for a 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 consent by the alleged victim to the act charged (whether or not 

the alleged victim has testified as a witness) and on the question of the credibility of the alleged victim, and this is so whether or not there was a conviction 

of any offense involved. For this purpose, evidence of the alleged victim's lewd 

repute, habits, ways of life, or associations,,and of the alleged victim's specific 

acts of illicit sexual intercourse or other lascivious acts with the accused or 

others, is admissible, and this is so whether the circumstances to which that 

evidence refers existed before or after the commission of the alleged offense, 

unless the military judge or the president of a special court-martial without a 

military judge, determines as a matter of discretion that the particular evidence 

would be so remote with respect to the question of consent or credibility as to 

be irrelevant. For example, on cross-examination of the alleged victim in a rape 

case, it would be proper to exclude a question calling for her testimony as to 

whether, at a time which was thus remote, she had participated in illicit sexual 

intercourse. On the other hand, it would be improper to prohibit an attempt, 

on her cross-examination or otherwise, to show that she was engaged in the 

business of prostitution at or about the time of the alleged <ape. For the purpose 

of impeaching the credibility of the alleged victim, defense evidence that the 

victim has an unchaste character is admissible snbject to the above conditions, 
RULES OF EVIDENCE n 153b 

in a prosecution for any sexual offense, even if consent is not an element of the 

offense. Evidence 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 la'ck of consent is material, or to rebut the inlplications arising 

from evidence that the alleged victim has an unchaste character. 

It is permissible on cross-examination of any witness other than the 

accused to adduce, for the purpose of impeaching the witness, evidence that he 

has committed an offense involving moral turpitude or otherwise affecting his 

credibility, even if that evidence does not amount to proof of conviction of the 

offense and even if the witness has not in fact been convicted of the offense. 

Consequently, any witness other than the accused may, on cross-examination, 

be questioned concerning the commission by him of an offense of this type; 

but in cross-examining a witness under this rule the questioner must be in possession of facts which support a genuine belief that the witness has committed 

the offense to which the questioning relates. An answer denying commission 

of such an offense may be contradicted by evidence other than the testimony of 

the witness given at the trial only if the contradicting evidence would be admissible without regard to the answer. 

If the accused testifies on direct examination to the effect that he has 

never, or has not within a certain period of time, committed an offense of any 

kind or of a certain kind, evidence contradicting that testimony, or any inference 

which could reasonably be drawn therefrom, may be introdnced through crossexamination of the accused or otherwise for the purpose of impeaching his 

credibility as a witness as well as for the purpose of rebuttal, whether or not 

he has been convicted of any offense shown by the contradicting evidence. Likewise, if evidence to the effect that the accused has never, or has not within a 

certain period of time, committed an offense of any kind or of a certain kind 

is introduced by the defense through witnesses other than the accused, evidence 

contradicting that defense evidence or any inference which could reasonably 

be drawn therefrom may be introduced in rebuttal, whether or not the accused 

has been convicted of any offense shown by the contradicting evidence. If that 

evidence involves an offense affecting credibility, it may also be considered for 

the purpose of impeaching the credibility of the accused if he testifies. 

If evidence that the accused has committed an offense is admissible 

for any purpose ~ulder 138g and the offense affects credibility, that evidence 

may also be considered for the purpose of impeaching the credibility of the accused as a witness, whether or not he has been convicted of the offense. 

For the purpose of impeachment, it may be shown by cross-examination or otherwise that a witness has been given or promised immunity or other 

advantage; that he is in custody and that his testimony may have been affected 

by fear or hope of favor growing out of his detention; or that he has charges 

pending against him for the offense concerning which he has testified or an 

offense closely related thereto and that his testimony may have been colored by 

the pendency of these charges. 

(c) Inconsistent statements. A witness may be impeached by showing 

by any competent evidence that he made a statement, or engaged in other concluct, inconsistent with his testimony or any part thereof, but n foundation 

must first be laid before i~ltroducii~g e\riclence of an inconsistent statement if 

that evidence is admissible only for the l~urpose of impeachme~lt. The fomldu- 
11 153b CHAPTER XXVll 

tion for the introduction of evidence of the inalring of an inconsistent oral 

statement is laid by directing the attention of the witness to the time and 

place of the statement and the person or persons to whom it mas made and theit 

asking the witness if he made it.This procedure may also be used as constituting 

a sufficient foundation 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 denies 

making the inconsistent statement, or testifies that he does not remember whether 

he made it, or refuses to testify as to whether he inacle it, competent evidence 

that he did make it, including competent evidence of the text or substance of 

the statement, may be introduced. Eren if the witness admits making the inconsistent statement, other competent eviclence that he made it, including other 

competent evidence of the text or snbstallce of the statement, may be introduced 

in addition to the admission. TVl~en the inconsistent statement is contained in 

a writing apparently signed or written by the witness, a sufficient foundation 

may be laid by showing the writing to the witness and asking hiin 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 a~~thor, 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 become admissible in 

evidence. 

An oral incolzsistent statelnent of a witness may be proved by the testimony of anyone who heard him make it, even if the statement mas reduced to 

writing and the writing is not accounted for. See 141 as to proving an inconsistent statement made through an interpreter. 

Proof that a witness made an inconsistent statement generally is admissible only for the purpose of iinpeaching him. Proof of an inconsistent 

statement of a witness is admissible to establish the trnth of the matters asserted 

in the statement only if that proof may properly be received as evidence of a 

voluntary confession or admission of the witness, when he is the accused, or of 

some statement of the witness which is otherwise admissible as an exception to 

the hearsay rule, or if the witness testifies thnt his illconsistent statement is 

true, not merely that he made it, and thus adopts the statement as part of his 

testimony. If proof of an inconsistellt statement of a witness is admissible 

merely for the purpose of impeachment, the military judge, or the president 

of a special court-martial without a military judge, should, when evidence of 

the inconsistent statement is introduced, instruct the members of the court in 

open session that the evidence is to be considered only for the purpose of determining the credibility of the witness and not for the purpose of establishing 

the truth of the matters asserted in the statement. 

The fact that the inconsisteizt statement was made ill the course of 

an investigation or at another trial does not cause evidence of the makiilg of 

the statement to be inadmissible for the purpose of impeachment. However, an 

accused who has testified as a witness may not be cross-examined upon, or 

impeached by evidence of, any statement ~vl~ich was obtained from him in 

violation of Article 31 or any of the warning requirements in 140a(2) or 

through the use of coercion, unla~vfl~l influence, or un1:lwful inducement. See 

Article 31 (d). A witness has a right to explain any apparently ii~co~lsistent satcment made by him and may, if excused from the stand, be recalled for that 

purpose. 
RULES OF EVIDENCE ll 154a 

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 gives 

no material testimony properly subject to impeachment testifies that he has no 

knowledge, or that he has no recollection, of that fact, it cannot be shown by 

way of impeachment that at some other time he made a statement as to the 

fact. The reason for this rule is that proof of such a statement eithe~ would 

not impeach the testimony of the witness at all or would improperly impeach 

his testimony. However, when the witness merely claims a failure of memory, 

the statement may be used in a proper attempt to refresh his present recollection or to establish his past recollection. See 146a and the last paragraph 

of 149c (I) (b). (d) Prejudice and bias. Former quarrels, relationship, friendship, 

or illicit relations with the accused and other matters showing prejudice, 

bias, or any motive to misrepresent may be shown to diminish the credibility 

of the witness, either by cross-examination of the witness himself or by evidence 

otherwise adduced. 

(3) Effect of impeaching evidence. Whether the credibility of a witness 

has been successfully impeached is a question to be decided, during deliberation 

upon the matter as to which the testimony of the witness was offered, by whoever is responsible for determining that matter, for example, by each member of 

the court during his deliberation as to his vote upon the matter if the matter 

is one properly determined by vote. Consequently, the military judge, or the 

president of a special court-martial without a military judge, should not strike 

the admissible testimony of a witness or instruct that it be disregarded simply 

because impeaching evidence with respect to that witness or his testimony has 

been introduced. 

154. MISCELLANEOUS MATTERS-GUILTY STATE OF MIND; 

STIPULATIONS; OFFER OF PROOF; WAIVER OF OBJECTIONS. a 

Guilty state of mind. (1) GelzeraZ. A guilty state of mind of one kind or another 

is a requirement of many offenses. In certain offenses, such as burglary, larceny, 

and desertion, a specific intent is necessary. In the kind of murder denounced by 

Article 118 (I), a premeditated design to kill must be proved. In some offenses, 

knowledge of a certain matter is a requirement. For details concerning the 

various guilty states of mind with respect to specific offenses, see chapter 

XXVIII (Punitive Articles). 

A guilty state of mind may be established either by direct evidence, 

for example, by words proved to have been used by the offender, or by circumstantial evidence, as by inference from the act itself. 

(2) Effect of insanity, mental defects, and character and behavio?. 

disorders. See 122. 

(3) Effect of drunkenness. 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 that voluntary drunkenness not amounting to legal 

insanity, whether caused by liquor or drugs, is not an excuse for an offense committed while in that condition. However, evidence of any degree of voluntary 

drunkenness may be introduced for the purpose of raising a reasonable doubt 

as to the existence of actual knowledge, specific intent, or a premeditated design 
U 154b CHAPTER XXVll 

to kill if actual knowledge, specific intent, or premeditated design to kill is a 

requirement of the offense. 

Evidence of drunkenness of the accused may be admitted on the question 

of the measure of punishment to be awarded in the event of conviction, even if 

that drunkenness would not be a defense to the offense charged. 

As to proof of drunkenness, see 138e (Opinion evidence) and 191 (Drunk 

on duty). 

(4) Effect of ignorance or mistake of fact. Ignorance or mistake of fact 

on the part of the accused is a defense when any type of knowledge of a certain 

fact is necessary to establish the offense. However, depending on the offense and 

facts involved, ignorance or mistake of fact may not be a defense unless the 

ignorance or mistake is reasonable. A feigned ignorance or mistake is, of course, 

no ignorance or mistake at all. If a certain fact, although an element of the 

offense, is one as to which no type of knowledge is required, such as the age of 

the victim in carnal knowledge (199b), ignorance or mistake as to that fact, even 

if reasonable, will not be a defense but may be shown in extenuation. Some specific applications of these rules appear in chapter XXVIII (Punitive Articles). 

(5) Effect of ignorance or mistake of law. As a general rule, ignorance or 

mistake of law, or of properly published regulations or directives of a general 

nature having the force of law, is not an excuse for the commission of an offense. 

If, however, to indicate the existence of a requisite intent or for any other reason, actual knowledge of a certain law or of the legal effect of certain known 

facts is necessary to establish the offense, ignorance or mistake as to that law or 

legal effect will be a defense. Also, ignorance or mistake of law or the legal 

effect of certain known facts may be a defense to show the absence of a guilty 

state of mind involved in an offense when actual knowledge thereof is not 

necessary to establish the offense. In this instance, however, depending on the 

offense and facts involved, the ignorance or mistake may not be a defense, unless 

it is reasonable. A feigned ignorance or mistake of law or the legal effect of certain known facts is, of course, no ignorance or mistake at all. Additionally, 

except for general orders or regulations, a person cannot be held responsible for 

a violation of a military regulation or directive unless he had actual knowledge 

of the regulation or directive. See 171a and b as to the distinction between general orders or regulations and other military orders. 

Even if the offense is one as to which ignorance or mistake of law is not a 

defense, the ignorance or mistake may nevertheless be shown in extenuation. 

b. Stipulations. (1) As to facts and the contents of writings. The parties 

may make a written or oral stipulation as to the existence or nonexistence of any 

fact. If an accused has pleaded not guilty and the plea still stands, a stipulation 

which practically amounts to a confession should not be received in evidence. 

Also, a stipulation which if true would operate as a complete defense to an 

offense charged should not be received in evidence. A stipulation should not be 

received in evidence if any doubt exists as to the accused's understanding of 

what is involved. A party may withdraw from an agreement to stipulate or from 

a stipulation at any time before the stipulation is received in evidence, and in 

such a case the stipulation cannot be received in evidence. Also, the military 

judge or the president of a special court-martial without a military judge may 

as a matter of discretion permit a party to withdraw from a stipulation which 

has been received in evidence, and in this event the stipulation must be disregarded by the court. Unless it is properly withdrawn or is ordered stricken 
RULES OF EVIDENCE 11 154d 

from the record, a stipulation of. fact which has been received in evidence may 

not be contradicted by the parties thereto. 

Subject to the above observations as to stipulations of facts, stipulations 

may be made as to the contents of a writing. 

(2) As to testimony. The parties may stipulate that if a certain person 

were present in court as a witness he would give certain testimony under oath. 

Such a stipulation does not admit the truth of the indicated testimony, nor does 

it add anything to the weight or the evidentiary nature of the testimony. Stipulated testimony may be attacked, contradicted, or explained in the same way as 

though the witness had actually so testified in person. The principles set forth 

in (1) above, as to the reception in evidence of stipulations and as to the withdrawal by a party from agreements to stipulate and from stipulations apply 

here also. 

A written stipulation as to testimony is merely read in evidence. Except 

for inspection of the writing by the president of a special court-mart,ial without 

a military judge for the purpose of determining bhe admissibility of its contents, 

the writing itself is not shown to the members of the court. However, the 

writing will be properly marked and incorporated in the record. 

(3) Instructions concerning stipulations received in a joint or commota 

trial. When in a joint or common trial a stipulation is received which was made 

by only one or some of the accused, the members of the court should be instructed 

that the stipulation may be considered only with respect to the accused person 

or persons who joined in it. 

c. Offerof proof. When the court refuses to hear certain testimony offered 

in behalf of the accused or refuses to receive certain evidence of any kind offered 

in his behalf, the defense 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 exclusion of the evidence in question 

was proper. No such statement shall be considered as proof of the matters contained therein. See also 57g. 

d. Waiver of objections. The prosecution or the defense may in court either 

orally or in writing waive an objection to the admissibility of offered evidence. 

Unless otherwise indicated by a specific principle of law, such a waiver adds 

nothing to the weight of the evidence or to the credibility of its source. The 

military judge or the president of a special court-martial without a military 

judge may as a matter of discretion 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 that objection. A waiver of an objection 

does not, however, operate as an express consent if an express consent is required, and a mere failure to object does not amount to a waiver with respect 

to the admissibility of evidence except as otherwise stated or indicated in this 

manual. 
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. 

Para. 	 Page 

156. Article 77-Principals ........................... 28- 4 


157. Article 78-Accessory after the fact .................................... 28- 5 


158. Article 79-Lesser included offenses ................................ 28- 6 


159. Article 80-Attempts ............................ 28- 6 


160. Article 81-Conspiracy .......................... 2% 7 


161. Article 82-Solicitation-- ..................... 28- 9 


162. Article 83-Fraudulent enlistment, appointment, or separation -------_-__---- 28- 9

163. Article 84--Effecting unlawful enlistment, appointment, or separation- -- - --- - 28-10 

164. Article 85------------------------------------- 28-10 

a. Desertion------------------------------- 28-10 

b. Attempting to desert ................................ 28-13 


165. Article 8GAbsence without leave- ---------- ---- -- - -- -- - ---------- -- -- - - 28-14 

166. Article 87-Missing movement................................ 28-15 


167. Article 88-Contempt toward officials ---_------- - ------------------ -- - ---- 28-16 

168. Article 89-Disrespect toward a superior commissioned officer---- ----- - ----- - 28-17 

169. Article90------------------------------------- 28-18 

a. Striking or assaulting superior commissioned officer ..................... 28-18 


b. Disobeying superior commissioned officer ............................ - - 28-18 


170. Article91------------------------------------- 28-19 

a. General discussion ............................ 28-19 


b. Assaulting a warrant officer, noncommissioned officer, or petty officer__ _ - 28-20 

c. Disobeying a warrant officer, noncommissioned officer, or petty officer- -- - 28-20 

d. 	Treating with contempt or being disrespectful in language or deportment 

toward a warrant officer, noncommissioned officer, or petty officer- -- - -- 28-20 

171. Article 92-------------------------------------- 28-21 

a. Violation or failure to obey a lawful general order or regulation-- - _ - - - _ - _ 28-21 

b. Failure to obey other lawful order ............................... - - 28-21 


c. Dereliction in the performance of duties-.. ------------ ------------- 28-22 

172. Article 93-Cruelty and maltreatment- .................................. - 28-22 


173. Article 94-------------------------------------- 28-23 

a. Mutiny----------_---------------------- 28-23 . . b. Sedition-------------------------------- 28-23 

c. Failure to prevent or suppress a mutiny or sedition ..................... 28-23 


d. Failure to report a mutiny or sedition ................................ 28-23 


e. Attempted mutiny-------_-_---__------------------ 28-24 

174. Article 95------------------------------------- 28-24 

a. Resisting apprehension- _ -- _--_- - -- ----- - ---------- --- -- ------ -- 28-24 

b. Breach of arrest---------^---------------------- 25-24 

c. Escapefromconfinement-------..------------------------------..---- 28-25 

d. Escape from custody--_------------------------- 28-25 

175. Article96--------------------------:--~--- 28-25 

a. Releasing a prisoner without proper authority -----_-_-_-------28-25 

b. Suffering a prisoner to escape through neglect- - ---_------------------- 28-26 

c. Suffering a prisoner to escape through design -__-___-_----__------------- 25-26 

176. Article 97-Unlawful detention- - .......................... - 28-26 

11 155 	 CHAPTER XXVlll 

Para. 	 Page 

177. Article98--------------------------------------- 28-27 


a. Unnecessary delay in disposing of case ............................. 28-27 


b. 	 Knowingly and intentionally failing to enforce or comply with the provi- 


sions ofthe code-----_---------------------------- 28-27 


178. Article99-----__----------------------------- 28-27 


a. Running away before the enemy ................................ 28-27 


b. Shamefully abandoning, surrendering, or delivering up ----- - - -- - - - - - - - -- 28-28 


c. 	 Endangering the safety of a command, unit, place, or military property 


through disobedience, neglect, or intentional misconduct--- ---- - - - - - -- 28-28 


d. Casting away arms or ammunition -_---___--------------------­ 28-28 
 -

e. Cowardly conduct-------------------------------- 28-28 


f. Quitting place of duty to plunder or pillage- - - ........................ 28-29 


g. Causing false alarms- -.............................. 28-29 


h. 	Willfully failing to do utmost to encounter, engage, capture, or destroy 


enemy troops, combatants, vessels, aircraft, or any other thing- --- - --- 28-29 


i. Not affording all practicable relief and assistance-- ----------------- 28-29 


179. Article 100-----------------------~-----------28-30 


a. 	Subordinate compelling or attempting to compel commander to surrender 


or abandon place, property, or command- ---__-_--------------- - - - 28-30 


b. Striking the colors or flag .................................. 28-30 


180. Article 101-------____-----------------------~28-30 ~-


a. Disclosing the parole or countersign to one not entitled to receive it--- ___ 28-30 


b. Giving a parole or countersign different from that authorized---- - - ----- - 28-31 


181. Article 10SForcing a safeguard ............................. 28-31 


182. Article 103----------------------------------- 28-32 


a. Failing to secure captured enemy property -----____-----------­ 28-32 
 -

b. Failing to report and turn over captured or abandoned property ---- _ - _ _ - 28-32 


c. Dealing in captured or abandoned property ------------------­ ..---­ 28-32 ---


d. Engaging in looting or pillaging ............................ 28-32 


183. Article 104------------__-__----------------28-33 


a. Aiding or attempting to aid the enemy ---_-_-_------------------­ ....--
 28-33 

b. Harboring or protecting the enemy ................................... 28-33 


c. Giving intelligence to the enemy .............................. 28-33 


d. Communicating, corresponding, or holding intercourse with the enemy _ - - .. 28-34 


184. Article 105---------------------------------- 28-34 


a. 	Acting without authority to the detriment of another for the purpose of 


securing favorable treatment- ---- - -- _------ - ------- -- -------- - - - - 28-34 


b. Maltreating prisoners while in a position of authority -----__-_--------28-34 


185. Article 106-Spies ................................ 28-35 


186. Article 107-False official statements-- -_-_------------------ - 28-36 


187. Article 108-------------__--------------------- 28-36 


a. Selling or otherwise disposing of military property-- -_­ ..-----------­ ---
 28-36 

b. 	Willfully or through neglect damaging,' destroying, or losing military 


property--___-----------^-^--------^^^-- 28-36 


c. Suffering the loss, damage, destruction, sale, or wrongful disposition of . . mllitarypr~pert~--___-­ ..----------------------------------------28-37 


188. Article 109---------------------~----~--­ --
 28-38 

a. 	Wasting or spoiling property other than military property of the United 


states-_-_------------^---------------^--- 28-38 


b. 	 Willfully and wrongfully destroying or damaging other than military prop- 


erty of the United States -----------..-----------------------------
 28-38 

189. Article 110-Improper hazarding of vessel .............................. 28-38 


190. Article Ill-Drunken or reckless driving -_--_ _ _ 	_ _ _ - - __------------- ---- - - 28-39

191. Article 112-Drunk on duty ............................... 28-40 


192. Article 113-Misbehavior of sentinel or lookout- _ - - ---- - - - - - - - - - - - -- - - - - - - - 28-41 


193. Article 114_.------------__~~-~-------~----­28-42 ---
 . . a. Fighting a duel----____----------^^---------- 28-42 


b. 	 Promoting, being concerned in or conniving at fighting a duel, or failing to 


report knowledge of a challenge- - - ---_-_------------28-42 

-------- 

- ----- - ------ 

- ----- - ----- - - 

PUNITIVE ARTICLES 	 ll 155 

Para. 	 Page 

194. Article 115-Malingering-_- - --- - ---- -- - -- - --- - - ------- - --- - - - - ----- - - - 28-42 

195. Article 116------~-----------------------28-43 

a. Riot--------------------------------- 28-43 

b. Breach ofthepeace----------------------------------------------- 28-43 

196. Article 117-Provoking speeches or gestures ----------- ---------- - - -------- 28-43 

197. Article ll&Murder------------------------ 28-44 

198. Article 119------------------------------ 28-45 

a. Voluntary manslaughter----_-_------------------------------------ 28-45 

b. Involuntary manslaughter- --- _- .................... 28-46 


199. Article 120----------------------------------------------------------- 28-47 

a. 	 28-47 

b. Carnal knowledge---__--------------------------------------------- 28-47 

200. Article 121----__----------------------------------------------- 28-48 

a. Larceny--------_--___-------------- 28-48 

b. Wrongful appropriation--- - -- ---- ------ ---------------- ----------- - - 28-52 

201. Article 12&Robbery---_---_----------------------------------------- 28-52 

202. Article 123-Forgery--- .............................................. 28-54 

202A. Article 123a-Making, drawing, or uttering a check, draft, or order without 

sufficient funds--__--__--------------------- 28-55 

203. Article 12P-Maiming------------------------------------------------ 28-58 

204. Article 	 28-59 

205. Article 126------------------------------------- 28-59 

a. Aggravated arson-_---__------------------------------------------- 28-59 

b. Simple arson----------------------------- 28-60 

206. Article 127-Extortion ---- _------------------ 28-60 

207. Article 128----------------------------------- 28-61 

a. Assault--------------------------------- 28-61 

b. Assaults permitting increased punishment based on status of victim- ----- 2&62 

c. Aggravated assault-- - -------- ..----------------------------- 28-63 

208. Article 129-Burglary -_------------------------ -------- - - 28-64 

209. Article 130-Housebreaking- - ..................................... 28-66 


210. Article 131-Perjury ............................ 28-66 


211. Article 132-------_----------------------------- 28-68 

a. Making false or fraudulent claim .................................... 28-68 


b. Presenting for approval or payment a false or fraudulent claim----_ - - _ -- - 28-68 

c. Making or using a false writing or other paper in connection with claims-- 28-69 

d. False oath in connection with claims -------_----------------- - ---- 28-69 

e. Forgery of signature in connection with claims --_-----_-------------- - 28-69 

f. Delivering less than amount called for by receipt -----__----_-----------28-69 

g. Making or delivering receipt without having full knowledge that it is true- - - 28-70 

212. Article 133-Conduct unbecoming an officer and a gentleman -___---__-------28-70 

213. Article 134-----___-------------------------- 28-71 

a. General-------_-_--__------------------~-~--------- 28-71 

b. 	 Disorders and neglects to the prejudice of good order and discipline in the 

armedforces--.---_-------------------------------------- 28-72 

c. Conduct of a nature to bring discredit upon the armed forces_-- -- - _ _ _ - - - 28-72 

d. General requirements of proof under Article 134 ----_----------_---- - 28-73 

e. Crimes and offenses not capital --__----_-_--------------28-7:1 

f. Various types of offenses under Article 134 --___---_-_-----__------------ 28-74 

(1) Assaults involving intent to commit certain offenses of a civil nature-- 28-74 

(2) Indecentassault--__--------__------------------------------------ 

(3) Indecent acts with a child under the age of 16 years ---__---__-------

(4) False swearing -----__----__---------- --------- -------

(5) Disloyal statement undermining discipline and loyalty--__ - - - - _ _ _ _ - - -

(6) Misprision of a felony ------- ----- - ..--- .. .. ----- - .... - - ---- - - - -- - - ----

(7) Dishonorable failure to pay debts ----- _ - - --- ..- - --_--- - ---_- ----- - - 

(8) Dishonorable failure to maintaih funds for payment of checks- _ _ -- - - -

(9) Bigamy---------_---------------------------..------------------ . . (10) Communlcat~ng a threat --___--------__------- - -----
---- 

11 156 	 CHAPTER XXVlll 

Para. 	 Page 

213. Article 134-Continued 

f. Various types of offenses under Article 13PContinued 

(11) False and unauthorized 	passes, permits, discharge certificates and 

identification cards--------------------------- 28-79 

(12) Negligent homicide---------------------------- 28-80 

(13) Offenses. against correctional custody -------..- ..----------..---- 28-80 

(14) Receiving stolen property ------ -_--------------------- - ---- ----- 28-81 

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 nor is mare 

failure to prevent the commission of an offense; there must be an intent to aid 

or encourage the persons who commit 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 that 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. When the offense charged requires proof of a specific intent or 

particular state of mind as an element, the evidence must establish that the 

aider and abettor had the requisite intent or state of mind or that he knew 

that the perpetrator had the required intent or state of mind. It is possible that 

the aider and abettor, although sharing a common purpose with the perpetrator, 

may entertain an intent or state of mind either more or less culpable than that 

of the perpetrator, in which event he may be guilty of an offense of either greater 

or less seriousness than the perpetrator. Thus, when a homicide is committed, the 

actual perpetrator may act in the heat of sudden passion caused by adequate 

provocation and be guilty of manslaughter, while the aider and abettor who 

hands a weapon to the perpetrator during the encounter with shouts of encouragement for him to kill the victim may be guilty of murder. On the other hand, 

if two persons enter into a common purpose to commit robbery by snatching 

purses in a particular place, and one of the two acts as lookout, sharing only the 

criminal purpose of the perpetrator to commit robbery, and if the perpetrator, 

without the knowledge of the lookout, seizes a victim and rapes her after taking 

her purse, the perpetrator will be guilty of rape and robbery but the aider 

and abettor will be guilty only of the robbery. 

An accusecl, 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 hazarcl to life. Moreover, an accused who 

plans a burglary which is actually carried out by his associates is a principal 

in the burglary, 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 :I 

person a party to its commissioii, if he had a duty to interfere and his noninterference was designed by him to operate and did operate as an ellcouragement 

to or protection of the perpetrator, lie is a principal. 

One who counsels, commands, or procures another to colninit an offense 

subsequently perpetrated in consequence of that counsel, command, or procur- 
PUNITIVE ARTICLES ll 157 

ing is a principal whether he is present or absent at the commission of the 

offense. If the offeilse 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 shoots C, A is nevertheless guilty of the homicide. 

Likewise, one who causes an act to be done which if directly performed by him 

would be punishable by the code is a principal. When the act is done, such a 

principal is also chargeable with all results that could have been expected to 

flow as a probable consequence from the act counseled, commanded, procured, 

or caused to be done. 

The person who executes the command of a principal may himself be 

innocent of any offense, as when a soldier at the commancl 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 78ACCESSORY 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, conlforts, 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 the prisoner 

with transportation, clothing, money, or other necessaries to enable the prisoner 

to avoid his pursuers. 

The assistance given a priilcipal 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 coil~missioiz 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 knowll offense 

will not constitute one an accessory after the fact. 

Conviction of the principal of the offense to which the accused is allegedly 

an accessory after the fact is not a prerequisite to the trial of the accused. 

Although the proof must establish that a principal committed the offense to 

which the accused is allegedly an accessory after the fact, evidence of the conviction or acquittal of the principal in a separate trial is not admissible to show 

that the principal did or did not commit the offense. Furthermore, an accusecl 

may be convicted and punished as an accessory after the fact despite the acquittal in a separate trial of the principal whom he allegedly comforted, received, or assisted. 

Proof. (a)That an offense punishable by the code was committed; (b) that 

the accused received, comforted, or assisted the offencler for the purpose of 

hindering or preventing his a~preihension, trial, or pmlish~iient ; and (c) that 

the accused knew that the person so 1-eceivec1, comforted, or assisted was tllc 

offender. 
ll 159 CHAPTER XXVlll 

158. ARTICLE 79-LESSER INCLUDED OFFENSES 

Discussion. If the evidence adduced during a trial fails to prove an offense 

charged but does prove the commission of an offense necessarily included in that 

charged, the accused may be found guilty of that included offense. An accusecl 

may also be found guilty of an attempt to commit the offense charged or of 

an attempt to commit an offense necessarily included in the offense charged. 

An included offense exists when a specification contains allegations, which 

are sufficient, either expressly or by fair implication, to put the accused on notice 

that he must be prepared to defend against it in addition to the offense 

specifically charged. This requirement of notice is met when the elements of the 

included offense are necessary elements of the offenses charged, for example, 

wrongful appropriation where larceny is charged and absence ~vithont leave 

where desertion is charged. Also, this requirement of notice, depending on the 

allegations in the specification of the offense charged, may be met although an 

included offense requires proof of an element not required in the offense specifically charged, for example, assault in which grievous bodily harm is intentionally inflicted may be included in assault with intent to murder, although the 

actual intentional infliction of bodily harm required in the former is not an 

element of the latter. Similarly, unpremeditated murder (Art. 118(2) ) may be 

included in felony murder (Art. 118(4) ) ;assault with a dangerous weapon may 

be included in robbery; and riot may be included in mutiny by violence. 

When the offense charged is a compound offense comprising two or more 

inclucled offenses, an accused may be found guilty of any or all of the oflenses 

included in the offense charged. For example, robbery by force and ~riolence 

includes the offenses of both larceny and assault. Therefore, in a proper case, 

a court-martial may find an accused not guilty of robbery but guilty of larceny 

or wrongful appropriation and assault. 

If the evidence fails to prove an offense charged but does prove the commission of an offense included in that charged, the court niay 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 but otherwise establishes 

all of the elements of housebreaking, the accused may be found not guilty of 

burglary, but guilty of housebreaking. Such finding may be worded as follows : 

Of the Specification : Guilty, except the words "in the nighttime, burglariously break and enter," substituting therefor 

the words LLunlawfully eater," 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 shonlcl 

state a violation of the specific article violated :tncl not a violation of Article 70. 

For a cliscussion of "Attempts," see 159. For particular illstances of commonly 

included offenses, see Appendix 12. 

159. ARTICLE 80-ATTEMPTS 

Discussion. An act, done with the specific intent to commit an offense, 

nnlounting to more than mere preparation and tending, even thoilgll failing 

to effect its commission, is :~n attempt to coininit that offense. To constitute a11 
PUNITIVE ARTICLES 11 160 

attempt there must be a specific intent to commit the particular offense accompanied by an overt act which directly tends to accomplish the unlawful purpose. 

The overt act must be more than mere preparation to coininit the offense. 

Preparation consists in devising or arranging the means or measures necessary 

for the commission of the offense. The overt act required woes beyond prepara- b

tory steps and is a direct movement towards the commissioil of the offense. 

However, the overt act need not be the last proximate act to the consumn~atioi~ 

of the offense attempted to be perpetrated. For example, a purchase of matches 

with the intent to burn a haystaclr 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 khe 

wind, or otherwise extinguished. 

An accused may be guilty of an attempt even though the coinlnission of 

the intended offense was impossible because of ~ulexpectecl intervening circumstances or even though the coilsummation of the intended offense \vas prevented 

by a mistake on the part of the dccused. The physical impossibility of committing the intended crime does not constitute a defense. For example, if A, without 

justification or excuse and with intent to kill B, points a gun at him and pulls 

the trigger, A is guilty of attempt to murder, even though, unknown to him, 

the gun is defective and will not fire. A person ~vllo puts his hand in the pocket 

of another with intent to steal his billfold is guilty of an attempt to commit 

larceny, even though the pocket is empty. These examples illustrate that an 

accused may be guilty of an attempt to commit an offense when he engages in 

conduct which would constitute the crime, or directly tencl to do so, if the 

attendant facts and legal relationshil~s were as he believed them to be. 

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 commit an offense should be charged under this article 

unless the attempt is specifically deizounced by some other article, in which 

event it should 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 under the code; 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 constit~tte hhe offense of conspiracy in violat,ion of Adticle 

81, there must be an agreement bet'~veei1 two or more persons to commit an 

offense under the code and the doing of an act by one or more of tlie conspirntors 

to effect the object of that agreement. 

The a.greement in a conspiracy need iiot be in any part,icular for111 nor 

lnanifested i11 any formal words. It is sufficient if t.he ~ninds of the parties 

arrive at a common understanding to accomplis2l the object of the conspiracy, 

and this may be shown by tl~e conduct of the parties. The agreement need not 

state the means by which the consl)irncy is to be accoinl)lisl~ed or \\.hat p:~i-t encli 

conspirator is to play. 

The overt act must be ail act independent of the agreeinent to colnlllit tlie 

offense. It must be an act done by one or more of the conspirators either at the 
11 160 CHAPTER XXVlll 

time of or following the agreement to commit the offense, and done to carry into 

effect the object of the agreement. The 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, or have knowledge of, all of the details of the execution of the 

conspiracy. Similarly, each conspirator is liable for all of the acts of the other 

members of the conspiracy done in pursuance of the conspiracy during its 

existence. 

A person may be guilty of conspiracy although incapable himself of com111itting 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 separate and distinct ofTense 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, tried, and punished. 

The commission of the intended offense may also constitute the overt act whicll 

is an element of the conspiracy to commit that offense. 

If a party to the conspiracy abandons or withdraws from the agreement 

to commit the offense before the commission of an overt act by any conspirator, 

he is not guilty of conspiracy under Article 81. An effective withdrawal or 

abandonment must consist of affirmative conduct which is wholly inconsistent 

with adherence to the unlawful agreement and which shows that the party has 

severed all connection with the conspiracy. If a conspirator effectively abandons or withdraws from the conspiracy after the performance of an overt act 

by one of the conspirators, he remains guilty of conspiracy and of all offenses 

committed pursuant to the conspiracy up to the time of his abandonment or 

withdrawal, but he is not liable for offenses committed by the remaining conspirators after his abandoment or withdrawal. Neither the withdrawal of a 

conspirator from the conspiracy nor the joining of another conspirator creates 

a new conspiracy or affects 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 ehd, were actually not 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. These conspiracies should be charged under 

Article 134. 

If all the persons with whom the accused is alleged to have conspired are 

tried and found not guilty of the sanle conspiracy, the accused cannot properly 

be convicted of that conspiracy. If after the trial and conviction of the accused 

all the persons with whom he was alleged to have conspired have been found 

not guilty, the conviction of the accused may not stand. The accused may 

1)roperly be convicted of conspiracy, however, if the evidence establishes that a 

conspiracy existed between the accused and other alleged conspirators, named 

or described in the specification, who have not been and are not later tried ancl 

acquitted. 
PUNITIVE ARTICLES 11 162 

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 commit 

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 when 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 the 

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 provided 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 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 

he 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). 

162. ARTICLE 83-FRAUDULENT ENLISTMENT, 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 of those disqualifications. 

The misrepresentation or concealnlent 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 elen~ent of the offense of fraudulent enlistment or appointment is that the accused shall have receivecl pay or allowaizces there~ulder. 
11 1640 CHAPTER XXVlll 

Accordingly, a 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 discharge from an armed force is subject to the code while in the 

custody of the armed forces for trial upon the fraudulent discharge. See Article 

3 (b). As to offenses committed before a fraudulent discharge, see 11. 

The receipt of pay or allowances should be proved by direct evidence if this 

evidence is reasonably available, but may be proved by circumstantial 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 service record is 

admissible evidence of the fact, type, and date of discharge. See 143b(2)(6). 

Proof. (a) The enlistment, appointment, or separation of the accused in 

or from an armed force; (6) 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 that knowingly false representation or deliberate concealment; and, in a case of fraudulent enlistment or 

appointment, (d) that under that enlistment or appointment the accused 

received either pay or allowances, or both, as alleged. 

163. ARTICLE 84--EFFECTING UNLAWFUL ENLISTMENT, 

APPOINTMENT, OR SEPARATION 

Discussion. The accused must know that the enlistment, appointment, or 

separation effected by him was of a person whose enlistment, appointment, 

or separation was prohibited by law, regulation, or order. 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 person whose enlistment, appointment, or separation he effected was ineligible for the enlistment, 

appointment, or separation. 

Proof. (a)That the accused effected the enlistment, appointment, or separation of the person named, as alleged; (6) that this person was ineligible for 

the enlistment, appointment, or separation because it was prohibited by Is\\-, 

regulation, or order; and (c) that the accused knew of these facts at the time 

of the enlistment, appointment, or separation. 

164. ARTICLE 85-DESERTION a. DESERTION 
PUNITIVE ARTICLES ll 164a 

Discussion. Under Article 85 (a) a member of the armed forces is guilty 

of desertion when he : 

Without authority goes or remains absent from his unit, 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. 

Under Article 85(b) any commissioned officer of the armed forces who, 

after tender of his resignation and before notice of its acceptance, quits his post 

or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion. 

A prisoner whose dismissal 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" within the meaning of Article 85. 

(1) Absence without authority with intent to remain away permanently. 

Both the absence without authority and the intent to remain away permanently 

are essential elements of the offense. The offense is complete when the persoil 

absents himself without authority from his unit, organization, or 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. Unless an intent to remain away permanently from his unit, organization, or place of duty 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 85 (a) (1). 

Although enlisting or accepting an appointment in the same or another 

armed force without being regularly separated and without disclosing that fact 

or entering a foreign armed service without authorization is evidence of an 

intent to remain away permanently, this conduct does not of itself constitute 

the offense of desertion. If, without being regularly separated from one of the 

armed forces, a person enlists or accepts an appointment in the same or another 

armed force, 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. 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 totrial for botkdesertions. 

(2) Quitting unit, organization, or place of duty with intent to avoid 

hazardow duty or to shirk important seruice. The "hazardous duty'' or "important service" may include service such as duty in a combat or other dangerous 

area; embarkation for certain foreign or sea duty; movement to a port of 

embarkation for that purpose; entrainment for duty on the border or coast in 

time of mar 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 mill not 

ordinarily be regarded as included. Whether a duty is hazardous or a service 
11 164a CHAPTER XXVlll 

is important depends entirely upon the circumstances of the particular case. 

For example, overseas service is not important service merely because it is performed overseas. On the other hand, service may be important outside a combat 

area or even in peacetime. Basic training, for example, may be important service 

when the use of a soldier who has not completed that training has been substantially restricted by law or regulation. What constitutes hazardous duty or 

important service is a question of fact for the court-martial to decide. 

Proof. Desertion by absence with intent to remain away permanently. (a) 

That without authority the accused absented himself from his unit, organization, or place of duty ; (6) that he intended, at the time of absenting himself or 

at some time dnring his absence, to remain away permanently from his unit, 

organization, or place of duty ; and (c) that his desertion was of a duration and 

was terminated, as alleged. 

Desertion by quitting unit, orgc~nization, 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 ; (6) 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 quitting post o~ duties prior to notification of acceptance of 

resignation. (a) That the accused was a commissioized officer of an armed force 

and had tendered his resignation; (b) that before notice of the acceptance of 

his resignation, he quite his post or proper duties without leave; (c) that he 

did so with intent to remain away perinaneiztly fronz his post or proper duties; 

and (d) that his desertion was of a duration aizd was terminated, as alleged. 

Absence without authority (Absence without leave). Absence without leave 

is usually shown by entries in the morning report in the case of the Army, the 

unit military strength balance report in the case of the Air Force, aizd by entries 

in the service record or unit persoizizel diary in the case of the Navy, Marine 

Corps, and Coast Guard. However, entries that administratively refer to an 

accused as a "deserter" are not evidence of intent to desert. When the dates 

of the inception of an unauthorized absence and of a later return to military 

control are shown, it may be inferred that a continuous unauthorized absence 

existed for the entire period. Return to military control may be effected by return to any of the armed forces xvhether or not the accused is a member of that 

armed force. 

When an absentee is taken into custody by civilian authorities at the request of the military authorities, the absence is terminated at that time. When 

an absentee is in the hands of civilian authorities for other reasons and these 

authorities make him available for return to military control, the absence is 

terminated when the military authorities are advised of his availability. 

Z?ztent in desertion by absence with iatent to remain away permanently. To 

be guilty of desertion under Article 85 (a) (1) or Article 85(b),a person must 

have had, either at the inception of the absence or at some time during it, an intent to remain away permanently. 9court-martial must be satisfied beyond 

reasonable doubt of the existence of this intent based upon all the facts aizd 

circumstances of the case, including any inferences which may be drawn tlzerefrom. A plea of guilty of absence without leave to a charge of desertion does 

not in itself raise any inference of such an intent and is not in itself a sufficient 

basis for a conviction of desertion. 
PUNITIVE ARTICLES !l164b 

Among those circumstaizces from which an inference that an accused intended to remain absent permanently may logically be drawn are that the period 

of absence was of a prolonged duration; that the accused attempted to dispose 

of his uniform or other military 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 mas in the izeighborlzood of military posts or 

stations and did not surrender to the miiitary authorities; that he was dissatisfied in his company or on his ship or with the military service ; that he had 

made remarks indicating an inte~ztion to desert the service; that he was under 

charges or had escaped from confineinent at the time he absented himself; that 

just before absenting himself he stole money, civilian clothes, or other property 

that would assist him in getting away ; or tlzat without being regularly separated 

from an armed force he enlisted or accepted an appointment in the same or 

another armed force without fully disclosing the fact that he'had izot been 

regularly separated or entered any foreign armed service without being authorized by the United States. If the inference is drama, evidence introduced 

in rebuttal of the inference must be weighed against it. Th~s, 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 time under 

their influence must be weighed awainst any inference of an intent to desert. 9
 Testimony by the accused tlzat he intended to return is not coizclusive of the 

actual existence of an intent to return, 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 izot 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 aizd without funds may report to 

another station for transportation back to his original place of duty, which 

circumstances would tend to negate 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 ciuty 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 acc~~sed knew with reasonable certainty that he would be required for the 

hazardous duty or important service. For example, it might be shown ; (a)that 

the accused was persodally warned of the imminence of the duty or the service; 

or (b) that his organization, as a whole, was so warned at a formation at ~vhich 

the roll was called aizd the accused was present; or (c) that the period of his 

absence was of such a duration and under such circumstances as to raise an 

inference that the accused knew or had reasonable cause to know that he would 

miss a certain hazardous duty or important service. 

b. ATTEMPTING TO DESERT 

Discussion. A11 attempt to desert is a11overt act beyond mere preparation 

toward accomplishing a purpose to desert. Once the attempt is made, the fact 

that the person desists, either of his o\~n accord or ot.herwise, does not. cancel 
ll 165 CHAPTER XXVlll 

the offense. The offense of attempting to desert is compla, 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 86-ABSENCE WITHOUT LEAVE 

Discussion.See 164a. This article is designed to cover every case not elsewhere provided for in whicll 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 unauthorized 

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. The first part of this 

articlerelating to the appointed place of duty-applies whether the place is 

appointed as a rendezvous for several or for one only. Thus it applies in the case 

of a member of the armed forces failing to report for kitchen police or as a 

messman. The second part of the article applies to leaving the place of duty 

after reporting. A place of duty is not appointed within the meaning of this 

article unless the accnsed knew or had reasonable cause to know of the order 

purporting to appoint that place of duty. 

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 

that delivery. Also, when a member of the armed forces, being absent 11-it11 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 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. Rut the fact that all or part of a period of 

uilauthorized 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. When, 

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 disc1i:~rge has 

bee11 executed is no longer a member of the armecl 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 froin coilfinenlent under Article 95, 01- an ofl'ense under Article 134. 

Until actual execution of the dishonorable or bad-conduct discharge, the pris- 
PUNITIVE ARTICLES 11 166 

oner is subjeot to Article 86, even though the dishonorable or bad-conduct 

clischarge 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 of duty 

for the accused, as alleged; (6) that the accused knew or had reasonable cause 

to know of that time and place; and (c) that, without 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 charged with absenting himself without leave. (a) That 

the accused absented himself for a certain period from his unit, organization, 

or place of duty at which he was required to be, as alleged; and (6) that the 

absence was without authority from anyone competent to give him leave. 

If the accused is charged with absenting himself without leave from his 

guard, watch, or duty section with intent to abandon the sanw. (a) That the 

accused absented himself from his guard, watch, or duty section, as alleged; 

(6) that the absence of the accused was without authority; and (c) that the 

accused intended to abandon his guard, watch, or duty section. 

If the accused is charged with absenting himself without authority with 

intent to avoid manewers or field exercises. (a) That the accusecl absented 

himself for a certain period from his unit, organization, or place of duty at 

which he was required to be; (b) that the absence of the accused was witho~1.t 

authority ; (c) that the accused knew or had reasonable cause to know that bhe 

absence would occur during a part of a period of maneuvers or field exercises ; 

and (d) that the accused intended to avoid all or part of a period of inaaeuveis 

or field exercises. 

In connection wit11 proof of absence without leave, see 143 (Docun~entary 

Evidence) and 164a (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 inisses 

the movement of a ship, aircraft, or unit with ~vhicll he is required to move in 

the course of duty. 

The word L'movemei~tlt:' as used in Article 87 does not include practice 

marches which are to be of short dura.tion with a return to the point of departure contemplated, nor does it include minor changes in 1o.uation 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 11101-ecl from one barracks to another 

on the same post. 

"Through neglect" means the omission by a person to take such ineasures 

as are appropriate under the circun~stances to assure that he n-ill be present 

with his ship, aircraft, or unit at the time of a scheduled mol-einent, or his doing 

of some act without giving attention to its probable consequences in connection 

with the prospective n~oveinent, such as a departure from the vicinity of the 

prospective movement to such a distance as XI-ould inake it likely that he coultl 

not return in time for the moven~ent. 

I11order to be guilty of the offense, the accused must have known, or have 

had reasonable cause to have k11ow11, of the prospective movement which he is 

alleged to have missed. Knowledge of the exact hour or even of the exact clate of 
11 167 CHAPTER XXVlll 

the scheduled movement is not required. It is sufficient if the approximate date 

was 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 

mas notified of the prospective movement may consist of evidence tliat he was 

present at a roll call, muster, or other formation at which tlie information was 

given orally. Proof of general knowledge in tlie accused's organization of the 

prospective movement of the ship, aircraft, or unit would justify an inference 

by a court of the necessary knowledge on the part of the accused. 

That tlie accused actually missed tlie 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 test.imony 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 was required in the course of duty to move 

with a ship, aircraft, or unit ; (6) tliat the accbsed knew or had reasonable cause 

to know of the prospective movemeiit of the ship, aircraft, or unit; (c) that, at 

the time aiid place alleged, the accused missed tlie movement of the ship, aircraft, or unit; and (d) that the accused missed the movement through design 

or neglect, as alleged. 

167. ARTICLE 8&CONTEMPT TOWARD OFFICIALS 

Discussion. Article 88 denounces the use by any commissioned officer of 

the armed forces of contemptuous words against the President, the Vice President, Congress, tlie Secretary of Defense, the Secretary of a military department, the Secretary of the Treasury, or the Governor or legislature of any State, 

Territory, Commonwealth, or possession in which he is on duty or present. 

This article covers both words which are coiitemptuous in themselves, such 

as abusive epithets, denunciatory or contemptuous expressions, or intemperate 

or malevolent comments upon official or personal acts, aiid words which are contemptuous because of the connection in which they are used and the surrouiding 

circumstances. 

The official or group 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. "Congress" does iiot include a member as an individual ; "legislature" 

does iiot include its members individually ;nor does "governor" include a "lieutenant governor." However, it is immaterial ~vhether 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 tlie accused. If not personally contemptuous, adverse criticism of one of the officials or groups named in the article 

in the course of a political discussion, even though emphatically expressed, may 

not be charged as a violation of the article. Similarly, expressions of opinioii 

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 conteinptuous words of the kind made punishable by this 

article, or the utterance of contemptuous words of this kind in the presence of 

military subordinates, ~~ould constitute an aggravation of the offense. 
PUNITIVE ARTICLES 1[ 168 

Truth or falsity of the statements may be immaterial, since the gist of the 

offense is the contemptuous character of the language and the malice with which 

it is used. 

Proof. (a) That the accused used the words alleged against an official or 

group named in the article; and (b) that these words mere contemptuous, either 

in themselves or by virtue of the circumstances under which they were used. 

168. ARTICLE 89-DISRESPECT TOWARD A SUPERIOR COMMISSIONED 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 commissioned 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 commissioned officer" be in the execution of his office at the time of the disrespectful behavior. As defined by Article 

1(5),a L'superior commissioned officer" is a commissioned officer who is superior 

in rank or command. With respect to a person who is a member of one armed 

force, a commissioned officer of another armed force who is duly placed in the 

chain of command over that person is, within the meaning of Article 89, "his 

superior commissioned officer"; but an officer of another armed force would not 

be "his superior commissioned officer" 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 the officer is superior in rank, but not inferior in command, to the 

accused. Under certain circumstances, a superior commissioned officer may not 

be senior in rank; for instance, a line officer, though inferior in rank, may be 

the commanding officer, and thus the superior of a staff officer, such as a medical 

officer, in the organization. 

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. 

If the accused did not know that the person against whom the acts or words 

were directed was his superior commissioned officer, he may not be convicted of 

a violation of this article. 

Proof. (a)That the accused did or omitted to do certain acts or used certain 

language to or concerning a certain commissioned officer, as alleged; (b) that 

the behavior involved in 'these acts, omissions, or words was under certain circumstances, or in ncertain connection, or with a certain meaning, as alleged; (c) 

that the officer toward whom the acts, omissions, or words were directed was the 

superior officer of the accused; (d) that the accused at the time knew that the 

person toward whom the acts, omissions, or words were directed was his superior 

commissioned officer; and (e) that under the circumstances, the behavior was 

disrespectful to that superior officer. 
11 169b CHAPTER XXVlll 

169. ARTICLE 90ASSAULTING OR WILLFULLY DISOBEYING 

SUPERIOR COMMISSIONED OFFICER a. STRIKING OR ASSAULTING SUPERIOR COMMISSIONED OFFICER 

Discussion. The phrase "his superior commissioned officer" in Article 90 

has the same meaning as it does in Article 89. See 168. If the accused did not 

know the officer to be his superior commissioned officer, he may not be convicted 

of this offense. 

The word "strikes7' means an intentional blow with anything by which a 

blow can be given. 

The phrase "draws or lifts up any weapon against7' 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 proscribed. 

The raising in a threatening manner of a firearm, whether or not loaded, of a 

club, or of any 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 commanding officer on board a ship or the comanding 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 a commissioned officer is subject to the provisions of 

this article. 

In a prosecution for striking or assaulting a superior commissioned 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 self-defense (2160) or in 

the proper discharge of some duty. 

Proof. (a) That the accused struck a certain commissioned officer, or drew 

or lifted up a weapon against him, or offered violence against him, as alleged; 

(b) that the officer was the superior commissioned officer of the accused at the 

time; (c) that the superior commissioned officer was in the execution of his office 

at the time; and (d)that the accused at the time knew the officer was his superior 

commissioned officer. 

b. DISOBEYING SUPERIOR COMMISSIONED OFFICER 

Discussion. The willful disobedience contemplated is such as shows an 

intentional defiance of authority, as when nil enlisted person is given a lawful 

command by a commissioned officer to do or cease doing a particular thing at 

once and refuses or deliberately omits to do what is ordered. A neglect to conlply 

with an order through heedlessness, remissness, or forgetfulness is not a vio-
PUNITIVE ARTICLES (I l7Oa 

lation of this article but nlay be an offense 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 "his superior commissioned officer." 

The order must relate to military duty and be one which the superior 

commissioned 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 may be 

hiferred to be lawful and it is disobeyed at the peril of the subordinate. See 

576 as to the manner of determining the legality of an order. Acts involved 

in the disobedience of an illegal'order might under some circumstances be 

charged as insubordination under Article 134. 

The fact that obedience to a command would involve 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 the regulations 

of an armed force, is not an offense under this article, but may be under Article 

92. Likewise, a nonperformance by a subordinate of any mere routine duty 

may be a violation of Article 92 or Article 134, as the case may be, but 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 

commissioned 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 lawful command from a 

certain commissioned officer, as alleged; (b) that this officer was the superior 

officer of the accused; (c) that the accused willfully disobeyed the command ; 

and (d) that the accused at the time knew the officer was his superior commissioned officer. 

170. ARTICLE 91INSUBORDINATE CONDUCT TOWARD WARRANT OFFICER, NONCOMMISSIONED OFFICER, OR PETTY 

OFFICER 

a. GENERAL DISCUSSION 

Article 91 has the same general objects with respect to warrant officers, 

i~oi~commissionedofficers, 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 noilcominissioned officer or a petty 

officer, but, if a warrant officer were to fail to obey the lawful order of an 

armed forces policeman of lower grade in the execution of his duty, he ~voulcl 

be guilty of an offense under Article 92. An assault by a prisoner whose separa- 
11 170d CHAPTER XXVlll 

tion 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. 

If the accused did not know that the person assaulted was his superior, 

he may not be convicted of a violation of this article. This 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 "command" in Article 90. 

b. ASSAULTING A WARRANT OFFICER, NONCOMMISSIONED OFFICER, OR 

PETTY OFFICER 

Discussion. See 170a. For the definition of assault, see 207a. 

Proof. (a) That the accused enlisted person or warrant officer struck or 

assaulted a certain warrant officer, noncommissioned officer, or petty officer as 

alleged; (6) that the assault was committed while the warrant officer, noncommissioned officer, or petty officer was in the execution of his office; (c) that 

at the time the warrant officer, noncommissioned officer, or petty officer was 

the superior of the accused; and (d) that the accused knew at the time that 

the warrant officer, noncommissioned officer, or petty officer was his superior. 

c. DISOBEYING A WARRANT OFFICER, NONCOMMISSIONED OFFICER, OR 

PETTY OFFICER 

Discussion. See discussion under 170a. The article does not include an 

acting noncommissioned officer or aating 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. An order from a. warrant 

officer, noncommissioned officer, or petty officer in the execution of his office 

may be inferred to be a lawful order. See 57b as to the manner of deternlining 

the legality of an order. 

Proof. (a) That the accused enlisted person or warrant officer received a 

certain lawful order from a certain warrant officer, noncommissioned officer, 

or petty officer, as alleged; (b) that at the time the warrant officer, noncommissioned officer, or petty officer was the superior of the accused; (c) that the 

aocused at the time knew that the warrant officer, noncoinmissioi~ed officer, or 

petty officer mas his superior; and (d) that the accused ~.villfully disobeyed 

the order. 

d. TREATING WITH CONTEMPT OR BEING DISRESPECTFUL IN LANGUAGE 

OR DElPORTMENT TOWARD A WARRANT OFFICER, NONCOMMISSIONED OFFICER, OR PETTY OFFICER 

Discussion. The word "toward" read in connection with the phrase "while 

that 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 

officer, 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 ; (b) that the behavior or language was used toward and within the sight 

or hearing of a certain warrant officer, noncommissioned officer, or petty officer ; 
PUNITIVE ARTICLES ll 171b 

(c) that at the time the warrant officer, noncommissioned officer, or petty officer 

was the superior of the accused ; (d) that the accused at the time knew that the 

warrant officer, noncommissioned officer, or petty officer was his superior; and 

(e) that the warrant officer, noncommissioned officer, or petty officer 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 ORDER OR 

REGULATION 

Discussion. General orders or regulations are those orders or regulations 

generally applicable to an armed force which are properly published by the 

President or by the Secretary of Defense, of Transportation, or of a military 

department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by an officer having general court-martial 

jurisdiction, a general or flag officer in command, or a commander superior to 

one of these. A general order or regulation issued by a commander with authority under Article 92(1) retains its character as a general order or regulation 

when another officer takes command, until it expires by its own terms or is 

rescinded by separate action, and this is true even if it is issued by an officer who 

is a general or flag officer in command and command is taken by another officer 

who is not a general or flag officer. A general order or regulation is lawful unless 

it is contrary to the Constitution, the laws of the United States, or lawful 

superior orders or for some other reason is beyond the authority of the official 

issuing it. See 576 as to the manner of determining the legality of the order or 

regulation. Article 92 (1)contains no requirement that any kind of knowledge 

be either alleged or proved in a prosecution thereunder for violating or failing 

to obey a general order or regulation. 

Proof. (a) That there was a certain general order or regulation; (6) that 

the accused had a duty to obey it; and (c) that the accused violated or failed to 

obey the order or regulation. 

b. FAILURE TO OBEY OTHER LAWFUL ORDHR 

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, Article 91, or Article 92 (1). It includes the violation of 

regulations which are not general regulations as discussed in 171a. In order to 

be guilty of this offense, a person must have had a duty to obey the order and 

must have had actual knowledge of the order. The accused's knowledge of the 

order may be proved directly, that is, by showing that the order was actually 

communicated to the accused, or it may be proved circumstantially, that is, by 

showing facts from which the members of the court may infer that the accused 

had knowledge of the order. Circumstantial evidence includes evidence that the 

order was generally known in the command, that it had been posted at such a 

time and place that the accused would be likely to have read it, and similar 

circumstances tending to prove the knowledge. See 1386. Failure to obey the 

lawful order of one not a superior is cha,rgeable under this article, provided the 

accused had a duty to obey the order. Examples 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. 
fl 172 CHAPTER XXVlll 

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. 

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. 

c. DERELICTION IN THE PERFORMANCE 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 

villfully 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 duties 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 otherwise, if his failure in the performance of his duties is 

caused by ineptitude rather than by \~illfulness, 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 wit11 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 may 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 93-CRUELTY AND MALTREATMENT 

Discussion. Article 93 provides for the punishment of any person subject 

to the code who 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 bat 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 chain of command over the person or not. 

The cruelty, oppression, or maltreatment must be real, although not necessarily physical. To assault and to subject to improper punishment are examples 

of this offense. 

The imposition of necessary or proper duties and the exaction of their performance will not constitute this offense eve11 though the duties are arduous or 

hazardous or both. 

Proof. (a)That a certain person was subject to the.orders of the accused; 

and (b) that the accused was cruel toward, or oppressed, or maltreated that 

person, as alleged. 
PUNITIVE ARTICLES II 173d 

173. ARTICLE 94-MUTINY AND SEDITION 

a. MUTINY 

Discussion. Article 94(a) (1) defines two distinct types of mutiny, both 

requiring an intent to usurp or override military authority. One consists of the 

creation of violence or disturbance with this intent, and may be committed by 

one person acting alone or by more than one. The other, consisting of a refusal 

in concert with any other person to obey orders or otherwise do one's duty, imports collective insubordination and necessarily includes some combination of 

two or more persons in resisting lawful military authority. This 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 military authority. 

The intent may be declared in words, inferred from acts done, or inferred from 

surrounding circumstances. 

Proof. (a) That the accused created violence or a disturbance, or that he 

refused, in concert with another person or persons, to obey orders or otherwise 

do his duty; and (6) 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 that 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 disturbance against lawful civil authority ; and (6) 

that he did so with intent to cause the overthrow or destruction of that authority. 

c. FAILURE TO PREVENT OR SUPPRESS A MUTINY OR SEDITION 

Discussion. This section of the article requires that persons subject to the 

code do their "utmost" to prevent and suppress acts of mutiny or sedition being 

committed in their presence. The word "utmost" imports taking those measures 

to prevent or suppress a mutiny or sedition which may properly be called for by 

the circumstailces of the situation, having in mind the rank and hsponsibilities i


or the employment of the individual concerned. TVhen extreme measures are 

necessary under the circnmstances, the use of a dangerous weapon or the taking 

of life may be justified, providing excessive force is not used. See 216a 

concerning justification. 

Proof. (a) That an offense of mutiny or sedition as conimitted in the 

presence of the accused; and (6) that the accused failed to do his utmost to 

prevent and suppress the mutiny or sedition. 

d. FAILURE TO REPORT A MUTINY OR SEDITION 

Discussion. ,4 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 reasoilable man in the 

same or similar circumstailces 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 
11 174b CHAPTER XXVlll 

report an impending mutiny or sedition is not an offense in violation of Article 

94, but it may be an offense in violation of Article 134. 

Proof. (a) That an offense of mutiny or sedition occurred; (b) thsbt 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 commissioned 

officer or commanding officer of the offense. 

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) That the accused committed an overt act or acts which proximately tended to accomplish a mutiny; and (b) that the ad or ack were 

committed with the intent to mutiny. \ 

174. ARTICLE 95-RESISTANCE, BREACH OF ARREST, AND 

ESCAPE 

a. RESISTING APPREHENSION 

Discussion. Resisting apprehension consists of an active resistance to the 

restraint attempted to be imposed by the person apprehending. The 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 the apprehension is complete, will 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 illegal. See 576 as to the manner of determining the legality 

of the attempted apprehension. If the accused had no reason to believe that the 

person attempting to apprehend him was empowered to do so, this 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. 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; 20c). 

The offense of breach of arrest is committed when the person in arrest 

infringes the limits set by orders, and the intention or motive that actuated him 

is immaterial to the issue of guilt. Innocence of the offense with respect to 

which an arrest or confinement 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 illegal. See 576 as to the manner of determining the legality 

of the arrest, custody, or confinement. However, the circumstances of a breach 

of an illegal restraint may subject the person breaking the 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 was illegal would not be a 

defense to a prosecution for the assault. It is immaterial whether the breach of 

arrest or escape from confinement took place before or after trial, acquittal, or 

I 
11 176 CHAPTER XXVlll 

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) Th%t a certain prisoner was 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 the absence of due care. The legal standard of care is that which would have been 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 yi11 be, "How would a reasonably prudent officer 

have acted ?" If the circumstance\s 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, is killed, or dies is not a defense 

to a charge of having suffered him to escape through neglect. 

Proof. (a) That a certain prisoner was committed to the charge of the 

accused; (b) 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 ESCAPE THROUGH DESIGN 

Discussion. See 175a and 6.An escape was suffered through design when 

it was intended or when it resulted from conduct so wantonly devoid of care 

that no reasonable inference may be drawn from it but, 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 nkcessarily 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 mhich the 

prisoner is charged, the probability of his return, and the intention and motives 

of the custodiaa. 

Proof. (a) That a certain prisoner mas committed to the charge of the 

accused; (b) that the design of the accused was 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 

Discussion. Any person subject to the code who, except as provided by 

law, apprehends, arrests, or confines any person is guilty of unla\vful deteiltion 

under Article 97. 
PUNITIVE ARTICLES ll 17Ba 

Any unlawful restraint of another's freedom of locomotion will result in a 

violation of this article. The offense may be committed by one who, being duly 

authorized to apprehend, arrest, or confine others, exercises this authority unlawfully, or by one not so authorized who effects the restraint of another unlawfully. There need be no actual force exercised in imposing the apprehension, 

arrest, or confinement. The apprehension, arrest, or confinement must be against 

the will of the person restrained. 

A reasonable belief by the person imposing it that the restraint was lawful 

is a defense. 

For persons authorized to apprehend, arrest, or confine, see 19 and 21. 

Proof. (a) That the accused apprehended, arrested, or confined a certain 

person, as alleged; and (b) that the accused was not authorized by law to do so. 

177. ARTICLE 9SNONCOMPLIANCE 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 af offenses under the code 

by providing for the punishment of those responsible for unnecessary delay in 

the disposition of these 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 to his knowledge 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 disposition of the case; 

and (c) that under the circumstances the delay was unnecessary and that the 

accused was responsible therefor. 

b. KNOWINGLY AND INTENTIONALLY FAILING TO ENFORCE OR COMPLY 

WITH PROVISIONS OF THE CODE 

Discussion. This section of the article does not apply 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 tg?code regulating some proceeding before, during, or after a tr~al, as alleged; and (b) that the accused had t11e.dnty 

of enforcing or complying with that provision of the code. 

178. ARTICLE 99-MISBEHAVIOR BEFORE THE ENEMY 

U. RUNNING AWAY BEFORE THE E,NEMY 

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 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 althoug-11 miles from the enemy lines. On the 
ll 178e CHAPTER XXVlll 

other hand, an organization some distance from the front or immediate area 

of combat which is not a part of a tactical operation then going on or in immediate prospect is not "before or in the presence of the enemy" within the 

meaning of this article. The "running away" must be to avoid actual or impending combat. It need not, however, be tlze result of fear. 

Proof. (a) That the accused was before or in the presence of an enemy; 

(b) that he misbehaved himself by running away; and (c) that the running 

away was with intent to avoid actual or iinpending combat. 

b. SHAMEFULLY ABANDONING, STJRRENDERING, OR DELIVERING UP 

Discussion. This provision concerns primarily commanders chargeable 

with responsibility for defending a command, unit, place, ship, or military 

property. Abandonment by a subordinate would ordinarily be clzarged as 

running away. 

The words "deliver up" are synonym,ous with "surrender." 

Surrender or abandonment of a coGmand, unit, place, ship, or military 

property by a person charged with its def&se can be justified only by the utmost 

necessity or extremity. Surrender or abandonment without this absolute necessity is shameful within the meaning of this article. 

Proof. (a) That the accused was charged by orders or by circumstances 

with the duty to defend a certain command, unit, place, or ship, or certain 

military property; (6) that without justification he abanclonecl it or surrendered it; and (c) that this act occurred while the accused was before or in 

the presence of the enemy. 

c. ENDANGmRING THE SAFETY OF A COMMAND, UNIT, PLACE, OR 

MILITARY PROPERTY THROUGH DISOBEDIENCE, NEGLECT, OR INTENTIONAL 

MISCONDUCT 

Discussion. Carelessness or negligence, or other conduct below the strtndard reasonably expected of the individual under the circumstances, constitutes 

"neglect!' as used in the article. Iiztentioiial misconduct implies a wrongful 

intention and not a mere error in judgment. Under this clause may be charged 

any act of insubordiization, 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 \~-l~icl~ 

it is his duty to defend. 

Proof. (a) That it was the duty of the accused to defend a certain command, unit, ship, or place, or certain military property; (b) that he coinmittecl 

certain disobedience, neglect, or inteiztional misconduct, as allegecl; (c) that 

thereby he endangered tlze safety of the commancl, unit, place, ship, 01. military 

property ; ancl (d) that this act occurrecl while the accusecl was hfore or in 

the presence of the enemy. 

d. CASTING 871'AY SRMS OR ,43Ii\lUNITION 

Proof. (a) That the accused was before or in the presence of the enemy; 

and (b) that he cast away certain arms or ammunition, as specified. 

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 apprehension would not constitute the offense, but the refusal or abandonment of a per- 
PUNITIVE ARTICLES ll l78i 

formance 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; 

(b) that this act occurred while the accused was before or in the presence of 

the enemy ;and (c)that this act was the result of fear. 

1. QUITTING PLACE OF DUTY TO PLUNDER OR PILLAGE 

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 if the plunder or pillage is not consummated. 

"Place of duty" includes any place of duty, whether permanent or temporary, fixed or mobile. The words "plunder or pillage" mean 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 (b) 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; (b) that conduct of the accused caused the 

alarm ;(c)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 FAILING TO DO UTMOST TO BINCOUNTER, ENGAGE, CAPTUREI, OR DESTROY ENEMY TROOPS, COMBATANTS, T'ESSELS, AIRCRAFT, OR 

ANY OTHER THING 

Proof. (a) That the accused was 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 willfully failed to do his utmost to perform that duty. 

i. NOT AFFORDING ALL PRACTICABLE RELIEF AND ASSISTANCE 

Discussion. This offense is limited to a failure to afford relief and assistance to forces "engaged in battlk" When this condition does not exist, this 

offense cannot be committed. '(All practicable relief and assistance" means all 

relief and assistance which should be afforded within the limitations imposed 

upon one by reason 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 this 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; (71) that the accused was in a position 

and able to render relief and assistance to these troops, combatants, vessels, or 

aircraft; (c) that the accused failed to aff'ord all practicable relief and assistance, as alleged; and (d) that, at the time, the accused was before or in the 

presence of the enemy. 
U l8Oa CHAPTER XXVlll 

179. ARTICLE 100-SUBORDINATE COMPELLING SURRENDER 

a. SUBORDINATE COMPELLING OR ATTEMPTING TO COMPEL COMMANDER 

TO SURRENDER OR ABANDON 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 if it falls short of an actual 

accomplishment of the purpose. The words "t 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 (b) that acts of the accused compelled the commander to 

give it up to the enemy or to abandon it,or were done with the intent or purpose 

of compelling the commander to give it up to the enemy or to abandon it. 

b. STRIKING THE COLORS OR FLAG 

Discussion. To "strike 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 traditional wording for an act of surrender. The offense is committed by any one 

subject to the code who assumes to himself the authority to surrender a military 

force or position when he is not authorized 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 suflicient contact with the enemy to give the opportunity of making an 

offer of surrender and it is not necessary that an engagement with the enemy 

be in progress. 

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. 

Proof (a) That there was an offer of surrender to an enemy, as alleged ; 

(6) that the accused made or was responsible for the offer; and (c) that the 

accused did not have proper authority to make the offer. 

180. ARTICLE 101-IMPROPER USE OF COUNTERSIGN 

a. DISCLOSING THE PAROLE OR COUNTERSIGN TO ONE NOT BNTITLED TO 

RECEIVE IT 

Discussion. A 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. 
PUNITIVE ARTICLES 11 181 

The class of persons entitled to receive the countersign will expand and 

contract under the varying circumstances of war. Who these persons are will be 

determined largely, in any particular case, by the 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 immaterial to the issue of 

guilt, as would also be the circumstance that the imparting was negligent or 

inadvertent. It is 1ikewis.e immaterial whether the accused had himself received 

the password in the regular course of duty or whether he obtained it in some 

other way. 

Proof. (a) That the accused in time of war disclosed the parole or countersign to a certain person, known or'unknown; and (b)that this person was not 

entitled to receive it. 

b. GIVING A PAROLE OR COUNTERSIGN DIFFERENT FROM THAT AUTHORIZED 

Proof. (a) That in time of war 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 this 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 amountink 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 if those forces are 

in a theater 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 (b) 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. 
ll 182d CHAPTER XXVlll 

182. ARTICLE 103-CAPTURED OR ABANDONED PROPERTY 

a. FAILING TO SECURE CAPT'URED ENEMY PROPERTY 

Discussion. Immediately upon its capture from the enemy, public property becomes the property of the United States. Neither the person who takes it 

nor any other person has any private right in this property. On the contrary, 

every person subject to military law has an immediate duty to take such steps 

as are reasonably within his powers to secure this property for the service of the 

United States and to protect it from destruction or loss. 

Proof. (a) That certain public property was taken from the enemy; and 

(b) that the accused failed to do what was reasonable under the circumstances 

to secure tliis 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 RBPORT AND TURN OVER,/OAPTZTRED OR ABANDONED 

PROPERTY /' 

Discussion. Reports of receipt of captured or abandoned property are 

to be made directly or through such channels as are required by current regulations or orders or the customs of the service. "Proper 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 (b) that 

the accused failed to report to proper authority the receipt thereof, and 

failed to turn it over to proper authority as required. 

c. DEALING IN CAPTURKD 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 expectatioil 

of profit need not be founded on any specific understanding; it is enough if 

the prohibited act is 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. 

d. ENGAGING IN LOOTING OR PILLAGING 

Discussion. The words "looting or pillaging" mean unlawfully seizing or 

appropriating property whicli is located in enemy or occupied (friendly or 

enemy) territory and is either left behind or is owned by, or in tlie custody of, 

the enemy or occupied state, its inhabitants, or persons who are under its 

protection or who, immediately before the place where the act occurred had 

been occupied, were under tlie protection of the enemy or. occupied state. The 

unauthorized removal or appropriation of any part of the equipment of a 
PUNITIVE ARTICLES 1183~ 

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 

seized 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 was 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 was owned by, or in the custody of the officers, crew, 

or passengers on boa'rcl 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 military law. The trial of offenders may be by court-martial or by 

military commission. 

a. AIDING OR ATTEMPTING TO AID THE ENEMY 

Discussion. "Enemy" imports civilians as well as members of military 

organizations and does not restrict itself to the enemy government or its armed 

forces. All the citizens o'f 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 fnrnish 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 article 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. 

b. HARBORING OR PROTECTING THE ENEMY 

Discussion. See 183a.,& enemy is harbored or protected when, without 

proper authority, he is shielded, either physically or by use of 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. 

Proof. (a) That the accused, without proper authority, harbored or protected a certain person; (b) that the person so protected was an enemy; and 

(c) that the accused had knowledge of that fact. 

G. GIVING INTELLIGENCE TO THE ENEMY 

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 "intelligence" 
ll l84b CHAPTER XXVlll 

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. COMMUNIGATING, CORRESPONDING, OR HOLDING INTERCOURSE WITH 

THE E.NlUMY 

Discussion. Communication, correspondence, or holding intercourse with 

the enemy does not necessarily import a mutual exchange of communication. 

The law requires absolute nonintercourse, 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 pljove that the offense was 

knowingly committed. 

Citizens of neutral powers resident in or visiting invaded or occupied 

territory can claim no immunity from the 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 this person 

was an enemy; and (c) that the accused had knowledge of this fact. 

184. ARTICLE 105-MISCONDUCT AS PRISONER 

a. AOTING WITHOUT AUTHORITY TO THE DETRIBIENT OF ANOTHBR FOR 

THE PURPOSE OF SECURING FAVORABLE TREATMEINT 

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 detriment of other prisoners. This conduct 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 law, custom, or regulation, as alleged; (b) 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 accusecl 

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. 

b. MALTREATING PRISONERS TTrHILE 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, 
PUNITIVE ARTICLES 11 185 

or from voluntary election or selection by other prisoners for their selfgovernment. 

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. 

185. ARTICLE 106--SPIES 

Discussion. The words "any person who in time of war" bring within 

the jurisdiction of general courts-martial and military commissions all persons 

of whatever nationality or status who commit the offense of lurking as a spy or 

acting as a spy in or about any place, vmsel, 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 communicating 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 may be inferred from evidence of a deceptive insinuation 

of the accused among our forces, but 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, is admissible to rebut this inference. 

It is not essential that the accused obtain the information sought or that 

he communicate it. he offense is complete with the lurking or dissim~~lation 

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 dissimulatioi~, 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 cominunicating with 

the enemy, but he may not be charged under this article with being a spy. 

Proof. (a)That the accused was found at a certain place as alleged, acting 

clandestinely or under false pretenses; and (6) that he was obtaining, or 

endeavoring to obtain, information with intent to communicate it to the enemy. 
11 167b CHAPTER XXVlll 

186. ARTICLE 107-FALSE OFFICIAL STATEMENTS 

Discussion. Official documents and official statements include all documents and statements made in the line of duty. A statement made by a suspect 

or an accused person during an interrogation is not official within the meaning 

of this article if he did not have an independent duty or obligation to speak 

concerning the matter under inquiry. However, if he did have such an independent duty or obligation to speak, as in the case of a custodian who is required 

to account for property in his custody, a statement made by him daring an 

interrogation into this matter is official, even though he had the right to refuse 

to make a statement under Article 31(b). See 213f (4) regarding statements 

made under oath. 

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 i elements of the offense, nor is it necessary that the false statement be material 

to the issue under inquiry. If the falsity is in respect t(a material matter, it 

may be considered as some evidence of the necessary intent to deceive, while 

immateriality may tend to show an absence of this intent. 

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; (6) that the accused knew it to be false 

at the time of signing or making it; and (d) that the false document or statement was made with the intent to deceive. 

187. ARTICLE 108-MILITARY PROPERTY OF UNITED 

STATES-LOSS, DAMAGE, DESTRUCTION, OR WRONGFUL 

DISPOSITION 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; (b) that the sale or disposition tvas 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 (7). 

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 occnsionecl 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 circunistantial evidence that the property 

was issued to the accused, it may be inferred that the damage, destruction, 01. 
PUNITIVE ARTICLES II 187c 

loss shown, unless satisfactorily explained, was due to the neglect of the accused. This rule, however, 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; (b) 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 damage, destruction, or loss was the result of neglect on 

the part of the accused; 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 (7). 

c. SUFFERING THE LOSS, DAMAGE, DESTRUCTIOS, SALE, OR WRONGFUL DISPOSITION OF MILITARY PROPERTY 

Discussion. See 187a. The loss, damage, destruction, sale, or disposition 

niay be said to be willfully suffered 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 smnll boat tied alongside, allows the boat to be damaged or lost by chafing or striking. A suffering 

through neglect implies an omission to take such measures as were 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 law, regulations, or orders ; or it may be evidenced by such circumstances as a reckless 

or unwarranted 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, wasted, or injured by other persons; or loaning it to n person, known 

to be irresponsible, by whom itis damaged. 

Although there may be no direct evidence that the property in que~t~ion was 

military property of the United States, circumstantial 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 States, might, together with other provecl 

circumstances, warrant the court in inferring that it was such military property 

of the United States! 

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 damagecl is controlling. As a general rule, the amount of damage 

is ths,estimated or actual cost of repair by the governmental agency normally 

employed in such work, or the cost of replacement, as shown by governmei~t 

price lists or otherwise, whichever is the lesser. For a further discussion of 

proof of value, see 200a(7). 

Proof. (a) That certain military property of the United States was lost, 

damaged, destroyed, sold, or wrongfully disposed of in the manner alleged; 

(b) that the loss, clainage, destruction, sale, or clisposition was suffered by the 

accused without proper authority, through a certain oi~lission uf duty on his 

part; (c) that t.his omission mas willful or negligent as alleged; and (d) the 
ll 189 CHAPTER XXVlll 

value of the property lost, destroyed, sold, or wrongfully disposed of, or the 

amount of damage, as alleged. 

188. ARTICLE 109PROPERTY OTHER THAN MILITARY 

PROPERTY OF UNITED STATES-WASTE, SPOIL, OR DESTRUCTION 

a. WASTING OR SPOILING PROPERTY OTHER THAN MILITARY PROPERTY 

OF THE UNITED STATES 

Discussion. This portion of Article 109 proscribes the willful or reckless 

waste or spoilation of the real property of another. The terms "wastes" and 

"spoils" as used in this article refer to such wrongful acts of voluntary destrnction 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 culpable disregard of the foreseeable consequences of some voluntary 

act. , Proof. (a) That the accused willfully or recklessly ~a/sted or spoiled certain real property in the manner alleged; (b) that the property was that of 

another person, as alleged ; and (c) the value of the property wt~sted or spoiled, 

as alleged. 

For a discussion of proof of value, see 200a(7). 

b. WILLFULLY AND WRONGFULY DESTROYING OR DAMAGING OTHER 

THAN MILITARY PROPERTY OF THE UNITED STATES 

Discussion. This portion of Article 109 proscribes the willful and wrongful destruction or damage of the personal property of another. 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 which it was intended. Damage consists of any physical injury to the property. To constitute an offense 

under this section, the destruction or damage of the property must have been 

willful and wrongful. As used in this section "willfully" means intentionally 

and "wrongfully" means contrary to law, regulation, lawful order, or custoin. 

Willfulness may be shown by direct eviclence, as by remarks of the accused ~t 

the time, or circumstantially, as by the manner in which the acts were done. 

In the case of destruction, the value of the property destroyed controls the 

liinit of punishment which may be adjudged therefor, but in the case of damage, the amount thereof instead of the value of the property clamaged is so 

coi~trolling.As a general rule, the amount of damage is the estimated or actual 

cost of repair by artisans einl~loyecl in this work who are available to the coinmunity wherein the owner resides, or the replacement cost, whichever is the 

lesser. 

Proof. (a) That the accused clestroyed or dailla,ged certain personal property, as alleged; (b) that the property was that of another person, as alleged; 

(G) that such ciestruction or clainage ~v:\;as \villful and wrongful; and (d) the 

v:~lue of the property cles.troyed or the amo~~ilt of danxige done, as alleged. 

For a discussioi~ of proof of value, see 200a (7). 

189. ARTICLE 110-IMPROPER HAZARDING OF VESSEL 

Discussion. As used i.n this article, 'L\villfully" means intentionally and i t wrongfully" nle:~ns co11tr:u.y to Ian-,regulatio~l, lawful orcler, or custom. 'LNeg- 
PUNITIVE ARTICLES 11 190 

ligence" 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. This negligence may consist of the omission to do something the prudent and reasonable 

person would have done, or the doing of something he would 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 were appropriate under the circumstances to prevent a foreseeable danger. "Hazard" 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 the vessel was hazarded although not of the fact of culpability 

on the part of any particular person. "Stranded" means run aground so that 

the vessel is fast for a time. If a vessel "touches 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 fails to perform such duties 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 these duties are not specifically enumerated in 

a regulation or an order. However, a mere error in judgment such as a reasonably able person might have committed under the same. circumstallces, will not 

constitute an offense under this article. 

Proof. (a) Tha't a vessel of the armed forces was hazarded in a certain 

manner, as alleged; and (b) that the accused, by certain acts or omissions, as 

alleged, willfully and wrongfully, or negligently, caused or suffered the vessel 

to be so hazarded. 

190. ARTICLE 111-DRUNKEN OR RECKLESS DRIVING 

Discussion. Article 111 defines the offense of drunken or reckless driving 

as operating ai~Y/vehicle while drunk, or in a recklesss or wanton manner. 

Operating a vehicle includes not only driving or guiding it while in motion, 

either in person or through 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 "vehicle" applies to all types of land 

transportation (1 U.S.C. § 4), whether or not motor driven or passengercarrying. Drunken or reckless operation of water and air transportation may 

be alleged under other articles of the code, as appropriate. 

As to the meaning of "drunk," see 191. 

The operation of a vehicle is "reckless!' when it exhibits a culpable disregard of foreseeable consequences to others from the act or omission 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 these factors may be admissible and relevant as bearing upon the ultimate question: Whether, under all the circumstances, the 
11 191 CHAPTER XXVlll 

accused's manner of operation of the vehicle was of that heedless nature which 

made it actually or imminently dangerous to the occupallts, or to the rights or 

safety of others. It is driving with such a high degree of neglige~~ce that if death 

were caused, the accusecl would have committed involuntary manslaughter, at 

least. 

"Wanton" includes "reckless," but in describing the operatioll of a vehicle, 

it may, in a proper case, connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense (see 1974. 

While the same course of conduct may constitute both drunken and reckless 

driving, the article proscribes 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 adinissible as establishing one aspect of the recklessness, and evidence that the vehicle exceeded a safe speed, at %,relevant prior 

point and time, might be admissible as corroborating otherrLvidence 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 ~vhiclz 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 was operating a certain vehicle, as alleged; 

(b) that he was drunk while operating the vehicle; or, that he operated it in 

a reckless or wanton manner, as alleged; and, if alleged, (c) that the accused 

thereby caused the vehicle to injure the victim, as alleged. 

191. ARTICLE 112--DRUNK ON DUTY 

Discussion. Article 112 sets forth the offense of being found drunk on 

duty. The tenn "c111t~" as: used in this article ineans military duty, but every 

cluty 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 or physical faculties is drunkenness dhin the meaning 

of the article. 

It is necessary that accused be found drunk while actually on the duty 

alleged, and the fact that he became drnnk 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 cluty of an anticipatory nature such 

:ts 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, \vhen in tlie actual exercise of cominai~l, 

the coinmanding officer of a post, or of :L command, or of a detach~nent in the 

field is constantly on duty. Also, ~vithin the ineaning of this article, the com- 
PUNITIVE ARTICLES ll 192 

manding officer on board his 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 circ~~mstances are often such that all 

members of a command may properly be considered as being continuonsly 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 was 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. 

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 hegoes 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, whe~ he is stationed in observation against 

the approach of an enemy, or is 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 gnard prisoners while in confinement or at 

work. 

This articlddoes not include ail officer or enlisted person of the guard, or of 

J
 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 accordailce 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; (71) 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 ; 

and, if alleged, (c) that it was committed in an area designated as authorizing 

entitlement to special pay for duty subject to hostile fire. 
11 194 CHAPTER XXVlll 

193. ARTICLE 11LDUELING 

a. FIGHTING DUEL 

Discussion. A duel 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. 

b. PROMOTING, BEING CONCERNED IN OR CONNIVING AT FIGHTING A 

DUEL, OR FAILING TO REPORT KNOWLEDGE OF A CHALLENGE 

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 or fighting a duel and who fails to notify appropriate authorities and to take other reasonable preventive action thereby i 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 selfinjury, for the purpose of avoiding work, duty, or service. The injury may be 

inflicted by nonviolent as well as by violent means and may be accomplished 

by any act or omission which produces, prolongs, or aggravates any sickness 

or disability. Thus, voluntary starvation which results in debility is a selfinflicted injury and when done for the purpose of avoiding work, duty, or 

service constitutes a violation of Article 115. 

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 which 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 was feigned (see 138e), and such an ' opinion may be regarded as evidence upon that question. 

Proof. (u) That the accused was assigned to, or was aware of his prospective assignment to, or availability for, the performance of work, duty, or 

ser-vice, as alleged; (6) that the accused feigned illness, physical disablement, 

mental lapse or derangement, or intelltionally inflicted injury upon himself, 

as alleged; and (c) that his purpose in doing so was to avoid the work, duty, 

or service alleged. 
PUNITIVE ARTICLES 11 196 

195. ARTICLE 116-RIOT OR BREACH OF PEACE 

a. RIOT 

Discussion. A riot is a tumultuous disturbance of the peace by three or more\ 

persons assembled together in furtherance of a common purpose to execute 

some enterprise of a private nature by concerted action against any who might 

oppose them, committed in such a violent and turbulent manner as to cause or 

be calculated to cause public terror. It is immaterial whether the act intended 

was of itself lawful or unlawful. Furthermore, it is not necessary that the 

common purpose be determined before the assembly. It is sufficient if the assemblage begins to execute in a tumultuous manner a common purpose formed 

after it assembled. . 

Proof. (a)That the accused was a member of an assembly of three or more 

persons; (b) that the accused and at least two other members of the assembly 

assembled in furtherance of a common purpose to execute some enterprise of 

a private nature by concerted action against any who might oppose them; 

(c) that the assembly or some of its members committed a tumultuous disturbance of the peace, as alleged; and (d) that the tumultuous disturbance of the 

peace caused or was calculated to cause pitblic alarm or terror. 

b. BREACH OF THE PEACE 

Discussion. In military law, a "breach of the peace" is an unlawful disturbance of the peace by an otltward demonstration of a violent 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 "community" 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 pitblic place are a few 

instances of the type of conduct which ;nay constitute a breach of the peace. 

The fact thad opprobrious words are true, or used under provocation, is not a 0
 defense, nor is tumultuous conduct excusable because incited by others. As to 

self-defense, see 216c. 

Proof. (a) That the accused caused or participated in a certain act of a 

violent or turbulent nature, as alleged; and (6) that the peace was thereby 

unlawfully distu.rbed. 

196. ARTICLE 117-PROVOKING SPEECHES OR GESTURES 

Discussion. This article makes punishable the use of provoking or reproachful words or gestures towards another person subject to the code. 

As used in this article, 'Lprovoking" 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 peace. As thus used they 

do not comprehend reprimands, censures, reproofs and the like which may 
ll 197 CHAPTER XXVlll 

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 118-MURDER 

Discussion. a. General. The killing of a human being is unlawful when done 

without justification or excuse. See 216a, 6, and c. The determination of whether 

an unlawful killing constitutes murder 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 omission although the victim may have died elsewhere. 

Whether death occurs at the time of the accused's act or omission, or at some 

time thereafter, it must have followed from an injury received by the victim 

which resulted from the act or omission. 

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 murder, and certain forms of assault. / 

Voluntary drunkenness (154a(2)) not amounting to legal idsanity may 

reduce premeditated murder (Art. 118 (1)) to unpremeditated murder (Art. 

118(2) or (3)) but it will not operate to reduce it to manslaughter, nor to 

reduce unpremeditated murder to manslaughter. 

b. Premeditation. A murder is not premeditated unless the thought of 

taking life was consciously conceived and the act or omission by which it was 

taken was intended. Premeditated murder is murder committed after the 

formation of a specific intent to kill someone and consideration of the act 

intended. It is not necessary that the intention to kill shall have been entertained 

for any particular or considerable length of time. When a fixed purpose to kill 

has been deliberately formed, it is immaterial how soon afterwards it is put 

into execution. The existence of premeditation may be inferred from the 

circumstances surrounding the killing. 

Proof. (a) That the victim named or described is dead; (6) that his death 

resulted from the unlawful act or omission of the accused, as alleged; and 

(c) that the accused had a premeditated design to kill. 

c. Intent to kill or inflict great bodily harm. An unlawful killing without 

premeditation is also murder when the person had either an intent to kill or 

an intent 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 20'3). It may be inferred that a person intends the natural and probable 

consequences of an act purposely done by 11iin. Hence, if a person does an 

intentional act likely to result in death or great bodily injury, it may be 

inferred that he 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 is inflicted in 

th~heat of a sudden passion caused by adequate provocation-see 198a). For 

example, a person perpetrating housebreaking who strikes and kills the householder attempting to block his flight can be guilty of murder even if he did 

not see the householder until the moment before striking the fatal blow. 
PUNITIVE ARTICLES ll 198a 

Proof. (a) That the victim named or described is dead; (6) that his death 

resulted from the unlawful act or on~ission of the accused, as alleged; and 

(c) that the accused intended to kill or inflict great bodily harm. 

d. Act inherently dangerous with wanton disregard of human life. Engaging in an act inherently dangerous to others, without any 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 a disregard is characterizecl by il heedlessness of the probable consequences of the act or omission, an 

indifference that death or- great bodily harm is likely to ensue. Examples might 

be throwing a live grenade toward others in jest or flying an aircraft very low 

over a crowd to make it scatter. 

Proof. (a) That the victim named or described is dead; (6) that his death 

resulted from the unlawful act or omission of the accused, as alleged; and (6) 

that the accused was engaged in an act inherently dangerous to others, evincing 

a wanton disregard of human life. . 

e. Com7nission 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. The law recognizes that the commission or 

attempted cominission of these offenses is likely to result in homicide, 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 the burglary, sodomy, rape, robbery, or aggravated 

arson, as the case may b& may also be charged in a separate specification. 

Proof. (a) That the victim named or described is dead; (6) that his 

death resulted from the act or omission of the accused, as alleged; and (c) that 

the accused was engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson. 

198. ARTICLE 119-MANSLAUGHTER 

(I. VOLUNTARY ML4KSLAUGHTER 

Discussion. An unlawful killing, although done with an intent to kill or 

inflict greyt bodily harm (see 197c), is not murder but voluntary manslaughter 

if commivted in the heat of sudden passion caused by adequate provocation. 

Heat of passion may be produced by fear as well as rage. The law recognizes the 

fact that a inan may be provoked to such an extent that in the heat of sudden 

passion caused by the provocation, although not in necessary defense of life nor 

to prevent bodily harm (see 216~)) 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. 

The provocation must be adequate to excite nncontrollable 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. 

Examples of acts which may constitute adequate provocation are assault 

and battery inflicting great or grievous bodily harm, an unlawful imprison- 
U 198b CHAPTER XXVlll 

ment, and the sight by a husband or wife of an act of adnltery 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 words or gestures, a slight blov with the hand or fist, and trespass or 

other injury tlo property are not, standing alone, considered adequate 

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, 

agpvated assault, assault and battery, and assault. 

Proof. (a) That the victim named or described is dead; (6) that his death 

was caused by an unlawful act or omission of the accused; (c) that, at the time 

of the killing, the accused intended to kill or inflict great bodily harm; and, 

when considered as a lesser offense to murder, (d)that the act or omission of the 

accused was committed under and because of a heat of sudden passion caused by 

adequate provocation. 

b. INVOLUNTARY MANSLAUGHTER 

Discussion. Involuntary manslaughter is an unlawful ho icide (see 197a) 

committed without an intent to kill or inflict great bodily ha? 7;it is an unlawful killing by culpable negligence, or while perpetrating or attempting to 

perpetrate an offense other than burglary, sodomy, rape, robbery, or aggravatd 

arson, directly affecting the person. 

Culpable negligence is a degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a culpable disregard 

for the foreseeable consequences to others of that 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 \vould not, necessarily, 

be a natural and probable consequence of the act or omission. 

Acts which may amount to culpable negligence are negligently condncting 

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 IT-ithout taking reasonable precautions to ascertain, that it would 

not be dangerous ;and carelessly leaving poisons or dangerous drugs where they 

may endanger life. 

When there is no legal duty to act there can be no neglect. Thus rhea a 

stranger makes no effort to save a drowning man, or a person nllo\\-s 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, and maiming. 

Among the offenses which may be incltided 1%-ithin a particular charge of 

involuntary manslaughter are negligent llomici.de 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 omission of the accused, as alleged; and (c) that this 
PUNITIVE ARTICLES n 199b 

act or omission of the accnwd constituted culpable negligence, or occurred 


while the accused was perpetrating or attempting to perpetrate an offense 


directly affecting the person other tlinn hiirplary, sodomy, rape, ~vbbery, or 


aggravated arson, as alleged. 


199. ARTICLE 120-RAPE AND CARNAL KNOWLEDGE 

Discussion. Rape is the commission of an act of sexual intercourse by a 

person with a fenlale not his wife, by force and without her consent. It may 

be committed on a female of any age. Any penetration, however slight, is 

sufficient to complete the offense (Art. 120c). 

Force and lack of consent are indispensable to the offense. 'I'l~us, if the 

female consents to the act, it is not rape. The lack of consent required, ho~~ever, 

is more than mere lack of acquiescence. If a moman in possession of her nleiltal 

and physical faculties fails to make her lack of consent reasonably inanifest 

by taking such measures of resistance as are c;dled for by the circ~unstances, 

the inference may be drawn that she did in fact consent. Consent, holr-ever, will 

not be inferred if resistance would be futile, or ~vhere resistance is o\-ercome by 

threats of death or great bodily harm, nor will it be inferred if she is unable 

to resist because of the lack of mental or physical fac~~lties. I11such a case there 

is no consent and the force involvecl in the act of penetration will suffice. A11 

the surrounding circuinstances are to be coiisiclered in determining ~vllether a 

woman gave her consent, or whether she failed or ceasecl to resist only 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 inost detestable 

crime . . . ; but it must be remembered that it is an accusation easy to be made, 

hard to be proved, but harder to be clefencled by t,he party accused, though 

innocent." --

If there is actual consent, although obtained by fraud, the act is not rape, 

but if to the accused's knowledge the ~\-0111a11 is of unsound mind or uncoilseious 

to an extent rendering her incapable of giving consent, the act is rape. Likewise, 

the acquiescence of a female child of such tender years that she is incapable of 

understanding the nature of the act, is not consent. ,2 \voman's prior lack of 

chastity is not a defense, but see 1536 (2) (6) as to the :tclinissibilit~ of evidence 

of her unchaste character. 

Among the offe~lses which niay be included in a l~nrticular charge of rape 

are assault with intent, to coininit rape, assault and battery, ancl assault. 

Proof. (a) That the accused had sexual intercourse with a certain female 

,not his wife; and (b) that the act was done by force and ~vithont. her consent. 

h. CARNAL KNOWLEDGE 

Discussion. Carnal knowledge is defined as the commissioil of an act of 

sexual intercourse under circun~stances not amounting to rape, by a person 

with a feniale not his wife who has not attained the age of 16 years. *4s in rape, 

any penetration is sufficient to complete the offense (Art. 120 (c)). It, is no defense that the accusecl is igilorant or inisinformecl 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 1~-hich fixes his criminal responsibility. Evidence of these matters should, however, be considered in determining 

an appropriate sentence. 
ll200a CHAPTER XXVlll 

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 limits 

of the jurisdiction by a person subject to the code may constitute conduct of a 

nature to bring discredit npon the armed forces in violation of Article 134. 

Proof. (a) That the accused had sexual intercourse with a certain female 

not his wife; and (b) that she had not attained the age of 16 years. 

200. ARTICLE 121-LARCENY AND WRONGFUL APPROPRIATION 

a. LAROENY 

Discussion. (1) General. Under the provisions of Article 121, a person is 

guilty of larceny if he ~~rongfully takes, obtains or withholds, by any means, 

from the possession of the 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 it 

to his own use or the use of any person other than the owner. A wrongful taking 

with intent permanently to deprive includes the common law offense of larceny; 

a wrongful obtaining with 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 

propenty in question. 

Property which is taken, obtained, or withheld by severing it from real 

estate is within the class of property which may be bhhe subjeot of larceny. Mso 

within this class of property are writings which represent value, such as 

commercial paper. 

(2) Taking, 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 "obtaineat 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 him, 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 

inay "obtain7' it by thereafter acquiring title thereto. A "withholding" may arise 

as a result of a failure to return, account for, or deliver property to its owner 

when a return, accounting, or delivery is due, even if the owner has made no 

demand for the property, or it inay arise as a result of devoting property to a 

use not authorized by its owner. Generally, this is so wvhether the person withholding the property acquired it lawfully or unlawfully. See 200a(6). However, 
PUNITIVE ARTICLES 11 200a 

acts which constitute the offense of unlawfully receiving, buying, or concealing 

stolen property (see 213f (14) ) or of being an accessory after the fact (see 157) 

are not included within the meaning of the word L'withholds." Therefore, neither 

a receiver of stolen property nor an accessory after the fact can be convicted of 

larceny on the theory that with knowledge of the identity of the owner he withheld the stolen property from the possession of the owner. The taking, obtaining, or withholding must be of specific property. A debtor does not withhold 

specific property from the possession of his creditor by failing or refusing to 

pay a debt, for 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) Ownership of the property. Article 121 requires that the taking, 

obtaining, or withholding be from the possession of the owner or of any other 

person. Care, custody, management, and control ari among the legal definitions 

of possession. The term "owner" 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 the property, and an 

organization is the true owner of its funds as against the custodian of the funds 

charged with larceny thereof. The phrase "any other person" means any person-evenaperson who has stolen the property-who has possession or a greater 

right to possession than the accused. In pleading a violation of this article, the 

ownership of the property may be alleged to have been in any person other than 

the accused 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 (in addition to a natural person) a government, 

a corporation, an association, an organization, and an estate. Such a person 

need not be a legal entity. 

(4) Wrongfulness 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, generally, is such an act wrongful if done by a person who 

has a right to the possession of the property either equal to or greater than the 

right of the one from whose possession he takes, obtains, or withholds it. HOWever, even if the person taking, obtaining, or withholding the property has a 

right of possession equal to or greater than that of the person from whose 

possession the property is taken, obtained, or withheld, the act is wrongful if it 

is done with the intent to charge him with the value of the property. Thus, if 9 

delivers his property to B as a bailee and subsequently takes the property with 

intent to charge B with its value, the taking is wrongful. An owner of property 

who takes or withholds it from the possession of another, without the consent 

of the other, or who obtains it therefrom by false pretense, does so wrongfully 
11 200a CHAPTER XXVlll 

if the other has a superior right to possession of the property, such as a lien. A 

person who takes, obtains, or withholds property as the agent of another has the 

same rights and liabilities as does his principal, but he may not be charged 

with a guilty knowledge or intent of the priilcipal to which he was not a party. 

(5) Pulse 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 without 

a 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 representsd by a person 

may be his or another's power, authority, or intention. Thus, a false representation by a person that he presently intends to perform a certain act in the 

future is a false representation of an existing fact-his intention-and thus 

a false pretense. 

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 will not result in the commission of an offense 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 going 

to use it for a short time and then return it, but who really intends to sell it, 

is guilty of larceny. 

(6) Intent. The offense 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 

owner. These intents are collectively called an intent to steal. Although a 

person has acquired possession of property by a taking or obtaining which 

was not ~vrongfi~l or which was without the concurreilce of an intent to steal, 

he nevertheless can commit 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 

L
 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 int.ended to return it after 

using it according to the agreement of hire. 

The existence of an intent to steal must, in most cases, be inferred from 

the circumstai~ces. Thus, if a person secretly takes property, hides it, and 

denies that he kno~~-s anything about it, an intent to steal may 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 may show an intent to 

steal, and, therefore, evidence of such a sale may be introduced to support a 

charge of larceny. An intent to steal may be inferred from a wrongful and 

intentional dealing with the property of another in n manner likely to cause 

him to suffer a permanent loss thereof. 
PUNITIVE ARTICLES (I 200a 

Although 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 owner, as ~vhen he takes stolen property from a thief with that intent, does not commit larceny or wrongful 

appropriation. 

An intention to pay for the property stolen or otherwise to replace it with 

an equivalent is not a defense, even though such an intention existed at the time 

of the theft, and, once a larceny is committed, a return of the property or paylnei~t for it is no defense. If, however, the accused takes money or a negotiable 

instrument having no special value above its face value, with the intent to 

return an equivalent amount of money, the offense of larceny is not committed 

although wrongful appropriation (2006) may be. 

(7) Value. Value is a question of fact to be determined on the basis of all 

of the competent evidence presented. When the property allegedly stolen is an 

item issued or procured from Government sources, the price listed in an official 

publication for that 9roperty at the time of the theft is admissible as evidence of 

its value. However, the item allegedly stole11 must be shown to have been, at the 

time of the theft, in the condition upon which the value indicated in the official 

price is predicated. The price listed in the official publication is not conclusive 

as to the value of the item, and other competent evidence is admissible on the 

question of its condition and value. 

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 this property, because of its character or the place where it was stolen, had no legitimate 

market due 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. 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 this is 

the case, going only to the weight to be given to his testimony and not to its 

admissibility. When the character of the property clearly appears in evidence, 

RS when, for 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 coinmon knowledge the 

property is obviously of a value substantially in excess of $100, 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 $100. Writings representing value may be 

coilsidered 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 that person with the 

value of the property, tLe value for punishment purposes shall be that of the 

limited interest. 

(8) JIisceZZa.neozls. taking or ~vithholding of lost property by the finder 

is larceny if accompanied by an intent to steal and if a clue to the identity of the 
U 201 CHAPTER XXVlll 

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. 

men a larceny of several articles is committed at substantially the same 

time and 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 

persons or goes into a room and takes property belonging to various persons, 

there is but ode larceny, which should be alleged in but one specification. 

Proof. (a) That the accused wrongfully took, obtained, or withheld from 

the possession of the owner or of any other person the property described in the 

specification; (6) that the property belonged to a certain person named or 

described ; (c) that the property was of the value alleged, or of some value ; and 

(d) that the taking, obtaining, or withholding by the accused was with intent 

permanently to deprive or defraud another person of the use and benefit of 

property or to appropriate it to his own use or the use of any person other than 

the owner. 

b. WRONGFUL APPROPRIATION 

Discussion. See generally 200~.Article 121defines 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 offense of wrongful 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. 

L4n 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 owner or of any other person the property described in the 

specification; (b) that the property belonged to a certain person named or 

described ; (c) that the property was of the value alleged, or of some value; and 

(d) that the taking, obtaining, or withholding by the accused was with intent 

temporarily to deprive or defraud another person of the use and benefit of 

property or to appropriate it to his own use or the use of any person other than 

the owner. 

201. ARTICLE 122-ROBBERY 

Discussion. Robbery is the taking, with intent to steal, of anything of value 

from the person or in the presence of another, against his will, by means of 

force or violence or fear of immediate or future injury to his person or prop- 
PUNITIVE ARTICLES ll201 

erty 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 the property taken 

be located within any certain distance of the victim. 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 that roo~n and steal the 

valuables, they have committed robbery. 

For a robbery to be committed by force or violence, there must be actual 

force or violence to the person, preceding or accompanying the taking against, 

his will, and it is immaterial that there is no fear engendered in the victim. Any 

amount of force is enough to constitute robbery if the force overcomes the 

actual resistance of the person robbed, or puts him in such a position that he 

makes no resislance, or suffices to overcome the resistance offered by a chain orother fastening bfwhich the article is attached to the person. 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. 

Rut 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 a guard steals property from the person of a prisoner in his charge after 

handcuffing hi111 on the pretext of preventing his escape. 

For a robbery to be 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 taking must occur while the apprehension exists. The 

injury apprehended may be death or bodily injury to the person himself or to 

the person of a relative or member of his family or 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 his family or of anyone in his company at the time of sufficient gravity to warrant his giving up the property demanded by the assailant. 

Robbery includes "taking with intent to steal"; hence, a larceny by taking is 

an integral part of a charge of robbery and must be proved at the trial. See 

200a(4). When the evidence falls short of proving the force or fear or other 

facts necessary to robbery but does prove a larceny by taking, the accused, by 

proper exceptions and substitutions, may be found guilty of larceny. Conversely, depending on the facts alleged and proved, if the evidence fails to 

prove the larceny, the accused may be found guilty of some degree of assault, 

including assault consummated by a battery, assault with a dangerous weapon, 

assault in which grievous bodily harm is intentionally inflicted, or assault with 

intent to commit robbery. If the evidence fails to prove larceny but proves 

wrongful appropriation, the accused may be found guilty of the latter and, 

in an appropriate case, may be found guilty of both wrongful appropriation 

and an appropriate degree of assault, as discussed above, as lesser included 
11 202 CHAPTER XXVlll 

offenses of a single specification of robbery. In an appropriate case a finding of 

attempt to commit robbery is permissible (158). 

Proof. (a) The larceny of the property (see Proof under 200a, but proof 

of specific value may be omitted) ; (6) that the 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 means of force or violence or by putting in fear, 

as alleged. > 

202. ARTICLE 123-FORGERY 

Discussion. Forgery is the false making or altering with intent to defraud 

of any signature to, or any part of, any writing which would, 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 writing or 

by knowingly uttering a falsely made writing, there are certain elements cominon 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 to change his legal right or liability to his prejudice, and (c) an intent to defraud. 

As regards the false making or altering of a writing, "false" refers not 

to the contents of the writing or to the facts stated therein but to the making 

or altering of it. Hence, forgery is not committed by the genuine making of a 

false instrument even when made with intent to defraud. Thus, a person who, 

with intent to defraud, signs his own signature as the maker of a check drawn 

on a bank in which he does not have money or credit does not commit forgery. 

Although the check falsely represents the existence of the account, it is what 

it purports to be, a check drawn by the actual maker, and therefore it is not 

falsely made. See, however, 202A. Likewise, if a person makes a false signature of another to an instrument, but adds the word "by" with his own 

signature thus indicating authority to sign, the offense is not forgery even if 

no such authority exists. False recitals of fact in a genuine document, as, an 

aircraft flight report which is "padded" by the one preparing it, do not 

constitute the writing a forgery. 

Signing the name of another to an instrun~ent having apparent legal efficacy without 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 check payable to the order of a certilin 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 iictitious name, as w11e11 a person makes 

a check payable to himself and signs it with a fictitious name as drawer. 

The writing must be one which mould, if genuine, apparently impose a 

legal liability oil another, as a check or promissory note, or change his legal 

right or liability to his prejudice, as a receipt. Some other instruments which 

may be the subject of forgery are orders for delivery of money or goods, mil- 
PUNITIVE ARTICLES n202A 

road tickets, and military orders directing travel. A writing falsely made 

includes an instruineilt that may be partially or entirely printed, engraved, 

written with a pencil, or inade by photography or other device. A writing may 

be falsely "made" by materially altering an existing writing, by filling in a 

paper signed in blank, or by signing an instrument already written. 

With respect to the apparent legal efficacy of the writing falsely made 

or altered, the writing must appear either on its face or from extrinsic lacts 

to impose a legal liability on another, or to change a legal right or liability 

to the prejudice of another. If under all the circumstances the instrument has 

neither real nor apparent legal efficacy, there is no forgery. Thus, the false 

making, with intent to defraud, of an instrument affirmatively invalid on its 

face is not forgery nor is the false making or altering, with intent to defraud, 

of a writing which coulcl not impose a legal liability, as a mere letter of 

introduction. However, the false making of another's signature on an instrument, with intent to defraud, is forgery, even if there is no resemblance to the 

genuine signature and the name is misspelled. 

In order to constitute forgery by altering a writing, the alteration must 

effect a material change in the legal tenor of the ~~riting. Thus an alteration 

whereby any obligation is apparently increased, diminished, or discharged is 

material. Examples of material alterations in the case of a promissory note 

are changing the date, amount, or place of payment. If a genuine writing has 

been delivered to the accused and \~hile in his possession is later found t,o be 

altered, it may be inferred that the ~vriting was altered by him. 

The intent to defraud need not be directed toward anyone in particular 

nor be for the advantage of the offender. It is immaterial that nobody mas 

actually defrauded, or that no further step mas made toward carrying out the 

intent to defraud other than the false making or altering of a writing. 

In proving forgery, the instrument itself should be produced, if available. 

That the signature to a written instrument mas falsely made 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 

p~~rporteddrawer of the check has no account in the bank upon which the 

check was drawn. 

Proof. (a) That a certain signature or writing was falsely made or altered, 

as alleged; (b) that the signature or ~vriting was of a nature which ~vould, 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 the signature or writing or uttered, offered, issued, or transferred it, 

knowing it to have been so inade or altered; and (d) that the intent of the 

accused was to defraud. 

202A. ARTICLE 123a-MAKING, DRAWING, OR UTTERING 

CHECK, DRAI?T, OR ORDER WITHOUT SUFFICIENT FUNDS 

Discussion. Article 123a denounces certain "bad check" offenses. It makes 

punishable by court-martial the making, clra~ving, uttering, or delivering of 

any check, draft, or order for the payment of money upon any bank or other 

clepository, either- 
U 202A CHAPTER XXVlll 

(1) for the procurement of any article or thing of value, with intent 

to defraud ; or 

(2) for the payment of any past due obligation, or for any other purpose, with intent to deceive; 

knowing at the time of the making, drawing, uttering, or delivering that the 

maker or drawer has not or will not have sufficient funds in, or credit with, 

the bank or other depository for the payment of that check., dmft, or order in 

full upon its presentment. 

The written instruments covered by this article include any check, draft, 

or order for the payment of a sum of money drawn upon any bank or other 

depository, whether or not the drawee bank or depository is actually in existence. The phrase "bank or other depository" includes any business regularly 

but not necessarily exclusively engaged in public banking activities. The words 

"making" and "drawing" are synonymous, and refer to the acts of writing and 

signing the instrument. L'Uttering" and "delivering" have similar meanings. 

Both "uttering" and "delivering" mean transferring the instrument to another, 

but "uttering" has the additional meaning of offering to transfer. A person need 

not himself be the maker or drawer of an instrument in order to violate this 

article if he utters or delivers it. For example, if a person holds a check which 

he knows to be worthless, and utters or delivers the check to another, he mag 

be guilty of an offense under this article despite the fact that he did not draw 

the check himself. 

To constitute an offense under this article, the instrument must be made, 

drawn, uttered, or delivered, with the requisite knowledge of insufficient funds 

or credit, either for the procurement of an article or thing of value with intent 

to defraud, or for the payment of any past due obligation or for any other purpose with intent to deceive. ('For the procurement" means for the purpose of 

obtaining any article or thing of value. It is not necessary that an article or 

thing of value actually be obtained, and the purpose of the obtaining may be 

for the accused's own use or benefit or for the use or benefit of another. "For 

the paynzent" means for the purpose or purported purpose of satisfying in 

whole or in part any past due obligation. It is not requisite that payment be 

legally effected. "For any other purpose" includes all purposes other than the 

payment of a past due obligation or the procurement of any article or thing 

of value. For example, it includes satisfying .or purporting to satisfy an obligation arising from an illegal transaction, such as an illegal gambling game, and 

paying or purporting to pay an obligation which is not yet past due. The check, 

clraft, or order, whether made or negotiated for the procurement of an article 

or thing of value or for the payment of a past due obligzztion or for some other 

purpose, need not be intended or represented as payable immediately. For example, the making of a post dated check, delivered at the time of entering into 

an installment purchase contract and intended as payment for a future installment, would, if made wit11 the reclnisite intent and knowledge, be a violation 

of this article. 

"Article or thing of value7' extends to every kind of right or interest in 

property, or derived from contract, including interest and rights which are 

iatangible or contingent or which mature in the future. A "past due obligation" 

is an obligation to pay money which has legally matured prior to the making, 

drawing, uttering, or delivering of the instrument. 
PUNITIVE ARTICLES ll202A 

The amused must have knowledge, at the time he makes, draws, utters, or 

delivers the instrument, that the maker or drawer, whether the accused or another, has not or will not have sufficient funds in, or credit with, the bank 

or other depository for the payment of the instrunlent in full upon its presentment. "Sufficient funds" refers to a condition in which the account balance of 

the maker or drawer in the bank or other depository at the time of the presentment of the instrument for payment is not less than the face amount of the 

instrument and has not been rendered unavailable for payment by garnishment, 

attachment, or other legal procedures. 

"Credit" means anarrangement or understanding, express or implied, with 

the bank or other depository for the payment of the check, draft, or order. 

An absence of credit includes those situations in which an accused writes a 

check on a nonexistent bank or on a bank in which he has no account. "Upon 

its presentment" refers to the time the demand for payment is made upon 

presentation of the instrument to the bank or other depository on which it 

was drawn. 

"Intent to defraud" means an intent to obtain, through a misrepresentation, an article or thing of value and to apply it to one's own use and benefit or 

to the use and benefit of another, either permanently or temporarily. An "intent 

to deceive" means an intent to mislead, cheat, or trick another by means of a 

misrepresentation made to that order for the purpose of gaining an advantage for one's self or for a third person or of bringing about a disadvantage to 

the interests of the person to whom the representation was made or interests 

represented by that person. It may be inferred that every check, draft, or order 

carries with it a representation that the instrument will be paid in full by the 

bank or other depository upon presentment by a holder when due. 

It should be noted that, under this article, two times are involved: (1) 

the time when the accused makes, draws, utters, or delivers the instrument; and 

(2) the time when the instrument is presented to the bank or other depository 

for payment. At time (I),the accused must possess the requisite intent and 

must know that the maker or drawer does not have or will not have sufficient 

funds in, or credit with, the bank or other depository for payment of the 

instrument in full upon its presentment when due. With respect to (2), if it 

can otherwise be shown that the accused possessed the requisite intent and 

knowledge at the time he made, drew, uttered, or delivered the instrument, 

neither proof of presentment nor refusal of payment is necessary, as when the 

instrument is one drawn on a nonexistent bank. The provisions of this article 

with respect to establishing pri?na facie evidence of knowledge and intent by 

proof of notitice and nonpayment within five days is a statutory rule of evidence. 

The failure of an accused who is a maker or drawer to pay the holder the 

amount due within five days after receiving either oral or written notice from 

the holder of a check, draft, or order, or from any other persoil having knowledge that such,check, draft, or order was returned unpaid because of insufficient 

funds, is prima facie evidence (1) that t.he accused had the intent to defraud 

or deceive as alleged; and (2) that the accused knew at the time he made, 

drew, uttered, or delivered the check, draft, or order that he did not have or 

would not have sufficient funds in, or credit with, the bank or other depository 

for the payment of such check, draft, or order upon its presentment for payment. Prima facie evidence is that proof which, if unrebutted, is sufficient to 
U 203 CHAPTER XXVlll 

establish the accused's intent to defraud or deceive and of his knowledge of 

insufficient funds in or credit with the bank or other depository. 

The failure to give the notice referred to in Article 123a, or payment by 

the accused, maker, or drawer to the holder of the amount due within five 

days after such notice has been given, merely precludes the prosecution from 

availing itself of the statutory rule of evidence. Proof of notice to the accused 

that a check, draft, or order has been returned unpaid because of insufficient 

funds is not an element of the offense. -I 

Offenses involving dishonorable failure to maintain sufficient funds for 

payment of checks upon presentment, in violation of Article 134, may be included offenses under Article 123a, not requiring proof of fraudulent or 

deceitful intent. 

As to permissible methods of proving banking entries, see 1436(3). AS 

to the authentication of checks, drafts, or orders returned with payment refused 

and the admissibility of these returned instruments, see the third paragraph 

of 144c. 

Proof. When the instrument is given for the procurement of an article or 

thing of value. (a) That the accused made, drew, uttered, or delivered a check, 

draft, or order payable to a named person or organization, as alleged; (6) 

that he did that act for the purpose of procuring an article or thing of value; 

(c) that the act was committed with intent to defraud; and (d) that at the 

time of making, drawing, uttering, or delivering of the instrument he knew 

that he or the maker or drawer had not or would not have sufficient funds in, 

or credit with, the bank or other depository for the payment thereof upon 

presentment. 

When the instrument is given for the payment of a past due obligation, 

or for any other purpose. (a) That the accused made, drew, uttered, or 

delivered a check, draft, or order payable to a named person or organization, 

as alleged; (6) that he did that act for the purpose or purported purpose of 

effecting the payment of a past due obligation or for some other purpose, as 

alleged; (c) that the act was committed with intent to deceive; and (d) that 

at the time of making, drawing, uttering, or delivering of the instrument, he 

knew that he or the maker or drawer had not or would not have sufficient funds 

in, or credit with, the bank or other depository for the payment thereof upon 

presentment. 

203. ARTICLE 124-MAIMING 

Discussion. Maiming is the inflicting upon the person of another, with 

intent to injure, disfigure, or disable, an injury which seriously disfigures his 

person by any mutilation thereof, destroys or disables any member or organ 

of his body, or seriously din~inishes his physical vigor by the injury of any 

member or organ. For example, it is maiming to put out afman's eye, to cut 

off his hand, foot, or finger, or to knock out his front tekth, 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 t,ype, but must be such as to impair per- 
PUNITIVE ARTICLES ll205a 

ceptibly and materially the victim's comeliness. The disfiguremelit, 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 may eventuilly recover tlie 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 considered on the question of intent. Infliction of tlie 

type of injuries sp'ecified in this article upon the person of another may support an inference of the intent to injure, disfigure, or disable. The offense requires only a general criminal intent to injure and not a specific intent to maim. 

Thus, one commits the offense who intends only a slight injury, if in fact he 

does inflict injury included within the terms of Article 124. If the injury is 

done under circumstances which would justify or excuse homicide, the offense 

of maiming is not committed. See 216a, 6, and 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; and (c) that the accused had an intent to 

injure, disfigure, or disable the person. 

204. ARTICLE 125-SODOMY 

Discussion. Sodomy is the engaging in unnatural carnal copulation, either 

with another person of the same or opposite sex, or with an aninial. 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 sexu.al orgaii 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. (a) That the accused engaged in unnatural carnal copulation with 

a certain other person or with an animal, as alleged; and, if alleged, (b) that 

the act was done by force and without the conseilt of the other person or was 

done with a child under the age of 16 years. 

205. ARTICLE 126-ARSON 

a. AaGRAVATED ARSON 

Discus$on. Aggravated arson is the willful and malicious burning or 

setting on fire (1) of an inhabited dwelling whether occupied at the time or 

nst, or (2) of any other structure, movable or immovable, wherein to the 

knowledge of the offender there is at tlie time a human being. 

In aggravated arson, danger to human life is the essential element; i11 

simple arson, it is injury to the property of another. I11 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 tecaiit. It must be 
11 206 CHAPTER XXVlll 

shown that the accused set the fire willfully and maliciously, that is, not merely 

by negligence or accident. 

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. 

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 this 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 Iluman 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 to permit the finding in an apprqriate case of the 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 this dwelling or structure was of a value 

and belonged to a certain person, as alleged; (c) that the act was willful and 

malicious ; and if not an inhabited dwelling, (d) that the accused had knowledge there was a human being in the structure at the time. 

6. SIMPLE ARSON 

Discussion. Simple arson is the willful and malicious burning or setting 

fire to the property of another under circumstances not amounting to 

aggravated arson. 

The offense includes burning or setting fire to real or persolla1 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, as alleged; (6) that the property was of the value alleged, or of some 

value; and (c)that the act was willful and malicious. 

206. ARTICLE 127-EXTORTION 

Discussion. Extortion is the communication of threats to another with the 

intention thereby to obtain anything of value, or any acquittance, advantage, 

or immunity. The offense is complete upon communication of the threat with lthe 

requisite intent, and evidence of the actulal or probable success or failure of the 

extortion is immaterial to the determination of guilt. ,-

A threat may be communicated ~orally or in writing, so long as it is received 

by the intended victim. An acquittance is a release or discharge from an 

obligation. An intent to obtain any advantage or immunity may include an 

intent to make a person do an act against his will. 
PUNITIVE ARTICLES f207a 

The threat in extortion may be a threat to do any unlawful injury to the 

person or property of the individual threatened or of any member of his family 

or any other person held dear to him ; a threat to accuse the individual threatened, or any meniber of his family or any other person held dear to him, of 

any crime; a threat to expose or impute any deformity or disgrace to the 

/" individual threatened or to any member)of his family or any other person 

held dear to him; a threat to expose any pecret affecting the individual threatened or any member of his family or any other persoil 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 (b) that he intended to unlawfully obtain something of value, 

or any acquittance, advantage, or immunity, as alleged. 

207. ARTICLE 1%-ASSAULT 

Discussion. An assault is an attempt or offer with unlawful force or 

violence to do bodily harm to another, whether or not the attempt or offer is 

consummated. Thus, an offer to do bodily harm to andher, as distinguished 

from an attempt to do such harm, is a putting of the other in reasonable 

apprehension 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 wibh 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 apprehension 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 apprehension, may nevertheless be an assault in the form of an attempt to do bodily harm. Some other 

examples of acts which may constitute an assault are raising a stick over another's head as if to strike him and oausing him to apprehend that he will be 

struck, striking at another with a cane or fist, assuming a threatening attitude 

and hurrying toward another so as to cause him to apprehend 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. For example, if A raises 

a stick and shakes it at B within striking distance saying, "If you weren't 

an old mam, I would knock you down," no assault has been committed. However, 

an offer to inflict bodily injury upon another instantly if he does not comply 

with a demand which the assailant has no lawful right to make is an assault. 

Thus, if A points a pistol at B and says to him, "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 negligent act or omission which 

foreseeably might and does cause another reasonably to apprehend that force 

will at once be applied to his person. See 19% (Involuntary manslaughter), for 

a discussion of culpable negligence. 
ll207b CHAPTER XXVlll 

take poison, or to run an automobile against him. ,4 man who fondles against 

It is not a defense to a oharge ocf assault that for some reason unknown to 

the assailant his atkmpt 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 was in fact so 

defective that it did not explode. Likewise, if a person in a house shoots through 

the roof at a place where he believes a policeman is concealed, he may be 

guilty of an assault even though the policeman is at another place on the roof. 

If there is a demonstration of violence coupled with an appardnt ability 

to inflict bodily injury, so as to cause the person at whom it was directed 

reasonably to apprehend bodily injury unless he retreats to secure his safety, 

and under these 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. T'hus, to aim a pistol 

at a man at such a distance that it clearly could not injure would not be an 

assault. 

An assault in which the attempt or offer to do bodily harm is consummated 

by the infliction of that harm is called a battery. 9battery is 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 clothes while he is wearing them though 

without touching or intending to touch his person, to she$him, to cause him to 

her will 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 a culpably 

negligent act or omission causes bodily harm to another, it may constitute a 

battery. If bodily harm is inflicted unintentionally and without culpable negligence, however, 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 n batteiy may have been directly or indirectly set in 

motion. Thus a battery can be committed by inflicting bodily injury 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 unlawful. It 

must be done without legal justification or excuse (see 216a and 6) and without 

the lawful consent of the person affected. With respect to the excuse of selfdefense, see 2160. 

Proof. (a) That the.accused attempted or offered with unlawful force or 

violence to do bodily harm to a certain person, as alleged, or\ (b),in the case 

of a consummated assault, that with unlawful force or violdnce he did bodily 

harm to a certain person, as alleged. 

b. ASSAULTS PERMITTING INCREASED PUNISHMENT BASED ON STATUS OF VICTIM 

Discussion. The maximum permissible punishment for certain assaults 

under Article 128(a) is increased when the victim has a particular status 

or is performing a special function. See Section A, 127c, Table of Maximum 
PUNITIVE ARTICLES 11 207c 

Punishments. Assaults with this characteristic are discussed below. See 213f (1) 

for a discussion of assaults with intent to commit certain offenses of a civiI 

nature and indecent assaults. 

(1) AssauZt upon a comnzissioned officer, zuarrant officer, nomomissioned officer, or petty officer. This is an assault committed upon a commissioned 

/ officer of the armed forces of the United States, or of a friendly foreign power, 

or upon a warrant officer, noncom~nissioned officer, or petty officer. Knowledge 

by the accused that the person assanlted was n commissioned officer of the 

United States or of a friendly foreign power, or a warrant officer, noncommissioned officer, or petty officer is an essential ingredient of this offense. It is not 

necessary that the victim be superior in rank or command to the accused, that 

he be in the same armed force, or that he be in the execution of his office at the 

time of the assault. 

Proof. (a) That the accused assaulted a certain person, as alleged; (6) 

that the person was a commissioiied, warrant, noncommissioned, or petty officer, 

as alleged; and (c) that the accused knew that the person was a commissioned, 

warrant, noncommissioned, or petty officer, as alleged. 

(2) Assault upon a sentine2 or lookout in the emecution of his duty, or 

upon a person in the execution of police duties. This is an assault committed 

upon a sentinel or lookout in the execution of his duty, or upon a person who, in 

the execution of his office, was performing Air Force security police, military 

police, shore patrol, or civil law enforcement duties. 

Proof. (a) That the accused assaulted a certain person, as alleged; (6) 

that the person was a sentinel or lookout in the execution of his duty or was a 

person who then had and was in the execntion of Air Force security police, 

military police, shore patrol, or civil la\.: enforcement duties, as alleged; and (c) 

that the accused knew at the time of the assault that the person was a sentinel or 

lookout in the execution of his duty or was a person who then had and was in 

the execution of Air Force security police, military police, shore patrol, or civil 

law enforcement duties, as alleged. 

(3) Assault consummated by a battery upon a child under sixteen years 

of age. This is an assault consummated by a battery upon a child under the age 

of sixteen years. 

Proof. (a) That the accused, with unlawful force or violence, did bodily 

harm to a certain person; and (b) that this person was under the age of sixteen 

years. 

C. AGGRAVATED ASSAULT 

Discussion. Article 128(b)defines two kinds of aggravated assault. One is 

an assault with a dangerous weapon or other means or force likely to produce 

death or grievous bodily harm. The other is an assault, with or without a weapon, 

in which the assailant intentionally inflicts grievous bodily harm. 

See 218f (Various types of offenses under Article 134) as to assaults with 

intent to commit certain offenses of a civil nature and indecent assaults. 

(1) Assault with a dangerous weapon or other means or force likely to 

produce death or grievous bodily hnrnz. A weapon is dangerous when used in 

such a manner that it is likely to produce death or grievous bodily harm. By 

"grievous bodily harm" is meant serious bodily injury. The phrase "or other 

means or force'' may include any means or instrumentality not normally con- 
11 208 CHAPTER XXVlll 

sidered a "weapon." When the natural and probable consequence of a s articular 

use of any means or force would be death or grievous bodily harm, it may be 

said that the means or force is LLlikely" 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 its method of employment in a particular case. Thus 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 used in a manner likely to inflict death or grievous 

bodily harm. On the other hand, an unloaded pistol, when presented a& a firearm 

and not as a bludgeon, is not a dangerous weapon or a means or force likely to 

produce grievous bodily harm, 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. 

Proof. (a) That the accused assaulted (see proof of assault) a certain 

person with a certain weapon, means, or force ;and (6) that the weapon, means, 

or force was used in a manner likely to produce death or grievous bodily harm. 

(2) Assau2t in which grievous bodily harm is intentionally inflicted. 

"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, serious 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 

assault if no serious injury was inflicted by the blow itself for, although the 

fractured skull occurred under such circumstances that had the victim died as 

a result of the fracture the offense might have been involuntary manslaughter 

(see Art. 119 (b) (2) ),that injury nevertheless was not a likely, that is, a natural 

and probable, consequence of the assailant's act. 

It is possible, however, to commit this kind of aggravated assault with 

the fists, as when the victim is held by one of several assailants while the others 

beat him with their fists and break his nose or jaw. 

Proof. (a) That the accused assaulted (see proof of assault) a certain 

person ; (b) that grievous bodily harm was thereby inflicted upon such person; 

and (c) that the grievous bodily harm was intentionally inflicted. 

208. ARTICLE 129-BURGLARY 

Discussion. Burglary is the breaking and entering in t? nighttime of the 

dwelling house of another, with intent to commit an offense punishable under 

Articles 118 through 128, except 123a. These offenses are murder, manslaughter, 

rape and carnal knowledge, larceny and wrongful appropriation, robbery, 

forgery, maiming, sodomy, arson, extortion, and assault. I11addition, an intent 

to commit an offense which, though not covered by Articles 118 through 128, 

llecessarily includes an offense within one of these articles satisfies the intent 
PUNITIVE ARTICLES (208 

element of this article. This would include, for example, assaults punishable 

under Article 134, which necessarily include simple assault under Article 128. 

It is immaterial whether the offense intended is committed or even attempted. If the offense is actually intended, it is no defense that its con~mission 

was impossible. 

To constitute burglary the house must be the dwelling house of anotherthe term "dwelling llouse" 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 entering. It is not necessary to this status that anyone actually be in it at 

the time cf the alleged offense; but if the house has never been occupiecl 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 wall or roof or through an open window or door, even if left 

only slightly open and pushed farther open by 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 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 xvith 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 gas or telephone inspector; or by intimidating the inmates 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. 

,4n 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. 

Boththe breaking ancl 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 in the house an 

offense punishable under Articles 118 through 128, except 123a. If, after the 

breaking and entering, the accused cominits one or more of these offenses, it 

may be inferred that he intended to commit the offense or offenses at the time 

of the breaking and entering. If the available evidence appears to warrant such 
U 210 CHAPTER XXVlll 

action, the actual commission of the offense alleged in the burglary specification 

to have been intended may 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; (b) that the breaking and entering were 

done in the nighttime; and (c) that the breaking and entering were done with 

the intent to commit the alleged offense therein. 

C
 209. ARTICLE 130-HOUSEBREAKING 

Discussion. Housebreaking is the nnlawful entering of the building or 

structure of another with intent to coinmit a criminal offense therein. The 

article is not violated by one who enters lawfully, though with intent to commit 

an offense. The offense is broader than burglary in that the place entered is not 

required 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 the intent need not be to commit one of the offenses made 

punishable under Articles 118 through 128. The intent to commit some criminal 

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 offense." 

The word "buildii~g'~ includes a room, shop, store, office, or apartment in 

a bnilding. 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 these 

structures are a stateroom, hold, or other compartment of a vessel, an inhabitable 

trailer, an inclosed goods truck or freight car, a tent, and a houseboat. It it 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). 

The principles of the last sentence of the discussion in 208 (Burglary) are 

applicable to housebreaking. 

Proof. (a)That the accused unlawfully entered a certain building or structure of a certain other person as specified ; and (b) that he intended to commit 

a criminal offense therein, as alleged. 

210. ARTICLE 131-PERJURY 

Discussion. Perjury is the willful and corrupt giving, in a judicial proceeding or in a course of justice and ul>on a lawful oath or in any form allowed 

by law to be substituted for an oath, of any false testimony material to the 

issue or matter of inquiry. "Judicial proceeding" includes a trial by courtmartial and "course of justice" includes an investigation conducted under 

Article 32. 

The testimony must be false and must be willfully and corruptly given; 

that is, it must appear that the accused gave the false testimony willfully and 

that he did not believe it to be true. A witness may commit perjury by testifying 

that he knows a thing to be true when i11 fact he either k;!mws nothing abont it 

at all or is not sure about it, and this is so whether the thing is true or false in 

fact. A witness may 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 when in fact he does or 
PUNITIVE ARTICLES n 210 

testifies that in his opinion a certain person was drunk when in fact he entertains the contrary opinion, he commits perjury if the other elements of the offense are present. I 

The oath must bione required or authorized by law ancl most be duly administered by one authorized to administer it. When a form of oath has been 

prescribed a literal following of that form is not essential; it is sufficient if 

the oath administered conforms in substance to the prescribed form. An oath 

includes ail affirmation when the latter is authorized i11 lieu of an oath. 

It is no defense that the witness roluntarily appeared, or that he was incompetent as a witness or that his testimony was given i11 response to questions 

that he could have declined to answer, unless he was forced to answer over a 

valid 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 ~vhich a legitimate inference may 

be drawn as to the existence or nonexistence of a fact in issue. Whether the 

allegedly false testimony was with respect to a material matter is a question of 

law to be determined as an interlocutory question. See 57%. 

If the accused is charged with having committed perjury before a courtmartial, it must be shown that the court-martial was duly detailed and constituted. Ordinarily this may be shown by introducing in evidence pertinent 

parts of the record of trial of the case in wliich the perjury was allegedly 

committed or by the testimony of a person who was counsel, the military judge, 

or a member of the court in that case to the effect that the court was so detailed 

and constituted. 

The falsity of the allegedly perjured statement cannot, except with respect 

to matters which by their nature are not susceptible of direct proof, be proved 

by circumstantial evidence alone, nor can the falsity of the statement be proved 

by the testimony of a single witness unless that testimony directly contradicts 

the statement and is corroborated by other evidence, either direct or circumstantial, tending to prove the falsity of the statement. However, documentary 

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 known to the accused at the time he took the oath or if it 

appears that the documentary evidence had sprung from the accused himselfor had in any manner been recognized by him as containing the truth-before 

the allegedly perjured statement was made. 

The factdthat the accused did not believe his statement to be true may 

be proved by testimony of one witness without corroboration or by circumstantial evidence. 

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 jn which an oath was required or 

authorized by law; (c) that the oath mas aclministered by a person having 

authority to do so; (d) that upon the oath the accused willfully gcave the testimony alleged ; (e) that the testimony was material ; (f) that the testimony 

was false; and (9)that the accused did not believe the testimony to be true. 
!I 211b CHAPTER XXVlll 

211. ARTICLE 132--FRAUDS AGAINST THE UNITED STATES 

a. MAKING A FALSE OR FRAUDULENT CLAIM 

Discussion. A claim is a demand for a transfer of ownership of money or 

property and does not include requisitions for the inere use of property. 

Making a claim is a distinct act froill presenting it. A claim may be made 

in one place and presented in another. The mere \vriting of a paper in the form 

of a claim, without any further act to cause the paper to become a demand 

against the United States or an officer thereof, does not constitute "making" 

a claim. However, any act placing the claim in official channels constitutes 

"making" a claim, even if that act does not amount to 'Lpresenting" the claim. 

The article does not relate to claims against an officer of the United States 

in his private capacity, but to claims against the United ~tategor any officer 

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 

article does not proscribe claims, however groundless they may be, that are 

believed by the maker to be valid, nor claims that are merely made negligently 

or without ordinary prudence. See also the discussion in 211b. 

Ss 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 subnlits that claim for official action, 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 

or an officer thereof, as alleged; (b) that the claim was false or fraudulent in 

the particulars specified; and (c) that when the accused made the claim he 

knew that it was false or fraudulent in these particulars. 

b. PRESENTING FOR APPROVAL OR PAYMENT A FALSE OR FRAUDULENT CLAIX 

Discussion. See Discussion in 211a. 

False and fraudulent claims include not only those containing some material false statement, but also claims ~vhich the claimant knows to have been 

paid or for some other reason knows he is not authorized to present or up011 

which he lrnows 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 inay be tacitly presented, as when 

a person who knows he is not entitled to cqrtain pay accepts it nevertheless, 

~vithout clisclosing his disqualification, even though he may not have made any 

verbal representation as to his entitlement to the pay. Instances of such an 

act are: A11 enlisted person approaching the pay table when his name is called 

and drawing pay for a period cluring which lie was absent ~vitliout leave, without 

clisclosing the absence; and an officer casliing 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 clependency status 1vhicl1 resulted in his llaving no right to the allowance paicl. 

Other examples of this offense are presenting to a disbursing officer a false 

final statement, knowing it to be false, and presenting a voucher claiming r a t' ions 

01. rental allowances for dependents known not to exist. 
PUNITIVE ARTICLES ll211f 

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 or an officer 

i

thereof, as allegedl; (b) that the claim mas false or fraudulent in tlle particulars 

alleged; and (c) that when the accused presented the claim he knew it was 

false or fraudulent in these particulars. 

C. MAKINQ OR USING A FALSE WRITING OR OTHER PAPER IN CONNEC!!3ON WITH 

CLAIMS 

Discussion. See211a and b. 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 fradudulent 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 

t-he paper has been attempted and whether or not the claim has been presented. 

Proof. (a)'That the accused made or used a certain writing or other paper, 

as alleged; (6) that certain material statements in the writing or other paper 

were false or fraudulent, as alleged; (c) that the accused knew the statements 

were false or fraudulent; and (d) 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 or an officer thereof, as specified. 

d. FALSE OATH IN CONNECTION WITH CLAIMS 

Discussion. See 211a and b. 

Proof. (a) That the accused made an oath to a certain fact or to a certain 

writing or other paper, as alleged; (b) that the oath was false, as alleged; 

(G) that the accused knew it was false ;and (d)that the act was for the purpose 

of obtaining the approval, allowance, or payment of a certain claim or claims 

against the United States or an officer thereof, as alleged. 

e. FORGERY OF SIGNATURE IN CONNECTION WITH CLAIMS 

Discussion. See 211a and b. 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. 

Proof. (a) That the accused forged or counterfeited the signature of a 

certain person on a certain writing or other paper as specified; or that he used 

the forged or counterfeited signature of a certain person, knowing the signature to be forged or counterfeited, as alleged; and (6) that his act was for the 

purpose of obtaining the approval, allowance, or payment of a certain claim 

against the United States or an officer thereof, 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 accused 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 this offense. 
W212 CHAPTER XXVlll 

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; (b) that he obtained a certificate or receipt 

for a certain amount or quantity of that money or property, as alleged; (c) 

that for the certificate or receipt he knowingly delivered to a certain person 

having authority to receive it an amount or quantity of the money or property 

less than the amount or quantity thereof specified in the certificate or receipt; 

and (d) the value of the undelivered money or property, as alleged. 

g. MAKING OR DELIVERING RECEIPT WITHOUT HAVING FULL KNOWLEDGE THAT r 

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 United 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 duty before signing the paper to know that the full amount of supplies 

therein stated to have been furnished has in fact been furnished, and that the 

statements contained ill the paper are true. If, with intent to defraud the 

United States, he signs the paper without that knowledge, he is guilty of a 

violation of this section of the article; and if he signs the paper without this 

knowledge, it may be inferred that he intended to defraud the United States. 

Proof. (a) That the accused was authorized to make or deliver a paper 

certifying 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 made or delivered to that person a certificate of receipt, as alleged; (c) that 

he made or delivered the certificate without having full knowledge of the truth 

of a certain material statement or statements therein; (d) that his act was 

done with intent to defraud the United States; and (e) the amount involved, 

asalleged. 

212. ARTICLE 133-CONDUCT UNBECOMING AN OFFICER 

AND A GENTLEMAN 

Discussion. The conduct contemplated may be that of a commissioned 

officer of either sex or of a cadet or midshipman. When applied to a female 

officer 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 unofficial 

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 dishonesty 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 individnxl standards of an officer, cadet, or midshipman cannot fall 

without seriously compromising his standing as an officer, cadet, or midshipman or his character as R gentleman. This article contemplates conduct by a 

commissioned officer, cadet, or midshipman which, taking all the circumstances 

into consideration, is thus compromising. This article includes acts made 
PUNITIVE ARTICLES V213a 

punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentleman. Tlius a commissioned officer who steals 

property violates both this article 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; and failing without a good cause to support his 

family. 

Whenever the offense charged is the same as a specific offense set forth in 

the manual, the elements of proof are the same as those set forth in the paragraph which treats that specific offense, with the additional requirement that 

the act or omission constit~~tes conduct unbecoming ail officer and gentleman. 

Proof. (a)That the accused did or omitted to do tlie acts, as alleged; 

and (b) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman. 

213. ARTICLE 134-GENERAL ARTICLE 

a. GENERAL 

Discussion. ~iticle 134 makes punishable all acts not specifically proscribed in any other article of the code when they amount to disorders or 

neglects to the prejudice of good order ancl discipline in the armed forces or 

to conduct of a nature to bring discredit the armed forces, or constitute 

noncapital crimes or offenses denounced by enactment of Congress or under 

authority of Congress. If conduct of this nature is specifically made punishable by another article, it should be charged as a violation of that article; and 

if it is not specifically made punishable by another article, it should be charged 

as a violation of Article 134. But see 212. The specification alleging a violation 

of Article 134 need not expressly dlege that the conduct was a disorder or 

negleot, or that it was of a nature to bring discredit upon tlie armed forces, or 

that it constituted a crime or offense not capital. Under a specification alleging 

a violation of Article 134, a finding 'of guilty may properly be returned if t.he 

court-martial is convinced beyond a reasonable doubt that the acts of the 

accused constituted a disorder or neglect to the prejudice of good 'order and 

discipline in the armed forces, that his conduct was of a nature to bring discredit upon the armed forces, or that his cond~ct violated an applioable statute 

enacted by or under authority of Congress. The same conduct may constitute 

a disorder or neglect to tlie prejudice of good order and cliscipline in the armed 

forces and3t the same time be of n nature to bring discredit npon the armed 

forces. Although evidence presented at the trial of a11 offense alleged under 

Article 134 may be insufficient to establish the coniniissioii of n crime or offense 

not capital, it may nevertheless be sufficient to establish a disorder or neglect 

to the prej~~dice of good order and discipline or service-discredibing coliduct 

and thus support a conviction. See 213d. 
n 213~ CHAPTER XXVIII 

b. DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE 

IN THE ARMED FORCES 

Discussion. The disorders and neglects punishable under this clause of 

Article 134 include those acts or omissions to the ~rejudice 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. Almost any irregular or improper act on the 

part of a member of the military service could be regarded as prejudicial in 

some indirect or remote sense; however, the article does not contemplate these 

distant effects. It is confined to cases in which the ~rejudice is reasohably direct 

and palpable. 

Instances of prejudicial 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 member of his command to go on duty knowing 

him to be drunk. 

Instances of prejudicial disorders and neglects in the case of enlisted persons are appearing in improper uniform; wrongfully abusive use of 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 clause 

of Article 134. In its legal sense the word "custom" imports something more 

than a method of procedure or a mode of conduct or behavior which is merely 

of frequent or usual 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 thing 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 customs 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 of this article wrongfully to possess or use marihuana or a 

habit forming narcotic drug. Possession or use of marihuana or a habit forming 

i~arcotic drug may be inferred to be wrongful unless .the contrary appears. 

A person's possession or use of a drug is innocent when the drug has 

been duly prescribed for him by a physician and the prescription has not been 

obtained by fraud, when he possesses it in the performance of his duty, or 

when his possession or use of marihuana or a narcotic drug is without knowledge of the presence or the nature of the substance (see 154a(4) ). If an issue 

is raised by the evidence as to whether possession or use by an accused charged 

with this offense was innocent on one of these grounds, a showing that it was 

not innocent on that ground becomes a requirement of proof. 

6. CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES 

Discussion. "Discredit" as here used means "to injure the reputation of." 

This clause of Article 134 makes punishable conduct which has a tendency to 

bring the service into disrepute or which tends to lower it in public esteem. 

Ally discreditable conduct not denounced by a specific article of the code is 

punishable under this clause. Acts in violation of local civil law may be punished 

if they are of a nature to bring discredit upon the armed forces. Included 

within the conduct which may be found to be within the proscription of this 
PUNITIVE ARTICLES U 2130 

clause are adultery, bigamy, negligent homicide, fleeing the scene of an accident, 

indecent acts, and dishonorable failure to pay debts. 

d. GENERAL REQUIREMXNTS OF PROOF UNDER ARTICLE 134 

The proof required for conviction of an offense under Article 134 depends 

upon the nature of the misconduct charged. If the conduct is punished as a 

crime or offense not capitlal (213e), the proof must establish every element of the 

crime or offense as required by the applicable law. One element of proof common to every case tried under Article 134, except one tried as a crime or offense 

not capital, is that the conduct of the accused, under the circumstances, was to 

the prejudice of good order and discipline in the armed forces or was of a 

nature to bring discredit upon the armed forces. This element is common to all 

the offenses discussed in 213f and should be included in instructions as to the 

elements of these offenses, in addition to their specific elements. Subject to the 

foregoing, an offense under either of the first two clauses of Article 134 requires 

the following proof: 

(1) That the accused did or failed to do the acts, as alleged; and 

(2) That under the circumstances his conduct was to the prejudice of good 

order and discipline in the armed forces or was of a nature to bring discredit 

upon the armed forces. 

Crimes and offenses not caprital which are referred to and made punishable 

by Article 134 include those acts or omissions, not made punishable by another 

article, which are denounced as noncapital crimes or offenses by enxtments 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 section 13 of title 18 of the United States Code. 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 punishable under 

the first or second clause of Article 134. 

For the purpose of court-martial jurisdiction, the laws which may be applied under the clause, "crimes and offenses not capital," are divided into two 

groups: 

(1) Cinzes and offenses of unlimited application. Certain noncapital 

crimes and offenses denounced by the United States Code, 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 

the code regardless of where the wrongful act or omission occurred. The 

Narcotic Drugs Import and Export Act (21 U.S.C. $8 171-185) falls within 

this group, being applicable to the importation of proscribed drugs not 

only into areas over which the United States is sovereign but also into 

territories subject to the control of the United States for a special purpose, 

including military installations on foreign soil. 
II 213f CHAPTER XXVlll 

(2) Oimes and offensesof ZocaZ a~pZication. Those noncapital crimes 

and offenses which are listed in the United States Code but which are limited in their applicability to the special maritime and territorial jurisdiction of the United States as defined in the United States Code, those 

applicable within the continental United States, and those included in 

the law of the District of Columbia, in the lam- of a Commonwealth, 

Territory or possession 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 another article of the code, are made applicable under Article 

134 to all persons subject to the code who commit these crim? or offenses 

within the geographical boundaries of the areas in which they are applicable. For the law applicable in a reservation or a place over which the 

United States has exclusive jurisdiction or concurrent jurisdiction with a 

State, see 18 U.S.C. $13. A person subject to the code cannot be prosecuted 

under the third clause of Article 134 for having committed a crime or 

offense, not. capital, if the act occurred in a place where the law in question 

did not apply. For example, a person 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 mould have beell an offense against the law 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 under 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. 

f. VARIOUS TYPES OF OFFENSES UNDER ARTICLE 134 

(1) ASSAULTS INVOLVING INTENT TO COMMIT CERTAIN OFFENSES OF A CIVIL 

NATISRE 

Discussion. See 207 (Assault). The assaults here designated as being 

punishable under Article 134 are those perpetrated with intent to commit 

mnrder, voluiltary 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 coi~lmitted with intent to colnmit an offense without achieving that degree 

of proximity to consnmmation of an intended offense which is essential to an 

attempt. See 159. 

Some of these assaults will be discussed below. 

(a) AssuuZt with intent to .mzcrder. This is an assault committed wi.th 

,z specific intent to kill, under such circumstances that, if death resulted therefrom, the offense of murder mould have been coinmitted. To constitute an assault with intent to murder with a firearm, it is not necessary 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 

consumm,ztion of the murder by the ineans employed is impossible is not a 

defense if the ineans are apparently adapted to the end in view. Thus, if a 
PUNITIVE ARTICLES ll213f 

person intending to murder another loads his rifle with what he believes to be 

a live cartridge and aims and discharges his rifle at the other, it is no defense 

that, by accident, he used a dummy cartridge. 

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 with intent to murder each 

member of the group. 

(6) Assault with intent to commit uoluntaw~ manslaughter. This is 

an assault committed with a specific intent to kill under such circumstances 

that, if death resulted therefrom, the offense of voluntary inanslaughter would 

have been committed. There can be no assault ~~ith intent to commit involuntary 

manslaughter, for involuntary manslaughter is not a crime capable of being 

intentionally committed. 

(c) Assault with intent to commit rape. This is an assault committed 

by a man with a specific intent to have sexual intercourse with a woman not his 

wife 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 lesser intent will not suffice. Indecent advances and 

importunities, however earnest, not accompanied by such an intent, do not 

constitute this offense, nor do mere prel~aratioi~s torape 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 bed 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 is made, it is no defense that 

the man voluntarily desisted. 

Lesser offenses that may be included in a charge of assault with intent 

to rape are indecent assault and assault. 

(d) Assault with intent to rob. This is an assault committed with a 

specific intent to steal property by taking it from the person or in the presence 

of another, 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) Assault with intent to commit sodo~ny. The assault must be against 

a human being and must be committed with a specific intent to commit sodomy. 

Any lesser intent, or different intent, will not suffice. 

Proof. (a) That the accused assaulted a certain person, as alleged; (6) 

that the accused at the time of the assault had a specific intent to kill, as 

required for murder or voluntary manslaughter, or to commit rape, robbery, 

sodomy, arson, burglary, or housebreaking, as alleged ; and (c) that, under the 

circumstances, the conduct of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature to bring discredit ~13011 the 

armed forces. 
11 213f CHAPTER XXVlll 

(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 a'female not his 

wife without her consent and against her will, with intent to gatifg his lust or 

sexual desires. In a proper case indecent assault may be an included offense of 

assault with intent to commit rape. 

Proof. (a) That the accused assaulted a certain female not his wife by 

taking indecent, lewd, or lascivious liberties with her person; (b) that the acts 

were done with intent to gratify the lust or sexual desires of the accused; and 

(c) that, under the circ~tmstances, the conduct of the accused was to the 

prejudice of good order and discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

(3) INDECENT ACTS WITH A CHILD UNDER THE AGE OF 16 YEARS 

Discussion. This offense consists of taking any immoral, improper or 

indecent liberties with, or tl~e com~~lission ofany,lewd or lascivious act upon 

or with the body of any chilcl of either sex under the age of 16 years with the 

specific intent of arousing, appealing to, or gratifying tlie lust or passions or 

sexual desires, either of the person committing the act, or of tlie child, or of both. 

When the accused is charged with taking iilclecellt liberties, the liberties must be 

taken in the physical presence of the child, but it is not essential that the evidence show physical contact betmeen tile accused and tlie child. Thus, one who 

with the requisite intent exposes his private parts to a child under the age of 

sixteen years may be founcl guilty of this offease. Noiiconsent by the child to the 

act or conduct is not essential to this offense, nor is consent 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; (6) that 

the child was under the age of 16 years, as alleged; (c) that the intent of the 

accused was to arouse, appeal to, or gratify the lust or passions or sexual desires 

of the accused or tlie child or both, as alleged; and (d) that, under the circumstances, the conduct of tlze accused was to the' prejudice of good order and 

discipline in the armed forces or was of a nature to bring discredit upon the 

armed forces. 

(4) FALSE SWEARING 

Discussion. False swearing is the making under lawful oath, not in a 

judicial proceeding or course of justice, of any false statement, oral or written, 

not believing the statement to be true. It may consist, for example, in iliaking a 

false oath to an affidavit. The oath inay be taken before any person authorized by 

law to administer oaths. See Article 136 ancl 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. A11 oath includes an 

affirmation when the latter is authorized in lieu of an oath. 

The principles set forth in the last two paragraphs of the discussion of 

perjury in 210 apply also to false s\veariag. 

Proof. (a)That the accused took an oath or its equivalent, as alleged; 

(b) that tlie oath was administerecl to tlie accused in a matter in which an oath 

was required or authorized by law; (c) that tlie oath was administered by a 
PUNITIVE ARTICLES ll213f 

person having authority to do so; (d) that upon this oath the accused made or 

subscribed a certain statement, as alleged; (e) that the statement was false; 

(f) that the accused did not believe the statement to be true; and (g) that, 

under the circumstances, the conduct of the accused was to the prejudice of 

good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. 

(5) DISLOYAL STATEMENT UNDERMINING DISCIPLINE AND LOYALTY 

Discussion. Certain disloyal statements by military personnel may lack 

the necessary elements to constitute an offense under 18 U.S.C. $8 2385, 2387, 

and 2388, but nevertheless, under the circumstances, be punishable as conduct to 

the prejudice of good order and discipline or conduct reflecting discredit upon 

the armed forces. Examples are utterances designed to promote disloyalty or 

disaffection among troops, as praising the enemy, attacking the war aims of the 

United States, or denouncing our form of government. 

Proof. (a) That the accused made the disloyal statement, as alleged; 

(6) that the accused at the time of making the statement did so with the 

design alleged; and (c) that, under the circumstances, the conduct of the 

accused was to the prejudice of good order and discipline in the armed forces or 

was of a nature to bring discredit upon the armed forces. 

(6) ~SPRISIONOF A FELONY 

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 

known the same to the civil or military authorities is guilty of misprision of the 

felony. Any offense of a civil natnre punishable under the authority of the 

code by death or by confinement for a term exceeding one ;year is a felony. A 

mere failure or refusal to disclose the felony \vithout some positive act of 

concealment does not make one guilty of this offense. Making a false entry 

in 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 accused had knowledge of the actual commission 

of a felony by another; (6) that he concealed and did not as soon as possible 

make known the felony to the civil or military authorities; and (c) that, under 

the circumstances, the conduct of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a natnre to bring discredit upon 

the armed forces. . 

(7) DISHONORABLE FAILURE TO PAY DEBTS 

Discussion. A dishonorable failure to pay a just debt under circumstances which bring or tend to bring discredit upon the armed forces or which 

are prejudicial to good order and discipline in the armed forces is an offense 

under this article. More than mere negligence in the nonpayment is necessary. 

The failure to pay must be characterized by deceit, evasion, false promises, or 

other distinctly culpable circumstances indicating a deliberate nonpayment or 

grossly indifferent attitude toward one's just oblig a t' 1011s. 

For a debt to form the basis for this offense, the accused must not have had 

a defense, or an equivalent offset or counterclaim, either in fact or according 

to his belief,-at the time alleged. The offense should not be charged if there 
II 213f CHAPTER XXVlll 

was a genuine dispute between the parties as to the facts or law relating to 

the debt which would affect the obligation of the accused to pay. The offense 

is not committed if the creditor or creditors involved are satisfied with the conduct of the debtor with respect to payment. 

The length of the period of nonpaynlent and ally denial of his indebtedness which the accused may have made may tend to prove that his conduct was 

dishonorable, but the court-martial may convict ollly if it finds from all of the 

evidence that his conduct was in fact dishonorable. 

A commissioiled officer may be tried for this offense under either Article 

133 or Article 134, as the circumstances may warrant. 

Proof. (a) That the accused was indebted to a certain person or entity 

in a certain sum, as alleged; (b) that the debt became due and payable on or 

about a certain date, as alleged; (c) that at the time alleged while the debt was 

still due ancl payable, the accused dishonorably failed to pay the debt; and (d) 

that, under the circumstances, the conduct of the accnsed was to the prejudice of 

good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. 

(8) DISHONORABLE FAILURE TO MAINTAIN FUNDS FOR PAYMENT OF CHECKS 

Discussion. One who, having made and uttered a check, thereafter 

dishonorably fails to maintain sufficient funds in or credit with the drawee 

bank for its payment upon presentment, is chargeable under this article. This 

offense differs from the offense denounced by Article 123a in that there need 

be no intent to defraud or deceive at the time of making, drawing, uttering or 

delivery, and that the accnsed need not know at that time that he did not or 

would not have sufficient funds for payment. The gist of the offense lies in the 

conduct of the accnsed after uttering the instrument. 

Mere negligence in inaintaining one's bank balance is ins~lfficient as a 

basis for this offense, and the accused's conduct must reflect bad faith or gross 

indifference in this regard. ,4s in 213f (7), dishonorable conduct of the accused 

is necessary, 2nd the other principles cliscussed in 213f (7) likewise apply. 

Proof. (a)That the accusecl made and uttered a certain check, as alleged ; 

(6) that thereafter the accused dishonorably failed to maintain funds in or 

credit wit11 the clrawee bank for payment of the check upon its presentment for 

payment in 'due course; and (c) that, ~mdei~ the circumstances, the conduct of 

t,he accnsed was to the prejudice of good order ancl discipline in the armed forces 

or mas of a nature to bring discredit upon the armed forces. 

(9) BIGAMY 

Discussion. Bigamy is the colltracting of another marriage bfone who 

already has :i lawful spouse living. If a prior marriage was ~roicl, it will have 

created no status of "lawful spouse." However, if it xvas merely voidable and has 

not been voided by competent court action, this circumstance is no defense. A 

belief that a prior marriage has been terminated by divorce, death of the other 

spouse, or otherwise, constitutes a defense only if the belief was reasonable 

(154a(4)). 

Proof. (n) That, at the time and place alleged, the accused married a 

certain persoil, as alleged; (6) that, at the time of this marriage there existed 

a prior valid marriage enterecl into by the accused with allother person, as 
PUNITIVE ARTICLES I[ 213f 

alleged, which prior marriage was then undissolved; and (c) that, under the 

circumstances, the conduct of the accusecl was to the prejudice of good order and 

discipline in the arined forces or was of a nature to bring discredit upon the 

armed forces. 

(10) COMMUNICATING A THREAT 

Discussion. This offense consists of wrongfully communicating an 

avowed present determination or intent to injure the person, property, or 

reputation of anothercpresently or in the future. The communication may be 

made to the person threatened or to another. To establish the threat it is necessary to show that the declaration in question was made. It is not necessary, 

however, that the accusecl actually entertained the intention stated in the 

declaration. However, a declaration made under circumstances which reveal 

it to be in jest or for a11 innocellt or legitimate purpose, or which contradict the 

expressed intent to commit the act, cloes not constitute this offense. Nor is the 

offense committed by the mere statement of intent to commit an unlawful act 

not involving injury to another. . 

Proof. (a) That the accused communicated certain language expressing 

a present determination or intent ~vrongfully to injure another person, as 

alleged, presently or in the future; (6) that the con~munication was made 

known to that person or to a tl~ird person, as alleged; (c) that the communication mas ~~~rongful and without jt~stification or excuse; and (d) that, uilder the 

circumstances, tlze conduct of the accused ~vas to the prejudice of good order 

and discipline in the armed forces or was of a nature to bring discredit upon 

the armed forces. 

(11) FALSE AND UNAUTHORIZED PASSES, PERMIITS, DISCHARGE CERTIFICATES, 

AND IDENTIFICATION CARDS 

Discussion. Certain actls with respect to military or official passes, permits, discharge certificates, or iclentification cards may be punisl~able under 

this article. The wrongful use, possession, sale, or other disposition of a false 

or unauthorized pass, permit, discl~arge certifioate, or identification card with 

knowledge that it was false or unauthorized may be charged under this article. 

Although it is not necessary tl~at the use, possession, sale, or disposition of 

tlle document be with an intent to deceive or defraud, the use or possession of 

a false or unauthorized document with such an intent is ail aggravating circumstance authorizing more severe punishment. See 12'7c. See also 202A for 

a definition of intent to deceive and intent-to defraud. The false making or 

altering of a military or official pass, permit, discharge certificate, or identifioation card may also be charged under this article. ,4s to this offense, there is no 

requirement of knowledge or of an intent to deceive or defraud. The phrase 

"military or official pass, permit, discl~arge certificate, or identification card" 

includes, as well as the more us~~al forms of these documents, all documents 

issued by any governmental agency for the purpose of identification and copies 

and facsimiles thereof. 

Proof. Wrongful use or yossessio.n of a false or wnauthoriged pass, 

?)e~,?nit, discharge certificate, or identifictctiolz ctll-d. (a) That the accused wrongfully used or had i11 his possession a certain inilitary or official pass, permit, 

discharge certificate, or identificlttion card, as alleged; (6) that the pass, permit, discharge certificate, or identification card was false or uilauthorized as 
PUNITIVE ARTICLES 11 213f 

alleged, which prior marriage was then undissolved; and (c) that, under the 

circumstances, the conduct of the accusecl was to the prejudice of good order and 

discipline in the armed forces or was of a nature to bring discredit up011 the 

armed forces. 

(10) COMMUNICATING A THREAT 

Discussion. This offense consists of ~vrongfully communicating an 

avowed present determination or intent to injure the person, property, or 

reputation of another presently or in the fntlue. The commnnication may be 

made to the person threatened or to another. To establish the threat it is aecessary to show that the declaration in question TI-:-as made. It is not necessary, 

however, that the accusecl actually entertainecl the intelltion stated in the 

declaration. However, a declaration made under circumstances which reveal 

it to be in jest or for an innocent or legitimate purpose, or which contradict the 

expressed intent to commit the act, cloes not constitute this offense. Nor is the 

offense committed by the mere statelllent of intent to commit an unlawful act 

not involving injury to another. 

Proof. (a) That the accused commuilicated certain language expressing 

a present determillation or intent ~vrongfully to injure another person, as 

alleged, presently or in the future; (6) that the communication was made 

known to that person or to a third person, as allegecl ;(c) that the communication was ~1-oagful and without justification or excuse; and (d) that, under the 

circnmstances, the conduct of the accused TVRS to the prejudice of good order 

and discipline in the armed forces or was of a nature to bring discredit upon 

the armed forces. 

(11) FALSE AND UNAUTHORIZED PASSES, PERMITS, DISCHARGE CERTIFICATES, 

AND IDENTIFICATION CARDS 

Discussion. Certain acts with respect to military or official passes, permits, discharge certificates, or iclentification cards may be punishable under 

this article. The wrongful use, possession, sale, or other disposition of a false 

or unauthorized pass, permit, discharge certifioate, or identification card with 

knowledge that it was false or unauthorized may be charged under this article. 

Although it is not necessary that the use, possession, sale, or disposition of 

the document be with an intent to deceive or defraud, the use or possession of 

a false or unauthorized document wit11 such an intent is an aggravating circumstance authorizing more severe punishment. See 12'7c. See also 202A for 

a definition of intent to deceive and intent.to defraud. Tlle false making or 

altering of n military or official pass, permit, discharge certificate, or identification card may also be charged under this article. As to this offense, there is no 

requirement of knowledge or of an intent to deceive or defraud. The phrase 

"military or official pass, permit, discharge certificate, or identification card" 

includes, as well as the more usual forms of these documents, all documents 

issued by any governmental agency for the purpose of identification ancl copies 

and facsimiles thereof. 

Proof. WrongfuZ use or possession of a false or wnauthoriaed pass, 

pe~~nit, discl~arge certificate, or identificrttio?~ card. (a) That the accusecl \nono.- P fully used or had in his possession a certain military or official pass, permll, 

discharge ce'rtificate, or identification card, as alleged; (6) that the pass, permit, discharge certificate, or identification card mas false or ~ulautl~orized as 
11 213f CHAPTER XXVlll 

allegecl; (c) that the accused knew that the pass, permit, discharge certificate, 

or identification card was false or unautl~orized, as alleged; (d) that, under the 

circun~stances, the conduct of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature to brina discredit up011 9 the armed forces; and, if allegecl, (e) that the use or possession was with 

intent to deceive or defraud. 

Wrongful sale or disposition of a puss, pernzit, discharge certificate or 

identification curd. (a) That the accused wrongfully sold or disposed of a 

certain military or official pass, permit, discharge certificate, or identification 

card, as alleged; (6) that the pass, permit, discharge certificate, or identification card as false or unauthorized, as allegecl; (c) that the accused knew 

that the pass, permit, clischarge certificate, or iclentification card was false or 

unauthorized, as alleged; and (d) that, under the circumstances, the conduct 

of the accused was to the ~rejudice of good order and discipline in the armed 

forces or was of a nature to bring discredit ~~pon the armed forces. 

Falsely making or altering a pass, pernzit, discharge certificate, or 

identification card. (a) That the accused ~vron~fully ancl falsely made or 

altered a certain militaiy or official pass, permit, discharge certificate, or 

identificatioil card, as allegecl; and (b) that, under the circumstances, the concluct of the accused \\-as to the prejudice of goocl orcler and discipline in the 

armed forces or xTas of a nature to bring cliscreclit npon the armed forces. 

(12) NEGLIGENT HOMICIDE 

Discussion. Negligent homicide is any unlawful homicide which is the 

result of simple negligence. Simple neglige~lce is ;I lesser degree of carelessness 

than culpable negligence. See 198b. It is the absence of due care, that is, an act 

or oinission of a person \vho is under a. duty to use due care mhich exhibits n 

lack of that degree of care for the safety of others \\-hich a reasonably prudent 

inan would have exercised under the same or siinilar circuinstallces. 

Proof. (a) That the person named or described is dead; (6) that his 

death was nnla~vfully caused by the acts or oinissions of the accused, as 

alleged; (c) that the acts or omissions of the accused constituted negligence; 

and (d) that, under the circui~~stances, the concluct of the accused was to the 

prejudice of good order ancl cliscipliile in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(13) OFFENSES AGAINST CORRECTION.~L CUSTODY 

Discussion. Escape from correctional custody is the act of a person 

iuldergoing the punishment of correctionnl cnstocly pursuant to Article 15 

(131c(4)) who, before being set at liberty by proper authority, casts off any 

physical restraint imposecl by his custocliail or by the place or conditions of 

custody. Breach of restraint during col~rectional custocly is the act of a person 

undergoing the punishment, who, in the absence of physical restraint imposecl 

by a custodian or by tlie l~l:~ce or collclitiolls of custody, breaches ally form of 

restraint imposecl cluring this periocl. See 57b as to the inalder of cletermining 

the legality of the imposition of correctional custocly. 

Proof. Escape front correctional custody. (a) That the accused was duly 

placed in correctional custody; (6) that, at the time and place alleged, the 

accusecl freecl himself from the physical restraint of his correctional custody, 

as alleged, before having been released therefro111 by proper authority; and 
PUNITIVE ARTICLES 7 213f 

(c) that, under the circumstances, the conduct of the accused was to the prej~zdice of good order and discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

Breach of correctional cz~stody. (a) That the accused was duly placed 

in correctional custody; (b) that while in such correctional custody, a certain 

restraint was imposed upon the accused ; (c) that, at the time and place alleged, 

the accused broke this restraint, before having been released from the correctional custody OF relieved of the restraint by proper authority; and (d) that, 

under the circumstances, the conduct of the accused was to the prejudice of 

good order and discipline in the armed forces or was of a nature to bring 

discredit upon the armed forces. 

(14) RECEIVING STOLEN PROPERTY 

Discussion. "Receiving stolen property" is the receiving, buying, or 

concealing of any article or thing of value, the property of another person, 

with knowledge that the article or thing has been stolen. 

While an actual thief is not criminally liable for receiving the property 

he has stolen, one who may be criminally responsible as a principal to the 

larceny, when hot the gctual thief (156), can be convictecl of knowingly receiving the stolen property under Article 134. Thus, if A procures B to steal several 

items, agreeing to pay him a eel-tain price for thein, and B subsequently steals 

them and delivers them to A, A can be found guilty of knowingly receiving 

stolen property despite t.l.le fact that his conduct would make him guilty of 

larceny as a principal. 

Proof. (a) That the accused received, bought, or concealed certain 

property of a value alleged; (b) that the property belonged to another person 

named or described; (c) that the property hacl been stolen; (d) that the 

accused then knew that the property had been stolen; and (e) that, under the 

circumstances, the conduct of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature to bring discredit upon 

the armed forces. 
Chapter XXIX 

MATTERS OF DEFENSE 

GENERAGMOTIONS IN BAR OF TRIAL-SPECIAL DEFENSES 

214. GENERAL. For the purpose of this chapter, matters of defense include : (1) various motions by the defense in bar of trial which, while ordinarily 

not relating to the guilt or innocence of the accused, may result in a dismissal 

of the charges; (2) certain special defenses which deny, either wholly or 

partially, the criminal responsibility of the accused. 

Except for a motion raising the question of the accused's mental responsibility at the time of the alleged offense, motions in bar of trial do not reach the 

issue of the accused's guilt or innocence of the offense charged. When successful, they result in a dismissal of the charges to which they relate or a continuance 

of the trial without an actual determination of the guilt or innocence of the 

accused. Included among these matters are motions to dismiss for lack of jurisdiction or because of the running of the period of the statute of limitations and 

motions based on former jeopardy, pardon, constructive condonation of desertion, former punishment, and denial of a speedy trial. These are discussed in 215. 

Special defenses, sometimes called affirmative defenses, are those which, 

although not denying that the objective acts charged were committed by the 

accused, do deny, either wholly or partially, criminal responsibility for those 

aots. Thus, in a larceny prosecution the defense may be based on evidence showing that the accused mistakenly believed that he had the owner's permission to 

take the article, or that he mistakenly believed the article was his, or that he 

was too drunk to form the requisite intent, or that he was forced to take the 

article by another who threatened him with immediate death cjr grevious bodily 

harm if he did not do so, or that he was not mentally responsible for the act. 

In these examples, the special defenses of mistake of fact, mistake of law, inability to form the requisite intent, coercion, and insanity, respectively, are 

raised for the consideration of the members of the court. For a discussion of 

drunkenness and mistake of fact or law, see 154a (3), (4), and (5). For a discussion of mental responsibility, see 120b. Other defeilses of this specialized 

nature are discussed in 216. The defenses of mistaken identity, alibi, and good 

character are not special defenses, as they tend to deny the commission by the 

accused of the objective acts charged. 

The burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the Government, both with respect to those elements of the 

offense which must be established in every case and with respect to issues involving special defenses which are raised by the evidence. 

A special defense may be raised by evidence presented by either the defense 

or the prosecution, or at the request of the members of the court. Thus, in a 

larceny trial, the issue of lack of intent to steal may be raised by the testimony 
U 215b CHAPTER XXlX 

of prosecution witnesses as to the intoxication of the accused at or about the 

time of the alleged theft. However, evidence raising a special defense usually 

is presented by the defense. When any special defense is raised by the evidence, 

the members of the court-martial must be instructed as to the defense and that 

they may not find the accused guilty of the offense affected thereby unless they 

are convinced beyond a reasonable doubt that the basis of the special defense 

does not exist. See 73 and 154a(3), (4), and (5). 

215. MOTIONS IN BAR OF TRIAL. a. Lack of jurisdiction. Courtmartial proceedings without jurisdiction over either the person or the offense 

charged are a nullity. See 9,11, and 686. 

b. Former jeopardy. No person may, without his consent, be tried a second 

time for the same offense (Art. 44(a)). No proceeding in which an accused 

has been found guilty by a court-martial upon any charge or specification is 

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. 44(b)). Thus, if the 

convening authority disapproves the findings and sentence of a court-martial! 

he may, except where there is a lack of sufficient evidence in the record to support the findings, order a rehearing (Art. 63 (a) ). Likewise, if the Court of 

Military Review or the Court of Military Appeals sets aside the findings and 

sentence of a court-martial, it may, except where the setting aside is based on 

lack of sufficient evidence in the record to support the findings, order a rehear- ' ing (Arts. 66 (d) ,67(e)). 

A proceeding which, after the introduction of evidence on the issue of the 

guilt or innocence of the accused but before a finding, is dismissed or terminated 

by the convening authority or on a motion of the prosecution for failure of 

available evidence or witnesses without any fault of the accused is a trial in 

the sense of Article 44 (c) .The word "terminated" as used herein means a ha1 

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 44(c), a proceeding is not a trial in the sense of Article 44 if, because 

of urgent military necessity or other good cause in the interest of justice, it was 

terminated before findings (56). As to the effect of a declaration of a mistrial, 

see 56e(3). 

The commission of certain acts may constitute an offense under the code 

and also an offense under other Federal criminal statutes. These offenses are 

considered to be the same in the sense of ~rticle 44. Accordingly, the same acts 

constituting an offense against the United States cannot, after the accused has 

been tried by a court deriving its authority from the United States, be made the 

basis of a trial by court-martial for the same acts without his consent. However, 

the commission of certain acts may also constitute an offense under the code 

and an offense under State or foreign law. These offenses are not the same within 

the sense of Article 44. Thus, trial by a State or foreign court does not bar a 

subsequent trial by court-martial. However, the authority to try an accused by 

court-martial under those circumstances may be limited by regulations of the 

Secretary of a Department. Additionally, the authority to try an accused by 

court-martial following a trial in a foreign court may be limited by treaty or 

international agreement. 

In general, once a person has been tried for an offense in the sense of Article 

44, he cannot without his consent be tried for an offense necessarily included 
MATTERS OF DEFENSE 11 215d 

therein. When once 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 former 

trial for an assault and battery. See 716, however, for an example of a case in 

which the doctrine of res judicata may be asserted after acquittal of an inclnded offense. A trial for absence n-ithont leave (Art. 86) bars trial for the 

same absence charged as desertion and vice versa if the same enlistment is involved in both cases, as both offenses involve the same unauthorized absence. 

Bnt when a person in the military service deserts and reenlists, 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. 

c. Former punishment. Punishment imposed under Article 15 will bar a 

subsequent trial by court-n~artial for a minor offense for which the punishment 

was imposed. Likewise, punishment for a minor disciplinary infraction imposed 

under Articlk 13, or regulations issued there~~nder, is a bar to a later courtmartial trial for that offense. In either of these instances, a serious crime resulting from the same act or omission of the accused may subsequently be tried by 

court-martial. Whether an infraction punished under Article 13 is minor is 

determined by a consideration of the same factors as in the case of Article 15 

punishment. See 1286 for a discussion of the meaning of "minor offense" under 

~rticle15. Even in a case in which former punishment is not a bar to a subsequent trial by court-martial, evidence thereof is relevant in determining the 

sentence to be adjudged. 

d. Statute of limitations. Except for certain offenses for which there is , 

no limitation as to time (Art. 43 (a) ),a person charged with an offense under the 

code is not liable to be tried by court-martial unless the statute of limitations has 

been tolled (Art. 43 (d) ) , extended (Art. 43 (e) ),or suspended (Art. 43 (f) ),if 

sJvorn charges have not been received by the officer exercising summary courtmartial jurisdiction over the command within the period of time-either two or 

three years after the commission of the offense-specified in Article 43. 

Certain offenses, such as wrongful cohabitation, are continuing offenses, and 

the accused cannot avail himself of the statute of limitations for any part of continuing offenses not within the bar of the statute of limitations. Absence without leave (Art. 86), desertion (Art. 85)) and fraudulent enlistment (Art. 83 (1) ) 

are not continuing offenses and are committed, respecti~ely, on the date the person absents himself, deserts, or first receives pay or allo~~ances under the enlistment. Slthougl~ the crime of conspiracy is not a continuing offense, it is not committed within the meaning of the statute of limitations until the last overt act 

is committed by any conspirator. If sworn charges have been received by an officer exercising summary court-martial jurisdiction over the commancl within the 

period of the statute, the charges may be amended on the original charge sheet 

after the period has ended if the amendment does not change the nature of the 

offense charged. See 33d. However, if new charges are drafted or if the amendment changes the nature of the offense charged the statute of limitations will 
ll216c CHAPTER XXlX 

apply and upon, motion by the accused will bar prosecution for that offense. 

See 6%. 

In applying this statute the court will be guided by the crime or offense as 

described in the specification, and not by the article stated in the charge. Thus, 

if an offense properly chargeable under Article 121is errolleously charged under 

,4rticle 134,the limitation is nevertheless three years rather than two years. 

e. Speedy trial. An accused is entitled to be tried within a reasonable time 

after being placed under a restraint such as restriction, arrest, or confinement or 

after charges are preferred. See Article 10. If trial is unreasonably delayed, the 

accused is entitled upon timely motion to dismissal of the affected charges. Ordinarily, only the time after the inception of the accused's restraint or after the 

preferring of charges is considered for this purpose, and any delay in preferring 

charges, if the accused has not been restrained, is considered only in connection 

with the statute of limitations. If the delay in bringing the accused to trial has 

been unreasonable and has precluded his obtaining a fair trial or has seriously 

interfered with the preparation of his defense, he nlay have been denied due 

process. 

When the accused's right to a speedy trial is in issue, the prosecution has the 

burden of acconnting for the time which it took to bring the accused to trial. 

Generally, imposition of restraint or preferring of charges, whichever was first, 

starts the period of time for which the Governnlent must account for proceeding 

with reasonable dispatch in bringing the accused to trial. 

Matters-to be considered in determining whether the time elapsed has been 

unreasonable include, for example : whether the accused has earlier demanded 

trial and, if so, when; whether any portion of the delay was at the instance of 

the defense; how much time was reasonably required for pretrial processing, 

investigation, and preparation ;whether the delay or any part thereof was arbitrary or oppressive; and whether the accused was in pretrial restraint and, if 

so, the nature of that restraint. See 6%. 

f. Pardon. See 68e. \, 

g. Constructive condonation of desertion. See 68f. 

h. Grant or promise of immunity. See 6%. 

216. SPECIAL DEFENSES. a. Justification. A death, hjury, or other 

act caused or clone in the proper performance of a legal duty is justified and not 

unlawful. The duty may be in~posed by statute, regulation, or orders. Thus, the 

use of force by a policeman in the proper execution of :L lawful appreheizsion, 

when reasonably necessary, is justified because the duty to apprehend is imposed 

by lawful authority. 

b. Excuse: Accident or misadventure. A death, inj~~ry! ?rother event 

which occurs as the result of an accident or misadve11tul.e in doing a lawful act 

in n lawful 1n;Lnner is excusable. For other instances of excuse, see c through g 

below. 

c. Self-defense.The defense of self-defense when the accused intended 

to kill or to inflict grievous bodily harm is coillposed of two elements. First, the 

s~~rroundingcircumstances must have been SLIC~I that reasonable grounds existed 

to apprehead that death or grievous bodily hann was about to be inflicted on 

the accused or on a person he could latvfully clefend and the accused must in 
MATTERS OF DEFENSE 11216e 

fact have had such an apprehension. Secondly, the accused must have believed 

that the force he used was necessary for protection against death or grievous 

bodily harm. 

The test for the first element, insofar as it related to reasonableness, is 

whether, considering all the circumstances, a reasonable, prudent person would 

believe that there was ground to apprehend death or grievous bodily harm. This 

test is objective in nature, and accordingly such inatters as emotional instability 

or drunkenness on the part of the accused are irrelevant in this connection. On 

the other hand, such matters as the relative height, weight, general build of the 

antagonists and the possibility of a safe retreat are ordinarily relevant with respect to this test. The test for the second element, that the accused believed the 

force which he used was necessary to protect against death or grievous bodily 

harm, is subjective in nature. The accused is not objectively limited to the use of 

reasonable force. Accordingly, such matters as the accused's emotional control 

and intelligence are relevant in determining his actual belief as to the force 

necessary to repel the attack. Seealso 138f (3) as to evidence admissible on the 

issue of self-defense. 

Self-defense is a defense of necessity. Unless the accused had withdraw11 

in good faith, he is generally not entitled to this defense if he was an aggressor, 

engaged in mutual combat, or prodoked an attack upon himself. If the accused 

uses force in excess of that believed by him to be necessary for defense, he 

becomes an aggressor and is not entitled to this defense. 

When there is reasonable ground for the apprehension of an injury less 

than death or grievous bodily harm, the accused is entitled to use such force as 

he believes necessary to defend against this injury so long as this force is less 

than that which can reasonably be thought likely to produce grievous bodily 

harm or death. If, in using this lesser degree of force, an unintentional death 

results which would not have been reasonably anticipated, this death is excusable. The issue is whether, had the victim not died as a result of the encounter, 

the accused would be amenable to punishment for assault ind battery. 

d. Obedience to apparently lawful orders. An order requiring the performance of a military duty may be inferred to be legal. A11 act performed 

manifestly beyoncl the scope of authority, or pursuant to an order that a man 

of ordinary sense and understanding would know to be illegal, or in a wanton 

manner in the discharge of a lawful duty, is not excusable. 

e. Entrapment. Entrapment is a defense which exists when the criminal 

design originates with Government agents, or persons cooperating with them, 

and they implant in the mind of an innocent person the disposition to commit 

the alleged offense and thus induce its commission. What is meant by "innocent" 

in this connection is the absence of a predisposition or state of mind which 

readily responds to the opportunity furnished by the Government agents or 

persons cooperating with them to commit the forbidden act with which the 

accused is charged. "Ini~ocent'~ in the context of entrapment means that the 

accused would not have perpetrated the crime with which he is presently 

charged but for the enticement of one of these persons. The fact that persons 

acting for the Government merely afford opportunities or facilities for the commission of the offense does not constitute entrapment. Entrapment occurs only 

when the criminal conduct was the product of the creative activity of lawenforcement officials. See 138g(6). 
11 2169 CHAPTER XXlX 

f. Coercion or duress. Except when he kills an innocent person, a person 

cannot properly be convicted for committing an act for which he would 

otherwise be criminally responsible if his participation in it is caused by the 

degree of coercion or duress recognized in law as a defense. This degree of 

coercion or duress is a reasonably grounded fear on the part of the actor that 

he would be immediately killed or would immediately suffer serious bodily 

injury if he did not commit the act. The fear compelling the act must be of 

immediate death or serious bodily injury and not of an injury in the future or 

of an injury to reputation or property. The threat must continue.throughout the 

perpetration of the act. If the accused has a reasonable opportunity to avoid 

committing the act without subjecting himself to the threatened danger, his act 

is not excusable. 

g. Physical or financial inability. The inability of an accused through 

no fault of his own to comply with the terms of an order to perform a military 

duty constitutes a defense. Thus, one who has suffered an injury which incapacitates him to the extent that he is physically not able to carry out an order is not 

guilty of willful disobedience or failure to obey that order. Also, a soldier who 

is given an order to purchase required uniforms but is unable to do so because 

of inability to obtain the necessary funds is not guilty of willful disobedience 

or failure to obey that order. However, if the physical or financial inability of 

the accused occurred through his own fault or design after the accused had 

knowledge of the order or duty imposed, it will not constitute an excuse. 
Appendix 1 

CONSTITUTION 


OF THE UNITED STATES 


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 shall 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 Law direct. The Number of Representatives shall not exceed one for every 

thirty Thousand, but each State shall have 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, RTewPork 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. 

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. 

1 This clause has been affected by the 14th and 16th amendments. 


2 This section has been affected by the 17th amendment. 

Art. 1, 5 7 APPENDIX 1 

No Person shall be a Senator who shall not have attained to the Age of thirty 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 they be equally divided. 

The Senate shall chuse their other Officers, and also a President pro tempore, 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 

Purpise, they shall be an Ooath 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 Impeaehment shall not extend further than to removal from 

Omce, 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 Representatires, 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. 

'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 different 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 Member. 

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, during 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. 

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 Place. 

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 shall have 

been created, or the Emoluments whereof shall have been encreased during such time; 

and no Person holding any Office under the United States, shall be a 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 Bills. 

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 shall 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 shall be entered 

This clause has been affected by the 20th amendment. 
CONSTITUTION Art. 1, 5 9 

on the Journal of each House respectively. If any Bill shall not be returned by the President 

within 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 nok 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 questio~i of Adjournment) shall 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 Rules and Limitations prescribed in the 

Case of a Bill. 

Section 8. The Congress shall have Power To lag and collect Taxes, Duties, Imposts 

and Excises, to pay the Debts and provide 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, and 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 ; 

To establish Post Offices and post Roads ; 

To promote the Progress of Science and useful Arts, by securing for limited Times to 

Authors and Inventors the exclusive Right 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 Nationlr, ; 

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 Money to that Use shall be for a 

longer Term than two Pears ; 

To provide and maintain a Navy ; 

To make Rules for the Government and Regulation of 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, the Militia, and for governing such 

Part of them as may be employed in the Service of the United States, reserving to the 

States respectively, the Appointment of the Oflcers, and the Authority of training the 

Militia according to the discipline prescribed by Congress ; 

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of 

Congress, become the Seat of the Government 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-Pards, 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 Officer thereof. 

Section 9. The Migration or Importation of such Persons as any of the States 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 Tax 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. 
Art. 11, 5 1 APPENDIX 1 

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 irl Consequence of Bppropriations 

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, Emolnment, Office, or Title, of any kind whatever, from any King, 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 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 Controul of the Congress. 

No State shall, without the Consent of Congress, lay any 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. 

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 Congress: 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 Majority, then from the five highest 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 r?clual Votes, the 

Senate shall chuse from them by Ballot the Vice 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 have attained to the Age of thirty five 

Years, and been fourteen Years a Resident within the United States. 

"his clause has been affected by the 12th amendment. 
CONSTITUTION Art. 111, 6 2 

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 Elxecution of his Office, he shall take the following Oath or 

Affirmation :-"I do solemnly swear (or affirm) that I will faithfully execute the Offlce 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 the 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, gith Respect to the Time of Adjournment, 

he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors 

and other public Ministers ; he shall take Care that the Laws be faithfully executed, and 

shall Commission all the Officers of the United States. 

Section 4. The President, Vice President and all civil Officers of the United States, shall 

be removed 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 Courts as the Congress may from time to time ordain and establish. 

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good 

Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which 

shall not be diminished during their Continuance in Office. 

Section 2. The judicial Power shall extend to all Cases, in Law 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 Ambassadors, other public Ministers 

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 

l~etweena State, or the Citizens thereof, and foreign States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in 

ml~icha State shall be Party, the supreme Court shall have original Jurisdiction. In all the 
Art. V APPENDIX 1 

other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as 

to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall 

make. 

The Trial of all Crimes, 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 

convicted 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 Laws 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 Justice, and be found in another State, shall on Demand of th~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 of 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 

Service 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 

be 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. 

ThR Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and 

nothing in this Constitution shall 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 V 

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 Convention 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 Manner 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 Suffrage in the Senate. 
CONSTITUTION Amdt. V 

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 dtates so ratifying the Same. 

Articles in Addition to, and Arnendmcnt of, the Constitution of the United States of 

Amer!ca, Proposed by Congress, and Ratified by the Legislatz~res of the Seeera1 States 

P?trsuant to the Fifth Article of the Original 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. 

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 I11 

No Soldier shall, in time of peace be quartered in any house, without t11~ consent 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 t.heir persons, houses, papers, and effects, against 

unreaso~~ablesarches and seizures, shall not be violated, and no 1Tarri111ts slinll iswe, but 

upon probable cause, supported by Oath or affirmatio~~? ;nlcl l~articularly clescribing the place 

to be searched, and the persons or things to be seized. 

AMENDMENT V 

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 eases arising in the land or naval 

forces, or in the Militia, when in actual service 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 1~.;I ~vitiiess against himself, nor be deprived 

of life, liberty, or property, without due process of law ; nor shall private 1)roperty be talteii 

for public use, without just compensation. 
Amdt. XI1 APPENDIX 1 

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 hare 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 dolbars, 

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 excessive fines imposed, nor cruel and unusual 

punishments inflicted. 

AMENDMENT IX 

The enumeration in the Constitution, of certain rights, shall not be construed to deny 

or disparage others retained by the people. 

AMENDMENTX 

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. 

AMENDMENT XI 

The Judicial power of the United States shall not be construed to extend to any suit in 

law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. 

AMENDMENT XI1 

The Electors sh,all 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 Unitecl States, directea to the President of the Senate ;-The 

President of the Senate shall, in the presence of the Senate and ~ouse of Representatives. 

open all the certificates and the votes shall then be counted ;-The person h,aving the greatest number of votes for President, shall be the President, if such number be a inajority 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 statc having one vote; a quorum for this purpose shall consist of a nlenlber or 

members from two-thirds of the sltates, 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 1'resident.-The person having the greatest number of rotes as Vice-President, shall be the Vice-President, if such number be :L majority of the whole number of 

1Qlc.c.tors ;~l~l)oii~t.otl. ;~ntl if 110 IH~~LOII 11;1\.t,il majority. then from the two highest. iinmbers 

on the list, the Scxnate shall choose the Vice-President: a quorum for the llurpose sl~all coilsist of t\~o-tl~il.cls of tlicb \vllol[! ~inliil~er of Senators. ant1 u majority of the whole nuiilber sliall 
CONSTITUTION Amdt. XVll 

be necessary to a choice. But no person constitutionally ineligible to the office of President 

shall be eligible to that of Vice-President 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 xxlithin the United States, or 

any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article by appropriate legislation. 

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 proportioll which the nnmber 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 as 

an officer of the United States, or as a member of any State legislature, or as an executive 

or judicial officer of any State, to support the Constitution of the Unitecl States, shall have 

engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies 

thereof. But Congress may by a vote of txvo-thirds of each House, remove such disability. 

Section 4. The validity of the public debt of the United States, authorized by law, 

including 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. 

AMENDMENT XV 

Section 1. The right of citizens of the United States to vote 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. 

AMENDMENT XVII 

The Senate of the United States shall be coml~osed of two Senators fro111 e~ach State, 

elected by the people thereof, for sis years ; and each Senator shall have one rote. The elec- 
Amdt. XX APPENDIX 1 

tors in each State shall 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 empower 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. 

'AMENDMENT XVIII 

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 years from the date of the submission hereof to the States by the 

Congress. 

AMENDMENT XIX 

The right of citizens of the United Sfxtes to vote shall not 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. 

AMENDMENT 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 gear, 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 fixed 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 shall 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 mqnner in which one who is to act shall 

be selected, and such person shall act accordingly until a President or Vice President shall 

have qualified. 

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 Trice President whenever the right of choice 

shall have devolved upon them. 

Section 5. Sections 1and 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 ratified as an 

amendmeut to the Constitution by the legislatures of three-fourths of the several States 

within seven years from the date of its submission. 

This article wns repealed by the 21st amenil~neiit. 
CONSTITUTION Amdt. XXV 

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 State, 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 ratified 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. 

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 shall be elected to the 

office of the President more than once. But this Article shall not apply 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, 

during 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 amendment to the Constitution by the legislatures of three-fourths of the several States within 

seven years from the date of its submission to the States by the Congress. 

AMENDMENT XXIII 

Section 1. The District constituting the seat of Government of the United States shall 

appoint in such manner as the Congress may direct : 

A number of electors of President and Vice President equal to the whole number of 

Senators and Representatives in Congress to which the District would be entitled if it 

were a State, but in no event more than the least populous State; they shall be in addition 

to those appointed by the States, but they shall be considered, for the purposes of the 

election of President and Vice President, to be electors appointed by a State; and they 

shall meet in the District and perform such duties as provided by the twelfth article of 

amendment. 

Section 2. The Congress shall have power to enforce this article by appropriate 

legislation. 

AMENDMENT XXIV 

Section 1. The right of citizens of the United States to vote in any primary or other 

election for President or Vice President, for electors for President or Vice President, or for 

Senator or Representative in Congress, shall not be denied or abridged by the United States 

or any State by reason of failure to pay any poll tax or other tax. 

Section 2. The,,Gongress shall have power to enforce this article by appropriate 

legislation. 

AMENDMENT XXV 

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. 

Section 2. Whenever there is a vacancy in the office of the Vice President, the President 

shall nominate a Vice President who shall take office upon confirmation by a majority vote 

of both Houses of Congress. 

Section 3. Whenever the President transmits to the President pro' tempore of the 

Senate and the Speaker of the House of Representatives his written declaration that he is 

ina able to discharge the powers and duties of his office, and until he transmits to them a 

written declaratioli to the contrary, such powers and duties shall be discharged by the 

Vice President as Acting President. 

Section 4. Whenever the Vice President and a majority of either the principal officers 

of the Executive departments or of such other body as Congress may by law provide, 
Amdt. XXV APPENDIX 1 

transmit to the President pro tempore of the Senate and the Speaker of the House of 

Representatives their written declaration that the President is unable to discharge the 

powers and duties of his office, the Vice President shall immediately assume the powers 

and duties of the office as Acting President. 

Thereafter, when the President transmits to the President pro tempore of the Senate 

and the Speaker of the House of Representatives his written declaration that no inability 

exists, he shall resume the powers and duties of his office unless the Vice President and 

a majority of either the principal officers of the executive department or of such other body 

as Congress may by law provide, transmit within four days to the President pro tempore 

of the Senate and the Speaker of the House of Representatives their written declaration 

that the President is unable to discharge the powers and duties of his office. Thereupon 

Congress shall decide the issue, assembling within forty-eight hours for that purpose if 

not in session. If the Congress, within twenty-one days after receipt of the latter written 

declaration, or, if Congress is not in session, within twenty-one days after Congress is 

required to assemble, determines by two-thirds vote of both Houses that the President is 

unable to discharge the powers and duties of his office, the Vice President shall continue to 

discharge the same as Acting President; otherwise, the President shall resume the powers 

and duties of his office. 
Appendix 2 

UNIFORM CODE OF MILITARY JUSTICE 

The Uniform Code of Military Justice was enacted as part of the act of 5 May 1950,' 

which contained 16 additional sections. It was thereafter revised, codifled, and enacted 

into law as part of title 10, United States Code, by the act of 10 August 1956, and has 

subsequently been further amended." This appendix sets forth the code as thus codifled and 

amended. The articles which have been amended between 10 August 1956 and 23 October 

1968 are hereafter designated by an asterisk. The articles which have been amended by 

the act of 24 October 1968' (Military Justice Act of 1968) are hereafter designated by 

a double asterisk. See title 10, United States Code, for details regarding these amendments. 

Other portions of title 10, including definitions, and other statutes, to which military 

personnel should have ready access, are set forth in appendix 3. 

Chapter 47. UNIFORM CODE OF MILITARY JUSTICE 

Subchapter Art. 

I. General Provisions------------------------------ 1 

11.Apprehension and Restraint----------------------------------------------

111. Nonjudicial Punishment---------------------------------------------------

IV. Court-Martial Jurisdiction ................................................. 

V. Composition of Courts-Martial----------,-................................. 

VI. Pre-Trial Procedure------------------------------------------------------

VII. Trial Procedure----------------------------------------------------------

VIII. Sentences ............................................................... IX. Review of Courts-Martial ................................................. X. Punitive Articles---------------------------------------------------------

XI. Miscellaneous Provisions .................................................. 

Subchapter I. GENERAL PROVISIONS 

Sec. Art. 

801. 1Definitions. 

802. 2 Persons subject to this chapter. 

803. 3 Jurisdiction to try certain personnel. 

804. 4 Dismissed officer's right to trial by court-martial. 

805. 5 Territorial applicability of this chapter. 

806. 6 Judge advocates and legal officers. 

§ 801. Art. 1. Definitions 

In this chapter : 

*(I) "Judge Advocate General" means, severally, the Judge Advocates General of 

the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service 

in the Navy, the General Counsel of the Department of Transportation. 

(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a 

service in the Navy, shall be considered as one armed force. 

(3) "Commanding officer" includes only commissioned officers. 

(4) "Officer in charge" means a member of the Navy, the Marine Corps, or the Coast 

Guard designated as such by appropriate authority. 

(5) "Superior commissioned officer" means a commissioned officer superior in rank 

or command. 

1 64 Stat. 108 (1950). 

='See 10 U.S.C. g 801-940. 

P.L.90-632 (82BtBt. 1335). 
Art. 2, 8 802 APPENDIX 2 

(6) "Cadet" means a cadet of the United States Military Academy, the United States 

Air Force Academy, or the United States Coast Guard Academy. 

(7) "Midshipman" means a midshipman of the United States Naval Academy and 

any other midshipman on active duty in the naval service. 

(8) "Military" refers to any or all of the armed forces. 

(9) "Accuser" means a person who signs and swears to charges, any person who 

directs that charges nominally be signed and sworn to by another, and any other person 

who has an interest other than an official interest in the prosecution of the accused. 

(10) "Military judge" means an official of a general or special court-martial detailed in 

accordance with section 826 of this title (article 26). 

(11) "Law specialist" means a commissioned officer of the Coast Guard designated for 

special duty (law). 

(12) "Legal officer" means any commissioned officer of the Navy, Marine Corps, or 

Coast Guard designated to perform legal duties for a command. 

(13) "Judge Advocate" means an officer of the Judge Advocate General's Corps of the 

Army or the Navy or an officer of the Air Force or the Marine Corps who is designated as 

a judge advocate. 

1802. Art. 2. Persons subject to this chapter 

The following persons are subject to this chapter : 

(1) Members of a regular component of the armed forces, including those awaiting 

discharge after expiration of their terms of enlistment; volunteers from the time of their 

muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to 

duty in or for training in, the armed forces, from the dates when they are required by the 

terms of the call or order to obey it. 

NOTE. National Guard personnel performing duty in their State National Guard status under 

sections 502-505 of title 32, United States Code, are not subject to trial by courts-martial under the 

provisions of Article 2 (1). 

(2) Cadets, aviation cadets, and midshipmen. 

(3) Members of a reserve component while they are on inactive duty training authorized by written orders which are volun€arily accepted by them and which specify 

that they are subject to this chapter. 

(4) Retired members of a regular component of the armed forces who are entitled to 

pay. 

(5) Retired members of a reserve component who are receiving hospitalization from 

an armed force. 

(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve. 

(7) Persons in custody of the armed forces serving a sentence imposed by a courtmartial. 

*1(8) Members of the Environmental Science Services Administration, Public Health 

Service, and other organizations, when assigned to and serving with the armed forces. 

(9) Prisoners of war in custody of the armed forces. 

(10) In time of war, persons serving with or accompanying an armed force in the 

field. 

NOTE. The words "in the field" imply military operations with a view to an enemy (14 Ops. Atty 

Gen. 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 field" 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 F.28, 34 (4th Cir. 1919)). Thus forces assembled in temporary cantonmenits 

in the United States for the purpose of training preparatory for service in the actual theater of war 

were held to be "in the field" (Hines v. Mikell, supra) and a merchant ship and crew engaged in 

transporting troops and supplies to a battle zone were held to constitute a military expedition "in 

the field" (McCune v. Kilpatrick, 53 F. Supp. 80 (E.D. Va. 1943) ; In re Berue, 54 F. Supp. 252 

('S.D. Ohio 1944)). See also Ex parte Gevlach, 247 F. 616 (S.D.N.Y. 1917; Hearings before a 

Subcommittee of the Committee on Armed Services, House of Representatives, Eighty-flrst Congrew, 

First Session, H.R. 2498, 7-311 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. United States, 151 F. 2d 167 (3d 

Cir. 1945), Cert. Dism., 328 U.S. 822 (1946) ; In re DiBartolo, 50 F. Supp. 929 (S.D.N.Y. 1943) ; In 

re Berue, supra; AIcCune v. Kilpatrick, supra). In those cases, however, in which a civilian has 

been held to have been "accompanyiug" an armed force, it has appeared that he has either moved with 
UNIFORM CODE Art. 4, 8 004 

a military operation or that his presence within a military installation or theater mas 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 Jistinction 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 may be said he is no longer 

"serving with" an armed force, jurisdiction may remain on the ground that he is accompanying an 

armed force because of his continued connection with a militarg community (Perlstein v. United States. 

supra; Grewe v. France, 75 F. Supp. 433 (E.D. Wis. 1948)). CM 329933, Miquiabas, 7 Bull. JAG 

(Army) 125 at 126 (1948). 

*(11) Subject to any treaty or agreement to which the United States is or may be a 

party or to any accepted rule of international law, persons serving with, employed by, or 

accompanying the armed forces outside the United States and outside the following: the 

Canal Zone, Puerto Rico, Guam, and the Virgin Islands. 

NOTE.The United States Supreme Court has held unconstitutional the exercise of court-martial 

jurisdiction over civilians in time of peace. (Reid v. Covert, 354 U.S. 1 (1957) ; McElroy v. United 

States ex rel. Guagliardo, 361 U.S. 281 (1960) ). 

*(12) Subject to any treaty or agreement to which the United States is or may be a 

party or to any accepted rule of international law, persons within an area leased by or 

otherwise reserved or acquired for the use of the United States which is under the control 

of the Secretary concerned and which is outside the United States and outside the following : 

the Canal Zone, Puerto Rico, Guam, and the Virgin Islands. 

6 803. Art. 3. Jurisdiction to try. certain personnel 

(a) Subject to section 843 of this title (article 43), no person charged with having 

committed, while in a status in which he was subject to this chapter, an offense against 

this chapter, punishable by confinement for five years or more and for which the person 

cannot be tried in the courts of the United States or of a State, a Territory, or the District 

of Columbia, may be relieved from amenability to trial by court-martial by reason of the 

termination of that status. 

NOTE.This article has been held to be unconstitutional to the extent that it purports to extend 

court-martial jurisdiction over persons who, although subject to the code at the time of the 

commission of the offense, later ceased to occupy that status. (Toth v. Quarles, 350 U.S.11 (1955)). 

This article is still applicable to such persons, however, if they subsequently return to the status of a 

person subject to the code. (United States v. Winton, 15 USCRIA 222, 35 CMR 194 (1965) ; United 

States v. Gallagher. 7 USCMA 506, 22 CMR 296 (1957)). See United States v. Wheeler, 10 USCMA 

646, 28 CMR 212 (1959). 

(b) Each person discharged from the armed forces who is later charged with having 

fraudulently obtained his discharge is, subject to section 843 of this title (article 43), 

subject to trial by court-martial on that charge and is after apprehension subject to this 

chapter while in the custody of the armed forces for that trial. Upon conviction of that 

charge he is subject to trial by court-martial for all offenses under this chapter committed 

before the fraudulent discharge. 

(c) NO person who has deserted from the armed forces may be relieved from 

amenability to the jurisdiction of this chapter by virtue of a separation from any later 

period of service. 

§ 804. Art. 4. Dismissed officer's right to trial by court-martial 

(a) If any commissioned officer, dismissed by order of the President, 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 convene a general court-martial 

to try that officer on the charges on which he was dismissed. A court-martial so convened 

has jurisdiction to try the dismis~ed officer on those charges, and he shall be considered to 

have waived the right to plead any statute of limitations applicable to any offense with 

which he is charged. The court-martial 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 

concerned shall ,substitute for the clismissal ordered by the President a form of discharge 

authorized for administrative issue. 

(b) If the President fails to convene a general court-martial within six months from 

the preselltation of an application for trial under this article, the Secretary concerned shall 

substitute for the dismissal ordered by the President a form of discharge authorized for 

administrative issue. 
Art. 9, § 809 APPENDIX 2 

(c) If a discharge is substituted for a dismissal under this article, the President 

alone may reappoint the officer to such commissioned grade and with such rank as, in the 

opinion of the President, that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence 

of a vacancy and shall affect the promotion status of other officers only insofar as the 

President may direct. A11 time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances. 

(d) If an officer is discharged from any armed force by administrative action or is 

dropped from the rolls by order of the President, he has no right to trial under this 

article. 

!j805. Art. 5. Territorial applicability of this chapter 

This chapter applies in all places. 

5806. Art. 6. Judge advocates and legal officers 

(a) The assignment for duty of judge advocates of the Army, Navy, and Air Force 

and law specialists of the Coast Guard shall be made upon the recommendation of the 

Judge Advocate General of the armed force of which they are members. The assignment for 

duty of judge advocates of the Marine Corps shall be made by direction of the Commandant 

of the Marine Corps. 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) Convehing authorities shall at all times communicate directly with their staff 

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 entitled 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, military judge, trial counsel, assistant trial 

counsel, defense counsel, assistant defense counsel, or investigating officer in any case 

may later act as a staff judge advocate or legal officer to any reviewing authority upon 

the same case. 

Subchapter 11. APPREHENSION AND RESTRAINT 

Sec. Art. 

807. 7. Apprehension 

808. 8. Apprehension of deserters. 

809. 9. Imposition of restraint. 

810. 10. Restraint of persons charged with offenses. 

811. 11. Reports and receiving of prisoners. 

812. 12.Confinement with enemy prisoners prohibited. 

813. 13. Punishment prohibited before trial. 

814. 14. Delivery of offenders to civil authorities. 

1807. Art. 7. Apprehension 

(a) Apprehension is the taking of a person into custody. 

(b) Any person authorized under regulations governing the armed forces to apprehend 

persons subject to this chapter or to trial thereunder may do so upon reasonable belief that 

an offense has been committed and that the person apprehended committed it. 

(c) Commissioned officers, warrant officers, petty officers, and noncommissioned officers 

have authority to quell quarrels, frays, and disorders among persons subject to this chapter 

and to apprehend persons subject to this chapter who take part therein. 

!j808. Art. 8. Apprehension of deserters 

Any civil officer having authority to apprehend offenders under the laws of the United 

States or of a State, Territory, Commonwealth, or possession, or the District of Columbia 

may summarily apprehend a deserter from the armed forces and deliver him into the 

custody of those forces. 

§ 809. 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 

lihysical restraint of a person. 
UNIFORM CODE Art. 15, 9 815 

(b) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons 

subject to this chapter. A commanding officer may authorize warrant officers, petty officers, 

or noncommissioned officers to order enlisted members of his command or subject to his 

authority into arrest or confinement. 

(c) A commissioned officer, a warrant officer. or a civilian subject to this chapter or 

to trial thereunder may be ordered into arrest or confinement only by a commanding officer 

to whose authority he is subject, by an order, oral or written, delivered in person or by 

another commissioned officer. The authority to order such persons into arrest or confinement may not be delegated. 

(d) No person may be ordered into arrest or confinement except for probable cause. 

(e) Nothing in this article limits the authority of persons authorized to apprehend 

offenders to secure the custody of an alleged offender until proper authority may be notified. 

8810. Art. 10. Restraint of persons charged with offenses 

Any person subject to this chapter charged with an offense under this chapter 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, he shall not ordinarily be placed 

in confinement. When any person subject to this chapter is placed in arrest or confinement 

prior to trial, immediate steps shall be faken to inform him of the specific wrong of which 

he is accused and to try him or to dismiss the charges and release him. 

Q 811. Art. 11. Reports and receiving of prisoners 

(a) No provost marshal, commander of a guard, or master at arms may refuse to receive or keep any prisoner committed to his charge by a commissioned officer of the armed 

forces, when the committing officer furnishes a statement, signed by him, of the offense 

charged against the prisoner. 

(b) Every commander of a guard or master at arms to whose charge a prisoner is 

committed shall, within twenty-four hours after that commitment or as soon as he is relieved from guard, report to the commanding officer the name of the prisoner, the offense 

charged against him, and the name of the person who ordered or authorized the commitment. 

Q 812. Art. 12. Confinement with enemy prisoners prohibited 

No member of the armed forces may be placed in confinement in immediate association 

with enemy prisoners or other foreign nationals not members of the armed forces. 

5 813. Art. 13. Punishment prohibited before trial 

Subject to section 857 of this title (article 57), no person, while being held for trial 

or the result of trial, may 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 that period for infractions of discipline. 

Q814. Art. 14. Delivery of offenders to civil authorities 

(a) Under such regulations as the Secretary concerned 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. 

(b) When delivery under this arhcle is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, 

interrupts the execution of the sentence of the court-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 his sentence. 

Subchapter 111. NONJUDICIAL PUNISHMENT 

*§ 815. Art. 15. Commanding officer's nonjudicial punishment 

(a) Under such regulations as the President may prescribe, and under such additional 

regulations as may be prescribed by the Secretary concerned, limitations may be placed 

on the powers granted by this article with respect to the kind and amount of punishment 

authorized, the categories of commanding officers and warrant officers exercising command 
Art. 15, 8 815 APPENDIX 2 

authorized to exercise those powers, the applicability of this article to an accused who 

demands trial by court-martial, and the kinds of courts-martial to which the case may be 

referred upon such a demand. However, except in the case of a member attached to or 

embarked in a vessel, punishment may not be imposed upon any member of the armed forces 

under this article if the member has, before the imposition of such punishment, demanded 

trial by court-martial in lieu of such punishment. Under similar regulations, rules may be 

prescribed with respect to the suspension of punishments authorized hereunder. If authorized by regulations of the Secretary concerned, a commanding officer exercising general 

court-martial jurisdiction or an officer of general or flag rank in command may delegate 

his powers under this article to a principal assistant. 

(b) Subject to subsection (a) of this section, any commanding officer may, in addition 

to or in lieu of admonition or reprimand, impose one or more of the following disciplinary 

punishments for minor offenses without the intervention of a court-martial- 

(1) upon officers of his command- 

(A) restriction to certain specified limits, with or without suspension from duty, 

for not more than 30 consecutive days ; 

(B) if imposed by an officer exercising general court-martial jurisdiction or an 

officer of general or'flag rank in command- 

(i) arrest in quarters for not more than 30 consecutive days; 

(ii) forfeiture of not more than one-half of one month's pay per month for two 

months ; 

(iii) restriction to certain specified limits, with or without suspension from 

duty, for not more than 60consecutive days; 

(iv) detention of not more than one-half of one month's pay per month for 

three months ; 

(2) upon other personnel of his command- 

(A) if imposed upon a person attached to or embarked in a vessel, confinement 

on bread and water or diminished rations for not more than three consecutive days; 

(B) correctional custody for not more than seven consecutive days ; 

(C) forfeiture of not more than seven days' pay; 

(D) reduction to the next inferior pay grade, if the grade from which demoted 

is within the promotion authority of the officer imposing the reduction or any officer 

subordinate to the one who imposes the reduction ; 

(E)extra duties, including fatigue or other duties, for not more than 14 consecutive days ; 

(F) restriction to certain specified limits., with or without suspension from duty, 

for not more than 14 consecutive days; 

(G) detention of not more than 14 days' pay; 

(H) if imposed by an officer of the grade of major or lieutenant commander, or 

above--

(i) the punishment authorized under subsection (b) (2) (A) ; 

(ii) correctional custody for not more than 30 consecutive days; 

(iii) forfeiture of not more than one-half of one month's pay per month for two 

months ; 

(iv) reduction -to the lowest or any intermediate pay grade, if the grade from 

which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an 

enlisted member in a pay grade above E-4 may not be reduced more than two pay 

grades ; 

(v) extra duties, including fatigue or other duties, for not more than 45 consecutive days ; 

(vi) restrictions to certain specified limits, with or without suspension from 

duty, for not more than 60 consecutive days ; 

(vii) detention of not more than one-half of one month's pay per month for 

three months. 

Dete~~tionof pay shall be for a stated period of not more tlian one year but if the offender's 

term of service expires earlier, the dete~~tioll shall terminate upon that expiration. No two 

or more of the punishments of arrest in quarters, confiileinent on btead and water or 

diminished rations, correctional custody, extra duties, and restriction may be combined to 

run consecutively in the maximum amount imposable for each. Whenever any of those 
UNIFORM CODE Art. 15, 5 815 

punishments are combined to run consecutively, there must be an apportionment. In addition, forfeiture of pay may not be combined with detention of pay without an apportionment. For the purposes of this subsection, 'correctional custody' is the physical restraint of 

a person during duty or nonduty hours and may include extra duties, fatigue duties, or 

hard labor. If practicable, correctional custody will not be served in immediate associatioil 

with persons awaiting trial or held in confinement pursuant to trial by court-martial. 

(c) An officer in charge may impose upon enlisted members assigned to the unit of 

which he is in charge such of the punishments autlorized under subsection (b) (2) (A)-(G) 

as the Secretary concerned may specifically prescribe by regulation. 

(d) The officer who imposes the punishment authorized in subsection (b) , or his successor in command, may, at any time, suspend probationally any part or amount of the 

unexecuted punishment imposed and may suspend probationally a reduction in grade or a 

forfeiture imposed under subsection (b), whether or not executed. In addition, he may, at 

any time, remit or mitigate any part or amount of the unexecuted punishment imposed and 

may set aside in whole or in part the punishment, whether executed or unexecuted, and 

restore all rights, privileges, and property affected. He may also mitigate reduction in grade 

to forfeiture or detention of pay. When mitigating- 

(1) arrest in quarters to restriction ; 

(2) confinement on bread and water or diminished rations to correctional cnstodg; 

(3) correctional custody or confinement on bread and water or diminished rations 

to extra duties or restriction, or both ;or 

(4) extra duties to restriction ; 

the mitigated punishment shall not be for a greater period than the punishment mitigated. 

When mitigating forfeiture of pay to detention of pay, the amount of the detention shall not 

be greater than the amount of the forfeiture. When mitigating reduction in grade to forfeiture or detention of pay, the amount of the forfeiture or detention shall not be greater 

than the amount that could have been imposed initially unde? this article by the officer who 

imposed the punishment mitigated. 

(e) A person punished under this article who considers 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 punishecl 

may in the meantime be required to undergo the punishment adjudged. The superior anthority may exercise the same powers with respect to the punishment imposed as may be 

exercised under subsection (d) by the officer who imposed the punishment. Before acting on 

an appeal from a punishment of- 

(1)arrest in quarters for more than seven days ; 

(2) correctional custody for more than seven days ; 

(3) forfeiture of more than seven days' pay ; 

(4) reduction of one or more pay grades from the fourth or a higher pay grade ; 

(5) extra duties for more than 14 days ; 

(6) restriction for more than 14 days ;or 

(7) detention of more than 14 days' pay ; 

the authority who is to act on the appeal shall refer the case to a judge advocate of the 

Army, Navy, Air Force, or Marine Corps, or a law specialist or lawyer of the Marine Corps, 

Coast Guard, or Treasury ~epartment) for consideration and advice, and may so refer the 

case upon appeal from any punishment imposed under subsection (b) .4 

(f) The imposition and enforcement of disciplinary punishment under this article for 

any act or omission is not 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. 

(g) The Secretary concerned may, by regulation, prescribe the form of records to be 

kept of proceedings under this article and may also prescribe that certain categories of 

those proceedings shall be in writing. 

See 80 Stat. a38 (ISM), 49 U.S.C.A. § 1655 (b) (19661, which transferred the Coast Guard to 

the 1)egartment of Transportation during peacetime. 
Art. 19, B 819 	 APPENDIX 2 

Subchapter IV. COURT-MARTIAL JURISDICTION 

Sec. Art. 

816. 16. Courts-martial classified. 

817. 17. Jurisdiction of courts-martial in general. 

818. 18. Jurisdiction of general courts-martial. 

819. 19. Jurisdiction of special courts-martial. 

820. 20. Jurisdiction of summary courts-martial. 

821. 21. Jurisdiction of courts-martial not exclusive. 

9816. Art. 16. Courts-martial classsed 

The three kinds of courts-martial in each of the armed forces are-

**(1) general courtsunartial, consisting of- 

**(A) a military judge and not less than five members ;or 

**(B) only a military judge, if before the court is assembled the accused, knowing 

the identity of the military judge and after consultation with defense counsel, requests 

in writing a court composed only of a military judge and the military judge approves ; 

**(2) special courts-martial, consisting of- 

**(A) not less than three membens ;or 

**(B) a military judge and not lessthan three members ;or 

**(C) only a military judge, if one has been detailed to the court, and the accused 

under the same conditions as those prescribed in clause (1) (B) so requesh; and 

**(3) summary courts-martial, consisting of one ccmdSsioned officer. 

§ 817. Art. 17. Jurisdiction of courts-martial in general 

(a) Each armed force has court-martial jurisdiction over all persons subject to this 

chapter. The exercise of jurisdiction by one armed force over personnel of another armed 

force shall be in accordance with regulations prescribed by the President. 

(b) In all cases, departmental review after that by the officer with authority to convene a general court-martial for the command which held the trial, where that review is 

required under this chapter, shall be carried out by the department that includes the armed 

force of which the accused is a member. 

818. 	Art. 18. Jurisdiction of general courts-martial 

**Subject to section 817 of this title (article 17), general courts-martial have 

jurisdiction to try persons subject to this chapter for any offense made punishable by this 

chapter and may, under such limitations as the President may prescribe, adjudge any 

punishment not forbidden by this chapter, including the penalty of death when specidcalls 

authorized by this chapter. General courts-martial 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. However, a general court-martial of the 

kind specified in section 816(1) (B) of this title (article 16(1) (B) ) shall not have jurisdiction to try any person for any offense for which the death penalty may be adjudged 

unless the case has been previously referred to trial as a noncapital case. 

819. Art. 19. Jurisdiction of special courts-martial 

**Subject to section 817 of this title (article 17), special courts-martial have jurisdiotion to try persons subject to this chapter for any noncapital offen~se made punishable 

by this chapter and, under such regulations as the President may prescribe, for capital 

offenses. Special courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dishonorable 

discharge, dismissal, confinement for more than six months, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, 

or forfeiture of pay for more than six months. A baclcondnct discharge may not be 

ndjydged unless a complete record of the proceedings and testimony has been made, 

counsel having the qualifications prescribed under section 827(b) of this title (article 27(b) ) 

was detailed to represent the accused, and a military judge was detailed to the trial, 

except in any case in which a military judge could not be detailed to the tnial because of 

physical conditions or military exigencies. In any such case in which a military judge 

was not detailed to the trial, the convening authority shall lnake a detailed written statement, to be appended to the record, stating the reason or reasons a military judge could 

not be detailed. 
UNIFORM CODE 	 An. 23, 5 823 

820. 	Art. 20. Jurisdiction of summary courts-martial 

**Subject to section $17 of this title (artiole 17), summary courts-martial have jurisdiction to try ~ersons subject to this chapter, except officers, cadets, aviation cadets, and 

midshipmen, for any noncapital offense made punishable by this chapter. No person with 

respect to whom summary cou&s-martial have jurisdiction may be brought to trial 

before a summary court-martial if he objects thereto. If objection to trial by summary 

court-martial is made by an accused, trial may be ordered by special or general courtmartial as may be appropriate. Summary courts-martial may, under such limitations as 

the President may prescribe, a,djudge any punishment not forbidden by this chapter 

except death, dismissal, dishonorable or bad-conduct discharge, co~nement for more 

than one month, hard labor without confinement for more than 45 days, restriction to 

specified limits for more than two months, or forfeiture of more than two-thirds of one 

month's pay. . 

$821. Art. 21. Jurisdiction of courts-martial not exclusive 

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive 

military commissions, provost courts, or other military tribunals of concurrent jurisdictioil 

with respect to offenders or offenses that by statute or by the law of war may be tried by 

military commissions, provost courts, or other military tribunals. 

Subchapter V. COMPOSITION OF COURTS-MARTIAL 

Art. 

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. Military judge 'of a general or sp?ci,a~l court-m'antial. 

27. Detail of trial counsel and defense counsel. 

28. Detail or employment of reporters and interpreters. 

29. Absent and additional members. 

$ 822. Art. 22. Who may convene general courts-martial 

(a) General courts-martial may be convened by- 

(1)the President of the United States ; 

(2) the Secretary concerned ; 

(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 activitg of the Navy beyond 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) 	any other commanding officer designated by the Secretary concerned ;or 

(7) any other commanding officer in any of the armed forces when empowered by the 

President. 

(b) If 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 if considered desirable by him. 

$823. 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 the Air Force are on duty : 

(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 ; 

(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 barraclts. wing, group, separate 
Art. 26, 5 826 APPENDIX 2 

squadron, station, base, auxiliary air field, 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 concerned. 

(b) If any such officer is an accuser, the court shall be convened by superior competent 

authority, and may in any case be convened by such authority if considered advisable by him. 

5824. 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 concerned. 

(b) When only one commissioned 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 

may, however, be convened in any case by superior competent authority when considered 

desirable by him. 

$825. Art. 25. Who may serve on courts-martial 

(a) Any commissioned officer on active duty is 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 is eligible to serve on general and special 

courts-martial for the trial of any person, other than a commissioned oscer, who may 

lawfully be brought before such courts for trial. 

** (c) (1)Any enlisted member of an armed force on active duty who is not a member 

of the same unit as the accused is eligible to serve on general an,d special courts-martial 

for the trial of any enlisted member of an armed force who may lawfully be brought before 

such courts for trial, but he shall serve as a member of a court only if, before the conclusion 

@f a session called by the military judge under section %S(a) of this title (article 39(a) ) 

pnim to trial or, in the absence of such a session, before the court is assembled for the 

tnial d the accused, the accused pa-sonally has reqnested in writing that enlisted members 

serve on it. After such a request, the accused may not be tried by a general or special 

court-martial the membership of which does not include enlisted members in a number 

comprising at least one-third of the total membership of the court, unless eligible enlisted 

members cannot be obtained on awount of physical conditions or military exigencies. If 

such members cannot be obtained, the court may be assembled and the trial held without 

them, but the convening authority shall make a de,biled written statement. to be appended 

to the record, stating why they could not be obtained. 

(2) In this article, the word "unit" means any regularly organized body as defined by 

the Secretary concerned, but in no case may it be a body larger than a company, squadron, 

ship's crew, or body corresponding to one of them. 

(d) (1)When it can be avoided, no member of an armed force may 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 detail as meillbers thereof such members of the armed forces as, in his opinion, are best qualified for the 

duty by reason of age, education, training, experience, length of service, and judicial 

temperament. No member of an armed force is eligible to serve as a member of a general or 

special ro1117t-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. 

$'*826.Art. 26. Military judge of a general or special court-martial 

**(a) The authority convening a general court-martial shall, and, subject to regulations of the Secretary concerned, the authority convening a special court-martial may, 

detail a military judge thereto. A military judge shall preside over each open sessioii of 

the court-martial to which he has been detailed. 
UNIFORM CODE Art. 28, 8 828 

**(lb) A military judge shall be a commissioned officer of the armed forces who is a 

member of the bar of a Federal court or a memlber of the bar of the highest count of a 

State and who ils ceetified to be qualified for duty as a military judge by the Judge Advoeate 

General of the armed force of which such military judge is a member. 

**(c) The military judge of a general court-martial shall be designlated by the 

JucJge Advocate General, or his designee, of the armed force of which the military judge is 

a member for detail by the convening authodty, and, unless the court-martial was convened by the President or the Secretary concer~ed, neither the convening authority nor 

any member of his staff shall pepare or review any report concerning the effectiveness, 

fitness, or efficiency of the military judge so detailed, which relates to his performance of 

duty as a military judge. A commissioned offlcer who is certified to be qualified for duty 

as a military judge of a general court-martial may perform mch duties only when he is 

assigned and directly responsible to the Judge Advocate General, or his designee, of the 

armed force of which the military judge is a member and may perform duties of a 

judicial or nonjudicial nature other than those relating to his primary duty as a military 

judge of a general co~rt~martial when such duties are assigned to him by or with bhe 

approval of that Judge Advocate General or his designee. 

**(d) No persoil is eligible to act as a military judge in a case if he is the accuser 

or a witness for the prosecution or has acted as investigating officer or a counsel in the 

same case. 

**(e) The military judge of a court-martial may not consult with the members of the 

court except in the presence of the accused, trial counsel, and defense counsel, nor may he 

vote with the members of the court. 

8827. Art. 27. Detail of trial counsel and defense counsel 

**(a) Nor each genera81 and spedal court-martial the authority convening the court 

shall detail trial counsel and defense counsel, and such assistants as he considers ap 

propniate. No person who has alated as investigating officer, military judge or court memlbe~ 

in any case may act later as tmial counsel, assistant teial counsel, or, unless expressly 

requested by the amused, as defense counsel or assistant defense counlsel in ehe same case. 

No person who has acted for the prosecution may a& later in the same case for the 

defense, nor may any person who has aekd for the defense act later in bhe same case for 

bhe prosecution. 

(b) Trialcounsel or defense counsel detailed for a general count-martial- 

(1)must be a judge advocate of the Army, Navy, Air Force, or Marine Corps or a 

law specialist of the 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 must be a member 

of the bar of a Federal court or of the highest court of a State; and 

(2) must 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-mantial- 

**(I)The accused shall be afforded the opportunity to be represented at the trial 

by counsel having the qualifications prescribed under section 827(b) of bhlis bitle (article 

27(b) ) unless counsel having such qualifications cannot be obtained on account of phyfflcal 

conditions or military exigencies. If counsel having such qualifications cannot be obtained, 

the court may ibe convened and the trial held but bhe convening authonity shall make a 

detailed written statement, to be appendad to the record, stalting why counsel with such 

qulifimtions could not be abtained ;

**(2) if the trial .counsel is qualified to act as counsel before a general count-martial, 

th defense counsel detailed by the convening authority mnst be a person similarly 

qualified ;and 

**(3) if the trial counsel is a judge advocate, or a law specialist, or a memtbr of the 

bar of a Federal count or the highest jtourt of a State, the defense counsel detail4 clby the 

oonvening authority must be one of bhe foregoing. 

5 828. Art. 28. Detail or employment of reporters and interpreters 

Under such regulations as the Secretary concerned may prescribe, the convening anthority of a court-martial, military commission, or court of inquiry shall detail or employ 

qualified court reporters, who shall record the proceedings of and testimony taken before 

that court or commission. Under like regulations the convening authority of a court-martial, 
Art. 	 31, 5 831 APPENDIX 2 

military commission, or court of inquiry may detail or employ interpreters, who shall interpret for the court or commission. 

829. 	Art. 29. Absent and additional members 

**(a) No member of a general or special court-martial may be absent or excused after 

the court hs been assembled for the trial d the accused except for physical disability or 

as a result of a challenge or by order of the convening authority for good cause. 

** (b) Whenever a general court-martial, other than a general court-martial comwseul 

af a military judge only, is reduced below five members, the trial may not proceed unless 

the convening authority details new members aifficient in number to provide not less 

bhan five members. The trial may proceed with the new members present after the recorded 

evidwe previously introduced b&om bhe members of the court has been read to the mud 

in the presence of the niilitary judge, the accused, and counsel for both sides. 

** (c) Whenever a special court-maml, other than a special court-martial compomd 

of a military judge only, is reduced below three members, the trial may not pmed unless 

the convening authority d&ails new members sufficient in number to provide not less than 

three members. The trial shall proceed with the new members present as if no evidence 

&ad previously been ini?rduced at the trial, unless a veatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the 

court in the presence of the miliWy judge, if any, the accused and counsel for both sides ; 

and 

** (d) If the military judge of a cour&mrtial composed of a military judge only is 

unable to praceed with the trial because of physical disability, as a result d a challenge, cn' 

for other good cause, the trial shall proceed, subject to any applicable conditions of section £416(1) (B) or (2) (0) of this title (article 16(1) (B) or (2) (C) ), after the detail of 

a new military judge as if nu, evidence had previously been introduced, unless a vepbatim 

reeord of the evidence previously introduced or a stipulation thereof isread in court in the 

presence of the new military judge, the accused, and counsel for both sides. 

Subchapter VI. PRE-TRIAL PROCEDURE 

Sec. Art. 

830. 30. Charges and specifications. 

831. 31. Compulsory self-incrimination prohibited. 

832. 32. Investigation. 

833. 33. Forwarding of charges. 

834. 34.Advice of staff judge advocate and reference for trial. 

835. 35. Service of charges. 

1830. Art. 30. Charges and specifications 

(a) Charges and specifications shall be signed by a person subject to this chapter under 

oath before a commissioned officer of the armed forces authorized to administer oaths and 

shall stat-

(1)that the signer has personal knowledge of, or has investigated, the matters set 

forth therein ;and 

(2) that they are true in fact to the best of his knowledge and belief. 

(b) Upon the preferring of charges, the proper authority shaIl 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. 

5 831. Art. 31. Compulsory self-incrimination prohibited 

(a) No person subject to this chapter may 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 chapter may interrogate, or request any statenlent 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 hill) inay 

be used as evidence against him in a trial by court-martial. 

(c) NO person subject to this chapter may compel any persoil to malre a statenleiit 

or produce evidence before any military tribunal if the statement Or evidence is not inaterial to the issue and may tend to degrade him. 
UNIFORM CODE Art. 35, 5 835 

(d) No statement obtained from any person in violation of this article, or through the 

use of coercion, unlawful influence, or unlawful inducement may be received in evidence 

against him in a trial by court-martial. 

9 832. Art. 32. Investigation 

(a) No charge or specification may 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 inquiry as to the truth of the matter set forth in 

the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline. 

(b) The accused shall be advised of the charges against him and of his right to be 

represented at that investigation by counsel. Upon his own request he shall be represented 

by civilian counsel if provided by him, or military counsel of his own selection if such 

counsel is reasonably available, or by counsel detailed by the officer exercising general 

court-martial jurisdiction over the command. At that investigation full opportunity shall 

be given to the accused to.cross-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 

investigtaing officer shall examine available witnesses requested by the amused. If the 

charges are forwarded after the 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 before 

the accused is charged with the offense, and if the accused was present at the investigation 

and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b), 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 cros-examination and to offer any new evidence in his own behalf. 

(d) The requirements of this article are binding on all persons administering this 

chapter but failure to follow them does not constitute jurisdictional error. 

3833. Art. 33. Forwarding of charges 

When a person is held for trial by 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. If that is not practicable, he shall report in 

writing to that officer the reasons for delay. 

$834. 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 staff judge advocate or legal officer for consideration and 

advice. The convening authority may not refer a charge to a general court-martial for trial 

unless he has found that the charge alleges an offense under this chapter 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. 

$835. 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 mioh trial is to be bad. In time 

of pem no penson my, against. his abjection, be brought to trial or be required to participate by himself or counsel in a session called by the military judge under section 839(a) 

of this title (article 39 (a)) , in a genepal court-martial case within a period of five days 

after the mice of charges upon him or in a special court-martial within a period of three 

days after the service of the charges upon him. 
Art. 38, § 838 APPENDIX 2 

Subchapter VII. TRIAL PROCEDURE 

Sec. Art. 

836. 36. President may prescribe rules. 

837. 37. Unlawfully influencing action of court. 

838. 38. Duties of trial counsel and defense counsel. 

839. 39. Sessions. 

840. 40. Continuances. 

841. 41.Challenges. 

842. 42. Oaths. 

843. 43. Statute of limitations. 

844. 44. Former jeopardy. 

845. 45. Pleas of the accused. 

846. 46. Opportunity to obtain witnesses and other evidence. 

847. 47. Refusal to appear or testify. 

848. 48. Contempts. 

849. 49.Depositions. 

850. 50. Admissibility of records of courts of inquiry. 

851. 51. Voting and rulings. 

852. 52. Number of votes required. 

853. 53. Court to announce action. 

854. 54. Record of trial. 

9 836. 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 considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases 

in the United States district courts, but which may not be contrary to or inconsistent with 

this chapter. 

(b) All rules and regulations made under this article shall be uniform insofar as 

practicable and shall be reported to Congress. 

§ 837. Art. 37. Unlawfully influencing action of court 

**(a) No authority convening a general, special, or summary court-martial, nor any 

other aommanding officer, may mnlsure, reprimand, or admonish the court or any memlber, 

military judge, or counsel thereof, with respect to the findings or sentence adjudged by 

the court, or with respect to any other exercise of its or his functions in the conduct d 

tihe proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a ~court.mart;ial or any '&her military tribunal or 

any member thereof, in reaching the findings or sentence in any case, or 'the action of 

any convening, approving, or reviewing authority with respect to his judicial acts. 'Ivhe 

foregoing provisions of the subsection shall not amly with respect to (1) general instructional or inflorrnational courses in military justice if such courses are designed solely for 

the purpose of instructing members of a command in the eubstantive and procedural 

aspects of courts-martial, or (2) to statements and instructions gi~'en in open court by 

the military judge, president of a special court-martial, or counsel. 

*:';('b) In the preparation of an effectiveness, fitness, or efficiency repomrt or any other 

report olr document used in whole or in part .tor bhe punpose of determining whether a 

member of the armed forces is qualified to be advanced, in grade. or in deterpining the 

or evaluation of any member of the armed forces bwanse oif the zeal with which s (-11 

member, as counlsd, represented any accused before a court-marqal. t 

8838. Art. 38. Duties of trial counsel and defense counsel 

(a) The trial counsel of a general or 

of the United States, and shall, under the 

proceedings. 

1 
UNIFORM CODE 	 Art. 42, § 842 

the contents of the record which he considers appropriate. 

(d) An assistant trial counsel of a general court-martial may, under the direction of 

the trial counsel or when he is qualified to be a trial counsel as required by section 827 of 

this title (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 courtmartial 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 defense counsel or when he is qualified to be the defense counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service upon'counsel for the accused. 

839. 	Art. 39. Sessions 

**(a) At any time after the service of charges which have been referred for trial to a 

court-martial composed of a military judge and members, the military judge may, subject to section 835 of this title (article 35),call the court into session without the presence 

of the members for the purpose of- 

**(I)hearing laad determining motions raising defenses or objections which are 

capable (of determination without trial of the issues raised by a plea of not guilty ; 

** (2) hearing and ruling upon any matter which may be ruled upon by the military 

judge under this chapter, whether or not the matter is appropriate for later consideration cxr decision by themembers uf the court ; 

**(3) if permitted by regulations of the Secretary concerned, holding the arrangement and receivingthe pleas of the amed ;and 

** (4) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section $36 of this 

title (article 36) and which does not require the presence of the members of the court. 

These proceedings shall be conducted in the presence of the accused, the defense counsel, 

and the trial cowsel and shall be made apart of the record. 

**(b) When the members uf a court-martial deliberate or vate, only the members 

may be present. All other proceedings, including any other consultation of the members 

of the court with counsel or the military judge, shall be made a part of the record and shall 

be in the presence of the accused, bhe defense counsel, the trial counsel, and in cases in 

which a military judge has been detailed to the court, the military judge. 

840. 	Art. 40. Continuances 

**!L'he military judge or a court-martial without a military judge may, for reasonable 

cause, gmnt a continuance to any party for such time, and as often, as may appear to be 

just. 

841. 	Art. 41. Challenges 

**(a) The milihy judge and members of a general or special court-martial may be 

challenged by the accused or the trial counsel for cause stated to the court. The military 

judge, or, if none, the court, shall determine the relevancy and validity of challenges for 

cause, and may not receive a challenge ta 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 the trial counsel is entitled to one peremptory challenge, but 

the militaryjudge may not be challenged except for cause. 

§ 842. Art. 42. Oaths 

**(a) Before performing their respective duties, military judges, members of a general 

and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant 
Art. 45, 5 845 APPENDIX 2 

defense counsel, reporters, and intepreters shall take an oath to perform their duties faibhfully. The form of the oath, the time and place of the taking thereof, the manner of recording 

the same, and whether the oath shall be taken for all cases in which these duties are to be 

performed or for a particular case, shall be as prescribed in regulations of the Secretary 

concerned. These regulations may provide that an oath to perform faithfully duties as a 

military judge, trial counsel, assistant trial counsel, defense counsel, or assistant defense 

counsel may be taken at any time by any judge advocate, law specialist, or other person 

certified to be qualified or competent for the duty, and if such an oath is taken it need not 

again be taken at the time the judge advocate, law specialist, or other person is detailed to 

that duty. 

5843. Art. 43. Statute of limitations 

(a) A person charged with desertion or absence without leave in time of war, or with 

aiding the enemy, mutiny, or murder, may be tried and punished at any time without 

limitation. 

(b) Elxcept as otherwise provided in this article, a person charged with desertion in 

time of peace or any of the offenses punishable under sections 919-932 of this title (articles 

119-132) is not 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 exelvising 

summary court-martial jurisdiction over the command. 

(c) Elxcept as otherwise provided in this article, a person charged with any offense 

is not liable to be tried by court-martial or punished under section 815 of this title (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 section 815 of this title (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) For an offense the trial of which in time of war is certified to the President by the 

Secretary concerned to be detrimental to the prosecution of the war or inimical to the 

national security, the period of limitation prescribed in this article is extended to six months 

after the termination of hostilities as proclaimed by the President or by a joint resolution 

of Congress. 

(f) When the United States is at war, the running of any statute of limitations ap 

plicable to any offense under this chapter- 

(1) involving fraud or attempted fraud against the United States or any agency 

thereof in any manner, whether by conspiracy or not; 

(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, 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 ; 

is suspended until three years after the termination of hostilities as proclaimed by the 

President or by a joint resolution of Congress. 

5 844. Art. 44. Former jeopardy 

(a) No person may, without his consent, be tried a second time for the same offense. 

(b) No proceeding in which an accused has been found guilty by a court-martial upon 

any charge or specification is 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, after the introduction of evidence but before 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 is a trial in 

the sense of this article. / 2 

845. Art. 45. Pleas of the accused 

$'*(a) If an accused after arraignment makes an irregular pleading, or after a plea of 

guilty sets up matter inconsistent with the plea, or if it appears that he has entered the 
UNIFORM CODE Att. 49, 5 849 

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 may not be received to any charge or specification 

alleging an offense for which the death penalty may be adjudged. With respect to any other 

charge or specification to which a plea of guilty has been made by the accused and accepted 

by the military judge or by a court-martial without a military judge, a finding of guilty 

of the charge or specidcation may, if permitted by regulations of the Secretary concerned, 

be entered immediately without vote. This finding shall constitute the finding of the court 

unless the plea of guilty is withdrawn prior to announcement of the sentence, i11 which event 

the proceedings shall continue as though the accused had pleaded not guilty. 

3 846. Art. 46. Opportunity to obtain witnesses and other evidence 

The trial counsel, the 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, or the Territories, Commonwealths, and possessions. 

$847. Art. 47. Refusal to appear or testify 

(a) Any person not subject to this chapter who- 

(1)has been duly subpenaed to appear as a witness before a 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 

a court, commission, or board ; 

(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 that person may have been legally subpenaed 

to produce ; 

is guilty of an offense against the United States. 

(b) Any person who commits an offense named in subsection (a) shall be tried on 

information in a United States district court or in a court of original criminal jurisdiction 

in any of the Territories, Commonwealths, or possessions of the United States, and jurisdiction is conferred upon those courts for that purpose. Upon conviction, such a person shall 

be punished by a fine of not more than $500, or imprisonment for not more than six months, 

or both. 

(c) The United States attorney or the officer prosecuting for the United States in any 

such court of original criminal jurisdiction shall, upon the certification of the facts to him 

by the military court, commission, court of inquiry, or board, file 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. 

$ 848. Art. 48. Contempts 

A court-martial, provost court, or military commission may punish for contempt any 

person who uses any menacing word, sign, or gesture in its presence, or who disturbs its 

proceedings by any riot or disorder. The punishment may not exceed confinement for 30 

days or a fine of $100,or both. 

5849. Art. 49. Depositions 

"(a) At any time after charges have been signed as provided in section 830 of this 

title (article 30), any party may take oral or written depositions unless the military judge 

or court+martial without a mi,litary judge hearing the case or, if .the ease is nort being heard, 

an authority competent toconvene a mud-martial for the trial d those charges forbids it ' for good cbulse. If a deposition is to be taken before charges are referred for trial, ~uch an 

authority may designate commissioned officers to represent the prosecution and the defense 

and may authorize those 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 
Art. 	 51, B 851 APPENDIX 2 

authorized by the laws of the United States or by the laws of the place where the deposition 

istaken to administer oaths. 

(d) A duly authenticated deposition taken upon reasonable notice to the other parties, 

so far as 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 military board, if it appears-

(1) that the witness resides or is beyond the State, Territory, Commonwealth, or 

District of Columbia in which the court, commission, or board is ordered to sit, or 

beyond 100 miles from the place of trial or hearing; 

(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 

(3) 	that the present whereabouts of the witness is unknown. 

(e) Subject to subsection (d), testimony by deposition may be presented by the defense 

in capital cases. 

(f) Subject to subsection (d), a deposition may be read in evidence in any case in 

which the death penalty is authorized but is not mandatory, whenever the convening 

authority directs 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. 

§ 850. Art. 50. Admissibility of records of courts of inquiry 

(a) In any case not capital and not extending to the dismissal of a commissioned 

officer, the sworn testimony, contained in the duly authenticated record of proceedings of 

a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise 

admissible under the rules of evidence, be read in evidence by any party before a courtmartial 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 the dismissal of a commissioned officer. 

(c) Such testimony may also be read in evidence before a court of inquiry or a military 

board. 

851. 	Art. 51. Voting and rulings 

**(a) Voting by members of a general or special court-martial on the findings and on 

the sentence, and by members of a court-martial without a military judge upon questions 

of challenge, shall be by secret written ballot. The junior member of the court shall 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. 

**(b) The military judge and, except for questions of challenge, the president of a 

court-martial without a military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military 

judge upon any question of law or any interlocutory question other than the factual issue 

of mental responsibility of the accused, or by the president of a court-martial without a 

military judge upon any question of law other than a motion for a finding of not guilty, 

is final ancl constitutes the ruling of the court. However, the military judge or the president 

of a court-martial without a military judge may change his ruling at any time during the 

trial. Unless the ruling is final, if any member objects thereto, the.court shall be cleared 

and closed and the qnestion decided by a voice rote as provided in section 852 of this title 

(article 52), beginning with the junior in rank. 

**(c) Before a rote is talcen on the findings, the military judge or the president of a 

court-martial ~vithont a military judge shall, in the presence of the accused and counsel, 

instruct the members of the court as to the elements of the offense and charge them- 

(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 clonbt must be resolved in favor of the accused and he must be 

acquitted ; 

(3) that, if there is a reasoilable doubt as to the degree of guilt, the finding must be 

ill a lower degree as to n.hich there is no reasoilable doubt ; and 
UNIFORM CODE Art. 54, 5 854 

(4) that the burden of proof to establish the guilt of the accused beyond reasonable 

doubt is upon the United States. 

**(d) Subsections (a), (b), and (c) do not apply to a court-martial composed of a 

military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge 

an appropriate sentence. The military judge of such a court-martial shall make a general 

finding and shall in addition on request find the facts specially. If an opinion or memoral~dum 

of decision is filed, it will be sufficient if the findings of fact aDDear therein. 

$852. Art. 52. Numb& of Jotes required 

(a) (1)No person may be convicted 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 may be convicted of any other offense, except as provided in section 

845 (b) of this title (article 45 (b)) or by the concurrence of two-thirds of the members 

present at the time the vote is taken. 

(b) (1)No person may be sentenced to suffer 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 chapter expressly made punishable by death. 

(2) No person may be sentenced to life imprisonment or to confinement for more 

than 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 

merrmbws present at thetime the vote is taken. 

**(c) All other questions to be decided by the members of a general or special courtmartial shall be determined by a majority vote, but a determination to reconsider a finding 

of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any 

lesser vote which indicates that the reconsideration is not opposed by the number of votes 

required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A die vote on a motion EOT a finding of not gruilmty or on a motion relabing to khe question of ehe accused's sanity is a determination against the mused. A tie vote on any other 

question is a determination in favor of the accused. 

$853. Art. 53. Court to announce action 

A court-martial shall announce its findings and sentence to the parties as soon as 

determined. 

8 854. Art. 54. Record of trial 

**(a) Each general court-martial shall keep a separate record of the proceedings in 

each case brought before it, and the record shall be authenticated by the signature of the 

military judge. If the record cannot be authenticated by the military judge by reason of 

his death, disability, or absence, it shall be authenticated by the signature of the trial 

counsel or by that of a member if the trial counsel is unable to authenticate it by reason of 

his death, disability, or absence. In a court-martial consisting of only a military judge the 

record shall be authenticated by the court reporter under the same conditions which would 

impose such a duty on a member under this subsection. If the proceedings have resulted in 

an acquittal of all charges and specifications or, if not affecting a general or flag officer, in 

a sentence not including discharge and not in excess of that which may otherwise be 

adjudged by a special court-martial, the record shall contain such matters as may be prescribed by regulations of the President. 

(b) Each special and summary court-martial shall Beep a separate record of the 

proceedings in each case, and the record shall contain the matter and shall be authenticatecl 

in the manner required by such regulations as the President may prescribe. 

(c) A copy of the record of the proceedings of each general and special court-martial 

shall be given to the accused as soon as it is authenticated. 

Subchapter VIII. SENTENCES 

Sec. Art. 

855. 55. Cruel and unusual punishments prohibited. 

856. 56. Maximum limits. 

857. 57. Effective date of sentences. 
Art. 580, 5 850a APPENDIX 2 

858. 58. Execution of confinement. 


858a. 58a. Sentences :reduction in enlisted grade upon approval. 


8855. Art. 55. Cruel and unusual punishments prohibited 

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other 

cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon 

any person subject to this chapter. The use of irons, single or double, except for the purpose 

of safe custody, is prohibited. 

8856. Art. 56. Maximum limits 

The punishment which a court-martial may direct for an offense may not exceed such 

limits as the President may prescribe for that offense. 

857. Art. 57. Effective date of sentences 

**(a) Whenever a sentence of a court-martial as lawfully adjudged and approved 

inclutitw a forfeiture of pay or allowances in addition tb confinement not suspended cyr 

deferred, the forfeiture may apply to pay or allowances becoming due on or after the date 

the sentence is approved by the convening authority. No forfeiture may extend to any 

pay or allowances accrued before that date. 

**(b) Any period of confinement included in a sentence of a court-martial begins to 

run from the date the sentence is adjudged by the court-martial, but periods during which 

the sentence to confinement is suspended or deferred shall be excluded in computing the 

service of the term of confinement. 

(c) All other sentences of courts-martial are effective on the date ordered executed. 

**(d) On application by an accused who is under sentence to confinement that has 

not been ordered executed, the convening authority or, if the accused is no longer under 

his jurisdiction, the officer exercising general court-martial jurisdiction over the command 

to which the accused is currently assigned, may in his sole discretion defer service of the 

sentence to confinement. The deferment shall terminate when the sentence is ordered 

executed. The deferment mlay be rewinded at any time by the officer who granted it or, if 

the accused is no longer under his jurisdiction, by the officer exercising general courtmartial jurisdiction over the command to which the accused is currently assigned. 

$858. Art. 58. Execution of confinement 

(a) Under such instructions as the Secretary concerned may prescribe, a sentence 

of confinement adjudged by a court-martial or other military tribunal, whether or not 

the sentence includes discharge or dismissal, and whether or not the discharge or dismissal 

has been executed, may be carried into execution by confinement in ally place of confinemelit 

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. 

Persons so confined in a penal or correctional institution not under the control of one of 

the armed forces are subject to the same discipline and treatment as persons confined or 

committed by the courts of the United States or of th.e State, Territory, District of Columbia, 

or place in which the institution is situated. 

(b) The omission of the words "hard labor" froni any sentence of a court-martial 

adjudging confinement does not deprive the authority executing that sentence of the power 

to require hard labor as a part of the punishment. 

8858a. Art. 58a. Sentences: reduction in enlisted grade upon approval 

(a) Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes- 

(1) a dishonorable or bad-conduct discharge ; 

(2) confinement ; or 

(3) hard labor without colifineme~it ; 

reduces that member to pay grade E-1, effective on the date of that approval. 

(b) If the sentence of a member who is reduced in pay grade under shbsection (a) is 

set aside or disapproved, or, as finally approved, does not include any punishnlent named 

in subsection (a) (I), or (3), the rights and privileges of which he was deprived because 
UNIFORM CODE AH. 62, 5 862 

of that reduction shall be restored to him and he is entitled to the pay and allowances to 

which he would have been entitled, for the period the reduction was in effect, had he not 

been so reduced. 

Subchapter IX. REVIEW OF COURTS-MARTIAL 

Sec. Art. 

859. 59. Error of law ;lesser included offense. 

860. 60. Initid action on the record. 

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

862. 62. Reconsideration' and revision. 

863. 63. Rehearings. 

864. 64. Approval by the convening authority. 

865. 65. Disposition of records after review by the convening authority. 

866. 66. Review by Court of Military Review. 

867. 67. Review by the Court of Military Appeals. 

868. 68. Branch offices. 

869. 69.Review in the office of the Judge Advocate General. 

870. 70. Appellate counsel. 

871. 71. Execution of sentence ;suspension of sentence. 

872. 72. Vacation of suspension. . 873. 73. Petition for a new trial. 

874. 74. Remission and suspension. 

875. 75. Restoration. 

876. 76. Finality of proceedings, findings, and sentences. 

s859. Art. 59. Error of law; lesser included offense 

(a) A finding or sentence of a court-martial may 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 affirm a finding of guilty 

may approve or affirm, instead, so much of the finding as includes a lesser included offense. 

8860. Art. 60. Initial action on the record 

After a trial by court-martial the.record shall be forwarded to the convening authority, 

and action thereon may be taken by the person who convened the court, a commissioned 

officer commanding for the time being, a successor in command, or any officer exercising 

general court-martial jurisdiction. 

5861. Art. 61. Same--General court-martial records 

The convening authority shall refer the record of each 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. 

8 862. 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 the substantial rights of the accused, the convening authority may ret,urn 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 ; 

(2)for reconsideration of a finding of not guilty of any charge, unless the record 

shows a finding of guilty under a specification laid under that charge, which sufficiently 

alleges a violation of some article of this chapter ;or 

(3) for increasing the severity of the sentence unless the sentence prescribed for the 

offense is mandatory. 
Art. 	 66, S 866 APPENDIX 2 

5863. Art. 63. Rehearings 

(a) If the convening authority disapproves the findings and sentence of a courtmartial he may, except where there is lack of sufiicient evidence in the record to support 

the findings, order a rehearing. In such a 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) Each rehearing shall take place before a court-martial composed of members not 

members of the court-martial which first heard the case. Upon a rehearing the accused may 

not be tried for any offense of which he was found not guilty by the first court-martial, and 

no sentence in excess of or more severe than the original sentence may be imposed, unless 

the sentence is based upon a finding of guilty of an offense not considered upon the merits 

in the original proceedings, or unless the sentence prescribed for the offense is mandatory. 

5864. Art. 64. Approval by the convening authority 

In acting on the findings and sentence of a court-martial, the convening authority may 

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 the sentence is approval of the 

findings and sentence. 

5865. Art. 65. Disposition of records after review by the convening authority 

(a) When the convening authority has taken final action in a general court-martial 

case, he shall send 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) If 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 sent 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 Court of Military 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 sent to the appropriate Judge 

Advocate General to be reviewed by a Court of Military Review. 

(c) A11 other special and summary court-martial records shall be reviewed by a 

judge advocate of the Army, Navy, Air Force, or Marine Corps, or a law specialist or lawyer 

of the Coast Guard or Department of the Treasury, and shall be transmitted and disposed 

of as the Secretary concerned may prescribe by regulation.' 

866. 	Art. 66. Review by Court of Military Review 

**(a) Each Judge Advocate General shall establish a Court of Military Review which 

shall be composed of one OT more panels, and each such panel shall be composed of not 

less than three appellate military judges. For the puTpose of reviewing court-martial cases, 

the court may sit in panels or 'as a whole in accordance with rules prescribed under subsection (f). Appellate military judges who are assigned to a Court of Military Review may be 

commissioned officers or civilians, each of whom must be a member of a bar of a Federal 

court or of the highest court of a State. The Judge Advocate General shall designate as 

chief judge one of the appellate military judges of the Court of Military Review established 

by him. The chief judge shall determine on which panels of the court the appellate judge 

assigned to the court will serve and which military judge assigned to the court will act as 

the senior judge on each panel. 

**(b) The Judge Advocate General shall refer to a Court of Military 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 a commissioned officer, cadet, or 

midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more. 

**(c) In a case referred to it, the Court of Military Review may act only with respect 

to the findings and sentence as approved by the convening authority. It may affirm only 

such findings of guilty, and the sentence or such part or amount of the sentence, as it 

finds co~rect in law and fact and determines, on the basis of the entire record, should be 

approved. In considering the record, it may weigh the evidence,. judge the credibility of 

6 See note 4 supra. 
UNIFORM CODE Art. 67, 5 867 

witnesses, and determine conbroverted questions of fact, recognizing that the trial court 

saw and heard the witnesses. 

**(d) If the Court of Military Review 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. 

**(e) The Judge Advocate General shall, unless there is to be further action by the 

President, the Secretary concerned, or the Court of Military Appeals, instruct the convening authority to take action in accordance with the decision of the Court of Military 

Review. If the Count of Military Review has ordered a rehearing but the convening authority 

finds a rehearing impracticable, he may dismiss the charges. 

**(f) The Judge Advocates General shall prescribe uniform rules of procedure for 

Courts of Military Review and shall meet periodically to formulate policies and procedure 

in regard to review of court-martial cases in the office of the Judge Advocates General and 

by Courts of Military Review. 

**(g) No member of a Couft of Military Review shall be required, or on his own 

initiative be permitted, to prepare, approve, disapprove, review, or submit, with respect 

to any other mtember of the same or another Court of Mili,tary Review, an effectiveness, 

fitness, or efficiency report, or any other report or document used in whole or in part for the 

purpose of determining whether a member of the armed forces if qualified to be advanced 

in grade, or in determining the assignment or transfer of a member of the armed forces, or 

in determining whether a member d the armed fbrces shall be retained on active duty. 

**(h) No member of a Court of Military Review shall be eligible to review the record 

of any trial if such member served as investigating officer in the case or served as a member 

of the court-martial before which such trial was conducted, or served as military judge, 

trial or ,defense counsel, or reviewing officer of such trial. 

8867. Art. 67. Review by the Court of Military Appeals 

*(a) (1)There is a United States Court of Military Appeals established under 

article I of the Constitution of the United States and located for administrative purposes 

only in the Department of Defense. The court consists of three judges appointed from civil 

life by the President, by and with' the advice and consent of the Senate, for a term of 

fifteen years. The terms of office of all successors of the judges serving on the effective 

date of this Act 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. Not more than two of the 

judges of the court may be appointed from the same political party, nor is any person 

eligible for appointment to the court who is not a member of the bar of a Federal 

court or the highest court of a State. Each judge is entitled to the same salary and 

travel allowances as are, and from time to time may be, provided for judges of the 

United States Court of Appeals, and is eligible for reappointment. The President shall 

designate from time to time one of the judges to act as chief judge. The chief judge of 

the court shall have precedence and preside at any session which he attends. The other 

judges shall have precedence and preside according to the seniority of their commissions. 

Judges whose commissions bear the same date shall have precedence according to seniority 

in age. The court may prescribe its own rules of procedure and determine the number of 

judges required to constitute a quorum. A vacancy in the court does not impair the right 

of the remaining judges to exercise the powers of the court. 

(2) Judges of the United States Court of Military Appeals may be removed by the 

President, upon notice and hearing, for neglect of duty or malfeasance in office, or for 

mental or physical disability, but for no other cause. 

(3) If a judge of the United States Court of Military Appeals is temporarily unable 

to perform his duties because of illness or other disability, the President may designate a 

judge of the United States Court of Appeals for the District of Columbia to fill the office 

for the period of disability. 

(4) Any judge of the United States Court of Military Appeals who is receiving retired 

pay niay become a senior judge, may occupy ofices in a Federal building, may be provided 

with a staff assistant whose compensation shall not exceed the rate prescribed for GS-9 

in the General Schedule under section 5332 of title 5, and, with his consent, may be called 
Art. 69, 5 869 APPENDIX 2 

upon by the chief judge of said court to perform judicial duties with said court for any 

period or periods specified by such chief judge. A senior judge who is performing judicial 

duties pursuant to this subsection shall be paid the same compensation (in lieu of retired 

pay) and allowances for travel and other expenses as a judge. 

** (b) The Court of Military Appealg shall review the record in- 

**(I)all cases in which the sentence, as affirmed by a GOUT%of Military Review, 

affects a general OT flag officeror extends to death ; 

** (2) all cases reviewed by a Oourt .of Military Review which.the Judge Advocate 

General orders sent to the Oourtt of Military Appeals for review ;and 

**(3) all cases reviewed by la Court of Military Review in which, upan petition 

of the accused and on good cause shown, the Court of Military Appeals has granted 

a review. 

(c) The accused has 30 days from the time when he is notified of the decision of a 

board of review to petition the Court of Military Appeals for review. The court shall act 

upon such ti petition within 30 days of the receipt thereof. 

(d) In any case reviewed by it, the Court of Military Appeals may 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 sent to the Court of Military Appeals, that action need be taken only with 

respect to the issues raised by him. In a case reviewed upon petition of the accused, that 

action need be taken only with respect to issues specified in the grant 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 findings and sentence and does not order 

a rehearing, it shall order that the charges be dismissed. 

**(f) afteT it has acted on a case, the Court of Milikary Appeals may dire& the 

Judge Advocate Genepal to return the record to the Court of Military Review for further 

review in accardance wiOh the dwi~on of the cohr t. Obherwise, unleas $here is to be furLher 

action by the President or &he Secretary concerned, the Judge Advmte General shall 

instruct the convening authority to bke action in accordance with that decision. If ehe 

drt has ordered a rehearing, but the convening lauthmitg finds a rehearing impracticable, 

he may dismiss the charges. 

(g) The Court of Military Appeals and the Judge Advocates General shall meet annually to make a comprehensive survey of the operation of this chapter and report to the 

Committees on Armed Services of the Senate and of the House of Representatives and to 

the Secretary of Defense, the Secretaries of the military departments, and the Secretary 

of the Treasury, the number and status of pending cases and any recommendations relating 

to uniformity of policies as to sentences, amendments to this chapter, and any other matters 

considered appropriate? 

9868. Art. 68. Branch offices 

**The Secretary cmrned may direct the Jnege Advocate Genemil to mtablish a 

branch office with any command. TUle branch office shall be under an Assisbant Judge 

Advocate General who, with the consent of the Judge Advocate General, may establish a 

Court of Military Review with one or more panels. That Assistant Judge Advocate General 

and any Court of Military Review established by him may. perform for that command 

under the general supervision of the Judge Advocate General, the respective duties which 

the Judge Advocate General and a Court of Military Review established by the Judge 

Advocate General would otherwise be required to perform ad to all cases involving sentences not requiring approval by the President. 

8 869. 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 finding of 

guilty and a sentence, the appellacte review of which is not otherwise provided for by 

section 866 of this title (article 66),shall be examined in the office of the Judge Advocate 

General. If any part 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 Court of hilitary Review in 

accordance with section 868 09 this title (a&le 66),but in that event &ere mag1be no 

further review by the Court of Military Appeals except under section 867(b) (2) of this 

8 gee note 3 supra. 7 See note 4 supra. 
UNIFORM CODE Art. 72, 5 872 

title (article 67(b) (2) ). Notwithstanding section 876 of this title (article 76) the findings 

or sentence, or both, in a count-martial case which has been finally reviewed, but has not 

been reviewed by a aurt of Military Review may be vacated or modified, in whole or in 

part, by the Judge Advocate General on the ground of newly discovered evidence, fraud 

on the court, lack of jurisdiction over the accused or the offense, or error prejudicial to the 

substantial rights of the accused. 

$ 870. Art. 70. Appellate counsel 

(a) The Judge Advocate General shall detail in his office one or more commissioned 

officers as appellate Government counsel, and one or more commissioned officers as appellate 

defense counsel, who are qualified under section 827(b) (1) of this title (article 27(b) (1) ). 

**(b) Appellate Government counsel shall represent the United Shtes before the 

Oourt of Military Review or the Court of Military Appeals when direoted to do so by 

l%e Judge Advocate Gmm+. 

**(c) Appellate defense counsel shall represent &he amused before the Oouz't of 

Military Review or the Gourt of Military Appeals- 

(1)when he is requested to do so by the accused ; 

(2) when the United States is represented by counsel ;or 

(3) when the Judge Advocate General has sent a case to the Court of Military 

Appeals.

**(d) The accused has the right to be represented More [the Oourt of Military Appeals 

or bhe Chrt of Milihry Review by civilian counssel if provided by him. 

**(e) Military appellate counsel shall also perform suah other functions in connection with the review of court-martial cases as the Judge Advocate General directs. 

$871. Art. 71. Execution of sentence; suspension of sentence 

(a) No court-martial sentence extending to death or involving a general or flag officer 

may 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 a death sentence. 

(b) No sentence extending to the dismissal of a commissioned officer (other than a general or flag officer), cadet, or midshipman may be executed until approved by the Secretary 

concerned, or such Under Secretary or Assistant Secretary as may 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 he may commute a sentence of dismissal to reduction to 

any enlisted grade. A person so reduced may be required to serve for the duration of the 

war or emergency and six months thereafter. 

**(c) No sentence which includes, unsuspended, a dishonlorable or (bad-conduct disuha~ge,or coniinement for one year or more, may be executed until affirmed by a (You~t of 

Military Review and, in cases reviewed by it, the Court of Military Appeals. 

**(d) All other court-martial sentences, unless suspended or deferred, 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. 

$872. Art. 72. Vacation of suspension 

(a) Before the vacation of the suspension of a special court-martial sentence which 

as approved includes a bad-conduct discharge, or of any general court-martial 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 the hearing 

by counsel if he so desires. 

(b) The record of the hearing and the recommendation of the officer having special 

court-martial jurisdiction shall be sent for action to the officer exercising general courtmartial jurisdiction over the probationer. If he vacates the suspension, any unexecuted 

part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions 

in section 871 (c) of this title (article 71 (c) ) .The vacation of the suspension of a dismissal 

is not effective until approved by the Secretary concerned. 

(c) 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 

that imposed the sentence. 
Art. 76, O 876 APPENDIX 2 

J 873. Art. 73. Petition for a new trial 

**At any time within two years after approval by the convening authority of a courtmartial sentence, the accused may petition the Judge Advocate General for a new trial on 

the grounds of newly discovered evidence or fraud on the court. If the accused's case is 

pending before a Court of Military Review or before the Court of Military Appeals, the 

Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise the Judge Advocate General shall act upon the petition. 

5874. Art. 74. Remission and suspension 

(a) The Secretary concerned 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 unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the President. 

(b) The Secretary concerned 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. 

9 875. Art. 75. Restoration 

(a) Under such regulations as the President may prescribe, all rights, privileges, and 

property affected by an executed part 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 ordered and such executed part is included in a sentence imposed upon 

the new trial or rehearing. 

(b) If a previously executed sentence of dishonorable or bad-conduct discharge is not 

imposed on a new trial, the Secretary concerned shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of his enlistment. 

(c) If a previously executed sentence of dismissal is not imposed on a new trial, the 

Secretary concerned shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed 

by the President alone to such commissioned grade and with such rank as in the opinion 

of the President that former officer would have attained had he not been dismissed. The 

reappointment of such a former officer shall be without regard to the existence of a vacancy 

and shall affect the promotion status of other officers only insofar as the President may 

direct. A11 time between the dismissal and the reappointment shall be considered as ,actual 

,service for all purposes, including the right to pay and allowances. 

5876. Art. 76. Finality of proceedings, findings, and sentences 

The appellate review of records of trial provided by this chapter, the proceedings, 

findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by 

this chapter, and all dismissals and discharges carried into execution under wntences by 

courts-martial following approval, review, or affirmation as required by this chapter, are 

final and conclusive. Orders publishing the proceedings of courts-martial and all action taken 

pursuant to those proceedings are 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 section 873 of this title (article 73) and to action by the Secretary concerned as 

provided in section 874 of this title (article 74), and the authority of the President. 

Subchapter X. PUNITIVE ARTICLES 

Sec. Art. 

877. 77. Principals. , 878. 78. Accessory after the fact. 

879. 79. Conviction of lesser included offense. 

880. 80. Attempts. 

881. 81. Conspiracy. 

882. 82. Solicitation. 

883. 83. Fraudulent enlistment, appointment, or separation. 

884. 84. Unlawful enlistment, appointment, or separation. 

885. 85. Desertion. 

886. 86. Absence without leave. 

887. 87. Missing movement. 

888. 88. Contempt toward officials. 

889. 89. Disrespect toward superior commissioned officer. 
UNIFORM CODE 	 Att. 78, 5 878 

Sec. Art. 

890. 90. Assaulting or willfully disobeying superior commissioned officer. 

891. 	 91. Insubordinate conduct toward warrant officer, noncommissioned officer, or 

petty officer. 

892. 92. Failure to obey order or regulation. 

893. 93. Cruelty and maltreatment. 

894. 94. Mutiny or sedition. 

895. 95. Resistance, breach of arrest, and escape. 

896. 96. Releasing prisoner without proper authority. 

897. 97. Unlawful detention. 

898. 98. Noncompliance with procedural rules. 

899. 99. Misbehavior before the enemy. 

900. 100. Subordinate compelling surrender. 

901. 101. Improper use of countersign. 

902. 102. Forcing a safeguard. 

903. 103. Captured or abandoned property. 

904. 104. Aiding the enemy, 

905. 105. Misconduct as brisoner. 

906. 106. Spies. 

907. 107. False official statements. . 908. 	 108. Military property of United States-Loss, damage, destruction, or wrongful 

disposition. 

909. 	 109. Property other than military property of United States-Waste, spoilage, Or 

destruction. 

910. 110. Improper hazarding of vessel. 


911. 111. Drunken or reckless driving. 


912. 112. Drunk on duty. 


913. 113. Misbehavior of sentinel. 


914. 114. Dueling. 


915. 115. Malingering. 


916. 116. Riot or breach of peace. 


917. 117. Provoking speeches or gestures. 


918. 118. Murder. 


919. 119. Manslaughter. 


920. 120. Rape and carnal knowledge. 


921. 121. Larceny and wrongful appropriation. 


922. 122. Robbery. 


923. 123. Forgery. 


923a. 123a. Making, drawing, or uttering check, draft, or order without sufficient funds. 


924. 124. Maiming. 


925. 125. Sodomy. 


926. 126. Arson. 


927. 127. Extortion. 


928. 128. Assault. 


929. 129. Burglary. 


930. 130. Housebreaking. 


931. 131. Perjury. 


932. 132. Frauds against the United States. 


933. 133. Conduct unbecoming an officer and a gentleman. 


934. 134. General article. 


$877. Art. 77. Principals 

Any person punishable under this chapter who- 

(1)commits an offense punishable by this chapter, or aids, abets. counsels, commands, or procures it, commission ;or 

(2) causes an act to be done which if directly performed by hiin would be punishable 

by this chapter ; 


is a principal. 


$878. Art. 78. Accessory after the fact 

Any person subject to this chapter who, knowing that an offense punishable by this 

chapter has been committed, receives, comforts, or assists the offender in order to hinder 
Art. 85, § 885 APPENDIX 2 

or prevent his apprehension, trial, or punishment shall be punished as a court-martial may 

direct. 

8 879. Art. 79. Conviction of lesser included offense 

An accused may be found guilty of an offense necessarily included in the offense 

charged or of an attempt to commit either the offense charged or an offense necessarily 

included therein. 

S880. Art. 80. Attempts 

(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense. 

(b) Any person subject to this chapter who attempts to commit any offense punishable 

by this chapter shall be punished as a court-martial may direct, unless otherwise specifically 

prescribed. 

(c) Any person subject to this chapter may be convicted of an attempt to commit an 

offense although it appears on the trial that the offense was consummated. 

3881. Art. 81. Conspiracy 

Any person subject to this chapter who conspires with any other person to commit an 

offense under this chapter 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. 

S 882. Art. 82. Solicitation 

(a) Any person subject to this chapter who solicits or advises another or others to 

desert in violation of section 885 of this title (article 85) or mutiny in violation of section 

894 of this title (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 attelupted, he shall be punished as a 

court-martial may direct. 

(b) Any person subject to this chapter who solicits or advises another or others to 

commit an act of misbehavior before the enemy in violation of section 899 of this title 

(article 99) or sedition in violation of section 894 of this title (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 may direct. 

§ 883. Art. 83. Fraudulent enlistment, appointment, or separation 

Any person who- 

(1) procures his own enlistment or appointment in the armed forces by knowingly 

false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances thereunder ;or 

(2) procures his own separation from the armed forces by knowingly false representation or deliberate concealment as to his eligibility for that separation ; ' shall be punished as a court-martial may direct. 

3 884. Art. 84. Unlawful enlistment, appointment, or separation. 

Any person subject to this chapter who effects an enlistment br appointment in or a 

separation from the armed forces of any person who is known to him to be ineligible for 

that enlistment, appointment, or separation because it is prohibited by law, regulation, or 

order shall be punished as a court-martial may direct. 

3 885. Art. 85. Desertion 

(a) Any member of the armed forces who- 

(1) without authority goes or remains absent from his unit, organization, or place 

of duty with intent to remain away therefrom permanently ; 

(2) quits his unit, 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 i11 the same or another one of the armed forces without fully 

clisclosing the fact that he has not been regularly separated, or enters any foreign 

armed service except when authorized by the Uiiited States ; 

is guilty of desertion. 
UNIFORM CODE Art. 92, 5 892 

(b) Any commissioned officer of the armed forces who, after tender of his resignation 

and before notice of its acceptance, quits his post or proper duties without leave and with 

intent to remain away therefrom permanently is guilty of desertion. 

(c) Any person found guilty of desertion or attempt to desert 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 attempt to desert occurs at any other time, by such 

punishment, other than death, as a court-martial may direct. 

5886. Art. 86. Absence without leave 

Any member of the armed forces who, without authority- 

(1) fails to go to his appointed place of duty at the time prescribed ; 

(2) goes from that place ;or 

(3) absents himself or remains absent from his unit, organization, or place of duty 

at which he is required to be at the time prescribed ; 

shall be punished as a court-martial may direct. 

§ 887. Art. 87. Missing movement 

Any person subject to this chapter 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. , 

8 888. Art. 88. Contempt toward officials 

Any commissioned officer who uses contemptuous words against the President, the Vice 

President, Congress, the Secretary of Defense, the Secretary of a military department, the 

Secretary of the Treasury, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial 

may direct.' 

3889. Art. 89. Disrespect toward superior commissioned officer 

Any person subject to this chapter who behaves with disrespect toward his superior 

commissioned officer shall be punished as a court-martial may direct. 

$890. Art. 90. Assaulting or willfully disobeying superior commissioned officer 

Any person subject to this chapter who- 

(1) strikes his superior commissioned officer or draws 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 commissioned 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. 

$891. Art. 91. Insubordinate conduct toward warrant officer, noncommissioned officer, or 

petty officer 

Any warrant officer or enlisted member who- 

(1)strikes or assaults a warrant officer, noncommissioned officer, or petty officer, 

while that officer is in the execution of his office ; 

(2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, 

or petty officer ;or 

(3) treats with contempt or is disrespectful in language or deportment toward a 

warrant officer, noncommissioned officer, or petty officer while that officer is in the 

execution of his office ; 

shall be punished as a court-martial may direct. 

§ 892. Art. 92. Failure to obey order or regulation 

Anp person subject to this chapter whc- 

(1) violates or fails to obey any lawful general order or regulation ; 

(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 order ;or 

(3) is derelict in the perfornlance of his duties ; 

shall be punished as a court-martial may direct. 

8 See note 4 8UPl.n. 
Art. 99. 5 899 APPENDIX 2 

$893. Art. 93. Cruelty and maltreatment 

Any person subject to this chapter 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. 

5894. Art. 94. Mutiny or sedition 

(a) Any person subject to this chapter who- 

(1) with intent to usurp or override lawful military authority, refuses, in concert 

with any other person, to obey orders or otherwise do his duty or creates any violence 

or disturbance is guilty of mutiny ; 

(2) with intent to cause the overthrow or destruction of lawful civil authority, 

creates, in concert with any other person, revolt, violence, or other disturbance against 

that authority is guilty of sedition ; 

(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior 

commissioned officer or commanding officer of a mutiny 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 punishmellt 

as a court-martial may direct. 

$ 895. Art. 95. Resistance, breach of arrest, and escape 

Any person subject to this chapter who resists apprebnsion or breaks arrest or who 

escapes from custody or confinement shall be punished as a court-martial may direct. 

$ 896. Art. 96. Releasing prisoner without proper authority 

Any person subject to this chapter who, without proper authority, releases any 

prisoner 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, whether or not the 

prisoner was committed in strict compliance with law. 

§ 897. Art. 97. Unlawful detention 

Any person subject to this chapter who, except as provided by law, apprehends, arrests, 

or confines any person shall be punished as a court-martial may direct. 

$ 898. Art. 98. Noncompliance with procedural rules 

Any person subject to this chapter who- 

(1) is responsible for unnecessary delay in the disposition of any case of a person 

accused of an offense under this chapter ;or 

(2) knowingly and intelltionally fails to enforce or comply with any provision of this 

chapter regulating the proceedings before, during, or after trial of an accused ; 

shall be punished as a court-martial may direct. 

$899. Art. 99. Misbehavior before the enemy . 

Ally member of the arined forces who before or in the presence of the enemy-

(1) runs away ; 

(2) shamefully abandons, surrenders, or delivers up any cdmmand, unit, place, or 

iililitary property which it is his duty to defend; 

(3) through disobedience, neglect, or intentional misconduct endangers the safety 

of ally such command, unit, place, or inilitary property ; 

(4) casts away his arms or ammunition ; 

(5) is guilty of cowardly conduct ; 

(6) quits his place of duty to pl~uider or pillage ; 

(7) causes false alarms ill any command, unit, or place under control of the armed 

forces ; 

(8) willfnlly fails to do his utmost to encounter, enga~~, capture, or destroy any 

eilellly troops, combatants, vessels, aircraft, or ally other thing, which it is his duty 

so to encounter, engage, cal~ture, or destroy ;or 

(9) does not afforcl all ~racticable relief aiicl assistance to any trgops, combatants, 
UNIFORM CODE Art. 106, 5 906 

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 direct. 

3 900. Art. 100. Subordinate compelling surrender 

Any person subject to this chapter who compels or attempts to compel the commander 

of any place, vessel, aircraft, or other military property, or of any body of members @f 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 couA-martial may direct. 

$901. Art. 101. Improper use of countersign 

Any person sGbject to this chapter 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 may direct. 

$902. Art. 102. Forcing a safeguard 

Any person subject to this chapter who forces a safeguard shall suffer death or such 

other punishment as a court-martial may direct. 

$903. Art. 103. Captured or abandoned property 

(a) 811 persons subject to this chapter 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. 

(b) Any person subject to this chapter who- 

(1) fails to carry out the duties prescribed in subsection (a) ; 

(2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned 

property, whereby he receives or expects 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 my direct. 

$904. Art. 104. Aiding the enemy 

Any person who- 

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or 

other things ;or 

(2) without proper authority, knowingly harbors or protects or gives intelligence tq 

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. 

$905. Art. 105. Misconduct as prisoner 

Any person subject to this chapter who, while in the hands of the enemy in time of war- 

(1) for the purpose of seewing favorable treatment by his captors acts without 

proper authority in a manner contrary to law, 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. 

3 906. Art. 106. Spies 

Any person who in time d 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, or in or about any shipyard, any manufacturing or industrial plant, or any 

other place or institutioa 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 

commissioil and on conviction shall be punished by death. 
Art. 117, 5 917 APPENDIX 2 

$907. Art. 107. False official statements 

Any person subject to this chapter who, with intent to deceive, signs any false record, 

return, regulation, order, or other official document, knowing it to be false, or makes any 

other false official statement knowing it to be false, shall be punished as a court-martial 

may direct. 

$ 908. Art. 108. Military property of United States--Loss, damage, destruction, or wrongful 

disposition 

Any person subject to this chapter who, without proper authority- 

(1)sells or otherwise disposes of; 

(2) willfully 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 may direct. 

$ 909. Art. 109. Property other than military property of United States--Waste, spoilage, 

or destruction 

Any person subject to this chapter 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. 

$910. Art. 110. Improper hazarding of vessel 

(a) Any person subject to this chapter who willfully and wrongfully hazards or suffers 

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 chapter who negligently hazards or suffers to be 

hazarded any vessel of the armed forces shall be punished as a court-martial may direct. 

$911. Art. 111. Drunken or reckless driving 

Any person subject to this chapter who operates any vehicle while drunk, or in a 

reckless or wanton manner, shall be punished as a court-martial may direct. 

1912. Art. 112. Drunk on duty 

Any person subject to this chapter other than a sentinel or look-out, who is found drunk 

on duty, shall be punished as a court-martial may direct. 

$ 913. Art. 113. Misbehavior of sentinel 

Any sentinel or look-ouk who is found drunk or sleeping upon his post, or leaves it 

before he is regularly relieved, shall be punished, if the offense is committed in time cuf 

war, by death or such other punishment as a court-martial may direct, but if the offense is 

committed at ally other time, by such punishment other than death as a court-martial 

may direct. 

1914. Art. 114. Dueling 

Any person subject to this chapter who fights or promotes, 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. 

$ 915. Art. 115. Malingering 

Any person subject to this chapter who for the purpose of avoiding 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. 

$916. Art. 116. Riot or breach of peace 

Any person subject to this chapter who causes or participates in any riot or breach of 

the peace shall be punished as a court-martial may direct. 

$ 917. Art. 117. Provoking speeches or gestures 

Any person subject to this chapter who uses provoking or reproachful words.or gestures 

towards any other person subject to this chapter shall be punished as a court-maltial may 

direct. 
UNIFORM CODE Att. 123, 5 923 

$ 918. Art. 118. Murder 

Any person subject to this chapter who, without justification or excuse, unlawfully 

liills a human being, when he- 

(1) has a premeditated design to kill ; 

(2) intends to kill or inflict great bodily harm ; 

(3) is ,engaged in an act which is inherently dangerous to others and evinces a 

wanton disregard of 'Human 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 clause (1) or (4), he shall suffer death or imprisonment for 

life as a court-martial may direct. 

3 919. Art. 119. Manslaughter 

(a) Any person to this chapter who, with an intent to liill or inflict great 

bodily harm, unlawfully lrills a human being in the heat of sudden passion caused by adequate provocation is guilty of voluntary manslaughter and shall be punished as a courtmartial may direct. 

(b) Any person subject to this chapter who, without an intent to kill or inflict great 

bodily harm, unlawfnlly liills a human being- 

' 

(1)by culpable negligence ;or 

(2) while perpetrating or attempting to perpetrate an offense, other than those 

named in clause (4) of section 918 of this title (article 118), directly affecting the 

person ; 

is guilty of involuntary manslaughter and shall be punished as a court-martial inay 

direct. 

$920. Art. 120. Rape and carnal knowledge 

(a) Any person subject to this chapter who commits an act of sexual intexourse 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. 

(b) Any person subject to this chapter who, under circumstances not amouuting to 

rape, ccninits an act of sexual intercourse with a female not his wife who has not attained 

the age of sixteen years, is guilty of carnal knowledge and shall be punished as 'a courtmartial may direct. 

(c) Penetration, however slight, is sufficient to complete either of these offenses. 

3 921. Art. 121. Larceny and wrongful appropriation 

(a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, 

by any means, from the possession of the owner or of any other person any money, persolla1 

property, or article of value of any kind- 

(1) with intent permanently to deprive or defraud another person of the use and 

benefit of property or to appropriate it to his own use or the use of any person other 

than the owner, steals that 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 it to his own use or the use of any person other 

than the owner, is guilty of wrongful appropriation. 

(b) Any person found guility of larceny or wrongful appropriation shall be punished 

as a court-martial may direct. 

$922. Art. 122. Robbery 

Any person subject to this chapter who with intent to steal takes anything of value 

from the person or in the presence of another, against his will, by means of force or 

violence or fear of immediate or future injury to his person or property or to 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. 

8 923. Art. 123. Forgery 

Any person subject to this chapter who, with intent to defraud- 

(1) falsely makes or alters any signature to, or any part of, any writing which 

would, if genuine, apparently impose a legal liability on another or change his legill 

right or liability to his prejudice ;or 
Art. 128, 5 928 APPENDIX 2 

(2) utters, offers, issues, or transfers such a writing, known by hill1 to be so made 

or altered; 

is guilty of forgery and shall be punished as a court-martial may direct. 

*$ 923a. Art. 123a. Making, drawing, or uttering check, draft, or order without sufficient 

funds 

dny person subject to this chapter who- 

(1) for the procurement of any article or thing of value, with intent to defraud; or 

(2) for the payment of any past due obligation, or for any other purpose, vith 

intent to deceive ; 

makes, draws, utters, or delivers any check, draft, or order for the payment of money 

upon any bank or other depository, knowing at the time that the maker or drawer has 

not or will not have sufficient funds in, or credit with, the bank or other depository for 

the payment of that check, draft, or order in full upon its presentment, shall be punished as 

a court-martial may direct. The making, drawing, uttering, or delivering by a maker or 

drawer of a check, draft or order, payment of which is refused by the drawee because of 

insufficient funds of the maker or drawer in the drawee's possession or control, is prima 

facie evidence of his intent to defraud or deceive and of his knowledge of insufficient 

funds in, or credit with, that bank or other depository, unless the maker or drawer pays 

the holder the amount due within five days after receiving notice, orally or in writing, 

that the check, draft, or order was not paid on presentment. In this section, the word 

'credit' means an arrangement or understanding, express or implied, with the bank or 

other depository for the payment of that check, draft, or order. 

$924. Art. 124. Maiming 

Any person subject to this chapter who, with intent to injure, disfigure, or disable, 

inflicts upon the person of another an injury which- 

(1) seriously disfigures his person by any mutilation thereof; 

(2) destroys or disables any member or organ of his body ;or 

(3) seriously diminishes 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. 

3 925. Art. 125. Sodomy 

(a) Any person subject to this chapter who engages in unnatural carnal copulation 

with another person of the same or opposite sex or with an animal is guilty of sodomy. 

Penetration, however slight, is sufficient to complete the offense. 

(b) Any person found guilty of sodomy shall be punished as a court-martial may direct. 

$ 926. Art. 126. Arson 

(a) Any person subject to this chapter 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 court-martial may direct. 

(b) Any person subject to this chapter who .willfully and maliciously burns or sets 

fire to the property of another, except as provided in subsection (a), is guilty of simple 

arson and shall be punished as a court-martial may direct. 

$927. Art. 127. Extortion 

Any person subject to this chapter who communicates threats to another person with 

tlle intention thereby to obtain anything of value or any acquittance, advantage, or 

immunity is guilty of extortion and shall be punished as a court-martial may direct. 

$928. Art. 128. Assault 

(a) Any person subject to this chapter who attenll~ts 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 chapter who- 

(1) commits an assault with a dangerous neal)on or other lllealls or force likely to 

produce death or grievous bodily harm ;or 

(2) commits an assault and intentionally inflicts grievous bodily llarln with or 

without a weapon ; 

is guilty of aggravated assault and shall be punished as a court-martial may direct. 
UNIFORM CODE Art. 134, § 934 

8929. Art. 129. Burglary 

Any person subject to this chapter who, with intent to commit an offense punishable 

under sections 918-928 of this title (articles 11%128), breaks and enters, in the nighttime, 

the dwelling house of another, is guilty of burglary and shall be punished as a courtmartial may direct.. 

3 930. Art. 130. Housebreaking 

Any person subject to this chapter 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. 

5931. Art. 131. Perjury 

Any person subject to this chapter who in a judicial proceeding or in a course of 

justice willfully and corruptly gives, upon a lawful oath or in any form allowed by law 

to be substitutecl for an oath, any false testimony matel'ial to the issue of matter of inquiry 

is guilty of perjury and shall be punished as a court-martial may direct. 

3932. Art. 132. Frauds against the United States 

Any person subject to this chapter- 

(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; 

(2) who, for the purpose of obtaining the approval, allowance. or payment of any 

claim against the United States or any officer thereof- 

(A) makes or uses any writing or other paper knowing it to contain any false 

or fraudulent statements ; 

(B) makes any oath to any fact or to any writing or other paper lmowiag the 

oath to be false ;or 

(C) forges or counterfeits any signature upon any writing or other paper, or uses 

any such signature knowing it to be forged or counterfeited ; 

(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 it, 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. 

3933. Art. 133. Conduct unbecoming an officer and a gentleman 

Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming 

an officer and a gentleman shall be punished as a court-martial may direct. 

8934. Art. 134. General article 

Though not specifically mentioned in this chapter, 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 chapter may be guilty, shall be taken cognizance of by a general, special, 

or summary court-martial, according to the nature and degree of the offense, and shall be 

punished at the discretion of that court. 

Subchapter XI. MISCELLANEOUS PROVISIONS 

Sec. Art. 

935. 135. Courts of inquiry. 

936. 136. Authority to administer oaths and to act as notary. 

937. 137. Articles to be explained. 

938. 138. Coaplaints of wrongs. 

939. 139. Redress of injuries to property. 

040. 140. Delegation by the President. 
Art. 137, 5 937 UNIFORM CODE 

$935. 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 concerned for that purpose, whether or not the persons involved hare requested 

such an inquiry. 

(b) A court of inquiry consists of three or more conlmissioned officers. For each court of 

inquiry the convening authority shall also appoint counsel for the court. 

(c) Any person subject to this chapter whose conduct is subject to inquiry shall be 

designated as a party. Any person subject to this chapter or employed by the Department 

of Defense who has a direct interest in the subject of inquiry has the right to be designated 

as a party upon requ.est to the court. Any person designated as a party shall be given 

due notice and has 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 challellged by 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 to faithfully perform their dnties. 

(f) Witnesses may be summoned to appear and testify and be examined before courts 

of inquiry, as provided for courts-martial. 

(g) Courts of inquiry shall make findings of fact but may 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. If the record cannot be authenticated by the president, it shall 

be signed by a member in lieu of the president. If the record cannot be authenticated by the 

counsel for the court, it shall be sig~red by n ~~rcrnber in licru of the counsel. 

$936. Art. 136. Authority to administer oaths and to act as notary 

**(a) The following persons on active duty may administer oaths for the purposes 

of military administration, including military justice, and 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 may be, by persons 

serving with, employed by, or accompanying the armed forces outside the United States and 

outside the Canal Zone, Puerto Rico, Guam, and the Virgin Islands, and by other persons 

subject to this chapter outside of the United States : 

(1) All judge advocates of the Army, Navy, Air Force, and Marine Corps. 

(2) All law specialists. 

(3) A11 summary courts-martial. 

(4) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants. 

(5) All commanding officers of the Navy, Marine Corps, and Coast Guard. 

(6) All staff judge advocates and legal officers, and acting or assistant staff judge 

advocates and legal officers. 

(7) All other persons designated by regulations of the armed forces or by statute. 

(b) The following persons on active duty may administer oaths necessary in the 

performance of their duties : 

(1) The president, military judge, trial counsel, and assistant trial coullsel for all 

general and special courts-martial. 

(2) The president and the counsel for the court of any court of inquiry. 

(3) 811 officers designated to take a deposition. 

(4) All persons detailed to conduct an investigation. 

(5) All recruiting officers. 

(6) All other persons designated by regulations of the armed forces or by statute. 

(c) No fee may 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, is prima facie evidence of his authority. 

5937. Art. 137. Articles to be explained 

Sections 802, 803, 807-815, 825, 827, 831, 837, 838, 855, 8771934, and 937-939 (articles 

2, 3, 7-15, 25, 27, 31, 37, 38, 55, 77-134 and 137-139) of this chapter shall be carefully 
AaPPENDIX 2 Art. 140, § 940 

explained to each enlisted member at the time of his entrance on active duty, or within six 

days thereafter. They shall be explained again after he has completed six months of active 

duty, and again at the time when he reenlists. A complete test of the Uniform Code of 

Military Justice and of the regulations prescribed by the President thereunder shall be made 

available to any person on active duty upon his request, for his personal examinatioa. 

9 938. Art. 138. Complaints of wrongs 

Any member of the armed forces who believes himself wrouged by his comnianding 

officer, and who, upon due application to that comanding officer, is refused redress, may 

complain to any superior commissioned officer, who shall forward the complaint to the 

officer exercising general court-martial jurisdiction over the officer against whom it is made. 

The officer exercising general court-martial jurisdiction shall examine into the complaint 

and take proper measures for redressing the wrong complained of; and he shall, as soon as 

possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon. 

9939. Art. 139. Redress of injuries to property 

(a) Whenever complaint is made to any commanding officer that willful damage hlas 

been done to the property of any person or that his property has been u7rongfully taken by 

members of the armed forces, he may, under such regulations as the Secretary col~ceriled 

may prescribe, convene a board to investigate the complaint. The board shall consist of from 

one to three commissioned officers and, for the purpose of that investigation, it has power to 

summon witnesses and examine them upon oath, to receive depositions or other documentary 

evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is 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 the commanding officer directing charges herein authorized is cor~clusive on any disbursing officer for the payment by him to the injured parties of the damages so assessed 

and approved. 

(b) If the offenders cannot be ascertained, but the organizatioil or detachment to which 

they belong is known, charges totaling the amount of damages assessed ant1 approved may 

be made in such proportion as may be considered just upon the individual members thereof 

who are shown to have been present at the scene at the time the damages coulplained of 

were inflicted, as determined by the approved findings of the board. 

8940. Art. 140. Delegation by the President 

The President may delegate any authority vested in him under this chapter, and provide 

for the subdelegation of any such authority. 
Appendix 3 

STATUTES TO WHICH MILITARY PERSONNEL SHOULD 


HAVE READY' ACCESS 


DEFINITIONS AND RULES OF CONSTRUCTION 

The following are definitions prescribed in title 10 and title 1, United States Code, 

which apply to the Uniform Code of Military Justice and to other provisions of title 10 : 

TITLE PO-ARMED FORCES 

CHAPTER,1. DEFINITIONS 

101. Definitions. 

In addition to the definitions in sections 1-5 of title 1,the following definitioiis apply 

in this title : 

(1) "United States", in a geographic sense, means the States and the District of 

Columbia. 

(2) "Territory" means any Territory organized after this title is enacted, so loilg as it 

remains a Territory. 

(3) LLPossessions"includes the Virgin Islands, the Canal Zone, Guam, American Samoa, 

and the guano islands, so long as they remain possessions, but does not include any Territory or Commonwealth. 

(4) "Armed forces" means the Army, Navy, Air Force, Marine Corys, and Coast 

Guard. 

(5) "Department", when used with respect to a military department, means the executive part of the department and all field headquarters, forces, reserve coml~oiients, installations, activities, and functions under the control or supervision of the Secretary of 

the department. When used with respect to the Department of Defense, it means the executive part of the department, including the executive parts of the military departments, and 

all field headquarters, forces, reserve components, installations, activities, and fuiictioils 

under the control or supervision of the Secretary of Defense, including those of the military 

departments. 

(6) "Executive part of the department" meails the executive part of the Department 

of Defense, Department of the Army, Department of the Navy, or Department of the Air 

Force, as the case may be, at the seat of government. 

(7) "Military departments" means the Departluent of the Army, the 1)el)artinent of 

the Navy, and the Department of the Air Force. 

(8) "Secretary concerned" means- 

(A) the Secretary of the Army, with respect to matters concerning Army; 

(B) the Secretary of the Navy, with respect to matters concerniiig the Navy, the 

Marine Corps, and the Coast Guard when it is operating as a service in the Navy; 

(C) the Secretary of the Air Force, with respect to matters concer~liiig the Air 

Force ;and 

(D) the Secretary of the Treasury, with respect to inatters coi~ceriiing the Coast 

Guard when it is not operating as a service in the Navy.l 

(9) "National Guard" means the Army National Guard and the Air National Guard. 

(10) "Army National Guard" ineans that part of the organized militia of the several 

States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia, active 

and inactive, that- 

(A) is a land force; 

See 80 Stat. 938 (1966), 49 U.S.C.A. $ 1655 (b) (1966), which transferred the Coast Guard to 

the Department of Transportation during peacetime. 

A3-1 
APP 3a APPENDIX 3 

(B) is trained, and has its officers appointed, under the sixteenth clause of section 

8, article I, of the Constitution; 

(C) is organized, armed, and equipped wholly or partly at Federal expeuse; aud 

(D) is federally recognized. 

(11) "Army National Guard of the United States" means the reserve compoaent of tire 

Army all of ~vhose illembers are members of the Army National Guard. 

(12) "Air National Guard" means that part of the organized militia of the several 

States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia, active 

and inactive, that- 

(A) is an air force; 

(B) is trained, and has its oficers appointed, under the sixteenth clause of section 

8,article I,of the Col~stitutioll ; 

(C) is organized, armed, and eqnipl)ecl wholly or partly at Federal expense ; and 

(D) is federally recognized. 

(13) "Air National Guard of the United States" means the reserve coml~onent of the 

Air Force all of whose members are members of the Air National Guard. 

(14) "Officer" means coinmissioned or \varrant officer. 

(15) "Commissionecl officer" iilclndes a commissioned warrant officer. 

(16) "Warrant officer" means a person who holds a colnmission or warrant in n warrant officer grade. 

(17) "Enlisted member" ineans a person in an enlisted grade. 

(18) "Grade" means a step or degree, in a graduated scale of office or military rank, 

that is established and designated as a grade by law or regulation. 

(19) "Rank" means the order of precedence among members of the armed forces. 

(20) "Rating" means the naiue (such as '"boatsmain's mate") prescribed for members 

of an armed force in ail occupational field. "Rate" ineans the name (such as "chief boatswain's mate") prescribed for members in the same rating or other category who are in 

the same grade (such as chief petty officer or seaman apprentice). 

(21) "Authorized strength" nieans the largest number of members authorized to be ill 

an armed force, a component, a branch, a grade, or any other category of the armed forces. 

(22) "Active duty" meails full-time duty in the active military service of the United 

States. It includes duty on the active list, full-time training duty, annual training duty, and 

attendance, while in the active military service, at a school designated as a service school 

by law or by the Secretary of the military department concerned. 

(23) "Active duty for a period of more than 30 days" means active duty under a call 

or order that does not specify a period of 30 days or less. 

(24) "Active service" means service on active duty. 

(25) "Active status" means the status of a reserve commissioned officer, other than a 

coiumissioned warrant officer, who is not in the inactive Army National Guard or inactive 

Air National Guard, on an inactive status list, or in the Retired Reserve. 

(26) "Supplies" includes material, equipment, and stores of all kinds. 

(27) "Pay" includes basic pay, special pay, retainer pay, incentive pay, retired pay, 

aud equivalent pay, but does not include allowances. 

(28) "Shall" is used in an imperative sense. 

(29) "May" is used in a permissive sense. The words "no person may . . ." mean that 

no person is required, authorized, or permitted to do the act prescribed. 

(30) "Includes" means "includes but is not limited to". 

(31) "Inactive-duty training" means-

(A) duty prescribed for Reserves by the Secretary concerlled under section 206 of 

title 37 or any other provision of law; and 

(B) special additional duties authorized for Reserves by an authority designated 

by the Secretary concerned and performed by them on a voluntary basis in connection 

with the prescribed training or maintenance activities of the units to \vhich they 

are assigned. 

It includes those duties ~vhen performed by Reserves in their status as meinbers of thr 

National Guard. 

(32) "Spouse" means husband or wife, as the case may be. 

(33) "Regular", with respect to an enlistment, appointment, grade, or office, ineans 

enlistment, appointment, grade, or office in a regular component of an armed force. 
STATUTES APP 3b 

(34) "Reserve", with respect to an enlistment, appointment, grade, or office, means enlistment, appointment, grade, or office held as a Reserve of an armed force. 

(35) "Original", with respect to the appointment of a member of the armed forces 

in a regular or reserve component, refers to his most recent appointment in that component 

that is neither a promotion nor a demotion. 

NOTE.The following extract of title 1,United Stntes Code, sets forth the definitions first referred 

to in title 10, above : 

TITLE 1-GENERAL PROVISXONS 

CHAPTER 1. RULES OF CONSTRUCTION 

51. Words denoting number, gender, and so forth. 

In determining the meaning of any Act of Congress, unless the context indicates 

otherwisewords importing the singular include and apply to several persons, parties, or things; 

words importing the plural include the singular ; 

words importing the masculine gender include the feminine as well ; 

words used in the present tense include the future as well as the present ; 

the words "insane" and ''insane person" and "lunatic" shall include every idiot, lunatic, insane person, and person non compok mentis ; 

the words "person" and "whoever" include corporations, companies, a~s~iatioiis, firms, 

partnerships, societies, and joint stock companies, as well as individuals ; 

"officer" includes any person authorized by law to perform the duties of the office ; 

"signature" or "subscription" includes a mark when the person making the same intended it as such ; 

"oath" includes affirmation, and "sworn" includes affirmed; 

"writing" includes printing and typewriting and reproductions of visual symbols by 

photographing, multigraphing, mimeographing, manifolding, or otherwise. 

8 2. "County" as including "parish", and so forth. 

The word "county" includes a parish, or any other equivalent subdivision of a State or 

Territory of the United States. 

53. "Vessel" as including all means of water transportation. 

The word "vessel" includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. 

54. 'Yehicle" as including all means of land transportation. 

The word "vehicle" includes every description of carriage or other artificial contrivance 

used, or capable of being used, as a means of transportation on land. 

3 5. "Company" or "association" as including successors and assigns. 

The word "company" or i'association", when used in reference to a corporation, shall 

be deemed to embrace the words "successors and assigns of such company or association", 

in like manner as if these last-named words, or words of similar import, were expressed. 

b. 

STATUTES APPLICABLE TO ALL OF THE ARMED FORCES 

10 U.S.C. 5 501 

5 501. Enlistment oath: who may administer. 

Nach person enlisting in an armed force shall take the following oath : 

"I, --------------------------,do solemnly swear (or affirm) that I will support 

and defend the Constitntioa of the United States ?gainst all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I \vill obey the 

orders of the President of the United States and the orders of the officers nppointecl 

over me, according to regulatiolls and the Unifornl <:ode of Military Justice. So hell1 

me God." 

This oath or affirmation may be taken before any commissioned officer of any :trnied force. 
APP 3b APPENDIX 3 

10 U.S.C. $ 972 


$972. Enlisted members; required to make up time lost. 


An enlisted member of an armed force who- 

(1) deserts; 

(2) is absent from his organization, station, or duty for more than one day without 

proper authority, as determined by competent authority ; 

(3) is confined for more than one day while awaiting trial and disposition of his 

case, and whose conviction has become final ; 

(4) is confined for more than one day under a sentence that has become final; or 

(5) is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of 

disease or injury resulting from his misconduct ; 

is liable, after his return to full duty, to serve for a period that, when added to the period 

that he served before his absence from duty, amounts to the term for which he was enlisted 

or inducted. 

10 U.S.C. § 1161 

5 1161. Commissioned officers: limitations on dismissal. 

(a) No commissioned officer may be dismissed from any armed force except- 

(1) by sentence of a general court-martial ; 

(2) in commutation of a sentence of a general court-martial ;or 

(3) in time of war, by order of the President. 

(b) The President may drop from the rolls of any armed force any commissioned officer (1)who has been absent without authority for at least three months, or (2) who is 

sentenced to confinement in a Federal or State penitentiary or correctional institution after 

having been found guilty of an offense by a court other than a court-martial or other military 

court, and whose sentence has become final. 

28 U.S.C. $ 1442a 

D1442a. Members of armed forces sued or prosecuted. 

A civil or criminal prosecution in a court of a State of the United States against a 

member of the armed forces of the United States on account of an act done under color of 

his office or status, or in respect to which he claims any right, title, or authority under a 

law of the United States respecting the armed forces thereof, or under the law of war, may 

at any time before the trial or final hearing thereof be removed for trial into the district 

court of the United States for the district where it is pending in the manner prescribed by 

law, and it shall thereupon be entered on the docket of the district court, which shall proceed as if the cause had been originally commenced therein and shall have full power to 

hear and determine the aause. 

10 U.S.C. 1552 

$ 1552. Correction of military records: claims incident thereto 

(a) The Secretary of a military department, under procedures established by him 

and approved by the Secretary of Defense, and acting through boards of civilians of the 

executive part of that mllitaxy dwartment, may mrr& any milita~y record of that 

department when he considers it necessary to correct an error or remove an injustice. 

Under procedures prescribed by him, the Secretary of the TreasuryZ may in the same 

manner correct ally military record of the Coast Guard. Except when procured by fraud, 3 

correction under this section is final and conclusive on all officers of the United States. 

(b) No correction may be made under subsection (a) unless the claiinant or his 

heir or legal representative files a request therefor before October 26, 1961, or within tlir~e 

pears after he disoovers i3he ernor or injustice, whichever is later. However, a board established under subsectioil (a) ~iiay excuse a failure to file within three years after discaol-ery 

if it finds it to be in the interest of justice. 

(c) The department concerned may gay, froiii applicable current appropriations, a 

claini for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of fine or forfeiture, if, as a result of correcting a record under 

this section, the amount is found to be due the claimant on account of his or another's 

"ee Note 1,supra. 

A3-4 
STATUTES APP 3c 

service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be. 

If the claimant is dead, the money shall be gaicl, upon demand, to his legal representatlve. 

However, iff no demand for payment is made by a legal representative, the inoney shall 

be paid- 

(1)to the surviving spouse, heir, or beneficiaries, in the order prescribed by the 

law applicable to that kind of payment ; 

(2) if there is no such law covering order of payment, in the order set forth in 

sectioil2771 of bhis title ;OT 

(3) as otherwise prescribed by the law applicable to thatt l<iild of payment. 

A claimant's accel~tance of a settlement under this sectioil fully satisfies the claiin conceraed. This section does not authorize the payment of ally claim compensated by private 

law before October 25,1951. 

(cl) Applicable current appropliiations alre available to oontinne the pay, ablo~mnces, 

compensation, emoluments, and other pecuniary benefits of any person who was paid under 

subsection (c), and who, because of the correction of his milimtary record, is entitled to those 

benefits, but for not longer than one year after the date ~vhen his recorcl is corrected under 

this section if he is ilot reenlisted in. or appointed or reappointed to, the grade to mhicli 

those payments relate. Without regard to qualifications for reenlistment, or appoiatmeilt, 

the Secretary coacerned may reelllist a person in, or appoint or reappoint him to, bhe grade 

to which payments under this section relate. 

(e) No payment may be made uilder this section for a benefit to which the claimant 

might later become elltitled under the laws and regulations administered by the Administrator of Veterans' Affairs. 

STATUTES APPLICABLE TO ARMY AND AIR FORCE 

10 U.S.C. 9 3811 and 9 8811 

$3811. Army enlisted members; discharge certificate; limitations on discharge. 

(a) A discharge certificate shall be given to each lawfully inducted or enlisted member 

of the Army upon his discharge. 

(b) No enlisted member of the Army inay be discharged before his term of service 

expires, except- . 

(1) as prescribed by the Secretary of the Army ; 

(2) by sentence of a general or special court-martial ;or 

(3) as otherwise provided by law. 

NOTE.10 U.S.C. 5 8811 is identical with the foregoing, except that the words "Air Force" appear 

wherever "Army" appears in 5 3811. 

10 U.S.C. § 4711 and 9 9711 

9 4711. Inquests. 

(a) When a person is found dead under circumstances that require investigation, at 

a place garrisoned by the Army and under the exclusive jurisdiction of the United States, 

the commanding officer shall direct a sumiuary court-martial to investigate the circumstances of the death. 

(b) In conducting an investigation under subsection (a), the summary court-martial 

may summon witnesses and examine them upon oath. 

(c) The summary court-martial shall promptly submit to the coinillanding officer n 

report of the investigation and findings as to the cause of death. 

NOTE.10 U.S.C. 5 9711 is identical with the foregoing, except that the words "Air Force" appear 

where "Army" appears in 5 4711. 

10 U.S.C. $ 4712 and 9 9712 

54712. Disposition of effects of deceased persons by summary court-martial. 

(a) Upon the death of- 

(1) a person subject to the court-martial jurisdictioil of the Army or the Air Force 

at a place or command under the jurisdiction of the Army ;or 

(2) an inmate of the Soldiers' Home who dies in an Army hospital outside the District of Columbia when sent from the Home to that hospital for treatineilt ; 
APP 3d APPENDIX 3 

the commanding officer of the place or command shall permit the legal representative or the 

surviving spouse of the deceased, if present, to take possession of the effects of the deceased 

that are then in camp or quarters. 

(b) If there is no legal representative or surviving spouse present, the conlmanding 

officer shall direct a summary court-martial to collect the effects of the deceased that are 

then in camp or quarters. 

(c) The summary court-maria1 may collect debts due the decedent's estate by local 

debtors, pay undisputed local creditors of the deceased to the extent permitted by the 

money of the deceased in the court's possession, and shall take receipts for those payments, 

to be filed with the court's final report to the Department of the Army. 

(d) As soon as practicable after the collection of the effects and money of the deceased, the summary court-martial shall send them at the expense of the United States to 

the living person highest on the following list who can be found by the court: 

(1)Surviving spouse or legal representative. 

(2) son. 

(3) Daughter. 

(4) Father, if he has not abandoned the support of his family. 

(5) Mother. 

(6) Brother. 

(7) Sister. 

(8) Next of kin. 

(9) Beneficiary named in the will of the deceased. 

(e) If the summary court-martial cannot dispose of the effects under subsection (d) 

because there are no persons in those categories or because the court finds that the addresses of the persons are not known or readily ascertainable, the court may convert the 

effects of the deceased, except sabers, insignia, decorations, medals, watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes, icto cash, by public or private sale, 

but not until 30 days after the date of the death of the deceased. 

(f) As soon as practicable after the effects have been converted into cash under subsection (e), the summary court-martial shall deposit all cash in the court's possessioll and 

belonging to the estate with the officer designated in regulations, and shall send a receipt 

therefor, together with any will or other papers of value, an inventory of the effects, and 

articles not permitted to be sold, to the executive part of the Department of the Army for 

transmission to the Soldiers' Home. 

(g) The summary court-martial shall make a full report of the transactions under 

this section, with respect to the deceased, to the Department of the Army for transmission 

to the General Accounting Office for action authorized in the settlement of accounts of 

deceased members of the Army. 

Norm. 10 U.S.C. $9712 is identical with the foregoing, except that the word "Army" appears 

where "Air Force" appears in subsection (a) (1) of $ 4712, ancl "Air Force" appears wherever "Army" 

appears in $ 4712. 

37 U.S.C. 8804 

8 804. Enlisted members of the Army or Air Force: pay and allowances not to accrue 

during suspended sentence of dishonorable discharge. 

Pay and allowances do not accrue to an enlisted member of the Army or the Air Force 

who is in confinement under sentence of dishonorable discharge, while the execution of the 

sentence to discharge is suspended. 

d. 

STATUTES APPLICABLE TO THE NAVAL SERVICE 

10 U.S.C. 

8 5947. Requirement of exemplary conduct. 

A11 commanding offi,cers 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 ~inder their command; to 

guard against and suppress all dissolute and immoral practices, and to correct, according 

to the laws and regulation,^ of the Navy, all persons who are guilty of them; and to talrc 

all necessary and proper measures, under the lams, regulations, and customs of the naval 

$3 5947 
STATUTES APP 3f 

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. 

10 U.S.C. § 5951 


95951. Continuation of authority after loss of vessel or aircraft. 


If the crew of any naval vessel or naval aircraft are separate from their vessel or 

aircraft because of its wreck, loss, or destruction, all the command and authority given to 

the officers of the vessel or aircraft remain in full force until the crew are discharged or 

reassigned. 

10 U.S.C. 5952 

$5952. Marine Corps organizations on vessels: authority of officers. 

When an organization of the Marine Corps is embarked in any vessel, not as part of 

the authorized complement of the vessel, the authority of the officers of that organization is the same as though the organization were serving at a naval station. However, this 

section does not impair the paramount authority of the commanding officer of a vessel 

over the vessel and all persons embarked in it. 

10 U.S.C. 6031 

' $ 6031. Chaplains: divine services. 

* * * * * * * 

(b) The commanders of vessels and naval activities to which chaplains are attached 

shall cause divine services 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. 

(c) A11 persons in the Navy and in the Marine Corps are enjoined to behave themselves in a reverent and becoming manner during divine service. 

10 U.S.C. $ 6408 

$6408. Navy and Marine Corps; warrant officers, W-1: limitation on dismissal. 

(a) No officer who holds the grade of warrant officer, W-1, may be dismissed from the 

Navy or the Marine Corps except in time of war, by order of the President. 

(b) The President may drop from the rolls of the Navy or the Marine Corps any officer who holds the grade of warrant officer, W-1, who- 

(1) has been absent without authority for at least three months ;or 

(2) is sentenced to codnement in a Federal or State penitentiary or correctional 

institution after having been found guilty of an offense by a court other than a courtmartial or other military court, and whose sentence has become flnal. 

STATUTES APPLICABLE TO THE COAST GUARD 

14 U.S.C. 508 

$508. Deserters; payment of expenses incident to apprehension and delivery; penalties. 

* * * * * * * 

(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 of 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. 

f. 

TECHNICAL SECTIONS OF ACT OF 10 AUGUST 1956 

NOTE. The act of 10 August 1956 revised, codified, and enacted into law title 10, United States 

Code, Armed Forces, and title 32, United State Code, National Guard.3 Certain technical sections of 

the act, Public Law 1028,84th Congress, are set forth below. 

708. Stat.1 (1956). 
App. 3h APPENDIX 3 

Saving and Severability Clauses 

g49. (a) In sections 148 of this Act, it is the legislative purpose to restate, without 

substantive change, the law replaced by those sections on the effective date of this Act. 

However, laws effective after March 31, 1955, that are inconsistent with this Act shall be 

considered as superseding it to the extent of the inconsistency. 

(b) References that other laws, regulations, and orders make to the replaced law 

shall be considered to be made to the corresponding provisions of sections 1-48. 

(c) Actions taken and offenses committed under the replaced law shall be considered 

to have been taken or committed under the corresponding provisions of sections 148. 

(d) If a part of this Act is invalid, all valid parts that are severable from the invalid 

part remain in effect. If a part of this Act is invalid in one or more of its applications, the 

part remains in effect in all valid applications that are severable from the invalid applications. 

(el In chapter 47 of title 10, United States Code, enacted by section 1of this Act, no 

inference of a legislative construction is to be drawn from the part in which any article 

is placed nor from the catchlines of the part or the article as set out in that ~hapter.~ 

* * * * * * * 

Effective Date of Uniform Code of Military Justice 

51. Chapter 47 of title 10, United States Code, enacted by section 1of this Act, takes 

effect January 1, 1957.' 

Repeal Provisions 

g53. The following laws are repealed except with respect to rights and duties that 

matured, penalties that were incurred, and proceedings that were begun, before the effective date of this Act and except as provided in section 49: * * * [Sections I,&-11, 13, 

and 14(f) of the Act of 5 May 1950. Repeal of section 1(Uniform Code of Military Justice) 

is effective on the effective date of chapter 47 of title 10, United States Code, enacted by 

section 1of this Act.] " 

g* 

TECHNICAL SECTION OF ACT OF 15 JUNE 1968 

$2. The United States Court of Military Appeals established under this Act is a continuation of the Court of Military Appeals as it existed (prior to the effective date of this 

Act, and no loss of rights or powers, interruption of jurisdiction, or prejudice to matters 

pending in the &uft of Military Appeals before the effective date d this Act shall result. 

A judge of the Court of Military Appeals so serving on the day before the effective date of 

this Act shall, for all punposes, be a judge of the United States Court of Military Appeals 

unde~ this Aot.7 

h. 

TECHNICAL SECTION ,OF THE ACT OF 24 OCTOBER 1968 

Be it enacted by the Senate ahd House of Representatives of the United Stabs of 

America in Congress assembled, That thi,s Act may be cited as the "Military Justice kct 

of 1968". 

83. (a) Whenever the term law officer is used, with reference to any officer detailed 

to a court-mntial puwuanrt to (section 826(a) (article 26(a)) of title 10, United States 

Oode, in any provision of Federal law (other than provisions amended by this Act) or in 

any regulation, document, or record of the United States, such term shall be ddemecl 

to mean milit'ary judge. 

(6)Whenever the ten11 board of review is used, with reference to or ii'n connection 

with the appellate review of courts-martial cases. in any provision of Federal law (other 

6 70A Sta. 640 (1956). 

Ibid. 

0 70A Stat. 641, 680 (1956) 
 '82 STAT. 179 (1968). 

STATUTES APP 3h 

than lxomisions amended *by this Act) or in any wgnlation, document, or record of the 

Unibed States, such term shall b'e deemed to meall Court of Milibry Review. 

s4. (a) Except for the amendnlents made by paragraphs (30) and (33) of section 2, 

this Act shall become effective on the first day of the tenth month follo\v~ing the month in 

\vhi~hit isenacted. 

(b) The amendment made by paragraph (30) of section 2 shall become effeotive upon 

the date of enactment of this Act. 

(c) The amendment made by paragraph (33) shall apply in the case of all courtmartial sentences approved by the convening authority on or after, or not more than 

two y'eans before, +he date d its enactment. 
Appendix 4 

FORMS FOR ORDERS CONVENING COURTS-MARTIAL 

a. GENERAL COURT-MARTIAL CONVENING ORDERS. 

(1) Convening orders. 

(Designation of command of officer convening court-martial) 

(Place) 	 (Date) 

NOTE 1. The heading of orders convening general courts-martial (including letterhead, 

place, date, etc.) may be as indicated, or as prescribed in regulations of the Secretary of a Department. This appendix shows only the content required to be set forth in all convening orders. 

Abbreviations authorized in the department may be used. 

A general court-martial is hereby convened. It may proceed (at) (on board) 

to try such persons as may properly be brought before it. The court will be constituted as 

follows : 

MILITARY JUDGE 

(Captain) (Colonel) , 	(* ) certified, designated, and 

,assigned in accordance with 

Article 26 (b) and (c) (and 

previously sworn in accordance with Mcle 42(a) ). 

MEMBERS 

(Captain) (Colonel) , (* ) 

(Commander) (Lieutenant Colonel) , (* ) 

(Commander) (Lieutenant Colonel) - , (* ) 

(Lieutenant Commander) (Major) , (* 1 

(Lieutenant Commander) (Major) - , (* ) 

(Lieutenant) (Gaptain) , (* 1 

COUNSEL 

(Lieutenant Commander) (Major) , 	(* ) TRIAL COUNSEL certilied in amrdmee with krtiole 27(b) (,and previously 

.¶warnin accordance wikh ATticle 42(a)). 

(Lieutenant) (,Oaptain) , (* ) ASSISTANT TRIAL 

COUNSEL, not certified in 

, accordance with Article 27(b). (Lieutenant Oonlmander) (Major) , 	(* ) DEFENSE COUNSEL, 

certified in accosdance with 

A4~ticle27 (b) (land previously 

sworn in aeeordance with Al-tiole 42(a)). 

(Lieutenant) (Captain)-.. , 	(* ) ASSISTANT DEFENSE 

COUNSEL, not certified in accordiance with Article 27(b). 

NOTE2. Convening orders may be signed personally by the officer having authority to convene 

the general court-martial or may be authenticated in any manner prescribed in regulations of the 

Secretary of a Department. 
APP 4b APPENDIX 4 

NOTE3. Legal qualifications and status as to certification of the military judge and all appointed 

counsel are shown in the convening orders. See 4e, 6b and d. Additionally, unless otherwise provided 

by regulations of the Secretary concerned, the convening order shall also show if the certified legal 

personnel have previously taken a prescribed oath to perform their duties faithfully in accordance 

with Article 42(a). Sec. 36b. As to limitations on who may conduct the defense, see 48a. 

NOTE 4. (* ) The further identification of the officer members of the court, the military judge, 

and counsel, by service number, organization, etc., will be as prescribed in regulations of the Secretary 

of a Department or as is customary in the particular service. 

NOTE 5. When a commanding officer is designated by the Secretary concerned pursuant to 

Article 22(a) (6) or empowered by the President pursuant to Article =(a) (7) to convene general 

courts-martial (5a(2)), the convening order will cite such authorization in the first paragraph: 

"Pursuant to authority contained in (para, General Orders , Dept -, 


19-)' (SECNAV ltr ser of 19-) 


( ), a general court-martial is hereby convened", etc. 


NOTE 6. A succession of orders modifying a convening order may result in serious errors. When 

practicable, it should be avoided by convening a new court. See 37c(l). It is not deemed advisable 

to issue an order dissolving a court-martial, and when a new court is convened to replace one in 

existence, the following sentence should merely be added, below the names of the personnel of the 

court (36b), to order convening the new court : 

"All cases in the hands of the trial counsel of the general court-martial convened 

by , in which trial proceedings have not begun or in which accused has not requested trial by the military judge alone, will be brought to trial before the court hereby 

convened." 

(2) Order amending convening orders. 

(a) Adding members. 

NOTE 7. For heading and closure, see Notes 1and 2 above. 

NOTE 8. When an enlisted person has requested enlisted members on the court which tries 

him, the following 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 

may also be modified and used to detail additional officer members to the court (37a). The 

text of such a convening order in the Army might read as follows: 

The following members are detailed to GCM convened by CMCO -- Hq 

61st Inf Div (for the trial of PRIVATE , RA 12 345 678, Co A, 1st Bn, 61st 

Inf, only) (for the trial of enlisted persons who make a timely request, pursuant to 

Article 25(c) that enlisted persons serve on it). 

Master Sergeant Co B, 1st Bn, 61st Inf 

Master Sergeant Hq Btry, 3d FA Bn (How) 

Sergeant First Class Co C, 2d Bn 1st Inf 

Sergeant Co B, 3d Bn, 1st Inf 

NOTn 9. Additional members may be detailed for one specified case only, or for all cases 

whichmw come before the court. 

NOTE 10. An order detailing enlisted persons as members of a general court-martial must show 

the unit to which each is assigned. See 4a, 36b, and Article 25 (c). 

( b) Replacing military judge. 

NOTE 11. For heading and closure, see Notes 1 and 2 above. This form may be modified to 

replace a member of the court or counsel. 

(Captain) (Colonel) , ("Note 4 above), certified designated, and assigned 

in accordance with Article 26 (b) and (c) (and previously sworn in accordance wit11 

vice (Captain) (Colonel) , (*Note 4 above), relieved. 

b. SPECIAL COURT-MARTIAL CONVENING ORDERS 

NOTE 12. Same as for general court-martial, except that a military judge may or may not be 

detailed. If a military judge is detailed, the order need only state that he is certified in accordance 

with Article 26(b) and that he was previously sworn (see Note 3). The manner of stating legill 

qualifications of counsel is different. Qualifications of counsel or their lack of qualifications in 

the sense of Anticle 27 must be shown in the convening order (6c and d). If counsel is qualified 

to act as counsel before a general court-martial (Art. 27(c) (1)), the phrase, "certified in 

accordance with Article 27(b)" will be used. 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 Stnte (ht. 27(c) (2)), but 

has not been certified in accordance with Article 27(b), the phrases, "judge advocate," "law specialist," or member of the bar of , " respectively, will be used. If counsel has none of tho 

foregoing legal qualifications, the phrase, "not n lawyer in the sense of Article 27," will bc 

Article 42(a) ),is detailed military judge of the general court-martial convened h y -, 
Appendix 5 


CHARGE SHEET 


AND PAV GRADE 

DOCUMeNTS AND OBJECTS 

LIST AND DESCRIBE (~fnotatlachad ro charpea, "01s vhsrs it may be form4 

DATA AS 

-

TO RESTRAINT 

-- ~ - ~- --

NATURE OF ANY RESTRAINT OF ACCUSED OITE LOCATION 
APPENDIX 5 

Charge : Violation of the Uniform Code of Military Justice, Article 

Specification 

-


I f UII.WCd 1. fnmfffdntlot dl -m md WlIcaIlms, they wlll be ad lorul mslully, ht to bak, on ampmare&.Urnattached to IMmpwD. 
CHARGE SHEET 

AFFIDAVIT 

Hefore me, the undersigned, authorized bylaw to administer oaths in cases of this character, personally 

appeared the abovenamed accuser thisday of . , 19-, and signed the foregoing charges 

and specificat~ons under oath that he is a person subject to the Uniform Code of Military Justice, and that he eithe~ 

has personal knowledge of or has investigated the matters set forth therein, and that the same are true in fact, to 

the best of his knowledge and belief. 

GRLOE AH0 ORGANIZATION OF OCFICEI SIGNATURE I 

DFFlCllL CHLRICTER. AS ADJUTANT. SUMLlARl COURT. EVE. TYPE0 NAME 


(MCM, 299 adA,rrcle 30: md 116) 


. olflcer ahlnlalsrb# salh mu.1 be a cmml.alonsd olflcar. 

OAT6 I

Ihave this date informed the accused of the charges against him (MCM, 321(1)). 

1 NAME, GRAOE,AHO ORCIN1ZITION OF IYMEOIATE COMMANDER SICIIATURE 

OEIICWATION OF COMMANO OF OFFICER EXERCISING PLACE DATE 


IUMMARI COURT.MARTIAL JURIIDICIION 


The sworn charges above were received athours, this dale (MCM, 334). 

FOR THE' 

NAME. CRADE,ANO OFFICIAL CAPACITY OF OFFICER SIGNING SIGNATURE 

!ST INOORSEMENT 

DESIGNATION OF COMMAND OF CONVENINE AUTIIORITV PLACE DATE 

Referred for trial to the, court-martial convened by 

19-, subject to the following instructions' 

of 

BY' COMMAND OR ORDER 

NAME. GRIOE.aN0 OFFICIAL CAPIClTl OF OFFlCEl SIGHING SICN.ATU~E 

1 Ihave served a copy hereof on each of the above-named accused, this day of 

HIME. GRIDE,.IND ORCAH1ZATION QF TRllL COUNSEL SIGNATURE 

Ymm m mmpriate commmdor aipna psraonallr, inappicablo words aro stricken our. Y~slol#~e to proper inarmcrionr ,which may bo in. 

cludad in #heindorsement of ralsrsncs for trial. aeo~CM,331(1). 11nono, so ara#e. 

1 

3 
APPENDIX 5 


THE ACCUSED HAS NOT BEEN OFFERED PUNISHMENT UNDER ARTICLE 1.5 AS TO 
Appendix 6 

FORMS FOR CHARGES AND SPECIFICATIONS 

a. INSTRUCTIONS. 

1. Use of forms. These forms are to be wed 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 fill in the blanks with the information required, such a form should not ordinarily 

be added to or deviated from. As to general principles of 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 "USS." 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 member, for example, the specification would 

read, "In that Private John J. Smith, U.S. Army, Company A, 1st Battalion, 7th Infantry, 

did," etc.; or "In that Yeoman Third Class James P. Jones, U.S. Navy, USS 

did," etc.; or "In that Airman First Class Harold L. Brown, U.S. Air Force, Headquarters 

section, 402d Bombardment Group, did," etc. A person on active duty belonging to a reser-ie 

component of the Navy, Marine Corps, or Coast Guard should be described as such; for 

example, "In that Lieutenant Charles L. White, U.S. Naval Reserve, USS 

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 vo1unta.rily accepted by him, which orders specified 

he was subject to the Uniform Code of Military Justice) (a person in custody of 

seming a sentence imposed by a court-mal-tial) (a membsr of the Public Health Service 

assigned to and serving with ) (a person within , an area under 

the control of the Secretary of -) (a person convicted of having obtained n 

fraudulent discharge) (a former major, U.S. Army, who was dismissed by order of the 

President and has made a written application for trial by court-martial), etc. 
APP 60 APPENDIX 6 

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, 2d Battalion, 7th Infantry, alias Seaman John Brown. U.S. Coast Guard." 

6. In case of change of rank or grade. When the rank or grade of the accused 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 Seaman A B, U.S. Navy, then gunner's mate third class, U.S. Navy did," etc. 

7. Time and place of offense. The time and place of the commission 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 occurred "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 them) as having occurred, for example, "from about 1.5 

June 1967 to about 4 November 1967." So, also, it is proper to allege that an offense was 

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 following 

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, they should be charged in a single 

specification as follows : 

"In that (A) and (B), acting jointly and in pursuance of a common intent, did 

(here allege place, time, and offense) ." 

If it is intended that B shall be tried alone, he may be charged in 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 A is not to be tried with B, 

B may be charged as follows : 

"In that (B) did, in conjunction with (A), (here allege place, time, and offense) ." 

Note that when several persons are to be tried in a common trial, as distinguished from 

a joint trial, each is charged separately on individual charge sheets (26d ;331). 

9. Principals. When 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 a person, the first name and surname of that person 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 person 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 mas committed 

need not ordinarily be alleged. 

If the name of the person against whom the offense was committed is not known, he 

may be described as "a person whose name is nnknown." 

11. Value. When the value of property or other amount is material with respect to the 

amount of punishment which ~nay be adjudged npon conviction of an offense, the value or 

amount should be alleged, for in such a case increased puriishments that are contingent 

npon value may not be adjudged unless there is an allegation, as well as proof, of a value 

which will support the punishment. See. for a cliscussion of value, 200 a(7) (Larceny). If 

several articles of different kinds are the subject of the offense, the value of each article 

should be stated, follon~ecl by a statement of the aggregate value. An examl~le of proper 

pleading in this respect would be that the accused stole "one shirt, value of about $ ; 

one pair of shoes, value of about $ ; and one blanket, ralue of about $- ; 
of a total value of about $-." 

FORMGCHARGES AND SPECIFICATIONS APP 6b 

The value should be stated as "value $2.08" if known 

exactly; or "value of about $5.00" if not so exactly known, as in the case of used items of 

property. These principles apply equally to allegatioiis of amount. 

12. Law of war. In the case of a person subject to trial by general court-martial 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. 

13. Descriptions. In describing property generic terms should be used and details not 

necessary to a statement of the elements of the offense should be omitted. For example, in 

alleging property stolen, damaged or destroyed, the property should be described as "a 

radio," "an automobile," "a watch," and descriptive details such as make, model, color, and 

serial number should be omitted. In alleging weapons used in offenses of violence, the 

weapon should be described as "a knife," "a pistol," or "a rifle," without adding other 

unnecessary descriptive words. Details necessary to colnplete the offense must, however, be 

alleged ;for example, if posse&ion of only certain types of knives is prohibited by a general 

regulation, the critical characteristic must be included in alleging a violatioil (c.g., "a knife 

with a blade more than 3 inches long"). 

14. Documents. Where documents must be alleged, as in the case of regulations and 

written orders allegedly violated (Art. .92 (1) and (2) ), bad checks (Arts. 123a and 134), 

and documents wrongfully possessed or used (Art. 134), the document may be set forth 

word for word or it may be described, in which case the description must be sufficient to 

permit the accused to be fully aware of the offense charged. For action where the accused 

claims that he has n6t been adequately infornled of the offense charged, see 69b. In dealing 

with checks and other brief documents, word for word pleading is usually preferable. When 

regulations and other directives are alleged by description, care must be used to correctly 

identify the document and the precise portion or portions allegedly violated. 

b. SPECIMEN CHARGES. 

Charge I: Violation of the Uniform Code of Military Justice, Article 83. 

Specification: In that Private Richard Roe, U.S. Army, Company A, 2d Battalion, 

2d Infantry, alias Private John Doe, U.S. Army, Company B, 1st Battalion, 29th Infantry, 

did under the name of John Doe, at Fort Jay, New York, on or about 24 October 1967, by 

means of deliberate concealment of the fact that he was then a private in said Company A, 

2d Battalion, 2d Infantry, procure himself to be enlisted as a private in the Army and did 

thereafter at Fort Jay, New York, receive allowances under the enlistment so procured. 

Charge I1 : Violation of the Uniform Code of Military Justice, Article 85. 

Specification: In that Private Richard Roe, U.S. Army, Company A, 2d Battalion, 

2d Infantry, alias Private John Doe, U.S. Army, Company B, 1st Battalion, 29th Infantry, 

did, on or about 6 June 1967, without authority and with intent to remain away therefrom 

permanently, absent himself from his organization, to wit: Company A, 2d Battalion, 2d 

Infantry, and did remain so absent in desertion until he was apprehended on or about 

4 November 1967. 

Charge 111: Violation of the Uniform Code of Military Justice, Article 134. 

Specification 1: In that Private Richard Roe, U.S. Army, Company A, 2d Battalion, 

2d Infantry, alias Private John Doe, U.S. Army, Company B, 1st Battalion, 29th Infantry, 

was, at Chicago, Illinois, on or about 5 June 1%7, drunk and disorderly in uniform in a 

public place, to wit: Joe's Tavern, located at 935 Blank Street in said city. 

Specification 2: In that Private Richard Roe, U.S. Army, Company A, 2d Battalion, 

2d Infantry, alias Private John Doe, U.S. Army, Company B, 1st Battalion, 29th Infantry, 

did, at Fort Sheridan, Illinois, on or about 5 June 1967, wrongfully and willfully discharge 

a firearm, to wit: a carbine, in the day room of Company A, 2d Battalion, 2d Infantry, 

under circumstances such as to endanger human life. 
APP 6c 

access or^ after 

the fact 

Attempts 

Conspiracy 

Solicitation 

Fraudulent 

enlistment 01. 

appointment 

APPENDIX 6 

c. FORMS FOR SPECIFICATIONS. 

ARTICLE 78 

1.In that ,knowing that (at) (on board)' 

on or about 19-, 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 

ARTICLE 80 

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 

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 

4. In that did, (at)' (on board) , on 

or about IS-, by (here state the manner and form of 

solicitation or advice), (solicit) (advise) (and 1 

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 - 19-, (at) (on board) 

, (attempted) (committed)' by (and 

*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 19-, 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 %), *[and, as a result of such (solicitation) (advice)', the offense (solicited) (advised) mas, on or about 

19-, (at) (on board) , committed by 

(and 1.1. 

*If the offense solicited or advised is not committed, omit the words contained 

ill brackets. 

ARTICLE 83 

6. In that did, (at) (on board) , on or 

about 19-, by means of [linowingly false representations 

that (here state the fact or facts material to qualification for enlist~ilent 

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 
FORMGCHARGES AND SPECIFICATIONS 

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 19-, by means of [ltnowingly 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) 3 [deliberate concealment of the fact that (here state the fact or facts concealed 

which made the accused ineligible for separation) I, 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 19-, effect [the (enlistment) (appointment) of 

as a in (here state the armed force in which 

the person was enlisted or appointed) J [the separation of 

from (here state the armed force from which the person was separated)], 

then well knowing that the said was ineligible for such 

(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 19-, without authority and with intent to remain away therefrom permanently, 

absent himself from his (unit) (organization) (place of duty), to wit: 

, located at ( (Ape 1, and 

did remain so absent in desertion until (he was apprehended) on or about 

19-. 


10. In that did, on or about 19-, with 

intent to (avoid hazardous duty) (shirk important service), namely: 

, quit his (unit) (organization) (place of duty), to wit: 

,located at ( (APO 1, and 

did remain so absent in desertion until on or about 19-. 

11. 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 

19-. 


12. In that did, (at) (on board) , on or 

about 19-, attempt to [absent himself from his (unit) 

(organization) (place of duty) to wit : , without authority 

and with intent to remain away therefrom permanently] [quit his (unit) 

(organization) (place of duty), to wit: , located at 

, with intent to (avoid hazardous duty) (shirk important 

service) namely - I C I. 

ARTICLE 86 

13. In that did, (at) (on board) , on 

or about -19-, without 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). 

APP 6c 

Fraudulent 

Effecting 

UnIawfuI 

~ ~ ~ ~ or~ , " ~ n t 

separation 

Desertion with 

intent to 

remain away 

permanently 

Desertion with 

intent to avoid 

hazardous duty 

or shirk 

important service 

Desertion prior 

to acceptance 

of resignation 

Attempt desertion 

Failing to go 

to Or leaving place of duty 
APPENDIX 6 

Absence 

from unit, 

organization, or 

place of duty 

Absence 

from unit. 

organization, or 

place of duty 

with intent to 

avoid maneuvers 

or field exercises 

Abandoning 

watch or guard 

Missing 

movement 

Contempt 

toward officials by 

commissioned 

officer 

Disrespect tu 

superior 

commissioned 

officer 

Striking 

superior 

commissioned 

officer 

Drawing or 

lifting up 8% 

weapon against 

superior 

commissioned 

officer 

14. In that did, on or about 19-, 

without authority, absent himself from his (unit) (organization) (place 

of duty at which he was required to be), to wit : ,located at 

( ) (Apg ) , and did remain so absent until on or about - 19-. 

15. In that did, on or about 19-, 

without 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 ( 1 

(APO ), and did remain so absent until on or about 

19-. 

16. In that , being a member of the 

(guard) (watch) (duty section), did, (at) (on board) , on 

or about 19-, without authority, go from his (guard) 

(watch) (duty section) with intent to abandon the same. 

ARTICLE 87 

17. In that did, (at) (on board) 

on or about 19-, through (neglect) (design) miss the 

movement of (Aircraft No. ) (Flight 11) (the USS 

) (Company A, 1st Battalion, 7th Infantry) ( 1, 

with which he was required in the course of duty to move. 

ARTICLE 88 

18. In that did, (at) (on board) , on or 

about 19-, [use (orally and publicly) ( ) 

the following contemptuous words] [in a contemptuous manner, use (orally 

and publicly) ( ) the following words] against the [ (President) (Vice President) (Congress) (Secretary of ) 1 

[(Governor) (legislature) of the (State of ) (Territory of 

) (- ), a (State) (Territory) ( 1 

in which he, the said , was then (on duty) (present) I, to 

wit :" ," or words to that effect. 

ARTICLE 89 

19. In that did, (at) (on. board) , on 

or about 19-, behave himself with disrespect toward 

, his superior comrpissioned 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 1 ( ). 

ARTICLE 90 

20. In that did, (at) (on board) , on 

or about - 19-, strike , his superior commissioned officer, who was then in the execution of his office, (in) (on) 

the with (a) (his) 

21. In that - did, (at) (on board) , on 

or about 19-, (draw) (lift up) a weapon, to wit: a 

, against , his superior commissioned officer, who was then in the execution of his office. 
FORMLCHARGES AND SPECIFICATIONS APP 6c 

22. In that did, (at) (on board) , on Offering 

or about 19-, offer violence against , his violence to 

superior superior commissioned officer, who was then in the execution of his office commissioned 

by officer 

23. In that , having received a lawful command from Willful 

, his superior commissioned officer, to disobedience of , did, superior (at) (on board) , on or about 19-, will- commissioned 

fully disobey the same. officer 

ARTICLE 91 

24. In that did, (at) (on board) , on Assault on 

or about 19-, (strike) (assault) his ~,"~~~~kissioned. 

superior officer, who was then in the execution of his or petty officer 

office, by him (in) (on) (the ) with (a) 

(his) 

25. In that , having received a lawful order from Willful 

disobedience of , his superior officer, to warrant,

(at) (on board) , on or about 19-, will- noncommissioned, 

fully disobey the same. or petty officer 

26. In that , (at) (on board) , on or Contempt or disrespect about 19-, [did treat with contempt] [was disrespect- toward 

ful in (language) (deportment) toward] , his superior noncon~missioned, 

officer, who was then in the execution of his office, by (say- or petty officer 

ing to him, " ," or words to 

that effect) (spitting at his feet) ( 1. 

ARTICLE 92 

27. In tha.t did, (at) (on board) , on Violating 

general order or about 19-, (violate) (fail to obey) a lawful general or regulation 

(order) (regulation), to wit: [paragraph , (Army) (Air 

Force) Regulation , dated 19-1 [General 

Order No. , U.S. Navy, dated 19-1 

I I, by -. 

28. In that , having knowledge of a lawful order is- Violating other 

written order 

sued by ,to wit : [paragraph , ( th or regulation 

Combat Group Regulation No. -) 

Base Group Regulation No. 

( th Air 

1 ( 1, (uss 

, Instruction ), dated 1 

[ 1, an order which it was his duty to obey, did, (at) (on 

board) , on or about 19-, fail to obey the 

same by 

Norn: Specification No. 27 alleges a violation of Article 92(1) ; Specification 

No. 28 is appropriate for alleging under Article 92(2) a violation of any written 

order or regulation which is not "general" in the sense of Article 92(1). See 

171 a, b. 

29. In that , having knowledge of a lawful order issued by (to submit to certain medical treatment) (to 

Failure to 

obey lawful 

order 

) (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 Derelict 

or about 19-) (from about 19- to about in duty 

19-) ,was derelict in the performance of his duties in that 

he [(negligently) (willfully) failed to (inspect the report of fuel on board 

said ship for the twenty-four hour period ending on ) (inspect 

the guard) (wind and compare all chronometers on board the said 

) as it was his duty to do] [(negligently) (willfully) failed 
APP 6c 

Cruelty toward 

or oppression 

or maltreatment 

of any person 

subject to his 

orders 

Mutiny 

Sedition 

Failure to 

i~uppressor 

report mutiny 

or sedition 

Attempted 

mutiny 

Resisting 

apprehension 

Breaking arrest 

APPENDIX 6 

to (perform complete motor maintenance on as it was his 

duty to do thereby permitting the water in the radiator to become seriously 

low) (inspect properly the engine on Aircraft No. as it 

was his duty to do thereby clearing it for flight with a loose sparkplug) 

(keep properly the accounts of - as it was his duty to do by 

neglecting to verify the monthly bank balances for comparison with cash 

deposited) ( )I [ 1. 

ARTICLE 93 

31. In that , (at) (on board) , on or 

about 19-, [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 

( (and) ( ) (others whose names are un- known), to (obey the orders of to (perform his duty as )] [create (violence) (a disturbance) by 

(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, ( )I. 

33. In 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 with ( ) (and) ( 1 

(others whose names are unknown), create (revolt) (violence) (a disturbance) against such authority by (entering the Town Hall of 

and destroying property and records therein) (marching 

upon and compelling the surrender of the police of 1 

( ). 

34. In that did, (at) (on board) , on or 

about 19-, fail to [do his utmost to prevent and suppress 

a (mutiny) (sedition) among the (soldiers) (sailors) (airmen) 

( ) of ,which (mutiny) (sedition) was being 

committed 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 commissioned officer or 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 and override) lawful miIitary authority, did, (at) (on board) 

, on or about IS-, attempt to [create 

(violence) (a disturbance) by 1 C 1. 

ARTICLE 95 

36. In that did, (at) (on board) , on 

or 	about 19-, resist being lawfully apprehended by 

, (an armed force policeman) ( . 37. In that , having been duly placed in arrest (in 

quarters) (in his company area) 	( ) , did, (at) (on board) 

,on or about 19-, break said arrest. 
FORMGCHARGES AND SPECIFICATIONS 	 APP 6c 

38. In that did, (at) (on board) , on Escape from 

or 	about 19-, escape from (the lawful custody of ::2fi",":,"fnt 

) (lawful confinement in 1. 

ARTICLE 96 

39. In that 

or about 

(neglect) (design) suffer] 

charge (to escape). 

19-, 

did, (at) (on board) , on 

[without proper authority release] [through 

, a prisoner committed to his 

Releasing 

~$~O~;y~thout 

,ufieIing ,,isone, 

to escape 

ARTICLE 97 

40. In that did, (at) (on board) , on Unlawful 

or about 19-, unlawfully (apprehend ) detention 

(place in arrest) (confine in ). 

ARTICLE 98 

41. In that , being charged with the duty of [(investi- Unnecessary 

delay in 

gating) (taking iminediate steps to determine the proper disposition of) disposing of case 

charges preferred against , a person accused of an offense 

under the Uniform Code of Military Justice] [ 1, was, (at) 

(on board) , on or about 19-, responsible 

for unnecessary delay in (investigating said charges) (determining the 

proper disposition of said charges) ( ), in that he (did 

) (failed to ) ( 1. 

Failing to 42. In that ,being charged with the duty of enforce or did, (at) (on board) , on or about ''-9 comply with 

lrnowingly and intentionally fail to (enforce) (comply with) Article 

, Uniform Code of Military Justice, in that he 

ARTICLE 99 

43. In that did, (at) (on board) , on 

or about 19-, (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) ( ). 

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 did, (at) (on board) , on 

or about 19-, (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) ( . 46. In that did, (at) (on board) , on 

or about 19-, (before) (in the presence of) the enemy, 

cast away his (rifle) (ammunition) ( ) . 

47. In that , (at) (on board) , on or 

about 19-, (before) (in the presence of) the enemy, was 

guilty of cowardly conduct as a result of fear, in that 

48. In that did, (at) (on board) , on 

or about IS-, (before) (in the presence of) the enemy, 

quit his place of duty for the purpose of (plundering) (pillaging) (plundering and pillaging). 

code 

Misbehavior 

before the 

enemy: 

-Running 

away 

-Shamefully 

abandoning, 

etc.. command, et~. 

-Endangering 

safety of 

command, etc. 

-Casting away 

arms or 

ammunition 

-Cowardly 

conduct 

--Quitting place 

of duty to 

plunder or 

pillage 
APP 6c 

-Causing 

false alarm 

-Failing to do 

utmost to 

encounter, etc. 

enemy troops. 

etc. 

-Failing to 

afford relief 

Compelling 

surrender or 

striking colors 

or flag 

Improper use of 

countersign 

Forcing a 

safeguard 

Failing to secure 

public property 

taken from 

enemy 

Captured or 

abandoned 

property 

APPENDIX 6 

49. In that did, (at) (on board) , on 

or about 19-, (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)] [ I. 

50. In that , being (before) (in the presence of) the 

enemy, did, (at) (on board) , 011 or about 

19-, by (ordering his own troops to halt their advance) ( 1, 

willfully fail 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 19-, (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 he failed to take 

her in tow) (certain troops of the ground forces of , which 

were engaged in battle and were pinned down by enemy fire, 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 o f , (to give it up to the enemy) (to abandon 

said , by 1 [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 (parole) (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 board) , on or 

about 19-, force a safeguard [, known by him to have 

been placed over the premises occupied by at 

by (overwhelming the guard posted for the protection of the same) 

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) $ 
FORMSCHARGES AND SPECIFICATIONS APP 6c 

58. In that did, (at) (on board) , on or -Dealing in 

about 19-, (buy) (sell) (trade) (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) (- ). 

59. In that - did, (at) (on board) , on or Looting and 

about 19--, engage in (looting) (pillaging) (looting and pi'1aging 

pillaging) by unlawfully (seizing) (appropriating) , [property which had been left behind] [the property of , (an 

inhabitant of ) ( )I. 

ARTICLE 104 

60. In that did, (at) (on board) , on or Aiding the 

about 19-, (aid) (attempt to aid) the enemy with (arms) 

(ammunition) (supplies) (money) ( )', by (furnishing and 

delivering to , members of the enemy's armed forces 

1 ( - 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) (-- ) ] [ (give intelligence to) (communicate with) 

(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: t 

which communication was intended to reach the enemy) ( 11. 

ARTICLE 105 

62. In that ,while in the hands of the enemy, did, (at) Misconduct 

(on board) - , on or about 19-, without as prisoner 

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) (-- ). 

63. In that did, (at) (on board) , on Maltreatment 

or about 19-, while in the hands of the enemy and in a Of 

position of authority over a prisoner at 

as (officer in eharge of prisoners at ) ( 1, 

maltreat the said by (depriving him of 1 

( ) without justifiable cause. 

ARTICLE 106 

64. In that was, (at) (on board) , on Spying 

or about 19-, found (lurking) (acting) as a spy (in) 

(about) (in and about) , [a (fortification) (post) (base) 

(vessel) (aircraft) ( ) within the (control) (jurisdiction) 

(control and jurisdiction) of an armed force of the United States, to wit: 

I [a (shipyard) (manufacturing plant) (industrial plant) 

( ) engaged in work in aid of the prosecution of the war by 

the United States] [ I, for the purpose of (collecting) (at-
APPENDIX 6 

Signing false 

official document : 

making false 

official statement 

Selling or 

disposing of 

military property 

Damaging, 

destroying or 

losing military 

property 

Suffering military 

property to be 

lost, damaged, 

destroyed. sold. 

or wrongfully 

disposed of 

Non-military 

property, 

wasting, 

spoiling, 

destroying or 

damaging of 

Hazarding or 

suffering to 

behazarded 

any vessel, 

willfully and 

wrongfully 

Hazarding of 

vessel, negligently 

tempting to collect) information in regard to the [(numbers) (resources) 

(operations) ( ) of the armed forces of the United States] 

[(military production) ( ) of the United States] 

[ I , with intent to impart the same to the enemy. 

ARTICLE 107 

65. In that --did, (at) (on board) I on

or about 19-, with intent to deceive, [sign an official 

(record) (return) ( ), 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 

66. In that . did, (at) (on board) , on 

or about 19-, without proper authority, (sell to 

) (dispose of by ) , of a 

value of (about) $ , military property of the United States. 

67. In that did, (at) (on board) , on 

or about 19-, without proper authority, [(willfully) 

(through neglect) ] [(damage by ) (destroy by 1 

(lose) 1 , of a value of (about) $ , military 

property of the United States "[the amount of said damage being in the 

sum of (about) $ --I. 

68. In that did, (at) (on board) , on or 

about 19-, without proper authority, (willfully) (through 

neglect) suffer , of a value of about $ , 

military property 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) $ 1 

*This allegation should be used wheu damage is alleged. 

ARTICLE 109 

69. In that did, (at) (on board) , on 

or about 19-, [(willfully) (recklessly) waste] [(willfully) (recklessly) spoil] [willfully and wrongfully (destroy) (damage) 

by I ,of a value of (about) $ t 

the property of *[the anlo~~nt of said damage being in the 

sum of (about) $ 1. 

*This allegation should be used when damage is allegetl. 

ARTICLE 110 

70. In that did, on 19-, while serving 

as aboard the in the vicinity of 

willfully and wrongfully (hazard the said vessel) (suffer the said vessel to 

be hazarded) by (causing the said vessel to collide with ) 

(allowing the said vessel to run aground) ( ). 

71. In that , on 19-, while serving in 

command 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 ~essel while making 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). 

72. In t h a t , 011 19-, while serving as 

navigator of the , cruising on special service in the 
FORMS-CHARGES AND SPECIFICATIONS 

Ocean off the coast of , notwithstanding 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 ill 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 negligence on the part of said ,ran 

upon a rock off the southwest coast of Island, at about 

hours, 19-, in consequence of which the 

said was lost. 

73. In that , on 19-, while serving as 

navigator of the 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 positioil of 

, and well knowing the diEculty 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 which 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. 

74. 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 bearing 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 

75. In that did, (at) (on board) , 011 

or about 19-, (in the motor pool area) (near the Officers' 

Club) (on Street between and 

Avenues) ( ) operate a vehicle, to wit: (a truck) (a passenger car) ( ), [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) ( )] (and did thereby cause said vehicle to 

(strike and) injure 1. 

ARTICLE 112 

76. In that was, (at) (on board) , on 

or about 19-, found drunk while on duty as 

Suffering a 

vessel to be 

hazarded. 

negligently 

Drunken or 

reckless ol~eration 

of vehicle 

Drunk mi duty 
APP 6c 

Misbehavior of 

sentinel or 

lookout 

Dueling 

Promoting 

a duel 

Conniving 

at fighting 

a duel 

Failing to 

report a duel 

Malingering ; 

self-inflicted 

injury 

Riot 

Breach of 

the peace 

APPENDIX 6 

ARTICLE 113 

77. In that , on or about 19-, (at) 

(on board) , (in an area designated as authorizing entitlement to special pay for duty subject to hostile fire), being (posted)' (on 

post) as a (sentinel) (lookout) (at Warehouse No. 7) (on Post No. 11) 

(for radar observation) (- ) [was found (drulik) (sleeping) 

upon his post] [did leave his post before he was regularly relieved]. 

ARTICLE 114 

78. In that 	 (and ) did, (at) (on board) 

, on or about -L- IS-, fight a duel (with 

), using as weapons therefor (pistols) (swords) 

( 1. 

79. 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). 

80. 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 

IS-, 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. 

81. In that -, having 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 

19-, fail to report that fact promptly to the proper 

authority. 

ARTICLE 115 

82. In that - did, (at) (on board) , (on or 

about 19-) (from about 19- to about 

IS-), 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 

83. In that did, (at) (on board) , on or 

about IS-, (cause) (participate in) a riot by unlawfully 

assembling with ( and ) (and) (others to 

the number of about whose names are unknown) for the 

purpose of (resisting the police of ) (assaulting passers-by) 

( ), and in furtherance of such purpose did (fight with said 

police) (assault certain women, to wit: ) ( 1. 

84. 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 

[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 [ I. 

1 
FORMSCHARGES AND SPECIFICATIONS APP 6c 

ARTICLE 117 

85. In that did, (at) (on board) , on or 

about 19-, wrongfully use (provoking) (reproachful) 

(words, to wit: " ", or words to that effect) (and) (gestures, 

to wit: ) 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 

86. In that - did, (at) (on board) , on or 

about 19-, [with premeditation] [while (perpetrating) 

(attempting to perpetrate) 1, murder by 

means of (shooting him with a rifle) (pushing him over a cliff) (running 

into him with an automobile) ( 1. 

Norn. In charging murder under sections (2) and (3) of Article 118, all 

material inclosed in brackets is omitted. 

ARTICLE 119 

87. In that did, (at) (on board) , on or 

about 19-, willfully and unlawfully kill 

by him (in) (on) the with a 88. In that did, (at) (on board') , on or 

about 19-, [by culpable negligence] [while (perpetrating) 

(attempting to perpetrate) an offense directly affecting the person of 

, to wit: (maiming) (a battery) ( )I unlawfully kill by him (in) (on) the 

with a 

ARTICLE 120 

89. In that did, (at) (on board) , on 

or about 19-, (rape " (rape 

a female under the age of 16 years) (commit the offense of carnal knowledge with 1. 

*If this allegation is used, carnal knowledge can be an included offense of 

rape. 

ARTICLE 121 

90. In that did, (at) (on board) , on 

or about 19-, steal , of a value of (about) 

$ , the property of 

91. In that did, (at) (on board) , on 

or about 19-, wrongfully appropriate , of 

a value of (about) $- , the property of 

ARTICLE 122 

92. In that did, (at) (on board) , on 

or about -19-, by means of (force) (violence) (force and 

violence) (and) (,putting him in fear) steal from the (person) (presence) 

of , against his will, (a watch) ( ), of a 

value of (about) $ , the property of 

Provoking :::::,",","
 Or 

Murder 

Voluntary 

manslaughter 

Involuntary 

Rape and carnal 

knowledge 

Larceny 

Wrongful

appropriation 

Robbery 
1 

APP 6c 

Forgery 

Check, worthless, 

with intent to 

defraud 

Check, worthless, 

with intent 

to deceive 

Maiming 

APPENDIX 6 

ARTICLE 123 

93. In that did, (at) (on board) , on or 

about 19-, with intent to defraud, falsely [make (in its 

entirety) (the signature of as an indorsenlent to) (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, which said (check) (writing) 

( ) would, if genuine, apparently operate to the legal prejudice of another *[and which (could be) (was) used to the 

legal prejudice of ,in that 1. 

94. In that -did, (at)' (on board) , on or 

about 19 -, 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) ( 1'1 [ ] was, as he, the said 

, then well knew, falsely (made) (altered) *[and which 

(could be) (was) used to the legal prejudice of , in that 1. 

*This allegation should be used when the document specified is not one which 

by its nature would clearly operate to the legal prejudice of another, for example, 

an insurance application. The manner in which the document could be or was 

used to prejudice the legal rights of another should be set forth in the last blank. 

ARTICLE 123a 

95. In that did, (at) (on board) , on or 

about 19-, with intent to defraud and for the procurement of 

[lawful currency] (and) [ (an article) (a thing) of value], 

wrongfully and unlawfully [(make) (draw)] [(utter) (deliver) to 

,I a certain (check) (draft) (order) for the payment of 

money upon the ( Bank) ( depository) in 

words and figures as follows, to wit: , then knowing that 

(he) ( ), the (maker) (drawer) thereof, did not or would 

not have sufficient funds in or credit with such (bank) (depository) for the 

payment of the said (check)' (draft) (order) in full upon its presentmeat. 

96. In that did, (at) (on board) , on or 

about 19-, with intent to deceive and (for the payment 

of a past due obligation, to wit: ) (for the purpose 

of ) wrongfully and unlawfully [(make) (draw) ] [ (utter) 

(deliver) to ,I a certain (check) (draft) (order) for the 

payment of money upon ( Bank) ( depository), in words and figures as follows, to wit: , then 

knowing that (he) ( ), the (maker) (drawer) thereof did 

not or would not have sufficient funds in or credit with such (bank) (de1)ository) for the payment of the said (check) (draft) (order) in full 

upon its presentment. 

ARTICLE 124 

97. In that did, (at) (on board) , On 

or about 19-, maim by (crushing his 

foot with a sledge hammer) ( ). 
FORMGCHARGES AND SPECIFICATIONS 

ARTICLE 125 

98. In that did, (at) (on board) , on 

or about 19--, commit sodomy with 

*(, a child under the age of sixteen years) *(, by force and without the 

consent of the said 1. 

*Either or both of these allegations may be used to allege aggravation (see 

Section A, 127c as to punishment). 

ARTICLE 126 

99. In that did, (at) (on board) ,on or 

about 19-, willfully and maliciously (burn) (set on 

fire) [an inhabited dwelling, to wit: (the residence of 1 

( , the property of )] [, knowing that a 

human being was therein at the time, (the Post Theater) ( t 

the property of ) 1, of a value of (about) $ 

100. 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 

101. In that did, (at) (on board) , on 

or about 19-, with intent unlawfully to obtain ($100) 

( ),communicate to a threat to (kidnap his 

son, ) (accuse of having committed sodomy) 

( ). 

ARTICLE 128 

102. In that did, (at) (on board) , On 

or about 19-, assault by (striking at him 

with a 1 ( 

103. In that did, (at) (on board) on 

or about 19-, assault , a commissioned 

officer of [ , a friendly foreign power] [the United States 

(Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)], 

by 

NOTE.That the accused did not know the commissioned offlcer to be such is a 

defense to this kind of assault-but not to an included assault in which the offlcial 

position of the victim is immaterial. 

104. In that did, (at) (on board) , on 

or about 19-, assault , a (warrant) (noncommissioned) (petty) officer of the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard), by 

NOTE.That the accused dld not know the warrant, etc., offlcer to be such is a 

defense to this kind of assault-but not to an included assault in which the offlcial 

~0Siti0n of the victim is immaterial. 

105. In that did, (at) (on board) On or about 19-, assault a Person then 

having and in the execution of (Air Force security police) (military 

police) (shore patrol) (civil law enforcement) duties, by 

106. 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 I with (a) (his) 

107. In that did, (at) (on board) , on 

or 	about 19-, unlawfully (strike) ( ) (on)' (in) the with 

APP 6c 

Sodomy 

Aggravated 

Simple arson 

Extortion 

Assault 

-Upon a 


commissioned 


oicer 


-Upon a 

warrant, noncommissioned, 

or petty o5cer 

-Upon a person 

in the execution 

of police duties 

-Upon a sentinel 

or lookout 

Assault (con- summated by a 

battery) 
APPENDIX 6 

Assault (consummated by a 

battery) upon 

a child under 

the age of 16 

Assault, 

aggravated : 

-With a 

dangerous 


weapon, 


means, or 


force 


-Inflicting 

grievous bodily 

harm 

Burglary 

Housebreaking 

Perjury 

Making false 

claim 

Presenting 

false claim 

108. In that did, (at) (on .board) , on 

or 	about 19-, unla\vfully (strike) ( ) 

, a child under the age of sixteen years, (in) (on) the 

w i t h 

109. In that did, (at) (on board) , on 

or about 19-, commit an assault upon 

bp (shooting) (striking) (cutting) ( ) (at him)' (him) (in) 

(on) (the ) with [a dangerous weapon] [a (means) (force) 

likely to produce grievous bodily harm], to wit: a (pistol) (pickax) 

(bayonet) (club) ( )'. 

110. 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) ( ). 

ARTICLE 129 

111. 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. 

ARTICLE 130 

112. In that did, (at)' (on board) , on 

or about 19-, unlawfully enter the (dwelling) (room) 

(bank) (store) (warehouse) (shop) (tent) (stateroom) ( ) 

the property of , with intent to commit a criminal offense, 

to wit : . therein. 

ARTICLE 131 

113. 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 1-

(deposition for use in a trial by -of 1 

( ) that he would (testify) (depose) truly, did, (at) (on 

board) , on or about 19-, 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 

114. 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] [ I, which claim was (false) 

(fraudulent)' (false and fraudulent) in the amount of $ 

in that and ~vas then ltnown by the said to 

be (false) (fraudulent) (false and fraudulent). 

115. In that - did, (at) (on board) ---, on 

or nbout 19-, by presenting (a voucher) ( 1 

to , an officer of the United States duly authorized to (ap- 
FORMGCHARGES AND SPECIFICATIONS 

prove) (pay) (approve and pay)' such claim, present for (approval) (payment) (approval and payment) a claim against the (United States) (finance officer at 1 ( 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 

$ in that -, and was then known by the said 

to be (false) (fraudulent)' (false and fraudulent). 

116. In that --, for the purpose of obtaining the (approval) (allowance) (payment) (approval, allowance, and payment) of 

a claim against the United States in the amount of $ , did, 

(at) (on board) - , on or about 19-, (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 

known by the said to be (false) (fraudulent) (false and 

fraudulent). 

117. In that -, for the purpose of obtaining the (approval) (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. 

118. In that - .-, for the purpose of obtaining the (approval) (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 up011 a -in words and 

figures as follows : 

119. In that , for the purpose of obtaining the (approval) (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). 

120. In that having (charge) (possession) (custody) 

(control) of (money) ( ) of the United States, (furnished) 

(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 ($ -1 ( ) less than the 

(amount) ( ) for which he received a (certificate) (receipt) from the said _-. 

121. In that , being authorized to (make) (deliver) 

(make and deliver) a paper certifying the receipt of property of the 

United States (furnished) (intended) (furnished and intended) for the 

armed forces thereof, did, (at) (on board) , on or 

about - 19--, without having full liliowledge 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) $ 

Making or 

using false 

writing 

Making false 

oath 

Forging or 

counterfeiting 

signature 

Using forged 

signature 

Paying amount 

less than 

called for 

by receipt 

Making receipt 

without knowledge 

of the facts 
APPENDIX 6 

ARTICLE 133 

Copying or 

using examination 

paper 

Drunk or 

disorderly 

Failing. 

dishonorably, to 

pay debt 

Failure to 

keep promise 

to pay debt 

Abusing public 

animal 

Adultery 

Assault: 

-Indecent 

-With intent 

to commit 

certain offenses 

Bigamy 

Bribery and 

graft : 

-Asking, 

accepting, 

or receiving 

122. In that did, (at) (on board) , on 

or about -- 19-, while undergoing a written examination on 

the subject of , wrongfully and dishonorably (receive) 

(request) unauthoried aid by [(using) (copying) the examination paper 

of I [ 1. 

123. In that was, (at) (on board) . , On 

or about 19-, in a public place, to wit: 

(drunk) (disorderly) (drunk and disorderly) while in uniform, to the 

disgrace of the armed forces. 

124. 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 - -1 9to 19-, 

dishonorably fail to pay said debt. 

125. In that - , having, on or about 19-, 

become indebted to in the sum of Qi 

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 19-, dishonorably fail to keep said promise. 

ARTICLE 134 

126. In that - - did, (at) (on board) , on or 

about - 19-, wrongfully (kick a public horse in the belly) 

) . 

127. 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. 

128. In that - did, (at) (on board) , on or 

about --19-, commit an indecent assault upon 

by -, with intent to gratify his (lust) (sexual desires). 

129. In that did, (at) (on board) , On 

or about 19-, with intent to commit (murder) (voluntary 

manslaughter) (rape) (robbery) (sodomy) (arson) (burglary) (housebreaking), commit an assault upon -by 

130. In that did, at , on or about 

19-, wrongfully' and bigamously marry , 

having at the time of his said marriage to - . a lawful wife 

then living, to wit: 

131. In that , being at the time (a contracting officer 

for ) (the personnel officer of 1 ( 1, 

did, (at) (on board) , on or about 19-, 

wrongfully and unlawfully (ask) (accept) (receive) from t 

(a contracting company engaged in 1 ( 1, 

(the sum of $ ) ( , of a value of (about) 

$ ) ( ), [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 - 1 ( 1. 
FORMS-CHARGES AND SPECIFICATIONS 	 APP 6c 

132. In that did, (at) (on board) , On 

or about 19-, wrongfully and unlawfully (promise) 

(offer) (give) to , (his commanding officer) (the claims 

officer of -1 ( ), (thesum of $ 1 

( , of a value of (about) $ ) ( 1, 

[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 which the United States 

was and is interested, to wit: (the granting of leave to 1 

(the processing of a claim against the United States in favor of 1 

( 	 1. 

133. In that did, (at) (on board) , on 

or about 19,willfully and maliciously (burn) (set fire 

to) (a dwelling) (a barn) (an automobile), the property of 

with intent to defraud (the insurer thereof, to wit: ) 

( 	 ). 

134. In that did, (at) (on board) , on 

or about - 19-, make and utter to a certain check, in words and figures as follows, to wit: , (for 

the purchase of ) (in payment of a debt) (for the purpose 

of ), and did thereafter dishonorably fail to (place) (maintain) sufficient funds in the Bank for payment of such 

check in full upon its presentment for payment. 

135. In that , while duly undergoing the punishment 

of correctional custody, did, (at) (on board) 	 , on or about 

19-, escape from correctional custody. 

136. In that , while duly undergoing the punishment 

of correctional custody, did, (at) (on board) 	 , on or about 

19-, breach the restraint imposed thereunder by 

137. In that did, (at) (on board) , on 

or about 19-, willfully, maliciously, and without justifiable cause (communicate to ) (publish) (circulate among 

-) a defamatory statement in writing concerning , 

a member of the U.S. (Army) ( ), (substantially) as follows : 

138. In that , being indebted to in the 

sum of $ for , which amount became due 

and payable (on) (about) (on or about) IS-, did, (at) 

(on board) ,from 19- to 

19-, dishonorably fail to pay said debt. 

139. In that did, (at) (on board) , on 

or about 19-, with design to [promote (disloyalty) (disaffection) (disloyalty and disaffection) among (the troops) (the civiliau 

populace) (the troops and the civilian populace)] [ (interfere with) (impair) the (loyalty,) (morale) (and) (discipline) of members of the Armed 

Forces of the United States], utter to the following statement, to wit: " ", or words to that effect, which statement 

was disloyal to the United States. 

140. In that was, (at) (on board) , on 

or about 19-, (drunk) (disorderly) (drunk and disorderly) [in (command) (quarters) (station) (camp) ( ) 1 

[on board ship] [in uniform in a public place, to wit: 1 

I 	 I. 

141. In that , a (sentinel) ( ) in charge 

of prisoners, did, (at) (on board) ,on or about 

-Promising, 

offering, 

or giving 

Burning with 

intent to 

defraud 

Check, worthless, 

making and 

uttering (by 

dishonorably 

Failing to 

maintain 

su5cient funds) 

Correctional 

custody ; 

-escape from 

-breach of 

restraint during 

Criminal libel 

Debt, 

dishonorably 

failing to pay 

Disloyal 

statements 

Disorderly. 

drunkenness 

-111 

command, 

quarters, ele., 

under service 

discrediting 

circumstances 

-Drinking 

liquor with 

prisoner 
APPENDIX 6 

-Drunk, 

prisoner 

found 

-Incapacitating 

oneself for 

performance of 

duties through 

prior indulgence 

in intoxicating 

liquors 

Drugs, habit 

forming, or 

marihuana : 

-Wrongful 

possession 

-Wrongful use, 

transfer, or sale 

-Wrongful 

introduction 

into military 

unit, etc. 

False or 

unauthorized pass 

offenses 

False pretenses, 

obtaining services 

under 

False swearing 

Firearm, 

discharging: 

-Through 

carelessness 

-WillfuIly, 

under such 

circumstances 

as to endanger 

life 

Fleeing scene 

of accident 

19-, unlawfully drink intoxicating liquor with ,a prisoner 

under his charge. 

142. In that , a PI-isoner, was, (at) (on board) 

- , on or about 19-, found drunk. 

143. 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. 

144. In that did, (at) (on board) I 

on or about 19-, wrongfully have in his possession 

ounces, more or less, of (a habit forming narcotic drug, to 

wit : ) (marihuana). 145. In that did, (at)' (on board) , On 

or about 19-, ~vrongfully (use) (transfer) (sell) (a habit 

forming narcotic drug, to wit : ) (marihuana) . 146. In that -did, (at) (on board) , on 

or about 19-, wrongfully introduce ounces, 

more or less, of (a habit forming narcotic drug, to wit: 1 

(marihuana) into a military (unit) (base) (station) (post) (ship) (aircraft) ( ) , to wit : ,for the purpose of (use) 

(transfer)' (sale) ( 1. 

147. In that did, (at) (on board) , on 

or about 19-, wrongfully [and falsely (make) (forge) 

(alter by ) (counterfeit) (tamper with by 11 

[sell to ] [give to 1 [dispose of by 

] [(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) (identification card) ( ) in words and figures as 

follows : , [he, the said - , then well knowing 

the same to be (false)' (unauthorized) ( 11. 

*In alleging possessioll or use, the allegation of intent to defraud or to 

deceive identifies the more serious offense; if this allegation is omitted, an 

offense of lesser gravity is charged. See Section A, 127c, and 213f(11). 

148. In that did, (at) (on board) , on 

or about 19-, with intent to defraud, falsely pretend to 

that ,then Imowing that the pretenses were 

false, and by means thereof did wrongfully anc2 unla\vfully obtain from 

services, of a value of (about) $ , to wit: 

149. In that did, (at) (on board) , on 

or about 19-, (in an affidavit)' (in 1, 

wrongfully and unlawfully (make) (subscribe) under la\vful (oath) 

(affirmation) a false statement in substance as follows: 

nrhich statement he did not then believe to be true. 

150. In that - did, (at) (on board) , on 

or about 19-, through carelessness, discharge a (serice rifle) ( ) in the (squadroom) (tent) (barraclrs) 

( compartment) (- ), of 

151. 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. 

152. In that -, being (the driver of) (a passenger in) 

(the senior officer in) ( in) a vehicle at the time of (an 

accident) (a collision) in which said vehicle was involved, did, at 

,on or about 19-, (wrongfully and unlaw- 
FORMS-CHARGES AND SPECIFICATIONS 

fully leave) *(by , aid and abet the driver of the said 

vehicle in wrongfully and unlawfully leaving)' the scene of the (accident) 

(collision) without [rendering assistance to , who had been 

struck (and injured) by the said vehicle] [making (his) "(the driver's) 

identity lmown]. 

*These allegations are appropriate when the accused was not the driver of the 

vehicle. 

153. In that (Sergeant) ( 1 (, boatswain's mate first class, U.S. Navy,) (,-_- ,) did, (at) (on 

board) -. , on or about 19-, gamble with 

(Private) ( ) (, seaman apprentice, U.S. 

Navy) (,.--) . 

154. In that - did, (at) (on board) ,011 or 

about - 10-, unlawfully kill , [by negligently - the said - (in) (on) the 

with a 1 [by driving a (motor vehicle) ( 1 

against the said -in a negligent manner] [ 1. 

155. In that did, (at) (on board) , on 

or about 19-, wrongfully, willfully, and unlawfully impersonate a [(commissioned officer) (warrant officer) (noncon~missioned 

officer) (petty officer) (agent of 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 I [ 1 (with intent 

to defraud by ). 

156. In that did, (at) (on board) - , on 

or about 19-, [take (immoral) (improper) (indecent) 

liberties with] [commit a (lewd) (lascivious) act (upon) (with) the body 

of 1 , a (female) (male) under sixteen years of age, by 

[fondling (her) (him) and placing his hands upon (her) (his) leg and 

private parts] [--I, with intent to (arouse) (appeal to) 

(gratify) the (lust) (passions) (sexual desires) of the said 

(and ) . 

157. In that did, (at) (on board) , on 

or about - 19-, while (at a barracks window) ( 1 

willfully and wrongfully expose in an indecent manner to public view 

Gambling with 

subordinate 

Homicide, 

negligent 

Impersonating a 

commissioned, 

warrant, 

noncommissioned, 

or petty o5cer. 

or an agent 

or official 

Indecent acts 

with a child 

Indecent exposure 

his -.

158. In that did, (at) (on board) , on 

or about IS-, (orally) (in writing) communicate 

to , a (female) (child under the age of 16 years), certain 

(indecent) (insulting) (obscene) language, to wit : 

159. In that did, (at) (on board) , on 

or about -. 19-, wrongfully commit aa indecent, lewd, and 

lascivious act with by 

160. In that did, (at) (on board) , On 

or about 19-, wrongfully and unlawfully take certain mail 

matter, to wit : (a) [letter (s) 1 [postal card (s) 1 [package (s) 1. addressed 

to , [out of the ( -Post Office 1 

(orderly room of - ) (unit mail box of ) 

( -)I [from -1 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) 1 of 

161. In that did, (at) (on board) - ,on or 

about -19-, [wrongfully and unlawfnlly (open) (secret) 

(destroy) 1 [steal] certain mail matter, to wit : (a)' [letter (s) 1 [postal 

Indecent, insulting, or obscene 

language communicated to a 

female or a child 

under the age of 

16 years 

Indecent, lewd 

acts with another 

Mail, taking, 

opening, secreting, 

destroying, or 

stealing 
APPENDIX 6 

card(s) 1 [package (8) 1 addressed to , which said [letter(s) 1 

[- I [(was) (were) then [in the (.- Post 

Office ) (orderly room of ) (unit mail box 

of ) (custody of ) ( 11 [on 

the (bunk of ) ( ) 11 [had previously been 

committed to , (a representative of ,) an 

official agency for the transmission of communications,] before said 

[letter (s)1 [- 1 (was) (were) (delivered) (actually received) (to) (by) the person(s) to whom (it) (they) (was) (were) 

directed. 

Mails, depositing. 162. In that did, (at) (on board) ,on or etc., obscene about -19-, wrongfully and knowingly (deposit) (cause to matter in be deposited) in the (United States) ( ) mails, for mailing 

and delivery to , a (letter) (picture) ( 1 

(containing) (portraying) (suggesting) ( ) certain obscene, 

lewd, and lascivious matter, to wit : 

Misprision 163. In that , having knowledge that 

of felony had actually conlmitted a felony (at) (on board) , on or 

about IS-, to wit: (the murder of ) 

( ), did, from about 19-, to about 

19-, wrongfully and unlawfully conceal such felony and fail to inalce the 

same lcuown to the civil or military authorities. 

Nuisance, 164. In that did, (at) (on board) -, committing on or about 19-, wrongfully (urinate) (defecate) 

( ) [on the floor of the squadroom] [on the (deck) (bulkhead) of I [ 1. 

Obstructing 165. In that did, (at) (on board) , on justice or about , 19-, wrongfully and unlawfully endeavor to 

[impede (a trial by court-martial) (an investigation) ( ) 1 

[influence the actions of , (a member of the court-martial) 

(the military judge of the court-martial) (a trial counsel of the court-martial) (a defense counsel of the court-martial) (an officer responsible for 

making a recommendation concerning disposition of charges) (an officer 

responsible for taking action wibh respect to the findings and sentence of the 

court-martial) ( - - ) 1 [ (influence) (alter) the testimony of 

as a witness before (a court-martial) (an investigating 

officer) ( ) ] in the case o f , by [ (promising) 

(offering) (giving) to the said 

( , of a value of (about) $ ) 1 [communicating 

to the said a threat to 1 [ 1, 

(if) (unless) he, the said , would [ (vcite to acquit the said 

1 ( .) (recommend disn~issal of the charges 

against the said ) (disapprove the iindings and sentence 

in the case of and order the charges dismissed) ] [ (wrongfully refuse to testify) (testify falsely concerning ) 

( )I [(at such trial) (before such investigating officer)] 

[ I. 

Pandering 166. In that did, (at) (on board) , on 

or about _ IS--., wrongfully and unlawfully [(compel) 

(induce) (entice) (procure)] [attempt to (compel) (induce) (entice) 

(procure)'] to engage in (acts of prostitution) (sexual intercourse for hire and reward) with persons to be directed to (him) (her) 

by the said 

167. 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) ( 1. 

, (the sum of $-)
FORMSCHARGES AND SPECIFICATIONS 	 APP 6c 

168. In that ,a prisoner on parole, did, (at) (on board) 

,on or about 19-, violate the conditions of 

his parole by 

169. In that , having taken a lawful oath [in a proceeding before 	 (a board of officers) (a court of inquiry) concerning 

] [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 19-, willfully and 

contrary to such oath (state) (subscribe) a material matter, to wit: 

, which matter he did not then believe to be true. 

170. In that did, (at) (on board) , on 

or about 19-, procure to commit perjury 

by inducing him, the said , to take a lawful (oath) (affirmation) in a (trial by court-martial of 1 

(trial by 	a court of competent jurisdiction, to wit: of 

) (dewition for use in a trial by of 

1 ( ) that he, the said I 

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 

did not then believe to be true. 

171. In that , (a sentinel) (overseer) ( ) 

in charge of prisoners, did, (at) (on board) , On Or about 

19-, wrongfully allow , a prisoner under 

his charge, to [(go to) (enter) (go to and enter) an unauthorized place, 

to wit : ] [(hold unauthorized conversation with ) 

(loiter) (neglect his task by ) (obtain intoxicating liquor) 

( I. 

172. In that did, (at) (on board) , 011 

or about 19,willfully and unlawfully [ (alter) (conceal) 

(remove) (mutilate) (obliterate) (destroy)] [appropriate with intent to 

(alter)' (conceal) (remove) (mutilate) (obliterate) (destroy) (steal)] a 

Parole. 

Of 

~E&;F~ 

Perjuw. 

of 

Prisoner, 

allowing to do 

unauthorized act 

Public record, 

:fd:fng, 

mutilating, 

public record, to wit: [the (descriptive list) (rough deck log) (quarter- obliterating. 

master's note book) of 1 [ I. or destroying 

173. In that , having been duly placed in medical quar- Quarantine. 

antine (in the isolation ward, Hospital) ( 1, medical, 

did (at) (on board) , on or about 19-, 

break said medical quarantine. 

174. In that ,being in the presence of (a) (an) [(general) (special)' court-martial] [duly appointed board of officers] [officer 

conductjng an investigation under Article 32, Uniform Code of Military 

Justice] [officer taking a deposition] [ ] (of) (for) the 

United States, of which was (military judge) (president) 

( ), (and having been directed by the said 

to 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 19--, wrongfully refuse (to qualify as a witness) (to answer said questions)'. 

175. In that , having been duly restricted to the limits 

of 	 , did, (at) (on board) , on or about 

19-, break said restrictioa. 

176. In that --__, (a prisoner), did, (at) (on board) 

, on or about 19-, wrongfully [use the 

following (threatening) (insulting) (threatening and insulting)' language] 

breaking 

~~e~f"~Y' 

Reatriction~ 

breaking 

~O","~~~v 

oflenses against 

or by 
APPENDIX 6 

Soliciting another 

to commit 

an offense 

Stolen property, 

knowingly 

receiving, busing, 

concealing 

Straggling 

Threat, 

communicating 

Transporting, 

unlawfully, a 

vehicle or aircraft 

in interstate or 

foreign commerce 

Unclean 

accouterment. 

arms. or 

uniform 

Uniform, 

unclean, improper 

appearing in 

Unlawful 

entry 

Weapon, 

concealed, 

carrying 

Wearing 

unauthorized 

insignia, 

decoration, 

badge, ribbon. 

or lapel button 

Wrongful 

cohabitation 

[behave in (a) (an) (insubordinate) (disrespectful) (insubordinate and 

disrespectful) manner] toward ,a (sentinel) (lookout) in the 

execution of his duty, [" ," or words to that effect] [by 

177. In that , while posted as a (sentinel) (lookout), 

did, (at) (on board) , on or about 19-, 

(loiter)' (wrongfully sit down) on his post. 

178. In that did, (at) (on board) , on 

or about 19-, wrongfully (solicit) (induce) 

(to disobey a general regulation, to wit: ) (to steal 

, of a value of (about) $ , the property of 

(to ), by 

NOTE.See Article 82 for certain solicitations which should Lie charged under 

that article. 

179. 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. 

180. In that 	 did, at , on or about 

19-, while accompanying his orghnization on (a practice 

march) (maneuvers) ( ), without just cause, straggle. 

181. In that did, (at) (on board) - , on 

or about 19-, wrongfully communicate to 

a threat to (injure -by ) (accuse 

of having committed the offense of ) ( ). 

182. In that did, (at) (on board)' 

(between and ) on or about 

19-, unlawfully transport (a motor vehicle) (an aircraft) in (interstate) 

(foreign) commerce, then knowing the said (motor vehicle) (aircraft) to 

have been stolen. 

183. In that was, (at) (on board) , on 

or about - 19-, found with an unclean (rifle) (uniform)' 

( ), he being at fault in failing to maintain such property in 

a clean condition. 

184. In that did, on or about 19-, 

wrongfully 	 appear (at) (on board) (without his 

) (in an unclean ) (with an unclean 

1. 

185. In that did, (at) (on board) , on 

or about 19-, unlawfully enter the (dwelling house) 

(garage) (warehouse) (tent) (vegetable garden). (orchard) (stateroom) 

( of 

186. In that did, (at) (on board) , on 

or about 19-, unla~vfully carry a coilcealed weapon, to 

wit: a 

187. In that did, (at) (on board) , on 

or about 19-, wrongfully and without authority wear 

upon his (uniform) (civilian clothing) [the insignia of grade of a (master 

sergeant of - ) (chief gunner's ,mate of ) 1 

[the Combat Infantryman Badge] [the Distinguished Service Cross] [the 

ribbon representing the Silver Star] [the lapel button representing the 

Legion of Merit] [ 1 

188. In that -did, (at) (on board) 

from about 19-, to about 19-, wrongfully 

cohabit with ,a woman not his wife. 

) (--
Appendix 7 


INVESTIGATING OFFICER'S REPORT 


INVESTIGATED ME CHARGES (Exhibit I) APPENDED HERETO. (If, and as 

Place and dote 

I HEREBY ENTER MY APPEARANCE FOR THE AOOVE-NAMED ACCUSED AND REPRESENT THPT 1 AM A MEMBER 

OF THE BAR OF 

Y matters considered pursuant to paragraph 34, MCM. 

the form should be entered in item 18. I 
APPENDIX 7 


One 4.5 caliber pistol, now in the custody of the Commanding 

Officer, Co A, 1st Bn, 61st Inf. 
INVESTIGATING OFFICER'S REPORT 

and aveilahlc) 


Corporal Ford F. Fordson, 400th MP Co, is scheduled for transfer 

to IIawaii on or about 1.5 Dec 1967. Recommend that a deposition 

.14. 

AN EXTRACT COPY OF ME ACCUSEO'S MILITARY RECORDS OF PREVIOUS COHVICTIONS IS APPENDEO (Exhibit 9 ) 

IN ARRIVING AT MY CONCLUSIONS I HAVE CONSIDERED NOT ONLY THE NATURE OF ME OFFENSEIS) AND THE EVICENCE 

IN WE CASE. NIT I HAVE LIKEWISE CONSIOEREO THE AGE OF THE ACCUSED. HIS MILITARY SERVICE. ANC THE 

ESTABLISHED POLICY MAT TRIAL DY GENERAL CWRT.MARTIAL WILL BE RESORTED TO ONLY WEN ME CHARGES CAN 

BE DISPOSED OF IN NO OTHER MANNER CONSISTENT WITH MILITARY DISCIPLINE. 

x 

X 

IS. THE CHARGES AND SPECIFICATIONS ARE IN PROPER FOFM AND THE WTTERS CONTAINED MEREIN ARE TRUE. TO 

M BEST OF MY KNOWEDGE AND BELIEF. (If the answer ir"N0". explain and indicate recommended actron 

en additional sheet). x 16. ANY INCLOSURES RECEIVED EY hrE WITH THE UIARGES AND NOT LISTED ABOVE AS AN EXHIBIT ARE SECURELY FASTENED 

TOGETHER AND APPENDED HERETO AS ONE EXHIRIT (Exhibit 10 ~f no such inclorvrer were received. check ..FKI..) X 17. (Check-appropriate box ONLY if trial is recomncnded) 

TRIAL BY GENERAL 0SPECIAL 0SUmARY CWRT.MARTIAL IS RECMENDED. X 
2 

APPENDIX 7 

'(8. REMARKS (1f more space is repired, sttech additional sheets. Check YES OK) it additional sheets are attached)

Examples of matters to be covered here are: 


1. Discussion of evidence, credibility of dtnesses, 


and sufficiency of proof. 


2. Explanation of delaj~s in completing investigation. 


3. beco commendations to dismiss, reduce, or o.th&wise 


change any specificaeion. 


4. Statement of any anticipated defenses and any 

expected difficulties in proving specifications on which 

trial is recommended. , . 

5'. Any other recommendations. 

6. Any other matters which should be known to the 

convening authority and subsequent reviewing authorities. 

i 

- 19. 	 1 IIAVE NO PREVIOUS COWNECTION YilTH THIS CASE OR APIY CLOSELY RELATED CASE. (I1 any connection is ~ndicatrd, altach a ("1 l ei~ls,lat ion. i ! PIM NOT AVfARE OF ANY REASONS WHICH VlOULD DISPUALI FY IdE FRS4 kCTlNG AS INVESTIGATING 

OFFICER. (IT any reason. appear Lo exist, attach a state,qcnt diving full derails.) 

TYPE0 NIUIE. GRADE. #NO ORGANIZATION OF INVESTIGATING OFFICEI! S I WATURE 

Adam A. Adamson, Na jor, 1st Bn, 6lst Inf QdamL 	 ' 
Appendix 8 

PROCEDURES FOR TRIALS BEFORE GENERAL COURTSMARTIAL; CONTEMPT AND REVISION PROCEDURES FOR 

GENERAL A-ND SPECIAL COURTS MARTIAL 

CONTENTS 

a. Article 39(a) Session page b. Trial Procedure-Continued page 

Session called to order --------- A8-3 Explanation to accused --------- A8-9 

Convening orders and referral Action when counsel not desired- A8-10 

of charges ----___--_------88-3 Excusing counsel not desired- - _ - AS-10 

Persons present- - ------ -- -- --- AS-3 Inquiry into request for military 

Persons absent -_--_-----__-___A8-3 judge alone.. -- ___-------- A8-10 

Reporter detailed ------ -------- A8-3 Request for enlisted membership- A8-10 

Legal qualifications of prosecu- Preliminary instructions--- - - - - - A8-10 

tion...................... A8-3 Members sworn __--_-_-_____-- AS-11

Prior participation by member of . MJ sworn-___---____--_------ AS-11

prosecution ---_----------- A8-4 Defense sworn--- _ - _ _ - - - _ ----- A8-11 

Inquiry concerning Article 38(b) - A8-4 Disclosing grounds for challenge- A8-11 

DC introduced ----_----------- A8-4 --nature of charge --_---_------AS-12 

Qualifications of DC --------u--
 A8-4 -grounds disclosed by records- A8-12 

Unqualified IC _-------___-_--_AS-4 -grounds disclosed by enlisted A8-12 

Prior participation by DC- -- _ _ _ A8-4 members---___-_---------A8-12 

Explanation to accused -----____A8-5 -grounds disclosed by members- A8-12 

Action when counsel not desired- AS-5 Challenges: procedure --------- A8-12 

Excusing counsel not desired- _ _ - A8-5 -by prosecution (for cause) ---- AS-12 

MJ sworn.................... A8-5 (peremptory)-___-------------A8-12 

Prosecution sworn ----- _----__ A8-5 -by defense--- _ _ _ _ - - ----- ---- A8-12

Defense sworn- -------_-_-____A8-5 (for cause) .................... A8-13 

Disclosing grounds for challenge- A8-5 (peremptory)- -__-_----------- A8-13 

-nature of charge- ---- __ _ -- _ _ - 48-5 Withdrawal of charges- -___-_--A8-13 

-grounds disclosed----___-____ A8-G 	 Arraignment--___-_-----------
 A8-13

Challenges: procedure- - _ - -- _ _ - A8-G -distribution of charges and 


-by prosecution --_---_------- A8-(5 specifications- _ -__----------A8-13 


-by defense--_-_______------- A8-G -charges and specifications


Inquiry into request for MJ read-___-___-______------AS-13 

alone--------___-__------A8-F -waiver of reading charges- _ --- A8-13 

Request for enlisted membership- A8-(i -notice of service-__ _ - - _ _ -- _ _ - A8-13 

b. 	Trial Proced~~re -end of arraignment- ---_--_--A8-13 

iaotions--_-__-__-------------A8-13 


Informal inquiry- ------- -- - _ _ _ _ A8-7 Hearing on motioa-- ---__--_--A8-14 


Seating...................... A8-7 Ruling on motion- --_-___--_--
 A8-14


Court called to order --------___A8-7 Voting on rulings --___--_----- - AS-14 


Convening orders -----------___ A8-7 Ainendment of charges --__-- - -- AS-14 


Persons present- ------- --- - -- - AS-8 Form of amendment after sever- 


Persons absent-- - - _- - - _----___ A8-8 ante________-___--------- A8-14 


Detail of reporter --------_--___ A8-8 Request for hearing on guilty 


Reporter sworn- - ------------- AS-S plea ---___-_-_--_____------ AS-14


Interpreter-------_--------___A8-8 Form of explanation of plea of 

Legal qualification of prosecn- guilty..-__---_----------- A8-14 


tion- - - - - ___ __ _ _ -_______ _ A8-8 -cOnsultation with DC-- _---- - A8-14 


Prior participation by member of -statute of limitations- - ---_--A8-14 


prosecution ---_----------- A8-8 -&termination of punishment- A8-15 


Inquiry conccrning Article 38(b) _ AS-8 -advice as to punishmcnt..----- A8-15 


L)C introduced ---------------- A8-0 -effect of previous convictions 


Qualifications of DC- --___ ____- A8-0 	 on punishments- _ --___ --- - AS-15 

Unqualified IC-_- - ___-_______- A8-9 -accused's understanding of 

Prior participation by DC---_ _ - A8-9 	 punishment__-___---------A8-15
APPENDIX 8 

b. Trial Procedure-Continued Page b. Trial Procedure-Continued Page 

-general explanation--_--_ - --- A8-15 New member: 


-additional explanation- - - _ _ _ _ A8-15 -reading record- _ -----_- -_-- - A8-21 


-verification of guilty plea__ _ _ _ A8-15 Prosec~~tion 
 rests.. -- - --- _ - - ---- A8-21


-acceptance of guilty plea- - _ -- A8-15 Motion for a finding of not guilty A8-21 


-guilty to one specification- -- - A8-16 Presentation of the defense case-- A8-21 


-with exceptions and substitu- Accused as a witness: 


tions-_-_-_-____--_------- A8-16 -explanation of rights --____---A8-21 


Erroneous advice--_ _____ _-____ A8-16 -preliminary questions- -__----A8-21 


Presentation of prosecution case- A8-16 Defense rests- - ---_-----___---AS22 


Oral stipulation- _____ _------- - A8-16 Rebuttal..................... A8-22 


Introduction of witness- _ - _ - - - - A8-16 Recall and reopening the case--.. A8-22 


Oath of witness- --------_----- A8-16 Witness called by court ---_---- A8-22 


Formal questions--_ - _ _ _ -__-- - A8-16 Hearing on instructions- - __ - - - - A8-22 


Direct examination _-__-_______A8-17 Arguments by counsel -----_---A8-22 


Use of interpreter- - -__________ A8-17 Conclusion of case -----__--_---A8-22 


Cross-examination-_-----------A8-17 Charge to court: 


Redirect and recross-examina- --guilty pleas-----_-----___---A8-22


tion--- - - _ _ _ _ _ _ - _ _ - - ------ A8-17 -not guilty pleas -------__---_A8-22 


Examination by the Court__-_-- A8-17 (concluding charge) ---- -- _ _ _ -- - AS22 


Excusing witness- _ _ _ _ _ _ - _ - _ - - - A8-17 Court closed for findings- - - _ _ -- A8-23 


Warning witness -____-_--_---- A8-17 Closed session -----_----__-----A8-23 


Recalled - - - _ _ _ - _ _ _ _ --- - - -- - - - AS17 Voting on findings -------___---A8-23 


Objections: Additional advice on findings- -- A8-23 


-argument ___---_-_---------- A8-17 Findings announced: 
 -

ruling_--- _ _ _ -- - - - - - - - - - - - - - A8-18 -acquittal 

- . . ------__-----------AS23 


Striking testimony : conv~ction ----_____---------
 AS23


-motion -____-_.-_-----------AS-18 (itemized).................... A8-23 


ruling- --- - - _ _..._ _ -- -----.- AS-18 (with exceptions and substitu-


Admission for limited purpose-_- 68-18 tions).................... A8-23 


Exhibits: -acquittal by MJ alone.. -_---- A8-23 


-marking for identification- _ _ - A8-18 -conviction by MJ alone- _ - _ -- A8-24 


-identification- _ _------------ A8-18 Presentence procedure- - - --- - -- A8-24 


-offer-_-.._--__-------------A8-18 Personal data from charge sheet: 


-objection --_--_ -----------.- A8-18 -verified by accused --_-_-_---
 A8-24 


-ruling- -- _ _ - _ _ _ - _ -- - -.- - - - - - AS-1.8 Evidence of previous convic-


-description of article for the tions..................... A8-24 


record -----._______------ AS-19 
 Matter in aggravation, mitiga- 

-authenticated official records tion, or extenuation -------- A8-24 


and banking entries ----_--- A8-19 Rights of accused-_ --____-_---
 88-24


-written stipr~lations and other Arguments ---_____-_---------
 A8-25


admissible documentary tes- Sentence instructions- - - _ -_ - --- A8-25 


timony _--_-________------ A8-19 
 Court closed for sentence--_ ---- A8-25


-confessions; admissions___. _ _ - A8-19 l'oting on sentence- - - -_____---
 A8-25 

-(explanation of accused's right Limitation on sentence_- --- _ _ _ _ A8-25 


to limit his testimony)_-- - __ AS-19 Court opens -_--_-___-__------
 A8-25 

Excluding members: Sentence-- -.______---_-__

A8-25 -in-court conference- _ ____ __ __ AS-20 

-out-of-court hearing.. - - _ ____ _ A8-20 Improper sentence---. _ _ __-_ -_ - A8-25 


(opening of hearing) - _____ __-- A8-20 


(conduct and recording of hear- c. Contempt Procedure 

ing) ____--------_-------. A8-20 


(termination of hcaring) ---_ _- _ - A8-20 Advising offender -----_-___-___
 A8-25 


Adjournment or recess- --_____- A8-20 
 Opportunity to show cause- - - _ - A8-26


Reassembling -__--__----------A8-20 Court cornposed of MJ alone.. - - A8-26 


Accounting for personnel after Preliminary ruling ------__-____ 
 A8-26


:idjournment or recess- _ _ - _ A8-20 Voting on preliminary ruling-- _ _ AS-26 


Absence of member --------_--- A8-20 Closed session -_______-_-_ - --- A8-26

GUIDE-TRIAL PROCEDURE 

c. Contempt Procedure-Continued page d. Revision Procedure-Continued Page 

Holding of contempt and punish- Adherence to former action- ---- A8-27 

ment .................... A8-26 Adjournment-- --------------- A8-27 

d. Revision Procedure 	 e. Form for Reauest for Trial before 

Proceedings in revision-- --- - - - - A8-26 Military Judge alone- _ -- _ -_ _ - - - - A8-27 

-directed by__-_-------------A8-26 f. Sample Format for Special and Court votes ------------------- A8-27 

New findings ---------------- A8-27 General Findings -------_------- 68-27 

a. PROCEDURE FOR ARTICLE 39(a) SESSION OF A GENERAL 


COURT-MARTIAL 


NOTE.The following procedure may be used prior to assembly when there is 

no approved request by the accused for trial by MJ alone. If such request has been 

received and approved, the MJ should use the procedure in App. 8b. After service of 

charges, subject to Article 35, the MJ may call an Article 39 (a) session attended by 

the accused, trial counsel and defense counsel prior to assembly of the court and 

without the presence of itsmembers. 

Certain portions of this suggested procedure may be inapplicable in an Article 

39(a) session held after assembly (e.g. request for trial by MJ alone). 

MJ : Thi~Article 39(,a) session is called toorder. 	 Session called 

to order NOTE.The reporter records all proceedings verbatim (49b, 53d), subject to 

the exceptions set forth in appendix 9 and herein. He is responsible for keeping a 

record wf the hour and date of each opening or closing of the session, whether for 

recess, adjournment, or otherwise, for insertion in the record. 

NOTE.The MJ should exahine the convening order to ascertain that the TC 

and DC are apparently qualifled. 

T C : The court is convened by (as aanendd 'by 1, Convening 

a cofpy of which has been furnished the military judge, counsel, and orders and 

referral of the accused, and to the reporter for insertion at this point in the charges

record. The charges have been properly referred to this court for 

trial and were served on the accused on 

TO: (The following corrections are noted in the convening orders : 

1 

NOTE.Distribution of the convening orders should be made su5ciently in 

advance with a request that TC be notified of errors, if any, therein. Only minor 

changes such as typographical erlrors or changes of grade due to promotion since the 

issuance of the orders can be made in this way. Any correction which affects the 

ldentity of the individual concerned must be made by an amending order. 

T C : The following persons named in the convening orders are present : 	 Persons 

present TC: The members and the follo\\ving Wrsons named in the convening Persons 

orders are absent : absent 

T C : The prosecution is ready to proceed with the trial in the case of the Presence of 

United States against accused 

(Name, rank, organization of the accused 

read from the - Charge Sheet) 

who (is) (are) present in court. 

T C : has been detailed reporter for this court (and wlill now Reporter 

be sworn) (and has previously been sworn). detailed 

NOTE.The oath need not be glven to the reporter if previously sworn, and the 

record so reflects (see Art. 42). 

TC: The legal qualifications (and sta,tus as to oaths) of all members of Legal qualifithe prosecution are correctly stated in the convening orders (except cations Of 

tha- ). 	 prosecution 

NOTE.If the !IT is not qualified as prescribed by Article 27(b), the session 

dl1 adjourn and the MJ will report the matter to the convening authority. At least 

one member of the prosecution present in court must be qualified as prescribed by 

Article 27 (b), and no person not so qualified may conduct the prosecution during the 

trial. See 6b and 45a. 
APPENDIX 8 

Prior participation by member 

of prosecution 

Inquiry 

concerning 

Article 

38(b) 

DC introduced 

Unqualified IC 

Prior 

participation 

by DC 

TC: No member of the prosecution named in the convening orders has 

acted as investigating officer, military judge, court memfber, or a meonbar of the defense in this case, >or as C(EUILS~~for .the accused at a 

pretrial bnvestiga.tion or other proceedings involving the same general matter. 

NOTE.If aw member of the prosecution appears to be disqualified, the MJ 

mill take the action indicated in 61e. See 6a. 

MJ: Have you informed the accused of his rights conceriling counsel as 

set forth in Article 38(b) ? 

DC: Yes (No) sir. 

MJ : , you have the right to be represented at this trial 

by a civilian lawyer provided by you at your, own expense. Do you 

understand? 

ACCUSED: Yes (No) sir. 

MJ : You also have the right to be represented free of charge by a military 

lawyer of your own selection if he is reasonably available. Do you 

understand? 

ACCUSED: Yes (No) sir. 

MJ: If you are represented by counsel of your own selection, civilian or 

m?litary, (name of detailed defense counseI and assistant, if any) 

will act as associate counsel, if you wish, or (he) (they) may be 

excused with your consent. Do you understand? 

ACCUSED: Yes (No) sir. 

NOTE. If the accused answers any of the inquiries concerning his rights under 

Article 38(b) in the negative, the MJ sh~ould inquire fully into the matter, and* if 

appropriate, adjourn the session for n reasonablc time to allow the accused the 

opportunity to obtain individual counsel. 

MJ : By whom will the accused be defended? 

DC: The accused is to be defended by ( , the detailed 

defense counsel) (and), ( , the detailed assistant 

defense counsel) (and) ( , individual counsel). 

A1.J : Will couilsel representing the accused state whether the legal qualifications (and status as to oaths) of the detailed members of the 

defense are other than as stated in the convening orders (and will 

individual co,unsel state his legal qualifications) ? 

DC: The legal qualifications (and status as to oaths)'of all detailed 

inembers of the defense are correctly stated ia the convening orders 

(except that ). 

IC: I am (a member of the bar of ) (certified by The 

Judge Advocate General of the under Art. 27(b) 

and I have (not) been .properly sworn.) 

NOTE. If the individual counsel is riot qualified under 480, the MJ will advise 

the accused : 

MJ : , does not possess the necessary legal qualilications to act as your coullsel for the trial of this case. You lnay be 

represented by the detailed (defense counsel) (and) (assistant defense counsel) who (is) (are) properly clunlified, or you niay attempt 

to obtain another individual counsel who is l~rogerly qualified. What 

do you desire? 

BOOUSDD : I desire [to proceed with tlie detailed (defense counsel) (and) 

(assistant defenlse counsel)] [the ~ppo~rtnnity to obbabn another 

individual counsel]. 

NOTE.If the accused does not desire to proceed with detailed counsel, the 

MJ will adjourn the session for n reasonable time to allow the accused the opportunity to obtain another individual counsel. See 58c. 

TC : Has any member of the defense (including individual counsel) acted 

2s the accuser, a ~nermber of the prosection, investigatin~g officer, 

military judge, or member of the count in this case? 
GUIDE-TRIAL PROCEDURE 

DO: 	(No counsel for the defense ha.s so acted.) ( , a mem,ber of the defense, has acted as .) 

NOTE.If a member of the defense has participated in the same case as a member 

of the prosecution, he will be excused forthwith (Blf(4)). See 6a. In other cases, 

the MJ will advise the accused : 

MJ : 	 , (the regularly detailed defense counsel) 

( ), 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 hi,s 'services in 

this case? 

ACOUSlED: I do (not). 

NOTE.If he does so request, the proceedings continue. If he does not request the 

services of the counsel, the RIJ will excuse him. 

NOTE. If the excusing of counsel not desired by the accused, because Of prior 

participation (Art. 27 (a)), deprives the accused of counsel having the requisite legal 

qualifications (480) or of qualified detailed counsel (6b), and the accused desires the 

services of such a cletailecl counsel in addition to those of his qualified IC, the MJ 

will adjourn the session and report the matter to the convening authority (61f (4) ). 

NOTE.When the accusecl is represented by qualified IC, he may state (Art. 

38(b)) : 

ACIGUSED : I (do not) desi,re the (regu1,arly detailed defense counsel) 

(and) (assistant defense counsel) to act (as associate counsel) in 

this case. 

NOTE.Counsel not desired by the accused will be excused at this time (61f(3)). 

If the accused has no indiuidual counsel and one or more detailed members of the 

defense is present and is-not to act in the case, the melnber who is to conduct the 

defense should n~ake an announcemellt similar to the foregoing, whereupon the 

counsel who are not to act will be escused. 

MJ : It appears that counsel for both sicles have the requisite qualifications. 

TC: All personnel of the court requirerl to be present have been sworn 

(except ). 

NOTD.If the military judge, trial counsel or defense counsel have not been 

previously sworn, the following procedure applies. 

TC: 	You, - , do smear (or affirm) that yon mill faithfully 

and impartially perform, according to your conscience and the laws 

applicable to trials by courts-martial, all the duties incumbent upon 

you as military judge of this court. So help you God. 

XJ: I do. 

NOTE.The military judge ad~uinisters the oath to the members of the prosecution, 

who raise their right hands: 

MJ: You, ---__.---. and do swear (or affirm) that 

you will faithfully l~erform the duties of trial co~insel in the case nolv 

in hearing. So help you God. 

TC : 	!AND ASST TC) : I do. 

NOTE.The oath is then administered by the military judge to the members of 

the defense, including individual counsel, who raise their right hands : 

: You, , ( a Mr. - - ), do swear 

(or affirm) that you mill faithfully perform the duties of defense 

(and inrliriclual) counsel in the case non: in hearing. So help yon 

Gocl. 

*DC: (ASST I)C ASL) IC) : 1 clo. 

NOTE. The TC now states the general nature of ehe charges and discloses every 

ground for challenge believed by him to esist in the case (62b). 

TC:: The general nature of the charges in this case is - ; the 

charges were yreferrecl by -----; forwarded with recommendations as to disposition by - ( . ) (and 

) ; and investigated by . The military 

judge will not be a witness for the prosecution. 

'From this point on, "DC" refers to the counsel who is conducting the defense. 

APP 0a 

Explanation 

to accused 

Action when 

counsel not 

desired 

Excusing 

counsel not 

desired 

MJ sworn 

Prosecution 

sworn 

Defense 

sworn 

Disclosing 

grounds for 

challenge 

-Nature of 

charge 
APPENDIX 8 

-grounds 

disclosed 

Challenges : 

-procedure 

-by 

prosecution 

-by defense 

Inquiry into 

request for 

MJ alone 

Request for 

enlisted 

membership 

NOTE. A11 persons who have forwarded the charges should be stated. 

TC : If the military judge is aware of any matters which he believes may 

be a ground for challenge by either side against him, he should now 

state such matters. 

NOTE. Before exercising their right to challenge for cause, the TC and DC may 

question the MJ to determine the existence of facts which may be the basis for a 

challenge for cause (62b). As to limitations on inquiry into the eligibility of MJ, 

see 62g. 

TC: The prosecution (has no challenge for cause against the military 

judge) (challenges the military judge on the ground 1. 

I'C : Does the accused desire to challenge the military judge for cause? 

DC: Nb. (The accused challenges the military judge for cause on &he 

ground ). 

MJ : The challenge is (~snstained) (denied). 

NOTE. See 62b as to disclosing grounds for challenge. If disclosed grounds for 

challenge are undisputed and are within the first eight grounds enumerated in 62f, 

the AIJ must excuse himself forthwith. If the grounds disclosed are other than the 

first eight grounds, the MJ may excuse himself. When the MJ excuges himself, he 

will adjourn the session and report the matter to the convening authority for action 

(62c, 62h(4)). 

NOTE. In every case in which the Article 39(a) session is held prior to assembly 

and the death penalty may not be adjudged, either because it is not authorized or 

because the case has been referred for trial as noncapital, the MJ should make the 

following inquiry : 

JIJ: 	The accused has nclt submitted a request in writing Eor trial before 

a military judge alone. Has he been advised of his right to submi't 

such request? 

DC : He has (not). 


MJ : Does the accused desire to request trial by me alone? 


DC : He does (not). 


NOTE.If the accused has not been so advised, the MJ should insure that the 

accused is properly advised and given an opportunity to submit a request should 

he desire to do so. See 53d(2), 61g and Article 16. 

NOTE. If the accused requests trial by the MJ alone, and the MJ approves the 

request, the MJ may announce that the court is assembled and proceed with trial 

of the case (wp 8b). Any request will be attached to the convening orders which 

are to be inserted in the record. If accused expressly declines to submit a request for 

trial by the MJ alone, or the MJ denies the request, the MJ should proceed as 

follows : 

NOTE. When the accused is an enlisted person, the MJ should ask : 

A4J: Has the accused been advised of his right to have enlisted persons 

included in the membership of tihis couri? 

DC :He has (not). 

NOTE. If the accused has not been so advised, the MJ should insure that the 

accused is properly advised and given an opportunity to submit a request should 

he desire to do so. See 61h. When the accused has been l~reviously advised, the 

MJ should inquire : 

MJ: Has the accused made a request in writing that the membership of 

the court include enlisted persons? 

TC: The accused has (not) made such a request (which is herewith 

submitted to the court). 

MJ: (This request will be attached to the convening orders which are 

to be inserted in the record.) 

NOTE. If such a request has been made and requirements for enlisted membership 

do not appear to have been met, the MJ will inquire into the matter to insure compliance prior to assembly of the court. See 61h and Article 26(c). 

NOTE. The Article 39(a) session continues., The MJ may proceed to dispose Of 

interlocutory motions raising defenses and objections, ruling upon other matters 

that may legally be ruled upon by the MJ, and performing other procedural functions 

which do not require the presence of court members. He may also, if permitted by 

regulations of the Secretary concerned, hold the arraignment, receive pleas and enter 

findings of guilty upon an accepted plea of guilty (See app 8b for procedure). See 

53d and 70b. The MJ should rule on all questions of the admissibility d evldence at 

this session. Dvidence may be admitted at this time for subsequent consideration 
GUIDE-TRIAL PROCEDURE 

by the me~nbers rather than simply marked for identiflcation. Motions for appropriate 

relief are waived if they are not made prior to plea or prior to the conclusion Of any 

Article 39(a) session held prior to assembly, whichever occurs earlier (67b and 69a). 

Rfotions to dismiss should ordinarily be made before a plea is entered (67a and Ma) 

NOTE. At the conclusion of the session, the MJ should state : 

MJ : This session is (recessed) (adjou,rned). 

6. 'TRIAL PROCEDURE FOR GENERAL COURTS-MARTIAL 

NOTE. This procedure guide may be used for a trial by a court composed of a MJ and members 

or of a RIJ alone. When the RIJ is sitting alone, lie should make appropriate omissions from the 

procedure. 

NOTE, Prior to the RfJ's calling a general court-martial to order, he should Informal 

examine the convening order, determine that the accused and a quorum are present, inquiry 

including one-third enlisted persons if they have been requested, and that the 

detailed trial counsel and defense counsel are apparently qualified. See 36c(2). He 

should also verify the qualifications of any individual counsel. See 48a. Witnesses 

should be excluded from the courtroom except when they testify. See 53f. Matters 

resolved at an Article 39(a) session need not be considered anew if the circumstances remain unchanged and accused is not deprived of any rights, such as the 

right to request, prior to assembly, trial by military judge alone, or the right of an 

enlisted person to request enlisted court members. See Article 16. 

NOTE. The members, if any, are seated alternately to the right aud left of the Seating 

president according to rank. The MJ is seated apart from the members. An acceptable 

seating arrangement appears below : 

General Court-Martial 

MJ : The court will come to order. Court called to order 

NOTE. The reporter records all proceedings verbatim (49b,53d), subject to the 

exceptio~~s set forth in appendix 9 and herein. He is responsible for keeping a 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 coalrt is convened by , (as amended by ,) Convening 

a coipy of which has been furnished to the militairy judge, each OrdkrS 

mem,ber of the wurt, catwsel, and the accused (and to the reporter 

for insertion atthis point in the rmrd). TC : (The folPowing corrections a're noted in the convening orders : -

NOTE. Only minor changes such as typographical errors or changes of grade 

due to promotion since the issuance of the orders can be made in this way. Any cor- 

'Pr~Ce~lural guides lor special and summary court-martial nlay I)e ~~rovidecl in regulations of 

the Secretary of a Department and \trill, so far as practicable, conform to that provided herein for 

general court-martial. See 78 rlnd 79. 
APPENDIX 8 

Persons present 

Persons absent 

Presence of 

accused 

Detail 

of 

Reporter 

Reporter 

sworn 

Interpreters 

Reaffirmation of 

qualifications of 

counsel 

Legal 

sualifications of 

prosecution 

Prior 

participation by 

member of 

rosecu cut ion 

Inquiry 

concerning 

Article 

380~) 

rection which affects the identity of the party conoerned must be made by an amending order. 

TC: The following persons named in the convening orders are present: 

The following persons named in the convening orders are absent: 

TC: The prosecution is ready to proceed with the trial in the case of the 

United States against 

(Name, 

rank, organization of the accused read from the 

, who (is) (are) present in court. 

Charge Sheet) 

TC: -has been detailed reporter for this court (and 

mill now be sworn) (and has previously been sworn). 

NOTE. The reporter rises and stands with right hand raised; the TC raises 

his right hand, faces the reporter and administers the oath. The oath need not be 

given to the reporter or other court-martial personnel if they were previously 

sworn and the record so reflects (Art. 49). 

TC: You swear (or affirm) that you will faithfully perform'the duties of 

reporter to this court. So help you God. 

REPORTER: I do. 

NOTE. Any interpreter used is similarly introduced and may be sworn at this 

point or just before he acts if he has not been previously sworn. See 114e as to the 

form of the oath. See 50 concerning the types of interpreters that may be utilized. 

NOTE. If an Article 39(a) session had been held prior to this time and the 

qualifications of counsel had been verified therein, the TC may state the following 

and the detailed inquiry may be deleted. 

TC: The status as to oaths, prior participation, and legal qualifications 

of all members of the prosecution is the same as was announced at 

the prior session of this trial held on . . Is the status 

as to oaths, prior participation and legal qualifications of all members 

of the defense the same as it was at that session? 

DC: 	It is (except 1. 

TC: The legal qualifications (and status as to oaths) of all members of 

khe prosecution are correctly stated in the convening orders (except that ). 

NOTE. If the TC is not qualified as prescribed by Article 27(b), the court mill 

adjourn and report the matter to the convening authority. At least one member of 

the prosecution present in court must be qualified as in re scribed by Article 27(b), 

and no person not so qualified may conduct the prosecution during the trial. See 

6b and 45a. 

TC: 	No member of the prosecution named in the convening orders has 

acted as investigating officer; military judge, court member, or a 

member of the defense in this case, or as counsel for the accused at a 

pretrial investigation or other proceedings involving the same general 

matter. 

NOTE. If any'member of the prosecution appears to be disqualified, the MJ 

will take the action indicated in 61e See 6a. 

MJ: 	Have you informed the accused of his rights concerning counsel ac 

set forth in Article 38(b) ? 

DC: Yes (No) sir. 

MJ: , you have the right to be represented at this 

trial by a civilian lawyer provided by yon at your own expense. Do 

you understand this right? 

ACCUSED: Yes (No) sir. 

MJ: You also have the right to be represented free of charge by a military 

lawyer of your own selection if he is reasonably available. Do yon 

understand this right? 

ACCUSED: Yes (No) sir. 
GUIDE-TRIAL PROCEDURE 

MJ: 	If you are represented by counsel of your own selection, civilian or 

military, (name of detailed defense counsel and assistant, if any) will 

act as associate counsel, if yon wish, or (he) (they) may be excused 

with your consent. Do yon understand this right? 

ACCUSED: Yes (No) sir. 

NOTE. If the accused answers any of the inquiries with respect to his rights 

under Article 3S(b) in the negative, the fiIJ should !nquire fully into the matter, 

and, if appropriate, adjourn the session for a reasonable time to allow the accused 

the opportunity to obtain another individual counsel. If an Article 39(a) session 

had previously been held, and the MJ had ascertained therein that the accused 

understood his rights under Article 3B(b), the RIJ need not inquire into the 

matter again at this time. 

MJ: 	By whom will the accused be defended? 

DC: 	The accused is to be defended by (-- , the 

detailed defense counsel) (and), (- , the detailed assistant defense counsel) (and) ( , individual counsel). 

MJ: 	Will coullsel representing the accused state whether the legal qualifications (and status as to oaths) of the detailed members bf the 

defense are correctly stated in the convening orders (and will individual counsel state his legal quklifications and status as to oaths) ? 

DC: 	The legal qualificatioas (and status as to oaths) of all detailed 

members of the ,defense are correctly stated in the convening orders 

(except that ). 

IC: I am (a member of the bar of ) (certified by The 

Judge Advocate General of the under Article 

27(b) and I have (not been previously sworn). 

NOTE. If the individual counsel is not qualified under 4Sa, the MJ mill advise 

the accused : 

MJ: , does not possess the necessary legal qnalifications to act as your counsel for the trial of this case. You may be 

represented by the detailed (defense counsel) (and) (assistant defense counsel) who (is) (are) properly qualified, or you may attempt 

to obtain another individual counsel who is properly qualified. What 

do you desire? 

ACCUSED : I desire [to proceed with the detailed (defense counsel) (and) 

(assistant defense counsel)] [the opportunity to obtain another individual counsel]. 

NOTE. If the accusecl does not desire to proceed with detailed counsel, the MJ 

will adjourn the court for a reasonable time to allow the accused the opportunity 

to obtain another intlividunl counsel. See 5Sc. 

TC: 	Has any member of the defense (including individual counsel) acted 

as the accuser, a dember of the prosecution, investigating officer, 

military judge, or member of the court in this case? 

DC: 	(No counsel for the defense has so acted.) ( , a member 

of the defense, has acted as .) 

NOTE. If a member of the defeuse has participated in the same case as a 

member of the prosecution, he will be escnsed forthwith (Gif(4)).See 60. In other 

cases, the MJ mill advise the accused : 

MJ: , (the regularly detailed defense counsel) (-

) , 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). 

NOTE. If llc does so request, the ~~roceedings continue. If he does not request the 

services of the counsel, the MJ will excuse him. 

DC introduced 

Qualifications 

of DC 

Unqualified IC 

Prior 

participation 

by DC 

Explanation 

to accused 
APPENDIX 8 

Action when 

counsel not 

desired 

Excusing counsel 

not desired 

Inquiry into 

reuuest for 

military jndge 

alone 

Request for 

enlisted 

membership 

Preliminary 

instructions 

NOTE. If the excusing of counsel not desired by the accused, because of prior 

participation (Art. 27(a)), deprives the accused of counsel having the requisite legal 

qualifications (48a), or of qualified detailed counsel (6b), and the accused desires 

the services of such a detailed counsel in addition to those of his qualified IC, the 

MJ will adjourn the court and report the matter to the convening authority 

(61f(4) ). 

NOTE. When the accused is represented by qualifled IC, he may state (Art. 

38(b)) : 

ACCUSED: I (do not) desire the (regularly detailed defense counsel) 

(and) (assistant defense counsel) to act (as associate counsel) in 

this case. 

NOTE. Counsel not desired by the accused will be excused at this time 

(61f (3) ). If the accused has no individual counsel and one or more detailed members 

of the defense is present and is not to act in the case, the member who is to conduct 

the defense should make an announcement similar to the foregoing, whereupon the 

counsel who are not to act will be excused. 

MJ: It appears that counsel for both sides have the requisite qualifications. 

.NOTE. In every case in which the death penalty may not be adjudged, either 

because it is not authorized or because the case has been referred' for trial as 

noncapital, the MJ should ask the two questions listed below. 

If the MJ had previously ascertained at an Article 39(a) session of this trial that 

the accused had been advised of his right to request trial by the MJ alone, the first 

question may be omitted. 

MJ : The accused has not submitted a request in writing for trial More 

a iliilitary jndge alone. Has he beell advised of his right to submit 

such a request before assembly of the court? 

*DO: He has (not). 

MJ : Does the accused desire to request trial by me alone? 

DC : He does (nat). 

NOTE.If the accused has uot been so advised the ivlJ should insure that the 

accused is properly adrised and given an opportunity to submit a request should he 

desire to do so. See 53~2, 61g and Article 16. 

NOTE. If the accused requests trial by military judge alone and the MJ approves 

the request, the I\IJ should excuse the members from further duty in the case and 

announce that the court is assrn~bled for the trial of the case. Any request will be 

attached to the convening orders which are to be inserted in the record. If the 

accused espressly declines to submit a request for trial by the military judge alone, 

or the MJ denies the request the MJ should proceed as folloms : 

NOTFI.When the accused is an enlisted man, the MJ should ask the two questions 

listed below. If the MJ had previously ascertained at an Article 39(a) session of 

this trial that the accused had been advised of his right to the presence of enlisted 

members, the first question may be omitted. 

MJ: Bas the accused been advised of his right to have enlist& persons 

included in the menllbership of this court? 

DG: He has (not). 

NOTE. If the accused has not beeL so advised the AIJ should insure that tho 

accused is properly adrised and given an opportunity to submit a request should 

he desire to (lo so. See 6111.When the accused has been previously advised, the MJ 

sllould inquire : 

I	 : Has the accused made a request in writing that the membership 

of this court include enlisted persons? 

TC: 	 !@he accused has (not) made such a request (which is herewith 

submitted to the court). 

I 	 : (This request \\rill be attavhed to the orders which are to 

be inserted in the record. ) 

NOTE. If Such a request has been made and requirements for enlisted membershil) do not a(mear to have been met, the MJ will adjourn the court and report the 

lnatter to the convening authority. See 618 and Article 25(e). 

NOTE. At this point the JIJ may give the court preliminary instructions to 

assist them during the course of the trial. These instructions are particularly desirable if thc court has not previously heard other cases, but they may be glven 

*From this point 011, "DC" refers to the counsel who is conductillg the defe~lse. 
GUIDE-TRIAL PROCEDURE 

in any case. The contents of these instructions are discretionary with the MJ, but 

they should be limited to a general discussion of the duties of the personnel of the 

court and matters concerning the proper conduct of the trial. 

NOTE. If any personnel of the court-martial must be sworn, the MJ should 

see that it is done as indicated below. If all personnel of the court-martial have 

been previously sworn, the TC should so state and the MJ may then announce that 

the court is assembled. 

TC : All personnel of the court have been sworn (except 1. 

J : The members of the court will now be sworn. 

TC : The members will be sworn. All persons please rise. 

NOTE. All persons in the courtroom stand while the oath is administered 

to the members of the court, MJ, 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 (name(s) of member(s)) do swear (or affirm) that pou will 

faithfully perform all the duties incumbent upan you as a member 

of this court ; that you will faithfully and impartially try, according 

to the evidence, your conscience, and the lams applicable &I trials 

by courts-martial, the case of (the accused now before this court) 

(any accused brought before you) ; and that you will not disclose 

or discover the vote or opinion of any particular mem~ber of the 

count upon a challenge or upon'the findings or sentence unless required do sso in due course of law. So hap you God. 

EAOH MEMBER OF THE COURT : I do. 

NOTE. If the MJ has not previously been sworn, the members lower their 

hands but remain standing while the TC administers the oath to the MJ, who raises 

his right hand. 

I"C : 	 Yoa (name of military judge) do swear (or affirm) that you will 

faithfully and impartially perform, according to your conscience 

and the laws applicable to itrials by courts-martial, all the du'ties 

incumbent upon you as military judge of this court. So help you 

God. 

1 : 	 I do. 

NOTE. If any members of the prosecution have not previously been sworn, 

the MJ administers the oath to them as they raise their right hnllds : 

MJ : You, Capbin and Lieutenant , do swear 

(or affirm) that you will faithfully perform the duties of trial 

counsel in the case now in hearing. So help you God. 

TC AND ASST TC: I do. 

NOTE.If any members of the defense have not previously been sworn the oath 

is then administered to them by the MJ as they raise their right hands : 

MJ: 	 You, iMaj0r , Lieutenant -- , (and Mr. 

,) do swear (or afiirm) that you will faithfully perform bhe duties of defense (and individual) counsel in &e case 

now in hearing. So help you God. 

DC (ASST DC AND IC) : I do. 

NOTE. All persons except the TC are then seated. 

MJ : 	 The court isassembled. 

NOTE. If it appears that any witnesses in the case are present in the courtroom, 

the MJ should announce : 

MJ : 	 Unless they are required to be present for other reasons, all persons 

expecting to be called as witnesses in *he case of 

will withdraw from the courtroom. 

NOTE. The TC now states the general nature of the charges and discloses every 

ground for challenge believed by lii~ll to exist in the case (62b). When any charge or 

specification has been withdrawn, the TC should insure that the court is not made aware that the withdrawn charge or specification was ever preferred. See 56d. If the 

MJ denied a challenge against himself at an Article 39(a) session held prior to 

Members sworn 

MJ sworn 

Defense sworn 

Disclosing 

grw* for 

challenge 
APPENDIX 8 

-nature of 

charge 

-grounds 

disclosed by 

records 

-grounds 

disclosed by 

enlisted 

members 

-grounds 

disclosed by 

members 

Challenges : 

-procedure 

-by prosecution 

(for cause) 

-by 	 defenae 

assembly, the challenge may be renewed at this time only for good cause such as 

newly discovered evidence. (62d) 

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 investigated by . Neither 

the military judge nor any member of the court will be a witness 

for the prosecution. 

NOTE. All persons who have forwarded the charges should be stated. 

TC: The records of this case disclose [no grounds for challenge] [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. 

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. 

TC:	If any member of the court or the military judge is aware of any 

matters which he believes may be a ground for challenge by either 

side against him, he should now state such matters. If a statement 

is to be made, it should be made so as to state the general nature of 

the matter and not any specific facts which might tend to disqualify 

other members when heard by them. 

NOTE. See 6221 as to disclosing grounds for challenge. If disclosed grounds for 

challenge are undisputed and are within the first eight grounds enumerated in 62f, 

the MJ must excuse himself or the member challenged forthwith. If the grounds disclosed are other than the first eight grounds, and relate to the MJ, he may excuse 

himself. If they relate to a member, his ruling on the challenge is made within his 

sole discretion. See Art. 41 and 62. 

NOTE. Before exercising their right to challenge for cause, the TC and DC may 

question the MJ and members of the court, either individually or as a group, to 

determine the existence of facts which may be the basis for a challenge for cause 

(62b). It is optional with the counsel conducting the inquiry whether a member 

being questioned shall be required to answer under oath. See 114g for the form of 

the oath. As to limitations on inquiry into the eligibility of MJ see 62g. The YJ may 

direct that the examination of the MJ or a member be conducted out of the presence 

of the remaining members of the court. 62b. 

The TC may present to the members prior to challenges copies of the charges 

and specifications upon which the accused is to be arraigned if the DC consents. 

See 627~concerning the procedure to be followed on challenges. A challenged 

member will be afforded the opportunity to make a statement with respect to the 

challenge. When the BIJ has been challenged, he shall continue to rule on interlocutory questions arising during the hearing even though he may at that time be 

making a statement as to his competency. After the hearing on a challenge for 

cause has been completed, the MJ will determine tHe relevancy and validity of the 

challenge. 

Challenges for cause should be made immediately following assembly of the 

court, but the MJ may allow a challenge for cause to be presented at any stage 

of the proceedings. Challenges for cause may again be presented, even though once 

overruled, if for good cause such as newly discovered evidence (62d). 

TC : The prosecution (has no) challenges for cause (- on 

the ground - ). 

TC: The prosecution (has no peremptory challenge) (desires to challenge peremptorily 1. 

NOTE. As to peremptory challenges, see 62e. When the right to make a peremptory challenge is exercised, the cbnllenged member will be excused forthwith. 

TC: Does (any of) the accused desire to challenge any member of the 

court or the military judge for cause? 

NOTE. When there is more than one accused, the challenges of each for cause 

are ordinarily disposed of before their peremptory challenges are made. 
GUIDE-TRIAL PROCEDURE APP 8b 

DC: No. (The accused challenges for cause on the 

ground .) 

TC : Does (any of) the mcused wish to exeMse hli's right to one peuenptory challenlge against any member? 

NOTE. Each accused is entitled to one peremptory challenge. 

DC: The accused, , (has no peremptory) challenges 

( peremptorily). ( ) . 

NOTE. See 56 concerning limitations on withdrawing all or less than all charges 

and specifications after a trial has commenced and for action to be taken at this 

or any other time when less than all of then1 are withdrawn after the court has been 

made aware of their existence. 

nm~.If the accused lias not bee11 arraigned at an Article 39(a) session, the 

military judge will announce : 

MJ : The accused will now be arraigned. 

NOTE. The TC now .should present to the members of the court and the MJ 

copies of only those charges and specifications upon which the accuaed is to be 

arraigned, unless distributed earlier with the consent of DC. 

TC: All parties to the tirial have been fu~nished with a copy of the 

charges. Does the accused des+re that they be read? 

DC : The accused (waives the reamding. of the chla,rges) (desires that the 

charges be read). 

NOTE. If the accused desires that the charges be read, the TC now reads the 

charges and specifications on which the accused is to be tried, with the name and 

description of the accuser, the affidavit, and the reference for trial. They are copied 

verbatim into the record at this point, regardless of whether the accused waives the 

actual reading of the charges and specifications. If the accused waives the reading of 

the charges, the MJ should rule on the waiver and the TC should make the following 

summary : 

MJ : The reading of the charges may be omitted. 

TC : The Cha~ges.aresigned by , a per.wn subject to the code, 

as accuser; ae p-r.ly swcnn Co before a comniissioned officer of 

the atrmed forces .authorized to admtini8ter oaths : and are pi+wperl~ 

referred to this oouat fo~r rial by ---, the convening 

authmiw. 

(for cause) 

(peremptory) 

Withdrawal 

of charges 

Arraignment 

-distribution of 

charges and 

specifications 

-charges and 

specificntions 

read 

-waiver of 

reading 

charges 

TC: The charges were served on ,the ,accused by (me) (- ) on -notice of 

service 19-. 


NOTE. Unless the date of service is at least five days prior to the date of trial, 

except in time of war, the accused may object to this defect in service (Art. 35). 

See 58c. If he does so, the court must grant n continuance at this point. 

MJ : , I now ask you, how do you plead? Before receiving 

your pleas, I advise you that ally motions to dismiss niiF chai-ge or 

to grant ,other relief should be made at this time. 

NOTE. The arraignment is complete when the accused is asked how he pleads. 

Neither pleas nor motions are part of the arraignmeut (65a). 

NOTE. If the accused had been arraigned at an Article 39(a) session held 

prior to assembly, the following procedure should be nsed in lieu of the above : 

MJ: The accused was alrraignecl at a session conducted on 

(The trial c.cyunlsel nri1.l now dimstlibute copies of the charges.) 

NOTE. TC should present to tbc members copies of only those charges and 

specifications upon which the accfised has becjs arraigneA unless distributed earlier 

with the consent of DC. 

NOTE. Motions for appropriate relief are waived if they are not made prior 

to plea or prior to the conclusion of any Article 39 (a) session held prior to assembly, 

whichever occurs earlier (67b and 69a). 3fotions to dismiss should ordinarily be 

made before a plea is entered (67n and GSa). .ill proceetlings and action on motion^ 

will be recorded. See 53d, 66, 67, GS, 69, and 122. Any explanation of the accused's 

right to move that n charge be dismissed because barred by the statute of limitations 

(53h, 68e), and the nccused's response thereto, will be recordecl. 

DC : The defense lias (no) motions to be n~ade. 

-end of 

arraignment 
APPENDIX 8 

Hearing on 

motion 

Ruling on 

motion 

Voting 

on rulings 

Amendment 

of charges 

Form of 

amendment 

after severance 

Request for 

hearing on 

guilty plea 

Form of 

explamtion of 

plea of guilty 

-consultation 

with DC 

--statute of 

limitations 

NOTE. At this point the MJ may hold a hearing out of the presence of the court 

members to determine the substance of any motions and the procedure to be 

followed in disposing of them. 

DC: The defense [moves that Specification - , Charge , be dismissed because of former acquittal, on , by a 

oourt-martila1 convened pursuant to , d'aW , 19-, of the charge of - -(reciting charge and 

specification in full)] [moves that - - 1. 

Norm. The MJ rules UIJ~all interlocutory questions arising during the proceedings. Any ruling by the military judge upon a question of law, including a motion 

for a finding of not guilty or upon any interlocutory question other than the fa&al 

issue of mental responsibility of the accused is final and constitutes the ruling of 

the court. See 57 and 71a. 

NOTE. The ruling on a motion may be : 

MJ: 	(Subject to objection by any member of the court,) the motion is 

(denied) (granted). (The accused will not be required to plead to 

Specifmition , Charge - .) 

NOTE. Before entertaining an objection to a ruling on the factual issue of 

mental responsibility, the MJ will give appropriate instructions. If a member 

objects, the court will close and vote orally, beginning with the junior in rank. The 

court determines by a majority vote whether the ruling is sustained. A tie vote on 

these motions is a determination against the accused (57f; Art. 52(c) ). 

NOTE. 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 

formalLy stated for the record. See 69b(3). For example, after a motion to sever 

is granted, the formal amendment may be in the following form: 

MJ: 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 comon intent," and 

by inserting after the word "did," the words "in conjunction with 

-," 	 the accused who is not now to be tried. Trial will 

proceed on the charges as amended. 

NOTE. When no motions are made or when the DC indicates that he has no 

further motions, the disposition of pleas will follow. If the accused entered his 

pleas at an Article 39(a) session prior to assembly and his pleas have been accepted, 

the TC should announce the pleas. 

TC: At a session of this trial held on the accused entered 

NOTE. If the accused pleaded guilty at an Article 39(a) session held prior to 

assembly, and findings of guilty were entered, the MJ should annoulllce the findlngs 

at this time if permitted by regulations of the Secretary concerned. 

HEARING ON PROPOSED GUILTY PLEA@) 

- DC : The accused intends to plead guilty to ( 

NOTE. In any case in which a plea of guilty is to be entered, the MJ should 

explain the meaning and effect of the guilty plea. This should be done out of the 

presence of the court members in the manner set forth in 70b(2) and (3). The following inquiry and explanation may be used: 

MJ: Have you had sufficient opportunity to consult with your counsel 


regarding your plea(s) in this case? 


ACCUSED : Yes (No), sir. 


NOTE.If the answer is "no," the necessary time will be made available for 

consultation. 

NOTE. If the accused pleads guilty to a lesser included offense against which 

the statute of limitations has apparently run, the MJ should insure that the 

accused is aware of his right to interpose the statute in bar of trial as to that 

offense (53F, 68c). 

NOTE. The MJ may consult with the TC and DC as to their opinions of the 

maximum authorized punishment for the offenses to which the accused plans to 

plead guilty and allow them to submit legal authority if there is disagreement. 

the following pleas: -. 
GUIDE-TRIAL PROCEDURE APP 8b 

MJ: The maximum authorized punishment for the offenlse(s) to whiuh -determination 

you propose to plead guilty is (normally) ( 1. of punishment 

NOTE. If a bad-conduct discharge would be authorized only if the accused is -advice as convicted of two or more offenses the confinement for which is six months or more, to punishment the accused should be so informed (Section B, 127~).If the maximum punishment 

would be increased by proof of admissible prior convictions after findings (75b(2) ; -effect Of 

Section, B, 127c), the advice should include the prospective effect of proof of these 

convictions. This supplementary advice may take the following form: "However, On 

[if the court receives evidence of two or more previous convictions adjudged during puNshments 

the three years next preceding the commission of any odense to which you plead 

guilty, the maximum punishment would be: a bad-conduct discharge, confinement 

at hard labor for ,forfeitz~re of a11 pay and allowances, (and 

reduction to the lowest enlisted grade; (and)] [if the court receives evidence of 

three or more previous convictions adjudged during the yew next preceding the 

commission of anv oflense to which gou plead guiltv excluding perioh oj unauthorized absence, the maximuw~ punishmknt would be: a dishonorable discharge, confinement at hard labor for , forfeiture of all pay and allowances, 

(and reduction to the lowest enlisted grade)]." 

MJ : Do you understand that the rdaximum authorized punishment for the 

.offense(s) to which you plan bo plead guilty is as I have just 

explained ? 

NOTE. If it appears that the accused was previously of the opinion that the -accused's 

maximum authorized punishment was other than determined by the MJ for the undersbandGng 

offense or offenses to which he plans to plead guilty, he will be given an opportunity of punishment to consult further with the DC and thereafter express any changes in his proposal 

to plead guilty. 

MJ: , you have 'proposed to plead guilty to (Specifi- -general 

cation , Charge ) (the lesser included exp'anatiOn 

offense of ) (all the specifications and charges). 

By so doing, you will admit every act or ombsion and every element 

alleged with respect to the offense (offenses) to which you plead 

guilty. Yow plea will subject you to (a) finding(s) of gudlty ~Cthout further proof of, (that) (thosb) offense(s), in which event you 

map be selltetlced by the court to the maximum punishment authorized for (it) (them). You are legally entitled to plead not guilty 

and place the ,burden upon the prosecution of proving your guilt of 

(that) (those) offense(s). Your plea d guilty will not be accepted 

unless it appears tha~t you understand its meaning and effect and 

that yon arc voluntarily pleading guilty because you are convinced 

that you are it1 fact guilty. If you are not convinced that you are in 

fact guilty, you should not allow any other considerations to influence 

you. 

MJ: Do you underetand th6s explanation of the meaning and effect of 

your plea ofguilty? 

ACCUSED : (Yes, sir). ( ). 

MJ : Are you voluntarily pleading guilty? 

AOUU~SDD: (Yes, sir). ( 1. -additional 

MJ : Are yon convinced that you are in fact guilty? explanation 

ACCUSED : (Yes, sir). ( 1. 

NOTE. If the MJ considers it appropriate or if required by the Secretary concerned, further inquiry and a more detailed explanation may be conducted. This may 

include, for example, n detailed explanation of the elements of the offenses, inquiry 

into the reason for the guilty pleas, and inquiry into and explanation of any agreement involved in connection with the pleas. 

MJ: Understanding the things we have discussed, do you still desire to -ve'ification 

plead guilty as previously indicated? guilty plea 

ACCUSED :Yes, sir. (I desire to plead 1. -acceptance of 

guilty plea NOTE. If the accused persists in his proposal to plead guilty and the MJ finds 

causc to doubt its providence, he may discuss the question further. In any case, the 

n1.J should ndvise the DC of his decision as to accepting or rejecting the guilty pleas : 

MJ : [The plea (s) of guilty will be .accbpted.] [The plea (s) of guilty (to 

) will not 'be accepted (,hcause 1. 
-guilty to one 

specification 

-with exceptions 

and 

substitutions 

Erroneous 

advice 

Of 

prosecution case 

Oral 

Introduction 

of witness 

Oath of 

witness 

Forlnal questions 

APPENDIX 8 

TERMINATION OF HEARING 

NOTE. The pleas are now entered in the presence of the court members. The 

accused and his counsel rise while entering the pleas. In joint and common trials, 

each accused will plead separately. 

DC : The accused : ,pleads : 

To all Specifications and Charges : (Not guilty) (Guilty) 

or 

To Specification 1of the Charge :Guilty 

To specification 2 of the Charge :Not guilty 

To the Charge :Guilty 

or 

To Specification - , Charge 

Guilty, except the words " " and " I, 

(, substituting therefor, respectively, the words " 9, 

and " ," 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. 

MJ : The plea(s) of guilty (is) (are) (is not) (are not) accepted. 

NOTE.If a plea of guilty has been entered an8 it appears later that the accused 

was erroneously advised that the maximum punishment was other than that legally 

authorized for the offense or offenses to which he pleaded guilty, the IIJ should 

advise him of the correct maximum punishment and give him an opportunity to 

withdraw his plea of guilty. See 70b for other situations which may warrant the 

withdrawal of an accepted guilty plea. 

NOTE. Findings of guilty of the charge and specification may, if permitted by 

regulations of the Secretary concerned, be entered immediately without vote after a 

plea of guilt). has been accepted by the MJ (70b).Findings are entered when the 

11s announces that the accused has been found guilty in accordance with his plea. 

A sample announcement which may be used when the accused has pleaded guilty to 

all charges and specifications is as follows : 

MJ : , it is my duty as military judge to inform you 

that, in accordance with your pleas of guilty, this court finds you, 

of all the specifications and charges :Guilty. 

TC : The prosecution has (no) (an) opening statement. 

NOTE. NO opening statement is required, and none should be made unless it will 

clarify the procedure to be followed by the TC. See 44g(2) as to matters that may be 

included in this statement when one is made. In this connection, also see 44?(3). 

TC : With the consent of the accused, the prosecution and defense stipulate 

NOTE. Prior to the acceptance of any stipulation, the MJ should determine that 

the accused joins in the stipulation. See'154b. 

3IJ : The stipulation is (not) accepted. 

TC : The prosecution calls as a witness 

NOTE. When the witness is sworn, he rais- his right hand, and the TC 

ndministers the oath. 

TC: 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. 

WITNESS: I do. 

NOTE.A witness may be sworn by the oath indicated or by any oath recognized 

by his religion, or by such acts or ceremony us he declares binding on his conscience 

(112d).As to the coinl~eteucy of witnesses in general, see 148a. 

NOTE. The witness no\\, takes his seat in the witness chair. Usually the first 

two questions asked every witness are formal and are asked by the TC, whether the 

witness is 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 

of the accused, if he knows. In appropriate cases, it will not be necessary to ask the 

second question, such as when the identity of the accused has already been 

established. 

NOTE. Questions ithd answers are recorded exactly as spoken. Physical events 

which occur, and witnesses' identifications and illustrations given by motions, by 

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 assistance 

of the TC, DC, and MJ if necessary. If a witness points or gestures the record 

must indicate what he points'to or how>e gestures. 

NOTE.At the beginning of testimony given through an interpreter, the record 

will indicate that an interpreter was used, but the questions and answers are recorded 

in the manner indicated above. See 114e as to form of oath and 50b as to 

technique of questioning through an interpreter. 

NOTI.At the conclusion of direct examination the 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. See 149b(1). 

DC: The defense has no (further) questions. 

NOTE. If the defense cross-examines the witness the TC may conduct a redirect 

examination; after he has concluded, the DC may similarly conduct a recrossexamination. See 149b(2).When both the TC ancl DC have concluded their questions 

the TC asks the court : 

TC: Are there any questions by the court? 

NOTE.Any member wishing to question the witness first secures the permission 

of the MJ. The MJ may limit questioning and may require questions to be submitted 

to him in writing (149b(3)).Written questions, whether or not allowed by the BIJ, 

should be appended to the record as appellate exhibits. See 54b. 

If either the TC or DC wishes to ask further questions of the witness after his 

examination has been turned over to the court, permission of the MJ should be 

secured. These rLquests should, in general, be granted, subject to the MJ's discretionary power to limit or reject superfluous interrogation However, 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 parties will be permitted 

to cross-examine the witness uDon the new matter. See 149b 13). 

When questioning of the witness is concluded, the MJ anuounces : 

MJ: 	The witness is excused (, subject to recall). 

NOTE.Unless 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: 

MJ: 	You are instructed not to discuss your testimony in this case with 

anyone except the counsel or the accused. You mill 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 in this case, you should 

make the circumstances lrnomn to the counsel for the side originally 

calling you as a witness. 

NOTE.When a witness is recalled, the TC reminds the witness, after he has 

appeared before the court : 

TC: You are reminded that you are still under oath. 

NOTE.Objections are treated as follows : 

TC: What was the accused carrying? 

DC : Objection. Any answer to that question is immaterial. 

NOTE.After hearing pertinent argument, if :my, either before the members of 

the court or out of their presence as appropriate (see 57g(2)),the ruling should be 

made in substantially the following form : 

Direct 

examination 

Use of 

interpreter 

Crossexamination 

Redirect and 

recrossexamination 

Examination 

by the court 

Excusing 

witness 

Warning 

witness 

Recalled 

Objections: 
APPENDIX 8 

Striking 

testimony: 

Admission for 

limited purpose 

Exhibits : 

-marking for 

identification 

MJ: The objection of defense counsel is (sustained) (overruled). 

NOTE. Any remarks or testimony ordered stricken are nevertheless fullu recorded, although they are not considered by the court as evidence (82b(2)). For 

example : 

TC: What was the color of the hat that the accused was wearing? 

WITNESS: According to what the police officers told me, he was wearing 

a bIack Homburg. 

DC: I move that answer be stricken as hearsay. 


MJ: The answer will be stricken, and the court is instructed to disregard it. 


NOT& The MJ should give such further instructions in this regard as he 

deems appropriate. When evidence is admitted only for a limited purpose, the RfJ 

should give appropriate limiting instructions. See 57a(2), 1389, 1400, and 

153b(2) (c). 

NOTE. If documentary evidence or other material things had been admitted in 

evidence at previous Article 39(a) session of the trial, counsel may with the permission of the military judge simply read or show the evidence to the court members. 

If the documentary evidence or other material things have not previously been 

admitted in evidence, the following procedure should be followed : 

DC: Request that the reporter mark this exhibit for identification. 

NOTE. The reporter is responsible for keeping a list of exhibits marked for 

identification, and also as finally admitted in evidence. Prosecution exhibits should 

be numbered consecutively ; defenxe 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 a tag a5xed thereto, the appropriate 

number or letter and state, for example : 

REPORTER: This will be Defense Exhibit C for identification. 

NOTE. The exhibit is shown to the other side, which is given an opportunity to 

examine it. 

DC (TO WITNESS): Do yon recognize Defense Exhibit C for identification? 

WITNESS: I do. 

DC: What is it? 

WITNESS: 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 

Exhibit C [and permission is requested to withdraw it at the conclusion of the trial and substitute (a written description) (true copy) 

(photograph ) therefor]. 

TC: I object because 

NOTE. An exhibit need not be offered in evidence at the time referred to by 

the witness, and may be held for introduction later in the trial. However, opposing 

counsel must be given an opportunity to examine it in order that proper crossexamination of the witness in regard to the exhibit may be conducted. 

NOTE. After the offer is made, 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 MJ as to whether the exhibit will be admitted in evidence. At his 

discretion, with or without request by either counsel, the M.7 ]nay direct that 

these arguments be heard in an out-of-court hearing. See 57g(2). 

MJ: The objection is (sustained) (overruled). [Defense Exhibit C for 

identification is admitted in evidence as Defense Exhibit Cl [and 

a (description) (true copy) (photograph) may be substituted]. 
GUIDE-TRIAL PROCEDURE 

NOTE. Unless the testimony of a witness has developed a full and accurate 

description of an object to be withdrawn later (54d),counsel or the MJ should at 

this time give a verbal description of the object for the record. Any description substituted for real evidence should be accepted by both sides. If there is any disagreement, it will be resolved by a ruling of the RZJ. 

NOTE. If an exhibit is marked for identification but not admitted in evidence, 

either it, or a description, true copy, or photograph thereof should be appended 

to the record (54d). 

NOTE. If a writing which is to be attached to the record is read to the court 

in its entirety, the record need only state that the exhibit was read, and it is 

unnecessary to quote the writing verbatim in the record. However, when there are 

any deletions, interpolations, or alterations in the reading, or if it is interrupted 

by other matters, the record should reflect the csact circumstances. 

NOTE. Properly authenticated' official records and banking entries are marked 

by the reporter and shown to opposing counsel. See 143b(2) and (3) concerning 

their authentication. In an appropriate case the offer may 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. Prior to the acceptance of a written stipulation the MY should determine that the accused joins in the stipulation. See 154b. A written stipulation of 

facts or of the content of a writing are offered and admitted in the normal manner 

prescribed for prosecution and defense exhibits, and they may be both read and 

submitted to the members of the court. When a written stipulation of testimony 

or other testimony contained in documentary form, such as a deposition, is ruled 

admissible, the document or an appropriate part thereof is read in evidence, it is 

marked as an appellate exhibit for appending to the record, and the document 

itself is not shown to the members of the court. See 145 and 154b (2). 

NOTE.Before the confession or admission of the accused can be introduced in 

evidence against him, there must be an affirmative showing that it was voluntarj 

(14Oa). If the RfJ considers it necessary, he may satisfy himself that the accused 

is aware of his right to testify for the limited purpose of showing the circumstances 

under which the statement was made or that he did not in fact make the statement without subjecting himself to cross-examination upon other issues (149b).The 

MJ may do this, out of the hearing of the court members, by inquiring of the DC 

as to whether the accused has been so advised or by explaining the right to the 

accused in accordance with 53h and 140a as follows : 

MJ : , the prosecution has offered in evidence a statement 

allegedly made by you and has introduced evidence tending to show 

that it was voluntarily made by you. As the accused in the case you 

have the right at this time to introduce any evidence you may desire 

relevant to the circumstances under which the statement was obtained or relevant as to whether the statement was or was not in fact 

made by you. You also have the right to take the stand at this time 

as a witness for the limited purpose of testifying as to these matters. 

If you do that, whatever you say will be considered and weighed as 

evidence by the court just as is the testimony of other witnesses. 

You may be cross-examined upon your testimony, but if you limit your 

testimony to the circumstances surrounding the taking of the statement or as to whether the statement was or was not in fact made by 

you, you cannot be cross-examined on the question of your guilt or 

innocence of the offense itself, nor can yon be asked on cross-examination whether the statement is true or false. In other words, you 

can only be cross-examined upon the issues concerning which you 

testify and upon your credibility, but not upon anything else. 

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 take the 

stand yourself will not be considered as all admission that the statement was voluntary or that it was ill fact made by you, nor can your 

silence be commented upon in ally way by the trial counsel ill 

addressing the court. Do you understand your rights? 

ACCUSED: Yes, sir. ( .) 

MJ: Proceed. 

--description of 

article for 

the record 

-authenticated 

official records 

and banking 

entries 

-written 

stipulations and 

other admissible 

documentary 

testimony 

-confessions : 

admissions 

-(explanation of 

accused's right 

to limit his 

testimony) 
APPENDIX 8 

Excluding 

members : 

-in-court 

conference 

-out-of-court 

hearing 

(opening of 

hearing) 

(conduct and 

recording of 

hearing) 

(termination of 

hearing) 

Adjournment or 

recess 

Accounting for 

personnel after 

adjournment or 

recess 

Absence of 

member 

New member : 

NOTE. AS previously indicated, certain motions may be properly made out of 

the presence of the court members. Additionally, other matters should be conducted 

out of their presence, view, or hearing. See, for example, 53h, 57a(2), 57g(2), and 

73d. The procedure for an in-court conference requested by counsel may be as 

follows : 

DC(TC) :I would like to confer with the military judge out of the hearing 

of the members of the court. 

MJ: Counsel for both sides, the accused, and the reporter will come 

forward. 

NOTE. In-court conferences and any action thereon are normally recorded 

verbatim. See 39c. 

NOTE. The out-of-court hearing rather than the in-court conference is appropriate for dealing with matters which will require more than a short period of 

time to resolve. When the MJ decides to hear a matter out of the presence of the 

members, he should advise them that an out-of-court hearing is required and of 

the approximate time that will be required to conduct it. He should then declare a 

recess or adjournment as may be appropriate. The hearing should be held in substantially the following manner : 

MJ: 	This out-of-court hearing will come to order. Let the record show that 

during the (adjournment) (recess), this hearing is being held out of 

the presence of the members of the court. It is attended by the military judge, the accused, counsel for both sides, and the reporter. 

NOTE. The necessary proceedings are now held. They are recorded and incorporated in the record as indicated in 57g(2). Prior to concluding the hearing, if he 

makes a ruling or decision at this time, the MJ should announces it. 

MJ: This out-of-court hearing is terminated. 

NOTE. In the event of adjournment (a period extending beyond the same day) 

or a recess, the procedure should be substantially as follows : 

MJ: 	The 

19-) . 

court will (adjourn) (recess) until hours (, -

MJ: The court will come to order. 

NOTE. If the place of trial is changed, or the court reassembles at a place other 

than that where it adjourned, the TC will so state for the record. See 54e as to 

views and inspections. 

TO : A11 parties bo hhe trial who were present when the court (adjourned) 

(recessed) are again present in the court (except ). 

NOTE. The term "parties to the trial," as used above, includes the mllibary 

judge, counsel, the accused, the reporter, and, when appropriate, the members of 

the court and the interpreter. It also includes a witness who was not excused prior 

to the adjourning, recessing, or closing of the court. If a member of the court is 

absent from a session at which the presence of members is required after assembly, 

the absence must be shown to have been the result of challenge, physical disability, 

or the order of the convening authority (41d(4) ; Art. 29(a)). The reason for the 

absence must be reflected in the record even if it resulted from removal by the 

convening authority (see 577)). 

TC : Let the record reflect that is absent because (he is 

seriously ill) (he has been removed from the court ,by order of the 

convening authority because . I request that this 

copy of -orders, No. , daed , be appended to 

bhe record). 

TC: Captain is now present and has been detailed 

to the court by 

NOTE. If such a member was detailed by the same orders as convened the 

court, it will be so announced; if by an order not previously incorporated in the I

record, the trial counsel will announce : 

TC: 	A copy of the orders detailing Captain will be 

attached to the orders convening the court which are to be inserted 

in the record. 

NOTE. Proceedings concerning excusing, swearing, and cllallenging of the new 

member are substantinlly as for original members. If the individual joins the Court 

as n member, the trial continues : 
GUIDE-TRIAL PROCEDURE 	 APP 8b 

MJ: 	The record of all prior proceedings in this case which were held 

in the presence of the cou~t members will lbe read to the new member 

by the reporter. 

Norn. After the record is read : 

MJ : The proceedings having #been read to date, the (trial counsel) (defense 

counsel) may proceed. 

NOTE. When the prosecution has completed its case: 

TO : The prosecution rests. , 

NOTE. The DC may appropriately make any motion for a finding of not guilty 

at this time or after the defense lias rested, or both. The RIJ rules finally on a motion 

for a finding of not guilty (57,71a,Art. 51(b)). 

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, escept that the TC administers the oath to all witnesses and asks the 

first formal questions. The DC then takes over direct examination, and the further 

examination of the witness continues in the normal manner. See 149b. 

NOTE. The accused may take the stand as a witness in his own behalf, but only 

at his own request. If he elects to remain silent, no comment can be made upon his 

silence. If he testifies concerning certaln specifications only, cross-examination by the 

TC and the court must be limited accordingly. See 148c, 149b(1), and 15Ob. When 

the accused elects to testify, the DC should announce : 

DC: The accusecl elects to take the stand and testify as a witness in his 

own behalf. His testimony will (concern all the charges and specifications) (be limited to 

NOTE. The MJ may assume that the accused has been correctly advised of his 

rights to testify. However, when he considers it necessary, he mag, out of the hearing 

of the court members, inquire of the DC as to whether the accused lias been advised 

of his rights, or give the explanation below or both (53h). 

MJ : 	 , 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 evidence 

by the court just as is the testimony of other witnesses, and you call be 

cross-examined on your testimony by the trial couilsel and the court. 

(The following may be used if there is more than one specification: 

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 subject of those 

offenses concerning which you do testify, but you will not be questioned about any offenses concerning which you do not testify unless 

the cross examination is relevant to an offense concerning which you 

did 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 witaess stand yourself will not count against you in 

any way with the court. It will not be considered 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 accused 

NOTE. Should the accused elect to take the stand as a witness, the TC will 

administer the oath and ask the following preliminary question, after which the 

procedure follows that of other defense witnesses : 

TC : State your full name, rank, organization, and station. 


ACCUSED : 


TC : Are you the accused in this case? 


ACCUSED : Yes, sir. 


NOTE. When he defense has completed its case : 

-reading record 

Prosecution 

rests 

Motion for a 

finding of not 

guilty 

Presentation of 

the defense case 

Accused as 

a witness: 

-explanation 

of rights 

-preliminary 

questions 
APP 8b 

Defense rests 

Rebuttal 

Recall and 

reopening 

the case 

Witness called 

by court 

Hearing on 

instructions 

Argument., 

by counsel 

Conclusion 

of case 

Charge to court: 

-guilty pleas 

-not 	 guilty pleas 

(co~~cluding 

charge) 

APPENDIX 8 

DC : The defense rests. 

Norn. The TC may call or recall witnesses in rebuttal; thereafter, the DC 

may call or recall witnesses in rebuttal. Upon completion of any rebuttal testimony, 

the TC should announce : 

TC: 	The prosecution has no further evidence to offer. Does the defense 

have any further evidence to offer? 

DC : It does (not). 

NOTE. The MJ may permit or cause the recall of any witness, including the 

accused, and the reopening of the case by either or both sides for the introduction 

of testimony previously omitted (1400). 

TC : Does the court wish to have any witnesses called or recalled? 

MJ: It does (not). 

NOTE. The right of the members of the court to cause the recall of a witness or 

to call for additlonal evidence is subject to an interlocutory ruling by the MJ as to 

the propriety therefor. See 54b. 

Unless the MJ directs otherwise, the TC will conduct the direct and redirect 

examination of witnesses called by the court in the same manner as if the witness 

had been called by the prosecution. However, the MJ may permit the court members 

to question the witness directly, or he may do so himself, at any time after the 

TC has asked the initial formal questions. See 149b(3) for details concerning the 

proper examination of a witness by the court or a member and for limitations which 

the MJ may place on this examination. 

NOTE. Before arguments, the MJ may hold a hearing out of the presence 

of the court for the purpose of discussing proposed and requested instructions. 

See 73. 

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 or 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 facts of the case and how they relate to the law involved. 

Oral arguments are recorded verbatim. A written argument will be attached as an 

exhibit for the side which presented it. 

NOTE. If there are more than one accused, the counsel for each accused may 

make separate argument. 

After arguments or waiver thereof : 

MJ : Has the prosecution anything furtherto offer? 

!PC : It has (not). 

MJ : Has the defense anything further to offer? 

DC : It has (pot). 

NOTE. Before the court retires into closed session the MJ will, in open session, 

instruct the court (Art. 51 (c)). 

NOTE.If there is an accepted plea of guilty to an offense and a finding of guilty 

has not been entered without vote, the MJ may invite the attention of the court 

to the fact that no further proof of the offense to which the plea relates need be 

introduced by the prosecution to warrant a finding of guilty of that offense (73~). 

NOTE. The instructions given by the MJ will necessarily vary in each case 

because of the different facts and circumstances involved. The MJ shall give the 

mandatory instructions required by 73 and Article 51(c) and any additlonal 

instructions required by the law in light of the circumstances of the case. When an 

issue is raised as to the admissibility of a confession or admission, he should instruct 

the court as to the effect of his ruling admitting the statement and the duty of the 

court in this regard. See 140a. In addition the MJ may instruct, on his own 

initiative or request of counsel, upon any additional matters which he considers 

appropriate. For example, see the matters covered in 73c, 74a, and 74d. 

NOTE. The MJ may appropriately conclude his instructions with the following 

additional charge : 

MJ: 	The final determination as to the weight of the evidence and the 

credibility of the witnesses in this case rests solely upon you members 

of the court. You must disregard ally comment or statement made 

by me during the course of the trial which may seen1 to indicate an 

opinion as to the guilt or innocence of the accused, for you alone have 

the independent responsibility of deciding this issue. Each of you must 
GUIDE-TRIAL PROCEDURE 

impartially resolve the ultimate issue as to the guilt or innocence of 

the accused in accordance with the law, the evidence admitted in 

court, and your own conscience. 

NOTE. The MJ may provide the court with a findings worksheet to assist the 

court in making its findings, If used, the findings worksheet should be attached to 

the record as an appellate exhibit. 

RtJ : The court will be closed. 

NOTE. Only the membd'rs of the court will be present during deliberation and 

voting (74d(1)). If a separate room is provided for deliberation by the members, 

all members retire to this room. Otherwise, all persons including the MJ leave the 

courtroom except the members of the court. Neither the RIJ nor counsel may consult 

with the members in closed session. Advice of the MJ may be sought when necessary 

but the court will be opened and the advice mill be obtained in open session in the 

presence of both counsel and the accused. These proceedings shall be made a part of 

the record. See 74e and Articles 26 (b) and 39. 

NOTE. When the court has been closed the members deliberate and vote on 

the findings. See 74 for the method of voting ; the number of votes required, and rules 

applicable to reconsideration of the findings. 

NOTE. After a general court-martial has finally voted on the findings in closed 

session, the court may open and ask the RIJ for assistance so that it may put the 

findings in proper form. (74f(l)) Advice may also be requested in open session at 

any time before a final vote is taken on findings in any case of doubt which mag 

arise (74e). 

The president, before announcing the findings, may present them to the MJ to 

permit him to esan~ine them for defects in form. If ~t appears to the RIJ that the 

court has made an ambiguous or inconsistent finding, he may give the court additional instructions. Befiore doing so, he should advise both sldes of the circumstances requiring the additional instructions and permit argument thereon. See 

74d(3) concerning reconsideration of findings and 749 regarding correction of 

incorrectly announced findings. 

MJ: The court will come to order. 

TC: 41 parties to the trial who were present when the court closed are 

ilolv present (except ). 

Nore. If the accused is found not guilty of all specifications, the mesident announces : 

PRES : , it is my duty as president of this 

court to advise you that the court in closed session and upon secret 

written ballot has found you not guilty of (the) (all) Specific'stion(s) and Charge(s) . MJ : The court will adjourn tomeet on future call. 

Norm. Only the required fraction of votes should be announced, not the actual 

number of members who concurred in the findings of guilty (740). 

PRES : , it is my duty as president of this court 

to inform you that the court in closed session and upon secret wi-itten 

ballot (two-thirds) (all), of the nlembers present at the time the vote 

was taken looncurring in each finding of gdlty, finds you : [Of (all) 

the Specification (s) and Charge (s) : Guilty] [Of Specification 

, Charge - : (Guilty) (Not guilty). Of 

charge : (Guilty) (Not guilty). Of Specification 

, Ciharge - : Guilty, except the wor& 

" and " " (, substituting therefor, 

respectively, the words." and " ,"of the 

excepted words, not guilty, of the substituted words, guilty). Of 

Charge : (Guilty) (Not guilty, bat guilty of a violation @€ A~ticle ) 1. 

NOTE. If the accused has been tried by the RIJ alone and only general findings 

are involved, the MJ will announce as listed below. For special findings see 74i, and 

nppendix Sf. 

RIJ : , it is my duty as military judge to advise you that 

th,is court findls yon not guill~ty 02 (the) (a~ll) Specification(s) and 

Chfarge(s). The court mill adjourn to meet on future call. 

Court closed 

for findings 

Closedsession 

Voting on 

findings 

Additional 

advice on 

findings 

Findings 

-acquittal 

-conviction 

(itemized) 

(with exceptions 

and SUbStitUtiO"S) 

-acquittal 

byMJ 
APPENDIX 8 

--conviction 

by MJ alone 

Presentence 

procedure 

Personal dab 

from charge 

sheet : 

-verified by 

accused 

Evidence of 

previous 

convictions 

Summary of 

information 

from personnel 

records for 

sentencing 

purposes. 

Matter in 

aggravation, 

mitigation, or 

extenuation 

Rights of 

accused 

MJ : , it is my duty as military judge to inform you that 

this court finds you : [Of (all) the Specification (s) and Charge (s) : 

Guilty] [Of Specification - . Charge 

(Guilty) (Not guilty). Of Clha~ge : (Guilty) (Not 

Guilty). Of Specification , Charge 

Guilty, exceplt the words " " and " f 

(, substituting &herefor, respectively, bhe wsords " ,, 

and " ", of the exce- words, not guilty, ob the 

sublstitmted wouis, guilty). Of Charge : (Gdlty) 

(Not guilty, but guilty of a violation of Article )I. 

NOTE. For further instructions as to the forms of findings, see 74 b and o; for 

example of proper findings, see the pertinent portions of 158 and appendices 10a and 

15a. 

1MJ: 	The court will now hear the personal daba concerning the accused 

sho~wn on the charge sheet, and any &her information from his personnel record^ relevant to sentencing and will receive evidence of 

previous convictions, if )any. 

TC : The first page oif the charge sheet shows the following data concerning the accused : 

TC: Dws the accused have any objection to the data as read? 

DC: (He does not.) (The accused objects ko 1 

NOTE. If any of the data are in error, corrections should be made. Errors 

claimed by the accused which the TC is not readily able to verify will, if of minor 

importance, be noted in the record and no further action taken upon them; if of 

material importance the MJ may direct veriflcatlon of the error claimed before 

the court proceeds to rote upon the sentence. 

NOTE. If the TC has no evidence of admissible previous convictions, he should 

state : 

TC : I haw no evidence of previous convictions. 

NOTE. If the TC has evidence of admissible previous convictions, it is marked, 

offered in evidence, and admitted in the same manner as prescribed above for other 

documentary evidence. See 75b (2). 

NOTE. At this time the TC may present to the MJ any personnel records of 

the accused or copies or summaries thereof as provided in paragraph 75d. The 

MJ mill determine what information from these records is relevant to the imposition of an appropriate sentence. If before court members, the TC will read the 

relevant information to them or have the documents marked as exhibits, made a part 

of the record, and presented to the court members. 

NOTE. This is the proper time for counsel to introduce matter in aggravation, 

if admissible (see 75b(3) ), and matter in extenuation or mitigation and for the 

accused to make a statement if he desires 75c). 

NOTE. The MJ may assume that the accused has been correctly advised of his 

rights to testify. However, when he considers it necessary, he may, out of the 

hearing of the court members, inquire of the DC as to whether the accused has been 

advised of his rights, or give the explanation below, or both (53h) : 

MJ: 	, you are advised that you may now present evidence 

in extenuation or mitigation of the offense(s) of which you stand 

convicted. You may, if yon wish, testify under oath as to these matters, or you may remain silent, ul which case the court will not draw 

any inferences froill your silence. In addition, you may, if you wish, 

make an unsmcrm statement in mitigation or extenuation of the 

offense(s) of which you stand convicted. This unsworn statement is 

not evidence, and you cannot be cross-mamined upon it, but the prossecntion may offer evidence to wbut anything con~tained in the statement. The statement may be oral or in writing, or both. You may 

make it yourself, or it may be luade by your counsel, or by both of 

you. Consult with your counsel and advise the court what you desire 

to do. 

DC : The accused -

NOTXI. Aqf oral statement made by the accused or his counsel will be recorded 

verbatim. Any statement submitted in writing need only be attached as a defense 

exhibit. 
GUIDE-TRIAL PROCEDURE 	 APP 8c 

NOTE. After presentation of matters in estenuation and mitigation by the 

clefense and rebuttal by the prosecution, if any, counsel for both sides may present 

argument for an appropriate sentence. See 75c. 

NOTE. Before closing the court for deliberation and voting on the sentence, 

the MJ shall instruct the court as required by 76b(l) and any other matters required by law. In addition the MJ may instruct, on his own initiative or request of 

counsel, upon any additional matters which he considers appropriate. For example, 

see the various other matters contained in 76. He may provide the court with a 

sentence work sheet similar to that in appendix 13 to assist the court in formulating 

its sentence, but if used it should be appended to the record as an appellate exhibit. 

See 81 for rules relating to rehearings and new and other trials. 

MJ: The colurt will be closed. 

NOTE. Only the members of the court will be present during deliberation and 

voting (76b(2)). For this purpose, the members may retire to another room or all 

persons other than the members may be cleared from the courtroom. The i\IJ should 

not enter this closed session for any reason ; however, the court may be giren additional instructions in open session when it so requests or when the MJ considers 

it appropriate (76b (4)) . NOTE. See 76b(2) concerning the method of voting, 76b(31) for the number 

of votes required, and 76d regarding sentence reconsideration. 

NOTE. The sentence must be within the maximum limits prescribed in chapter 

XXV. As to rehearlngs and new and other trials, see Sld and Article 63. The court 

will adjudge a single sentence for all the offenses of which the accused was found 

guilty. A separate sentence must be adjudged for each accused. 

MJ: The court will come to order. 

Norn. The president, before announcing the sentence, may present it, in writing, 

to the MJ for his examination. If the MJ notes any ambiguity or apparent illegality, 

he should bring the irregularity to the attention of the court. See 76c concerning 

reconsideration of sentence. 

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 customary for the accused to stand immediately before the officer 

a~nouncingthe sentence. 

NOTE. AS in the case of findings, only the required fraction of votes should be 

announced, not the actual number of members who concurred in the sentence. 

NOTE. See 760 concerning the action of the MJ on any ambiguous or illegal 

sentence, sentence reconsideration, and correction of any incorrectly announced 

sentence. 

NOTE. If the accused has been tried by the MJ alone the MJ announces : 

MJ: , it is my duty as military judge to inform you that this 

count sentences you bo 

MJ : Has the prosecution any other cases to try at this time? 

TC : Ihave nothing further. 

I\IJ : The court will adjourn tomeet on future call. 

c. CONTEMPT PROCEDURE. See 118 and Article 48. 

NOTE. The following is applicable to general and special courts-martial. 

NOTE. When it becomes necessary for a court to take summary action on a 

contempt (118a), an example of its proceedings would be: 

&IJ (PRES) : The proceedings in the case now before the court will be 

suspended. , you (have used menacing words and gestures in the presence of this count) (have dbwtu~bsd the proceedings 

of this court by (riotous and) (disorderly conduct) ( 1. 

As bhe record will show, poa (have been warned repeatedly about 

your conduct) (have persisted in disturbing the paoceedings of this 

court) ( ). For example, you (hare threatened the oourt 

116th action you will take against it because of its rulings ;) (have 

been contemptuous and insolent in your objections and arguments :) 

Arguments 

Sentence 

instructions 

Court closed 

for sentence 

Voting on 

sentence 

Limitation 

on sentence 

Court opens 

Sentence 

Improper 

sentence 

Adjournment 

Advising 

offender 
APP ad 	 APPENDIX 8 

Opportunity to YOU now have an opportunity 20 show cause why you should not 

show cause be held in conlteanpt. 

NOTE. After hearing pertinent argument and evidence, if any, the following 

ruling will be made : 

MJ: The court holds you (not) guilty 09 contempt [and adjudges me of MJ alone following punishment: (to pay to the United States a fine of $50 

and to be aonfined at hard labor for 10 days) ( ) 1. 

Preliminary NOTE. In a court-martial wlth members, the following procedure is applicable ruling 	 after evidence, if any, has been presented, pertinent arguments have been heard, 

and such instructions have been given as will enable the members to understand 

the issue before them and the legal standards and procedure by which they will 

determine it if objection is made to the prdimiwry ruling (118b): 

MJ (PRES) : Subject to objection by any member of the court, it is my 

ruling that you should (not) be held in contempt. 

NOTE.If, as a result of a ruling of the MJ or the president of a special courtmartial without a MJ that is not objected to, there has been a preliminary determlnation that the person involved not be held in contempt, the court will resume its 

regular proceedings. 

Voting on NOTE.If any member objects to a ruling of the MJ or the president of a preliminary special court-martial without a MJ, the court will close and determine by majority 

ruling vote whether the ruling shall be sustained. See 11821.A tie vote shall be a determination in favor of the person involved. 

Closed NOTE.If, as a result of the vote of the court, or a ruling of the MJ or the 

sewion president of a special court-martial without a MJ that is not objected to, there has 

been a preliminary determination that the penson involved be held in contempt, the 

MJ, or the president should give any instructions he considers appropriate, and the 

court will determihe in closed session whether the person involved should be held 

in contempt, and, in the event it so determines, will assess a punishment. See 118a. 

Thereafter, the court opens and: 

Holding of PRES : Itismy duty as president of this coiurt toinform you that the comt, contempt and 

punishment 	 in closed session and upon secret written ballot, [has held you not guilty 

of contempt of this court] [two-thirds of the members pesent at the time 

the vote mas taken concurring, holds you guilty of contempt of this court. 

And also in closed session and upon smt written ballot, Itwo-bhirds of the 

members pres0n.t at the time the vote was taken mncu~ring, adjudges the 

folowing punishment: (To pay to the United States a fine of $50 and to be 

confined at ha~dlabor for 10 days) (- 11: 

MJ (PRES) : Proce&d with the case. 

d. REVI~IONPROCEDURE. See 80 and Article 62. 

NOTD. The following is applicable to general and special courts-martial, and 

should be inodified when these proceedings are conducted by a MJ alone. 

Proceedings in (MJ) (PRES) :The court will come to order. 

revision TC : All parties who were present ,when the court adjourned are now present (except ) . (Additionally, the following are 

present in the capacity indicated: -.
 ) 

NOTE.NO mention need be made of those who were not present at the close 

of the pre~ious session unless they are now present. No member will sit in revision 

proceedings who was not present at the close of the last session attended by members, but all members who were present at the last session should be there. However, 

valid proceedings may be conducted when a quorum is present, if any absent member or members have been properly excused. See 41d(4) and Article 29(a). See 8071 

regarding the presence of other parties to the trial and the requirement that proceedings in revision may be taken only by the MJ who adjudged the findings and 

sentence, if trial was by MJ alone. 

-directed by TC:	These proceedings in revision have b'een (directed by the f0110WiTlg 

communication : -which will be inserted at this 

point in the record) (undertaken by the court on its own motion in 

order to ). 

NOTE.The MJ, or the president of 11 special court-martial without a MJ 

should give the court any instructions necessary for tlie proper nccomplishment of 

the revision action, and lie also may be requested by tlie court to give additional 

instructions concerning pertinent matter bout which it is in doubt (80~).The case 

will not be reopened by calling witnesses or otherwise. 
GUIDE-TRIAL PROCEDURE APP 8f 

(MJ) (PRHS) : The court will be closed. 

NOTE. After deliberation, action, and voting as is appropriate, the proceedings Court votes 

conrtinue. 

(MJ) (PRES,): The court will come to order. 

TC: All parties who were present when the court closed are now present 

(except ) . 

PRES : The court in closed session and upon secret written ballot, (two- findings 

thirds) (all) of the members present at the time the vote was 

taken concurring in each Anding of guilty, revokes ibs former 

findings and subsbitutes therefor the following finclings : -

NOTE. The findings should then be announced in one of the forms prescribed 

In appenddx 8b. 

PRES : The court in closed session and upon secret written ballot, (two- New Sentence 

thirds) (three-fourths) (all) of the members present at the time the 

rote was taken concurring, revokes its former sentence and snbstitutes the following therefor : -

Norm. The sentence should be stated in one of the forms prescribed in appendix 

13. 


PRES : The court was closed and upon secret written ballot, (a majority) Adherence to 

(two-thirds) (three-fourths) (all) of the members concurring former action 

the court adheres to its former 

(MJ) (PRES) : The court mill adjourn to meet on future call. Adjournment 

NOTE.The record is authenticated in the same manner as the record of trial. 

See appendix 9b. 

e. FORM FOR REQUEST FOR TRIAL BEFORE MILITARY JUDGE ALONE 

UI~lted States of Amerim Request for Trial Bdme Military v. Judge Alone (b.16, UMCIJ) 

I have bem informed that (name and rank of mmilitwy judge) is the military judge 

detailed .to the court-martial bo which the charges and specifications pending against me 

have been referred for trial. After consulting with my defense counsel, I hereby requeslt that 

the court be cmposed of the military judge alone. I make bhis request with full knowledge 

of my right to be tried by a au~t-martila1 compolsed of (commissioned) officers (and 

misted pmsmnel) . 

,19-. 

(Dated) Accused 

Prim to the signing of the foregoing request, I advised fully the a,bove accused of 

his right to trial before a c'ourt-martial compsed of (comnisdoned) officers (and of his 

right to have such court consist of at least one-third enlisted members not otf his unit upon 

his request). 

-, IS-. 

(Dated) Defenw Counsel 

Argument is (not) requested. 


Tria,l Counsel 


I apprrove (disapprove) the foregoing request for trial before me alone. 

, 19-. -- (Dated) Military Judge 

f. SAMPLE FORMAT FOR SPECIAL AND GENERAL FINDINGS 

United States of America \ 

V Headquarters, 111 Corps, Ft Hood. 

Sergeant Jean Birdbath : ) 'PECIAL AND GENERAL FINDINGS 

OOO-O(M00, US Army, Company A, 

2nd B'aktalion, 2d Infantry. I 
APP 89 APPENDIX 8 

On 7 January 1970 charges were preferred against the accused, Sergeant Jem 

Birdbath, 00(rW000, alleging desertion on or almut 15 August 1968 from his organization, to wit: Company A, 2d Battalion, 2d Infantry, located at Ft Hood, Texas, 

until he was apprehended on or about 28 December 1969 in violation of Article 85, 

UCMJ. 

On 15 January 1970 the accused was served with a copy of the chtarges, which 

were referred to trial by general court-martial by the Commanding General, I11 

Corps, on 12 January 1970. Thewter, the accused, after consultation with counsel 

and knowing the identity of the mililtary judge, requested in writing under Article 

16(1)(B), UCMJ, that he be tried by a court composed only of a military judge. 

On 15 February 1970 the accused having appeared with counsel, enttxed a plea 

of not guilty to desertion but guilty to the lesser included offense of absence without 

leave, in violation of Article 86, UCMJ. 

The issues raised by said pleading were duly heard before this court on 16 February 1970 and evidence received from the Government and the accused. 

This court decides and finds as follows: 

SPEXIAL FINDINGS 

1. The accused, Sergeant Jean Birdbath, alt all the times herein mentioned was 

and now is a member of the United States Army. 

2. The accused, Sergeant Jean Birdbath, did on 15 August 1968, absent himself 

without proper authofi,ty from his organization, to wit: Company A, 2d Battalion, 

2d Infantry, located at Ft Hood, Texas. 

3. The accused, Sergeant Jean Birdbath, intended at the time of absenting himself, 

to remain away perm'anently from his organization. 

4. The accused, Sergeant Jean Birdbath, remained so absent until 28 December 

1969, when he was apprehended st San Francimsco, California. 

5. The testimony of Sergean,t Richard Roe, a witness for the defense, was unworthy of belief. Sergeant Roe, a friend of the accused stated that accused told him 

he inltended to return to his unit after a short absence. Sergeant Roe's answers were 

given in a halting, hesitant and evasive manner. Hims friendship for the accused, 

his demeanor on We stand, and inconsistencies in his testi~mony convinced me that 

he was not telling the truth. 

6. Prosecution evidence supporting the element of intent to remain absent permanently was most ccxmpelling. It ms whom thxt the accused attempted to dispose of 

his uniform at the time he ahted himself; that he used an assumed name daring his 

unlawful absence; that he accepted permanent civilian employment, and that he 

expressed dissatisfaction with military service. 

7. Upon the evidence in this case the accused is guilty beyond reasonable doubt 

of desertion tednated by apprehension as charged in the specificaltion of the charge. 

GENERAL FINDINGS 

Sergeant Birdbath, it is my duty as military judge to inform you that this court finds 

you of the specMcation and charge :Guilty. 

Dated :17 February 1970. GREGORYHm 

Military Judge 

g. SUMMARY 

The su~mmaries of records of the accused for presentencing pumses (75d) will 

be authenticated as follows : 

CERTIFICATION: I certify that I am the official custodian of the personnel 

records of the above-named service member and that the above information has 

been truly and accurately extracted and summarized therefrom. 

Typed name, gra'de, and psition d custodian Signtature of Custodian 
-- 

Appendix 9 

GUIDE FOR PREPARATION OF RECORD OF TRIAL BY 

GENERAL COURT-MARTIAL AND BY SPECIAL 

COURT-MARTIAL WHEN A VERBATIM RECORD IS 

PREPARED 

la. RECORD OF TRIAL 

NOTE. Erasures or interlineati~ns should be initialed by those who Erasures 

aubhenticate the record. 

Pages will be num~bered at the Jmttom ; margins of 2% inches will be 

left at the top to permit lbinding, and 1inch at the bottom and left side 

of each page, using legal size paper. 

Words on the margins of this appendix are not part of the form of notes 

record. 

As a general rule, all proceedings in the case should be recorded ver- Record to be 

batim, including oral arguments, subject to the instructional notes and comp'ete 

examples ahown in appendix 8 and herein. Also see 39c, 57g (2),and 73d in 

this connection. 

ThL appen.d;ix is not a complete record of trial. It 6s to (beused by the Of guide 

reporter and trial counsel as a guide in the preparation of the completed 

record of trial in all general and special court-martial cases in which a 

verbatim record is ,prepared. See 82 for instructions pertaincing to the 

prepanation of a reco~d of trial by general court-martial and $3 for hstructions pertaining to the preparation of a record of trial by special 

court-martial. The reporter and trial counsel should also consult appendix 

8, as it shows the manner in which many item's of procedure should be 

recorded. 

RECORD OF TRIAL Title 

(Last name, first name, middle initial) (Service number) (Rank or grade) 

(Organization and armed force) (Station or ship) 

by 

COURT-MARTIAL 

Convened by 


(Title of col~vening authority) 


(Command of convening authority) 


Tried a,t 


on 19-


(Place or places of trial) (Date or dates of trial) 


NOTE.The title should be followed by an index. The form for this index will 

be as prescribed in publications of the Secretary of a Department.However, it should 

cover important phases of the trial, witnesses who testified, and exhibits that are 

appended to the record. 
APP 9a 

Copies of record 

Receipt for record 

Certificate in 

lieu of receipt 

Convening orders 

Accounting for 

personnel 

Presence of 

accused 

Swearing 

reporter 

Time 

APPENDIX 9 

copy of record furnished the accused as per attached certificate or receipt. 

copy (ies) of record forwarded herewith. 

RE)CEIIPT FOR COPY OF RECORD 

I hereby acknowledge receipt of a copy of the above-desertbed record 

of trial, delivered to me at this day of 

,1L. 

(Signature of acoused) 

CDRTIFIGArn 

(Place) (Date) 

I cerWy that on this day delivery ,ofa copy of the abve-dabed 

record of trial, including all exhibits admitted in evidence or descriptions 

thereof, was made to the accused, at 

(Name of accused) (Place of 

delivery) (Means of effecting delivery, i.e., mail, messenger, etc.) 

and that $he 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 forwa~dedas soon as it is received. 

(Signature of trial counsel) Proceedings of a court-martial which met (at) 

(on board) , at -hours, 19-, 

pursuant to the following orders : 

Nmn. Here insert a copy of the orders convening the court and copies of any 

amending orders. Any request of an enlisted accused for enlisted court members 

will be inserted immediately following the convening orders, together with any 

declaration of the nonavailability of such enlisted persons (36c(2)). 

Any request for trial by military judge alone (531d(2),61g) or statement that 

qualified defense counsel (6c) or military judge (1571) could not be obtained will 

also be inserted at this point. 

PERSONS PRESENT 

PERSONS -,SENT 

NOTE.List military judge, if any, and all members of the court, prosecution, and 

defense as present or absent, as announ* by the trial counsel. The record of an 

Article 39(a) session or trial by the military judge alone need only reflect that the 

members are absent and need not list the absent members by name. Only rank or 

grade and name should be shown unless service number is necessary to distinguish 

between ,two persons. 

The following named accused (was) (were) presenst : 

The detailed reporter, , (was sworn) (had previOUS~~ been sworn). 

NOTE. The remainder of the record of trial follows the actual proceedings in 

court. The reporter records all the proceedings verbatim, subject to the instructions 

set forth in appendix S and herein. 

NOTE.The reporter 'should 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) (session) was called to order at -hours, 19-. 

The (court) (session was) (adjourned) (recessed) at -hours, 19-. 

The court (closed) (opened) at -hours, 19-. 
GUIDE-VERBATIM COURT-MARTIAL RECORD APP 90 

NOTE.It is not necessary to record verbatim the oath aotually used, whether Administration 


it be administered to a witness, a challenged member, the militnry judge, counsel, of oaths 


or the court members. RegardJess of the form of oath, affirmation, or ceremony by 


which the conscience d the witness is bound (112d; app. Sb), only the fact that 


a witness took an oath or affirmation is to be recorded. However, if preliminary 


qualifying questions are asked a witness prior to the administration of an oath (see, 


for example, 148b), the questions and answers should be recorded verbatim. These 


preliminary questions and answers do not eliminate the requirement that an oath 


be administered. The following are examples of the recording of the adminisbration 


of various oaths. 


The detailed interpreter, , (was sworn) (had 


previously been sworn). 


The (members of the cou~t) (,bhe mdlitar-y judge) and the per-sonnel 


of the prosecution and defense (mere sworn) (had previously been sworn). 


(The challengecl member was sworn to testify concerning his compe- 


tency to act as a member of the court, and testified as follows:) 

NOTI. After the reporter is sworn, he will record verbatim the statements Accounting for 

of the trial counsel with respect to the presence or absence of personnel of the personnel during 

court, counsel, and the accused. The reporter should note whether, when a witness trial 

is excused, he rrithdrau,~ from the courtroom or, in the case of the accused, whether 


he resumes his seat. Similarly, if the militar~ judge excuses a member as a result 


of challenge and the member withdraws tlte reporter should note this fact in the 


record. In a special court-martial without a military judge, if a challenged mem-


ber withdraws from the court while it votes on a challenge, is excused as a result 


of challenge, or resumes his seat after the court has voted onaa challenge, the 


reporter should note this fact in the record. 


Examples of the manner in which such faots should be recorded are as follows: 

The (witness withdrew from the courtroom) (accused resumed his 

seat at the counsel table). 

, the challenged member, withdrew from the 

court. 

resumed his seat as a member of the court. 

NOTE. The testimony of a witness will be recorded verbatim in a form similar Recording 

to that set forth below for a prosecution witness : testimony 

. was called as a witness for the prosecution, 

was sworn, and testified as follows : 

Questions by the prosecution : 

Q. State you^ full name, (etc.) 

CROSS-EXAMINATION 

Questions by the defense : 

Q. -. 7 


REDIRECT EiXABIIKATION 

Questions by the prosecution : 

Questions by the defense : 
APPENDIX 9 

EXAMINATION BPTHE COURT 

Questions by (the military judge) (court member's name) : 

Q. ? 

A. 

REDIRECT EXAMINATION 

Questions by the prosecution : 

Q. ? 

A. 

RECROSS-EXAMINATION 

Questions by the defense : 

A. 

Out-of-court NOTE.Out-of-court hearings and Article 39(a) sessions should be recorded 


hearings and and incorporated in the record of trial. See 53d and 579(2). 


Article 39 (a) 


sessions b. AUTHENTICATION OF RECORD OF TRIAL 


(1) By general or special court-martial with me?nbers and a military 

judge 

Military Judge 

(Captain) (Colonel) 

Military Judge [or (LTJG) (1LT). * , Trial 

Counsel, because of (death) (disability) (absence) of the 

military judge] [or (LCDR) (Major) * , a 

member in lieu of the military judge and trial counsel because of (death) (disability) (absence) of the military judge, 

md of (death) (disability) (absence) of the trial-counsel] 

(2) By general or special court-martial consisting of only a military 

judge Military Judge 

(Captain) (Colonel) * 

Military Judge [or (LTJG) (1 LT), * , Trial 

Oounxl, because of (death) (disability) (absence) of the 

military judge] [or the court reporter in lieu of the military 

judge and trial oounwl because d (death) (disability) (absence) of the military judge and of (death) (disability) 

(absence) of the trial counsel] 

(3) By special cow.rt-martial without a military judge President 

(CDR) (LTC) *-

President Tor (LTJG) (1LT) * 

Trial Counsel, because of (death) (disability) (absence) of 

the presiclent] [or (LT) (CPT) * a member in lieu of the president and the trial counsel because of (death) (disability) (absence) of thepresident and 

of (death) (disability) (absence) of the trial counsel] 

*NOTE.The further identification of members, MJ, or counsel as to grade 

organization, etc., will be as indicated in the orders convening the court. If there 

is any change therein, the identification should show the presen,t grade and 

organization followed by "formerly 

c. EXAMINATION OF RECORD BY DEFENSE COUNSEL 

NOTE.When the defense counsel has examined the record of trial prior to its 

being forwarded to the convening authority, the following form is appropriate: 

Form "I have examined the record of trial in the foregoing ca~se. 

(Captain) (Lieutenant) , Defense Counsel" 

A9-4 
GUIDE-VERBATIM COURT-MARTIAL RECORD 

d. CERTIFICATE OF CORRECTION 

19-. 

{Jnited States Form 

v. 


The record of trial in the above case, which was tried 	by the 

court-martial convened by , dated 

19-, (at) (on board) - , 011 19-, is corrected by the insertion on page , 

of the following : 

"The detailed reporter, 	 -, was sworn." Correction 

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. 

No~n. The certificate of correction is authenticated as indicated above for the Authentication 

record of trial in the case. 

Copy of the certificate received by me this &JTof Accused's 

,19-. 	 receipt for 

certificate 

(Signature of accused) 

NOTE. The certificate of correction will be bound at the end of the original Disposition 

record immediately before the action of the convening authority. in record 

e. ARRANGEMENT OF ORIGINAL RECORD WITH ALLIED PAPERS. 

See 82b(5) concerning appendages to the record of trial. When forwarded to the 

appropriate Judge Advocate General, a record of trial by general or special courtmartial will be arranged in the sequence required in publications of the Secretary of a 

Department. 

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 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 complete copies of the record will be 

prepared. In this connection, see 49b(2), 82, and 83a. When copies of the record are 

required to be forwarded to the convening authority or to the appropriate Judge Advocate General th,ey will be bound separately and inclosed with the original record 

of trial. In this c~~nneetion, see 82g (2). 

immediately following line -, 
- - 

Appendix 10 


GUIDE FOR PREPARATION OF RBCORD OF TRIAL BY 

GENERAL COURT-MARTIAL AND BY SPElCIAL 

COURT-MARTIAL WHEN A VERBATIM RECORD IS 

NOT PREPAREID' 

a. RECORD OF TRIAL WITH A MILITARY JUDGE 

NOTE. See first three marginal notes at beginning of appendix 9a. If a verbatim record is not 

prepared (see 7, 82b(l), and 83b), a summarized report of testimony, objections, and other proceedings is permitted. In the erent of an acquittal of all charges and specifications, or termination of 

the proceedings prior to findings with prejudice to the Government, the record may be further 

summarized and need only contain sufficient information to establish lawful jurisdiction over the 

accused and the offenses. 

The procedure in special courts-martial will follow that provided in regulations of the Secretary 

of the Department which will, so far as practicable, conform to that prescribed in 8ppendices 80 and 

8b for trials by general courts-martial. See 78 and 79.This appendix is to be used as a general guide ; 

the actual record may depart from it in numerous particulars. The manner of summarizing several 

items of procedure is shown in appendix 9a. 

NOTE. All records of trial should begin as follows : 

RECORD OF TRIAL Title 

of 

(Last name, first name, middle initial) (Service Number) (Grade) 

(Organization and armed force) (Station or ship) 


by 


- COURT-MARTIAL 

Convened by 


(Title of convening authority) 


(Command of convening authority) 


Tried at 


-on 19-
 (Place or places of trial) (Date or dates of trial) 


COPIES OF RHCORD 

copy of record furnished the accused as per attached COpiesof 

receipt. record 

copy (ies) of record forwarded herewith. 

RECEIPT FOR COPY OF RECORD 

I hereby acknowledge receipt of a copy of the above-described record Receipt for 

of trial, delivered to me at this -day of record 

19-. 

-

( Signature of accused) 


PROCEEDmINGS OF A COURT-MARTIAL 


(1)ARTICLE 89 (a) SESSION. The summarized record of an Article 39(a) 

39 (a) session should proceed as follows : sesslon 

*But see 82b(l)and 83b as to the authority of the Secretary of u.Department. 
App 100 

Convening 

orders 

Time of Session 

Mllitary Judge 

and counsel 

present and 

abaent 

Accused and 

defense counsel 

present 

Swearing 

reporter: 

interpreter 

Qualification 

of prosecutjon 

counsel 

Prior participation of 

prasecution, 

counsel 

Inquiry 

concerning 

Article 

380~) 

Qualification of 

defense counsel 

Prior participatio~ 

of defense 

counsel 

APPENDIX 10 

The military judge called the Artiole 39(a) session to order (at) 

(on board) , at -hours ,19-, 

pursuant to the following orders : 

NOTE. Here insert a copy of the convening orders and copies of any amending 

orders. Any request of an enlisted accused for enlisted court members will be 

inserted immediately following the convening orders, together with any declaration of the n,onavailability of such enlisted persons. Any request for trial by the 

military judge alone (53d(2), 61g) or statement that qualified defense counsel 

(6c) or military judge (15b) could not be obtained will also be inserted at this 

point. 

NOTE. The reporter should note and record the time and date of the beginning 

and ending of each session of the court. 

For example : 

The session was called to order at -hours, 

19-. 


The session (adjomned) (recessed) at -bouns, 


19-. 

PERSONS PRESENT 

PERSONS ABSENT 

The accused and the following (regularly detailed defense counsel 

and assistant defense counsel) (oounwl introduced by hlim) were present : 

The following detailed (reporter) (and) (interpreter) (xvas) (mere) 

(had previously been) sworn : 

NOTE. Applicable only when a reporter or interpreter isused. 

The trial counsel stated that the legal qualifications and status as 

to oaths of all members of the prosecution were correctly stated in the 

convening orders except as indicated below. 

The trial counsel further statecl that no member of the prosecution 

had acted as investigating officer, military judge, court member, or as 

a member of the defense in this case, or as co~insel for the accused at a 

pretrial investigation or other proceeding involving the same general 

matter except as indicated below. 

NOTE. If a member of the prosecution is disqualified because of prior participation, the disqualifying fact will be shown, together with the action taken under 

61e. 

The military judge ascertained that the detailed defense counsel had 

informed the accused of his rights concerning counsel as set forth in Article 

38(b). The military judge askecl the accused if he understood that he hat1 

the right to be represented by civilian counsel if the accused provided him : 

that he had the right to be represented by military coqnsel of his owl1 

selection if reasonably available; and that if he did have counsel of his 

own selection, his detailed defense counsel and assistant defense counsel 

~vould act as associate counsel if the accused so desired. 

,The accused responded that he understood his rights with respect to 

counsel. 

The defense co~ulsel statecl that the legal qualifications ~ncl status 

as to oaths of all members of the defense were correctly stated in the 

convening orders except as indicated below. 

NOTE. Legal rlutllificatio~ls of a counsel for tl~c defense not sliown in the conrellillg orders, including individual counsel, will be shown. If the detailed defensv 

counsel of n sl)ecial court-martial which could not adjudge a bail-conduct discharge, 

was not qualified under Article 27(b), the record sliould reflect that the accused 

had been afforded the opportunity to I)e represented by qualified counsel and he 

had declined or that qualified counsel could not be obtained. 

The defense counsel stated that no nlember of the defeuse had actc.d 

as the accusey, a memtber of the prosection, investigatiug officer, military 

judge, or member of the court in this case except as indicated below. 
GUIDLSUMMARIZED COURT-MARTIAL RECORD 

NOTE. If a member of the defense has acted as a member of the prosecution, 

the record will show that he was excused and withdrew from the court. If a member 

of the defense acted in another capacity, the record will show that the military 

judge explained to the accused that this counsel could represent him only at his 

express request, and that the accused so requested, or that suitable action was 

taken, either by excusing the particular counsel or by adjournment pending the 

procurement of a counsel satisfactory to the accused (61f (4)). Appendices 8a and 

87I show the procedure to be taken. 

The following detailed members of the defense were excused by the 

military judge at the express request of the accused:- 

The military judge, and the personnel of the prosecution and defense 

who were not previously sworn in accordance with Article 42(a) were 

SWOlTl. 

The prosecution and each accused were extended the right to challenge 

the military judge for cause. 

The military judge was (not) challenged for cause (by ) 

(on 6he ground thalt ). 

NOTE. The record should show the grounds for the challenge, a summary of 

evidence presented, if any, and theaction taken. 

The military judge ascertained that the accused had been advised of 

his right to request trial by the milibai-y judge alone and that the accused 

did not cTesire to submit such a request. 

NOTE. If the accused requests trial by the military judge alone, the action 

on the request should be indicated as follows : 

The military judge (approved) (disapproved) the accused's request 

that he be tried by the military judge alone. 

NOTE. If the military judge approved the accused's request for trial before 

the military judge alone, the record should reflect, "The Article 39(a) session was 

terminated and the military judge announced that the court was assembled." The 

proceedings following assembly should then be summarized, using the applicable 

portions of this guide. Appendix lOa(2). 

NOTE. If the military judge clisapproves the accused's request for trial by 

the military judge alone, the fact of such disapproval must be recorded, and if 

the military judge gives any reason for the disapproval, the reason should be 

summarized. 

Norn. When the accused does not submit a request for trial before the military 

judge alone or such request is disapproved, the continuing proceedings would be 

summarized as follows : 

NOTE.If the accused is an enlisted person : 

The trial counsel announced that the accused had (not) made a request in writing that the membership of the court include enlisted persons. 

The defense counsel announced that the accused had been advised of his 

rights in this respect prior to trial anmd had stated that he did (not) desire 

enlisted persons as court members. 

NOTE. A11 further proceedings disposing of interlocutory matters, including 

rulings upon the admissibility of evidence will be summarized. Exhibits admitted in 

evidence, or offered but excluded, should be identified in the summarization (8271 (5), 

83). Matters relating to arraignment, pleas, and entry of findings will be summarized 

as indicated in Appendix lOm(2). 

The session adjourned at -hour&, IS--. 

(2) OTHER SESSIONS. 

The court m5 called to older (at) (on board) 

at hours, 19 , pursuant to the folLowing 

orders : 

NOTE. Here insert a copy of the convening orders and copies of any amending 

orders. Any request of an enlisted accused for enlisted court members will be 

inserted immediately following the convening orders, together with any declaration 

of the nonarailability of such enlisted persons. Any request for trial by the military 

judge alone (53d(2), 61g) or statement that qualified defense counsel (6c) or 

military judge (15b) eould not be obtained will also be inserted at this point. 

If the above documents were previously inserted in the record of an Article 39(a) 

session of the case, they need not be re-inserted at this point. 

App 100 

Defense excused. 

Personnel 

sworn 

Challenge : 

military judge 

Requeat for trial 

by military judge 

abne 

No Request 

Request 

Disapproval of 

request 

Enlisted 

membership 

Convening 

orders 
App 100 APPENDIX 10 

Time of wsion 

Military judge, 

members of the 

court, and counsel 

present and 

absent 

Accused and 

defense counsel 

present 

Swearing 

reporter ; 

interpreter 

Qualification of 

prosecution 

counsel 

Prior participation 

of prosecution 

counsel 

Inquiry 

concerning 

Article 

3803) 

NOTE.If a11 convening orders were inserted in the record at the Article 39(a) 

session, the record need only reflect, "The court met (at) (on board) 

at -hours 19-, pursuant to the orders previously inserted in 

the record." 

NOTE.The reporter should note and record the time and 'ate of the begiming 

and ending of each session of the court, including the opening and closing of the 

court during trial. 

For example: 


The md was called to toat hours, 


19-. 

The court (adjourned) (recessed) at hours, 

IS-. 


me court (closed) (loplenerl) at hours, 


IS-. 

PERSONS PRESENT 

PERSONS ABSENT 

The accused and the following (regularly detailed defense counsel and 

assistant defense counsel) (counsel introduced by him) were present: 

The following detailed (reporter) (and) (interpreter) (was) (were) 

(had previously been) sworn : 

NOTE.Applicable only when a reporter or interpreter is used. 

NOTE.If an Article 39(a) session had been held prior. to this time and the 

qualifications of counsel had been verified therein, the record a* this point may 

simply reflect : 

The trial counsel stated that the status as to prior participatim and 

legal qualificatiops of all members of the prosecution was the same as was 

announced at 6he prior session of this Ma1 held on 

The defense counsel stated that the status as to prior participation and 

legal qualifications of all members of the defense was the same as was 

announced at the prior session of this trial held cm 

NOTE.If qualifications of counsel had not previously been verified, the record 

should reflect : 

The trial counsel stated that the legal qualifications and status as to 

oaths of all members of the prosecution were correctly stated in the convening orders except as indicated below. 

Thetrial counsel further stated that no member of the prosecution had 

acted as investigating officer, military judge, 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 except 

as indicated below. 

NOTE.If a member of the prosecution is disqualified because of prior participation, the disqualifying fact will be shown, together with the action taken under 

61e. 

The military judge ascertained that the detailed defense counsel had 

informed the accused of his rights concerning counsel as set forth in 

Article 38(b). The military judge asked the accused if he understood that 

he had the right to ibe represented by civilian counsel if the accused provided him; that he had the right to 'be represented by military counsel of 

his own selection if reasonably available, and that if lie did have counsel 

of his own selection, his detailed defense counsel and assistant defense 

counsel would act as associate counsel if the accused so desired. 

The accused responded that he understood his rights with respect to 

counsel. 

Nore. The inquiry concerning the accused's knowledge of his rights ullc1t.r 

Article 38'(b) need not be made at this time if it hnd been made nt n prior Article 

39 (a) session. 
GUIDE-SUMMARIZED COURT-MARTIAL RECORD App 10a 

Qualification of 

defense counsel 

Prior participation 

of defense 

counsel 

Defense excused 

Request for tnial 

by military judge 

alone 

No request 

Request 

Disapproval of 

request 

Enlisted 

membership 

Personnel 

Challenges 

The defense counsel stated that the legal qualifications and status as to 

oaths of all members of the defense were correctly stated in the convening 

orders except as indicated below. 

NOTE. Legal qualifications of all counsel for the defense not shown in the 

convening orders, including individual counsel, will be shown. If the detailed defense 

counsel of a special court-martial which could not adjudge a bad-conduct discharge 

was not qualified under Article 27 (b), the record should reflect that the accused had 

been afforded the opportunity to be represented by qualified counsel and declined 

or that qualified counsel could not be obtained. 

The defense counsel stated that no member of the defense had acted 

as the accuser, a member of the prosecution, investigating officer, military 

judge, or member of the court in this case except as indicated below. 

NOTE. If a member of the defense has acted as a member of the prosecution, 

the record mill show that he was excused and withdrew from the court. If a member of the defense acted in another capacity, the record will show that the military 

judge explained to the accused that this counsel could represent him only at his 

express request, and that the accused so requested, or that suitable action was 

taken, either by excusing the particular counsel or by adjournment pending fihe 

procurement of a counsel satisfactory to the accused (61f(4)). Appendices 8a and 

8b show the procedure to be taken. 

The following detailed members of the defense were excused at the 

express request of the accused : 

The military judge ascertained that the accused had been advised of 

his right to request trial by the military judge alone and that the accused 

did not desire to submit such a request. 

NOTE. If the accused requested trial by the military judge alone, the action 

on the request should be indicated as follows : 

The military judge (approved) (disapproved) the accused's request 

that he 'be berid by the military judge alone. 

NOTE. If the military judge approved the accused's request for trial before the 

military judge alone, the record should reflect that the military judge immediately 

announced that the court was assembled. The proceedings following assembly should 

then be summarized, using the applicable portions of this guide. 

KOTE. If the military judge clisnpproves the accused's request for trial by the 

military judge alone, the fact of such disapproval must be recorded, and if the 

military judge gives any reason for the disapproval, the reason should be summarized. 

NOTE. When the accused does not submit a request for tdal before the military 

judge alone or such request is disapproved, the continuing proceedings would he 

summarized as follows : 

NOTE. If the accused is an enlisted person, the record should reflect. 

The trial counsel announced that the accused had (not) made a request 

in writing that the membership of the court include enlisted persons. The 

defense counsel announced that the accused had been advised of his rights 

in this respect prior to trial and had stated that he did (not) desire 

enlisted persons as court members. 

NOTE.The seconcl statement collcerl~ing defense counsel's announcement should 

be omitted if the lnilltary judge had previously ascertained at an Article 

session that the accused had been advised of his right to the presence of enlisted 

members, and if the military judge did not again inquire into this matter at the 

session with members present. 

The military judge, members of the court, and the personnel of the 

prosecution and defense who mere not previously sworn in accordance 

with Article 42(a) mere sworn. 

Each accused was extended the right to challenge any member of the 

court or the military judge for cause and to exercise one peremptory 

challenge against any member. 

The following inembers of the court (and the military judge) were 

excused and withdrew for the reasons stated opposite their respective 

names : 

Captain (excused without challenge as being the 

accuser). 
APPENDIX 10 

Arraignment 

at Article 

39(a) session 

Arraignment 

Convening 

authority 

identified 

Motions 

Pleas 

Explanation of 

plea guilty 

Opening 

statement 

Testimony 

Lieutenant (excused upon challenge for cause by 

the ,accused). 

Lieukenant (excused upon perempborg challenge 

by bhe accused). 

There was no contest with respect to the challenging of any of the 

members for cause except as indic&ted below. 

NOTE. Insert a summary of the proceedings with respect to each contest. For 

rsainple, if a member or the military judge was challenged for cause, but was not 

excused from the court, the record will show the grounds for the challenge, a summary 

of evidence presented, if any, and the action of the military judge. 

NOTE. If the arraignment took place at the Article 39(a) session and the 

accused pleaded therein, the record need only reflect, "The military judge announced that the accused had been arraigned at n pre~eous session of this trial 

held on 

The accused pleaded as follows : 

To all the Specifications and Charges : (Not Guilty) (Guiltj) 

or 

To the Specification of Charge I : (Not Guilty) (Guilty) 

To Charge I : (Not Guilty) (Guilty) 

etc. 

NOTE. If the accused pleaded guilty at an Article 39(a) session, and findings 

of guilty were entered, the record should also reflect that the military judge 

reported the findings to the members. 

me accused mas then arraigned upon the following charges and 

specifications : 

NOTE. Insert the charge sheet here. Use the accused's cop'y of the charge sheet 

to prepare his copy of the record. If sufficient copies of the charge sheet are not 

available, copy rerbatim 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. 

-was in command on the .date o~f he refer-

(Name and rank) 

ence for trial. 

NOTE. The substance of any motions made by the defense before pleas are 

cntered will be recorded, together with the ruling of the military judge thereon. 

NOTE. The pleas of the accused will be entered in the following form: 

The (acoused pleaded as follows: 

To all the Spedficatioas &nd Char,ges : (Not Guilty) (Gu.ilty) 

To charge I : (Not Guilty) (Guilty) 

etc. 

NOTE.When there is n guilty plea and the military judge has explained its 

ineaning and effect (70b), the record should show : 

The niilitary judge explained !o the acc~lsed the meaning and effect 

of his plea of gu~,ilty, after which the accused answered that he uilderstood 

(but persisted in his plea .of guilty) (and stated that he desired to change 

his plea of guilty to not guilty) (-). 

NOTE. When authorized by regulations of the Secretary concerned, findings 

of guilty of any ch.arge and specification may be entered immediately ~ritllout rotc 

nftcr n plea of guilty has been nccepted and the record should so reflect if this 

has been done. The findings are entered by the announcement of the military judge 

that the accused has been found guilty in accordance with his plea (7071 and 

u1)l)cndis Sb ) . 

PRE8ENTATION OF PROS'EC'UTION CASE 

The trial counsel made (an) (no) ope~iing statement. 

NOTE. The record will contnin n summary of the testimony presented. An 

csam[)le of the lnauner in which testi~uo~ly may be su~umnrized follows : 

The follalvi~lg witnesses for the glrosecutioil were sworn ailcl testified 

ill snbstaiice as follo~vs : 

Sgt. Richard Roe, Co. C. 1st Bli. 31st Iuf, Fort Sill, Olrlalioma. 
GUIDLSUMMARIZED COURT-MARTIAL RECORD 

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 n'ight of Ootober 7, 1969, I put my wallet under my 

pillow. The wallet had $7.00 in it ;a $5.00 bill and two $1.00 bills. Sometime 

during the night something woke me up but I turned over an~d went to 

sleep again. Wlhen I woke up the next morning, my wallet was gone. 

CROSS-EXAMINATTON 

I don't know the serial numbers on any of the bilk. One of $he $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 mueh of the answer of the witness 

as pertained to what he had been told was stricken. 

The paosecution offered in evidence a duly aubhenticated extract 

copy of the morning report of Company C. 1st Bn, 31st Infantry, which 

contained en6ries pertaining to the accused for the dlates 20 and 24 October 

1969. 

The defense objected to bhe admission of this document. on the ground 

that the reporting officer had no personal knowledge of the facts reported 

therein. After argument by counsel for both sides, bhe extract copy was 

admitted in evidence as Prosecution EfxhibiIt 1. 

NOTE.If Proseoution Exhibit 1 had previously been admitted in evidence at an 

Article 39(a) Session of the case, the prosecution may have simply presented it to 

the court and the record should reflect : 

Witrh the permission of the military judge, the prosecution presented 

P.rosecution Exhi.bi,t 1, which had previously been admitted in evidence, 

to the mud. 

PRESIONTA!DIOIN OF DEFENSE OASE 

The defensse counsel made (an) (no) openinmg sbatement. 

NOTE.If the military judge advised the accused of his right to testify or to 

remain silent, the record should so reflect, indicating also that such advice was 

given at a hearing held out of the presence of the court members. 

The following witnesses for the defense were sworn and testified in 

substance as follows : 

The defense offered in evidence a stipulation entered into between 

bhe trial counsel, defense counsel, and Dhe accused. There being no objection, the stipulation was admitted in evidence as 

The prosecubion made (an) (no) argument. 

The defense made (an) (no) argument. 

me prosecution made (a) (no) dosing argument. 

The military judge instructed the court in accordance with paragraph 

73 of the MOM, including the elems of each offense, the presumptifon of 

innwenee, reasonable doubt, and burden off proof as required by Article 

51(c). 

Neither the prosecution nor the defense having anything further to 

offer, the court was closed at -hours, --- 19 -. Thereafter the court opened at -hours, 19 -. The president mounwd that, in closed sessi,on and upon secret written ballot (the 

accused was fomd not gutlty) (two-thirds of the nlembws present at the 

time the vote was taken concurring in each finding of guilty), the accused 

was found: 

Of all tihe Specifications and Oharges : Guilty. 

0.1 


Of the Spec'ification of Charge I : Guilty. 

Of Charge I : Guilty. 

Exh$bit -. 

App 10a 

Objection and 

ruling 

Introduction of 

exhibits 

Testimony 

Stipulation 

Closing 

arguments 

Instructions 

Findings 
App 10a 

Findings by the 

military judge 

alone 

Announcement 

Data as to 

service, etc. 

Evidence in 

extenuation or 

mitigation 

Instructions 

on sentence 

Sentence 

announcement by 

President 

Sentence 

announcement 

by military 

judge 

APPENDIX 10 

Of the Specification of Oharge I1 :Not Guilty. 

Of Charge I1 :Not Guiltty. 

etc. 

NOTE. In a trial by the military judge alone, there would be no instructions 

given, but the military judge may make general and special findings. Any request for 

special findings should be summarized, and if submitted in writing, the request 

should be attached as an appellate exhibit. The general findings must be announced 

in open court with all parties present and may be recorded in the record in the 

following form, together with any special findings announced at that time (74i): 

The military judge announced the following general (and special) 

findings (md directed that be appended to the record as 

appellate exhibit ) (filed an opinion or mem~orandumof 

decision, appellate exhibit - ,a copy of which was furnished 

to counsel for both sides) [and stated that the spwia9 findings (and opinion 

or memorandum of decision) would be furnished to the reporter prior to 

authentica~tion for insertion in the recurd as arplrellak exhibit 1 : 

Of a91 the Spwificationls and Gharges : Guilty 

or 

Of the Specification of Ghmges I:Guilty. 

Of Charge I:Guilty 

Of the Specification of Charge I1 :Not Guilty 

Of Charge I1 :Not Guilty. 

Nom. A11 general findings should be recorded as indicated above. Special findings delivered orally should be summarized. Any written findings, opinion or memorandum of decision should be appended to the record as an appellate exhibit and 

copies furnished to counsel for both sides. 

The trial counsel read the data as to age, pay, service, and res~aint 

of the accused as shown on the charge sheet. The defense counsel stated 

that (data were correct) ( ). (The trial counsel stated that 

he had no evidence of previous convictions to submit.) (The attached 

evidence of previous convictions was offered) (and admitted) (in evidence 

as Prowcution Exhibit -). The defense munsel stted that 

(the accused had no objection to the evidence of previous convictions) 

( 

After the accused was advised by the military judge of his right to 

present evidence in extenuation or mitigation, (the defense counsel stated 

that he had nothing further to offer.) (the defense presented the following matters :) 

The military judge instructed the court that the maximum permiss?ble punishment which could be adjudged for the offense(s) of which the 

aaoused had been found guilty was: - , aind further instructed with respect to the specific facts of this case in accordance with 

paragraph 76 of the MCM. 

NOTD.If the military judge announces what he considers to be the maximum 

permissible punishment in a case tried by him above, the record should reflect 

the stated maximum. 

neither the prosecution nolr the defense having anything fu'rther to 

offer, the court was closed a~t hm~s, 19-

Thereatfter, the court opened a,t hours, 

19-. The president announced Mat in closed session and, upon secret written ballot, two-thirds of the members present at 

the time the vote was talcen concurring, the accused was seutenced : 

To 

NOTE. Announcement of sentence in rl trial by the military judge alone may 

be recorded as follows : 

The oourt opened at hours, 19-. %he 

military judge informed the accused that the court sentenced him to : 

NOTE. For adjournment, authentication, examination by defense counsel, and 

itction of the convening authority see subsequent items in this appendix pertaining 

to the record in a trial with members. 
- -- 

GUIDE-SUMMARIZED COURT-MARTIAL RECORD App lob 

NOT^. Any special findings, opinion or memorandum of decision, whlch the 

military judge directed to be included in the record as an appellate exhibit should 

be appended prior to authentication. 

The court adjourned at OUTS, - 19-. 	 Adjournment 

NOTE. he record will be authenticated as lndicaced in 82b, 83a or 83b as Authentication 

appropriate. 

I have examined the record of trial in the foregoing case. 	 Examination 

by defense 

(Captain.) lieurntenant) , Defense Coun'sel 

ACTION OF OONVENING AUTHORITY .Action 

(Command of convening authority) 

(Station or Ship) 

XIIn the foregoing case of 

NOTE. Here enter the action taken by the convening authority on the findings 

and sentence. See appendix 14b. 

(Signature of convening authority) 

(Major General) (Commander) 

6. RECORD OF TRIAL BY SPECIAL COURT-MARTIAL WITHOUT A MILITARY 

JUDGE*. 

NOTE. See first three marginal notes at beginning of appendix 9a. 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 attached as exhibits. 

appropriate reference being made at the proper place in the record. 

The procedure in court will follow that provided in regulations of the Secretary of the Department 

which will, so far as practicable, conform to that prescribed in appendix 8b for tdals by general courtsmartial. See 78 and 79. This appendix is to be used as a general guide ; the actual record may depart 

from it in numerous particulars. The manner of summarizing several items of procedure is shown in 

appendix 9a. 

RECORD OF TRIAL 	 Title 

(Last name, first name, middle initial) (Service number) (Grade) 

(Organization and armed force) 	 (Station or ship) 

by 


SPECIAL COURT-MARTIAL 

Convened by 

(Title of convening authority) 

(Command of convening authority) 

Tried at 

on 	 19--

(Place or places of trial) 	 (Date or dates of trial) 

COPIES OF RECORD 

copy of record furnished the accused as per attached Copiesof 

receipt. record 

copy (ies) of record forwarded herewith. 

*But see 8371as to the authority of the Secretary of a Department. 
App lob APPENDIX 10 

Receipt for 

record 

Convening orders 

Time of session 

Members of the 

court and counsel 

present and 

absent 

Accused and 

defense counsel 

present 

Swearing 

reporter ; 

interpreter 

Qualification of 

prosecution 

counsel 

Prior participation 

of prosecution 

counsel 

Inquiry 

concerning 

Article 

38(b) 

Qualification of 

defense counsel 

RECEIPT FOR COPY OF RECORD 

I hereby acknowledge receipt of a copy of .the above-described record 

of trial, delivered to me at this 

day of ,19---. 

(Signature of accused) 

PROCEEDINGS OF A SPECIAL COURT-MARTIAL 

The court met (at) (on board) ,at hours 

19----, pursuant to the following orders : 

NOTE. Here insert a copy of the convening orders and copies of any amending 

orders. Any request of an enlisted accused for enlisted court members. together 

with any declaration of the nonavailability of such enlisted persons, will be inserted immediately folloming the orders. Any statement that qualified defense counsel 

could not be obtained will also be inserted at this point (6c). 

NOTE.The reporter should 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, 


-IS--. 

The court (adjourned) (recessed) at hours, 

19--.-. 

The court (closed) (opened) at hours, 

PERSONS PRESENT 

PERSONS ABSENT 

The accused and the following (regularly detailed defense counsel and 

assistant defense counsel) (counsel introduced by him) were present : 

The following detailed (reporter) (and) (interpreter) (was) (were) 

(had previously been) sworn : 

NOTE, Applicable only when a reporter or interpreter is used. 

The trial counsel stated that the legal qualifications and status as to 

oaths of all members of the prosecution were correctly stated in the convening orders except as indicated below. 

The trial counsel further stated that no member. of the prosecution 

had acted as investigating officer, military judge, cou't 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 

except as indicated below. 

NOTE. If a member of the prosecution is disqualified because of prior participation, the disqualifying fact will be shown, together with the action taken under 61e. 

The president ascertained that the detailed defense counsel had informed the accused of his rights concerning counsel as set forth in Article 

38(b). 

The president asked the accused if he understood that he had the right 

to be represented by civilian counsel if the accused provided him ; that he 

had the right to be represented by military counsel of his own selection if 

reasonably available, and that if hc did hare connsel of his own selection, 

his detailed defense counsel and assistant defense connsel would act as 

associate counsel if the accused so desired. 

The accused responded that he understood his rights with respect to 

connsel. 

The defense cou~isel stated that the legal qualifications and status as 

to oaths of all members of the defense were correctly stated in the convening orders escel~t as inrlicatecl belonr. 
GUIDE-SUMMARIZED COURT-MARTIAL RECORD 

Norn. Legal qualifications of all counsel for the defense not shown in the 

convening orders, including individual counsel, will be shown. If the detailed 

defense counsel was not qualifled under Article 27(b), the record should reflect that 

the accused had been afforded the opportunity to be represented by qualifled counsel 

and declined or that qualified counsel could not be obtained. 

The defense counsel stated that no member of the defense had acted 

as the accuser, a member of the prosecution, investigating officer, military 

judge, or member of the court in this case except as indicated below. 

NOTE.If n member of the defense has acted as a member of the prosecution, 

the record will show that he was excused and withdrew from the court. If a member 

of the defense acted in another capacity, the record will show that the president 

explained to the accused that this counsel could represent him only at his express 

request, and that the accused so requested, or that suitable action mas taken, either 

by excusing the particular counsel or by adjournment pending the procurement of 

a counsel satisfactory to the accused (Mf(4)). Appendices 8a and &b show the 

procedure to be taken. 

The following detailed members of the defense were excused at the 

express request of the accused : 

Nm. If the accused is an enlisted person, the record should reflect : 

The trial counsel annorunced that the accused had (not) made a request 

in writing that the membership of the court include enlisted persons. The 

defense counsel announced that the accused had been advised of his rights 

in this respect prior to trial and had stated that he did (not) desire enlisted 

persons as court members. 

The members of the court and the personnel of the prosecution and 

defense who were not previously sworn in accordance with Article 42(a) 

were sworn. 

Each accused was extended the right to challenge any member of the 

Court for cause and to exercise one peremptory challenge against any 

member. 

The i'ollming membe~sof the count were excused and withdrew for 

the reasons stated apposite theilr respective names : 

Captain (excused without challenge as being the 

~wcuser). 

Lieutenant (excused upon ohallenge for cause by the 

lacell&). 

Lieutenant (excused wpm peremptory ohallenge by 

the accused). 

There was no contest with respect to the challenging of any of the 

members for cause except as indicated below. 

NOTn. Insert a summary of the proceedings with respect to each contest. For 

example, if a member was challenged for cause, but was not excused from the court, 

the record will show 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 : 

NOTE. Insert the charge sheet here. Use the accused's copy of the charge sheet 

to prepare his copy of the record. If sufficient copies 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. 

was in command on the date of the reference for trial. 

Name and rank 

NOTE. The substance of any motions made by the defense before pleas are 

entered will be recorded, together with the ruling of the court thereon. 

NOTE. The pleas of the accused will be entered in the following form : 

The accused pleaded as follows : 


To all the Specifications and Charges : (Not Guilty) (Guilty). 


or 

App lob 

Prior participation 

of defense 

counsel 

Deferme excused 

Enlisted 

membership 

Personnel 

sworn 

Challenges 

Arraignment 

Convening 

authority 

identified 

Motions 

Pleas 
App lob 

Explanation of 

plea of guilty 

Opening 

statement 

Teetimonr 

Objection 

and ruling 

Introduction 

of exhibits 

Explanation of 

accused's rights 

Testimony 

Stipulation 

Closing 

arguments 

APPENDIX 10 

To the Specification of Charge I: (Not Guilty) (Guilty). 

To Charge I: (Not guilty) (Guilty). 

etc. 

NOTE.When there is a guilty plea the president should explain the meaning 

and effect of a plea of guilty (70b),and the record ahould show : 

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. 

NOTE.When authorized by regulations of the Secretary concerned, findings of 

guilty of any charge and specification may be entered immediately without vote after 

a plea of guilty has been accepted and the record should so reflect If this has been 

done. The findings are entered by the announcement of the president that the accused 

has been found guilty in accordance with his plea (7071and appendix 8b). 

PRESENTATION OF PROSECUTION CASE 


The trial counsel made (an) (no) opening statement. 


NOTE. The record will contain a summary of the testimony presented. An 

example of the manner in which testimony may be summarized follows: 

The following witnesses for the prosecution were sworn and testified 

in substance as follows : 

Sgt Richard Roe, Co C, 1st Bn, 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 7, 1969, I put my wallet under my 

pillow. The wallet had $7.00 in it; a $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 witness 

as pertained to what he had been told was stricken. 

The prosecution offered in evidence a duly authenticated extract copy 

of the morning report of Company C, 1st Bn, 31st Infantry, which contained 

entries pertaining to the accused for the dates 20 and 24 October 1969. 

The defense objected to the admission of this 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 as Prosecution Exhibit 1. 

The defense counsel made (an) (no) opening statement. 


The accused was advised by the president of his right to testify or to 


remainsilent. 

The following witilesses for the defense were 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 as Exhibit 

The prosecution made (an) (no) argument. 

The defense made (an) (no) argument. 

The prosecution made (a) (no) closing argument. 
- - - 

GUIDE-SUMMARIZED COURT-MARTIAL RECORD App lob 

The president instructed the court in accordance with paragraph 73 Instructions 

of the MCM, including the elements of each offense, the presumption of 

innocence, reasonable doubt, and burden of proof as required by Article 

51 (c) . 

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 written 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 found : 

Of all the Speciflcations and Charges :Guilty. 

Of the Specification of Charge I :Guilty. 

Of Charge I :Guilty. 

Of the Specification of Charge I1:Not guilty. 

Of Charge I1: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 defense counsel stated 

that (the data were correct) ( ). (The trial counsel stated 

that he had no evidence of previous convictions to submit.) (The attached 

evidence of previous convictions mas offered) (and admitted) (in evidence as Prosecution Exhibit .) The defense counsel stated 

that (the accused had no objection to the evidence of previous convictions) ( 1. 

After the accused was advised by the president of his right to present 

evidence in extenuation or mitigation, (the defense counsel stated that 

he had nothing further to offer.) (the defense presented the following 

matters :) 

The president instructed the court that the maximum permissible 

punishment which could be adjudged for the offense(s) of which the 

accused had been found guilty was : , and further instructed 

with respect to the specific facts of this case in accordance with paragraph 

76 of the MCM. 

Neither the prosecution nor the defense having anything further to 

offer, the court was closed at hours, 19-. Thereafter, the court opened at hours, 19-. The 

president announced that in closed session and, upon secret written ballot, 

two-thirds of the members present at the time the vote was taken concurring. the accused was sentenced : 

To 

The court adjourned at hours, 19-. 

NOTE. The record will be authenticated as prescribed by the Secretary of a 

Department. 

I have examined the record of trial in the foregoing case. 

(Captain) (Lieutenant) , Defense Counsel 

ACTION OF CONVENING AUTHORITY 

(Command of convening authority) 

(Station or ship) 

Findings 

Dataas to 

etc. 

Evidence in 

extenuation " 

mitigation 

Instructions 

On Sentence 

Sentence 

announcement by President 

Adlourhment 

Authentication 

Examination 

by defense 

Action 
App 10c GUIDE-SUMMARIZED COURT-MARTIAL RECORD 

In the foregoing case of 

NOTE. Here enter the action taken by the convening authority on the flndings 

and sentence. See appendix 14b. 

(Signature of convening authority) 

(Major) (Lieutenant Colonel) ( ) 

Commanding 

c. ARRANGEMENT OF ORIGINAL RECORD WITH ALLIED PAPERS. 

When forwarded by the convening authority a record of trial by court-martial is 

arranged in the sequence required in publications of the Secretary of a Department. 

d. ADDITIONAL COPIES 'OF RECORD. 

A copy of the record of proceedings in court, including copies of all exhibits received in ' evidence or descriptions thereof will be prepared for each accused. 
Appendix I1 

FORM FOR RECORD OF TRIAL BY SUMMARY 


COURT-MARTIAL 

THE ACCUSED HAS NOT BEEN OFFERED PUNISHMENT UNDER ARTICLE 15 AS TO 

Texas, is designated as the place of confinement. 


NIME. CRLDE, AND ORSIN12ITION OF CDNVElllHC AUTHOIITY 51CNITUIE 

Lars L. Larsod, Colonel, USAF 

Comander, 600th Support Group IxL-2z"L-4 ENTERED ON APPROPRIATE PERSONNEL RECORDS M CASE OF CONVICTION. fMCM8915) 

NAME. GRADE. AND PEZlCNITlON OF OFFlCER IESPONSlBLE FOR ACCUSEWS SIGNATURE 

RECORDS 

Matthew M. att thew son, Captain, USAF nn-1 nfFir I%& -I%+* %& 
Appendix I1 

FORM FOR RECORD OF TRIAL BY SUMMARY 


COURT-MARTIAL 

THE ACCUSED HAS NOT BEEN OFFERED PUNISHMENT UNDER ARTICLE 15 AS TO 

Approved and order executed. The Base Confinement Facility, Randolph Air Force Base, 


Texas, is designated as the place of confinement. 


NAME. ,GRADE. AND ORSINIZ&T!DN OF CONVENING AUTHOROT" IlCNITURE 

Lazs 

Commander, 

L. Lar.sod, 

600th 

Colonel, 

Support USAF 
Group 
 1x2- 2? z'L4A-d ENTERED ON APPROPRIATE PERSONNEL RECORDS m CASE OF CONVICTI~N.(MCM. 914 

n-1 nFFirnr 
Appendix 12 

TABLE OF COMMONLY INCLUDED OFFENSES 

NOTE. When, in addition to the offense charged, the allegations in a specification are sufficient to 

place an accused on notice that he may have to defend against another offense, this additional offense 

is called an included offense. An included offense is not an operative factor in a trial unless placed in 

issue by the evidence. Once in issue, the court must be instructed on the included offense, and the 

accused may be found guilty of it. See 158 for a discussion of included offenses. 

In regard to the following table, the charging of an accused with certain offenses always includes 

certain other offenses ;for example, the charge of desertion always includes the offense of absence without leave. However, consideration of the particular allegations in the offense charged is often necessary 

before a determination can be made that a certain offense is included, for example, whether the offense 

of carnal knowledge is included in a charge of rape is controlled by whether the age of the victim is 

alleged to be less than 16 years. The following table generally does not include attempts, but an accused 

may be found gullty of an attempt to commit any offense charged (Art. 79) except when the offense, 

such as negligent homicide, cannot be intentionally committed. Also, it does not include those offenses 

which properly may be found by means of exceptions or exceptions and substitutions (7471(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 aa desertion terminated in a manner not specified ; similarly, larceny of property of a 

value of more than $100 properly may be found as larceny of property of a value of $100 or less and 

more than $50, or a value of $50 or less. In such a case, although the offense found would be the same 

offense as that charged, a lesser punishment might be authorized. In this connection, see Section A. 1276. 

In view of the foregoing, the following table cannot be an all-inclusive list, cannot be applied 

mechanically, and is to be considered only as suggestive of possible offenses which may be included 

in the offense charged. 

Article Offense Charged 	 Article Included Offense 

85 Desertion with intent to remain away 86 Absence without authority. 


permanently. 


85 Desertion-Quitting unit, organization 86 Absence without authority. 


or place of duty with intent to 


avoid hazardous duty or shirk 


important service. 


87 Missing movement through design. 	 86 Absence without authority. 

87 Missing movement through neglect. 

87 Missing movement through neglect. 	 86 Absence without authority. -

89 Disrespect toward superior officer. 117 Using provoking or reproachful 

speech. -- 90 Striking superior officer in execution 90 Drawing or lifting up a weapon or 

of his office. offering violence to superior 

officer in execution of his office. 

128 Assault; assault and battery. 

128 Assault or assault and battery 

upon commissioned officer. -
- 

-- 

--- 

-- 

-- 

-- 

APP 12 APPENDIX 12 

~rticl-aI Offense Charged I Article I Included Offense 

91 

91 

/ 

94 

94 

95 

96 

Drawing or lifting up a weapon or 

offering violence to superior officer 

in execution of his office. 

Willfully disobeying lawful order of 

superior officer. 

Striking warrant, noncommissioned, 

or petty officer in execution of his 

office. 

Assault upon warrant, noncommissioned, or petty officer in the execution of his office. 

Willfully disobeying lawful order of 

warrant, noncommissioned, or 

petty officer. 

Treating with contempt or being disrespectful in language or deportment toward, warrant, noncommissioned, or petty officer in execution of his office. 

Mutiny-Refusal to obey orders 

from proper authority in concert 

with others with intent to override 

military authority. 

Mutiny-Creation of violence or disturbance in concert with others, 

with intent to override military 

authority. 

Sedition. 

reach of arrest. 

Suffering a prisoner to escape through 

design. 

128 Assault, assault with dangerous 

weapon. 

128 Assault upon a commissioned 

officer. 

92 Failure to obey lawful order. 

89 Disrespect to superior officer. 

Assault upon warrant, noncom missioned, or petty officer in execution of his office. 

Assault; assault and battery. 

Assault or assault and battery 

with dangerous weapon. 

Assault or assault and battery 

upon warrant, noncommissioned, 

or petty officer. 

Assault. 


Assault with dangerous weapon. 


Assault upon warrant, noncom- 


missioned, or petty officer. 

92 Failure to obey lawful order. 

117 Using provoking or reproachful 

speech. 

Willful disobedience of commissioned officer. 

Willful disobedience of warrant, 

noncommissioned, or petty 

officer. 

Failure to obey lawful order. 

-

116 Riot. 

116 Breach of peace. 

134 Disorderly conduct. 

116 Breach of peace. 


134 Disorderly conduct. 


134 Breach of restrictioii. 

96 Suffering a prisoner to escayc 

through neglect. 
-- 

-- 

COMMONLY INCLUDED OFFENSES APP 12 

Article 

99 

99 

99 

99 

108 

108 

108 

108 

Offense Charged 

Running away before the enemy. 

Cowardly conduct. 

Quitting place of duty to plunder or 

pillage. 

Endangering safety of command 

through disobedience of orders. 

Willfully damaging military property. 

Willfully suffering military property 

to be damaged. 

Willfully destroying military property. 

Willfully suffering military property 

to be destroyed. 

108 Willfully losing military property. 

108 Willfully suffering military property 

to be lost. 

108 Willfully suffering military property 

to be sold. 

108 Willfully suffering military property 

to be wrongfully disposed of in a 

certain alleged manner. 

110 Willfully and wrongfully hazarding 

a vessel in a certain alleged manner. 

110 Willfully and wrongfully suffering a 

vessel to be hazarded in a certain 

alleged manner. 

Article 

85(2) 

86 

85(2) 

86(3) 

99 

86(2) 

92 

108 

108 

108 

108 

108 

108 

108 

108 

108 

108 

108 

108 

110 

110 

Included Offense 

Desertion. 

Absence without authority; going 

from appointed place of duty. 

Desertion. 


Absence without authority. 


Running away before the enemy. 


Going from appointed place of 

duty. 

Failure to obey lawful order. 

Damaging military property 

through neglect. 

Through neglect suffering military 

property to be damaged. 

Through neglect destroying military property. 

Through neglect damaging military property. 

Willfully damaging military 

property. 

Through neglect suffering military 

property to be destroyed. 

Through neglect suffering military 

property to be damaged. 

Willfully suffering military 

property to be damaged. 

Through neglect, losing military 

property. 

Through neglect, suffering military property to be lost. 

Through neglect, suffering military property to be sold. 

Through neglect, suffering military property to be wrongfully 

disposed of in the manner 

alleged. 

Negligently hazarding a vessel in 

the manner alleged. 

Negligently suffering a vessel to be 

hazarded in the manner alleged. 
APP 12 	 APPENDIX 12 

Article I Offense Charged I 	Article I Included Offense 

Drunk on duty as a sentinel. I 112 	/ Drunk on duty. 

-I 116 Riot. 


116 1 Breach of peace. 1 134 1 Disorderly conduct. 


Murder, with premeditated design to Murder. 


kill; or murder while engaged in 


perpetration of offenses listed in 


Article 118(4). 


' Murder, as defined in Article 118(1), Voluntary or involuntary man- 

(2)1 (3)1 or (4). slaughter. 

Assault; assault and battery; 

aggravated assault. 

Assault with intent to commit 

murder. 

Assault with intent to commit 

voluntary manslaughter. 

Negligent homicide. 

Voluntary manslaughter. Involuntary manslaughter. 

Assault; assault and battery; 

aggravated assault. 

Assault with intent to commit 

voluntary manslaughter. 

134 Negligent homicide. 

. . 

Involuntary manslaughter. 	 Assault; assault and battery. 

Negligent homicide. 

Rape. 	 120 Carnal knowledge. 

128 Assault; assault and battery. 

134 Assault with intent to commit 

rape. 

Indecent assault. 

Taking indecent, lewd and lascivious liberties with the person 

of a female. 

Carnal knowledge. Indecent acts or liberties with a 

female under 16. 

Larceny. 121. 	 Wrongful appropriation. 

Robbery. 	 Larceny. 

Wrongful appropriation. 

Assault; assault and battery. 

Assault with a dangerous weapon. 

Assault intentionally inflicting 

grievous bodily harm. 

Assault with intent to rob. 
COMMONLY INCLUDED OFFENSES APP 12 

Article 

123a 

124 

125 

126 

-


127

128 

7 

128 

128 

128 

128 

128 

129 

130 

134 

Offense Charged 

Making, drawing, uttering or delivering a check, draft, or order 

without sufficient funds with 

intent to defraud or with intent to 

deceive. 

Maiming. 

Sodomy. 

Aggravated arson. 

Extortion. 

Assault upon a commissioned, 

warrant, noncommissioned, or 

petty officer of the Air Force, 

Army, Coast Guard, Navy, or a 

friendly foreign power, not in the 

execution of his office. 

Assault upon any person who, in 

the execution of his office, is performing air police, military police, 

shore patrol, or civil law enforcement duties. 

Assault intentionally inflicting 

grievous bodily harm. 

Assault with a dangerous weapon or 

other means or force likely to 

produce death or grievous bodily 

harm. 

Assault and battery. 

Assault and battery upon a child 

under age of 16. 

Burglary. 

Housebreaking. 

Assault, indecent. 

Article Included Offense 

134 Making, drawing, uttering or delivering a check, draft, or 

order, and thereafter wrongfully and dishonorably failing 

to maintain sufficient funds. 

128 Assault; assault and battery. 

128 Assault with a dangerous weapon. 

128 Assault intentionally inflicting 

grievous bodily harm. 

134 Indecent, lewd, and lascivious 


acts with another. 


134 Assault with intent to commit 


sodomy. 

126 Simple arson. 

134 Communicating a threat. 

128 Assault; assault and battery. 

-

128 Assault; assault and battery. 

128 Assault; assault and battery. 

128 Assault with a dangerous weapon. 

128 Assault; assault and battery. 

128 Assault. 

128 Assault; assault and battery. 

130 Housebreaking. 


134 Unlawful entry. 


134 Unlawful entry. 

128 Assault; assault and battery. 
-- 

APP 12 APPENDIX 12 

Article 

134 

134 

134 

134 

134 

Offense Charged 

Assault with intent to commit 

voluntary manslaughter. 

Assault with intent to commit 

robbery, sodomy, arson, or 

housebreaking. 

Assault with intent to commit 

burglary. 

Assault with intent to murder. 

Assault with intent to rape. 

Article 

128 

128 

128 

128 

128 

128 

128 

134 

128 

128 

128 

134 

134 

128 

134 

134 

Included Offense 

Assault; assault and battery. 

Assault intentionally inflicting 

grievous bodily harm. 

Assault with a dangerous weapon. 

Assault; assault and battery. 

Assault with a dangerous weapon. 

Assault; assault and battery. 

Assault with a dangerous weapon. 

Assault with intent to commit 

housebreaking. 

Assault; assault and battery. 

Assault with a dangerous weapon. 

Assault intentionally inflicting 

grievous bodily harm. 

Assault with intent to commit 

voluntary manslaughter. 

Willful or careless discharge of a 

firearm. 

Assault; assault and battery. 

Indecent assault. 

False or unauthorized military or 

official pass, permit, discharge 

certificate, or identification card, 

possessing without intent to 

deceive. 

Discharging a firearm through 

carelessness. 

Impersonating an officer, warrant 

officer, noncommissioned, or 

petty officer, or agent of superior authority without intent 

to defraud. 

Larceny. 


Wrongful appropriation. 


Using provoking speeches. 


134 

134 

134 

134 

134 

False or unauthorized military or 

official pass, permit, discharge certificate, or identification card, 

possessing with intent to deceive. 

Discharging a firearm wrongfully 

and willfully, under circumstances 

as to endanger life. 

134 

Impersonating an officer, warrant 

officer, noncommissioned, or petty 

officer, or agent of superior authority with intent to defraud. 

134 

Mails, taking, opening, abstracting, 

secreting, destroying, stealing, or 

obstructing. 

121 

121 

Communicating a threat. 117 
Appendix 13 

FORMS OF SENTENCES 

a. ANNOUNCEMENT OF SENTENCE IN COURT WITH MEMBERS. In announcing 

bhe sentence, the president of the court should announce : ' ,it is my duty as president of this court to inform you that 

the oouat in dosed session and upon secret mitten ballot, (twwthirds) (three-fomths) 

(all) of the members present at the timR the vote was taken concurring, sentences 

YOU 	 J, 

The actual sentence should now be announced following one of the form's contained in c, 

below, or my necessary modification or ombination thereof. Each of the forms of punishment prescribed in c are separate, that is, the adjudging of one form of punishment is not 

conkingent upon any other pu'nishment also being adjudged. The forms in c, however, may 

be combined and modified so long as the punishment adjudged is not forbidden by the 

code and does not exceed the maximum authorized by this manual (see chapter XXV) 

in the particular case being tried. In announcing a sentence consisting of combined 

punishments, the president may, for enample, state: 

"To be dishonorably discharged from the service, to be confined at hard labo,r for 

one year, to forfeit all pay and allowances, and to be reduced to the grade of 

Private, E-1 ;" or 

"To be discharged from the service with a bad-conduct discharge, to be confined 

at hard labor for six months, and to forfeit $35.00 per month for six months;" or 

"To be dismissed from lthe service, to be confined at hard labor for one year, and 

to forfeit all pay and allowances ;" or 

"To perform 	hard labor for one month and to forfeit $25.00 per month for 

one month." 

b. ANNOUNCEMENT OF SENTENCE IN COURT WITH MILITARY JUDGE 

ALONE. In announcing the sentence, the military judge should announce : '6 , it is my duty as military judge of this court to inform 

you that this court sentences you to . " The actual sentence 

should now be announced following one of the form,s contained in c, below, or any necessary 

m~difica~tionor combination thereof. Any case i,n which the death penalty may be adjudged 

cannot be tried by a military judge alone (14a). 

C. SINGLE PUNISHMENT FORMS. 	 For punitive 

1.To be dishonorably discharged from the service.' 	 separation 

2. To be discharged from the service with a bad-conduct discharge.' 

3. To be dismissed from the service.' 

NOTE. Periods of confinement should not be expressed in terms of months in Pertaining to 

excess of 11 ; for example, a period of 12 months is properly expressed as "one year" deprivation of 

and a period of 1% years is properly expressed as "one year and six months." liberty or 

4. To be restricted to the limits of for death penalty 

(days) (months) .L 

5. To perform hard labor for (days) (months) P 

6. To be confined at hard labor for [ (days) (months) 


(years) 1 [the length of your natural life]? 


7. 	 To be confined on (bread and water) (diminished rations) for 


days.? 


1Applicable in the case of enlisted members or warrant officers other than 

commissioned warrant officers (1266 and e). 

2 Applicable in the case of enlisted members only. See 126e and 127a and ~(4). 

3 Applicable in the case of commissioned officers and commissioned warrant officers only (1266). 

4 Not to exceed two months (1269). 

5 Not to exceed three months if adjudged by a general or special court-martial ; 

and not to exceed forty-five days if adjudged by summary court-martial. See 126k. 

6 May be adjudged against commissioned and warrant officers by a general courtmartial only (1266). See 126j. 

1 Confinement may only be adjudged against enlisted members attached to or 

embarked in a vessel and shall not be imposed in excess of three days (125). 
APPENDIX 13 

Pertaining to 

financial penalty 

For reduction 

in grade or 

losa of numbers, 

lineal position, 

or seniority 

Admonition and 

Reprimand 

8. To be put to death. 

No~m. Forfeitures, fines, and detentions should be expressed in even dollars. 

9. To have $ per month for months 

detained for a period of (months) (year) ? 

10. To forfeit ($ per month for 


months) (all pay and allowances)? 


11.To pay to the United States a fine of $ , [and to 

be'' (further) confined at hard labor until said fine is so paid, but 

for not more than (months) (years)'' (in addition 

to the (months) (years) hereinbefore adjudged) 1.= 12. To be reduced to the grade of (corporal) (radioman second 

class) ( ).* 

13. 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 unrestricted line officer running mate numbers) .I3 

14. To lose month's seniority in the date of his 

warrant (as machinist) ( ), and to lose corresponding 

rank in the list of (machinists) ( ) of the (Navy) 

( ).=( 15. To be admonished?' 

16. To be reprimanded?' 

8See 126h(4) as to limitations. 

0 See 126h(2) for limitations in the case of enlisted members and for the meaning of the phrase "to forfeit all pay and allowances." A special court-martial may 

not adjudge forfeiture of more than two-thirds pay per month for six months, even 

though a bad-conduct discharge is adjudged (Art. 19). 

10 To be used if confinement is also adjudged as part of the sentence other than 

for enforcing the collection of the 5ne. 

=See 126h(3) and Sectlon B,127c. 

la See 16b and 126e. 

18 Not an authorized punishment in the case of Army and Air Force personnel 

(126i). Officers of the other armed forces may be sentenced to a loss of numbers. 

The sentence placing the oficer at the foot of the list, with the proviso that he is to 

remain in that position untll he has lost the required numbers, is to be used when 

his position on the list will not permit his losing the adjudged numbers in grade 

at the time the sentence is adjudged. 

14Not an authorized punishment in the case of Army and Air Force personnel 

(126i). In the case of warrant ofiicers of the other armed forces, when promotion 

1s based upon length of service in grade, loss of seniority for a specified period of 

time should be adjudged in lieu of a loss of numbers. 

l6 See 1261 and Section B,127c. 
Appendix 14 

FORMS FOR ACTION BY CONVENING AUTHORITY 


Show headquarters or ship, place, and date of action. Signature is followed by grade, 

unit, and the words "Commander," "Commanding" or "Officer in Charge." The use of these 

forms is not mandatory and they are not intended to provide for every case ;but mhenever 

appropriate, these forms, or a combination or modification of them, should be used. 

The place of confinement should be designated only after consulting pertinent regulations of the Secretary of a Department. See 89c(5). 

a. SUMMARY COURTS-MARTIAL. 

Forms 1-11may 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 the place of confinement.) 

2. The finding of guilty of Specificatiori 2, Charge I, is disapproved. 

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 service of the sentence to confinement at hard labor for -days was deferred on 

is designated as the place of confinement. 

4. Approved and ordered executed. The service of the sentence to 

confinement at hard labor for days was deferred on 

and the deferment was rescinded on 

is designated as the place of confinement. 

NOTN.Ordering the execution of the sentence terminates the deferment of confinement. The confinement at this time may be suspended but it may not be further 

deferred. 

5. Approved and ordered executed. The accused will be credited with 

any portion of the punishment served or executed from 

19- to , 19- under the sentence adjudged at the former 

trial of this case. 

6. Approved and suspended for months, at which time, 

unless the suspension issooner vacated, the sentence will be remitted 

without further action. 

Now. When a sentence which includes deferred confinement is approved but 

suspended, the deferment is thereby terminated, and only the suspension of the 

sentence to confinement is operative. Deferment of confinement and suspension of 

the same period of confinement cannot exist concurrently. When confinement which 

has been deferred is approved but suspended, the dates of the deferment should be 

included in the initial action. 

) 

is suspended for months, at which time, unless the suspension is sooner vacated, the sentence to will be remitted 

without further action. 

8. Disapproved. The charges are dismissed. 

9. It appears that the following error was committed: 

This error being materially prejudicial to the substantial rights of the 

7. Approved and ordered executed, but the (confinement) (-

Approval

-Execution 

-Partial 

Approvaldeferment 

terminated by 

action ordering 

sentence 

executed. 

(See 88f). 

Approvaldeferment 

terminated by 

rescission 

-Of rehearing 

(see 89c(7) (a)) 

Suspension 

(See88e(2)) 

-Entire 

sentence : 

remission 

-Partial; 

:zErl 

Disapproval

-Charges 

dismissed 

-Order of 

rehearing 
App 14b 	 APPENDIX 14 

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. The reason for disapproval must be stated in the action if a renearing is 

ordered (Art. 63(a) ). 

-Of rehearing : 10. Disapproved. The charges are dismissed. A11 rights, privileges, and Of property of which the accused has been deprived by virtue of the execution 

rights (see 

89c(,) (a)) 	 of the sentence adjudged at the former trial of this case on , 

19- will be restored. 

NOTE. Under Article 75(a) the authority setting aside or disapproving a 

Sentence must order a restoration of all rights, privileges, and property affected by 

any executed portion of a sentence which has been set aside or disapproved unless 

a rehearing is ordered and such executed portion is included in the sentence adjudged 

upon a rehearing. It follows that if a rehearing of a summary court-martial case is 

ordered pursuant to 94a(2) after the original sentence has been ordered into 

execution, any rights, privileges, and property affected by the former sentence must 

be restored if the rehearing results in an acquittal or a disapproval of the sentence 

ad judged. 

If the rehearing results in an acquittal, the convening authority should omit 

from the action shown above the words, "Disapproved. The charges are dismissed." 

Withdrawal of 11. In the foregoing case of , the action taken by (me) previous action (my predecessor in command) on ,19- is withdrawn and (see 89b; 94a(2)) the following substituted therefor : 

b. SPECIAL COURTS-MARTIAL. 

(1)Special court-martial sentences in cases which do not involve an approved sen- tence to bad-conduct discharge. Forms 12-31 are appropriate for use in special court-martial 

cases in which the sentence, as approved, 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 crr flag offim, crr extend to death or dismissal, or include 

a punitive discharge or confinement for one year or more. 

Approval 12. In the foregoing case of 

-Execution and will be duly executed. ( 

confinement.) 

-Partial; 13. In the foregoing case of 

execution 

,the sentence is approved 

is designated as the place of 

,' only so much of the sentence as provides for is approved and will be duly executed. ( is designated as the place of confinement.) 

-Partial ; 14. In the foregoing case of , the findings of guilty of 

disapproval Specifications 1and 2, Charge 11, are disapproved. (The sentence is ap of findings proved and will be duly executed.) (Only so much of the sentence as provides for is approved and will be duly executed.) ( 

is designated as the place of confinement.) 

-Partial ; 15. In the foregoing case of , only so much of the findlesser included ings of guilty of Charge I and its specification is approved as finds that offense and 

substituted the accused absented himself without proper authority from the (organifindings zation) (- ) alleged at the place and time alleged and re- (see 87a(4)) mained so absent until ., in violation of Article 86. 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 1with respect to value as finds some value 

not in excess 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. ) 

17. 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 did, at the time and place alleged, wrongfully appropriate the 

property described, of the value and ownership alleged. Only so much of 
FORMS-ACTION BY CONVENING AUTHORITY 

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 , 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, wilfully and maliciously 

attempt to set fire to a haystack, the property of - , of some 

value not in excess of $50.00, 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.) 

19. In the foregoing case of , the sentence is approved 

and will be duly executed. ( _ is designated as the place of 

confinement.) The accused will be credited with (confinement from 

,19- to ' ,19- and) any (other) portion of 

the punishment served or executed from 19- to 

19- under the sentence adjudged at the former trial of this case. 

20. 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, the sentence will be remitted 

without further action. 

21. In the foregoing case of ,the sentence is approved 

and will be duly executed, but the execution of that portion thereof adjudging (forfeitures of pap) (confinement) is suspended for 

months, at which time, unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action. 

22. In the foregoing case of ,the sentence is disapproved 

and the charges are dismissed. 

23. In the foregoing-case of ,it appears from the record 

of trial that, although trial of the specification of the charge was barred 

under the provisions of Article 43, the accused was not advised of his rights 

in the premises. The findings of guilty and the sentence are disapproved and 

the charges are dismissed. 

NOTE. Under 89c(2) the convening authority may state the reasons for disapproval of the findings and sentence in certain cases even when he does not order 

a rehearing. Such statement of reasons for disapproval is generally appropriate 

where the disapproval of a finding of guilty may affect future administrative action. 

24. In the foregoing case of ,the findings of guilty and 

the sentence are disapproved and the charges are dismissed. A11 rights, 

privileges, and property of which the accused has been deprived by virtue 

of the execution of the sentence adjudged at the former trial of this case 

on , 19- will be restored. 

NOTE. See also note under form 10. 

25. In the foregoing case of ,it appears from the record 

of trial that (the confession of the accused was not shown to have been 

voluntarily made) (Exhibit 1, an improperly authenticated extract copy 

of a morning report, was erroneously received in evidence over the objection 

of the defense) (the prosecution erroneously cross-examined the accused 

on the merits after he had taken the stand for a limited purpose only) (the 

testimony of A as to the out-of-court identification of the accused by B was 

erroneously received in evidence) ( ). Under the circumstances of this case, this error is materially prejudicial to the substantial 

rights of the accused. For this reason, the sentence is disapproved and a 

rehearing is ordered before another court-martial to be hereafter designated. 

26. In the foregoing case of ,it appears from the record 

of trial that ( was erroneously received in evidence) 

.( ). Under the circumstances of the case this error is materially prejudicial to the substantial rights of the accused as to the sentence 

only. For this reason, the findings are approved and a rehearing as to senApp 14b 

-Of rehearing 

(see 89c(7) (a)) 

Suspension 

conditional 

remission 

(see 88e(2) ) 

Disapproval 

-Charges 

dismissed 

-Reason stated 

(see 89c(2)) 

-Of rehearing 

restoration of 

rights (see 

89~0')(a)) 

-Order of 

rehearing 

(see 92a) 

-Order of 

rehearing on 

sentence only 
App 14b 	 APPENDIX 14 

Jurisdictional 

error (see 926) 

-Confinement 

in lieu of 

discharge 

Approvalconfinement 

deferred 

on trial 

sate (see 88f) 

Approvalconfinement 

deferred 

after 

trial date 

Withdrawal 

of previous 

action (see 896) 

Approval 

-Forwarding 

under 

Article 65(b) 

-Forfeitures 

and confinement 

Suspension 

-Of bad-conduct 

discharge (see 

88eW (b)) 

-Entire 

sentence 

Action by o5cer 

exercising general 

court-martial 

jurisdiction 

tence only is ordered before another court-martial to be hereafter 

designated. 

27. In the foregoing case 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 were 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. 


28. In the foregoing case the sentence is approved but the bad-conduct 

discharge is changed to the lesser punishment of confinement at hard labor 

for 6 months. The sentence as changed is approved and will be duly executed. is designated as the place of confinement. 

29. In the foregoing case of the sentence is approved and 

will be duly executed. The service of the sentence to confinement at hard 

labor 

is designated 

for 

as the place 

(days) 

of oonfinemenlt. 

(months) was deferred on P. -

30. In the foregoing case of , the sentence is approved and will 


be duly executed. The service of the sentence to confinement at hard l&r 


(days) (months) was begun on 	 and was deferred on 

is designated as the place of confinement. 

31. See Form 11. 

(2) Sentences including an approved sentence to bad-conduct dis-


charge. Forms 32-40 are applicable to cases tried by special courts-martial 


convened by an officer who does not exercise general court-martial juris- 


diction when the sentence as approved includes a badconduct discharge. 


32. In the foregoing case o f , (the sentence) (only so much 

of the sentence as provides for bad-conduct discharge and 1 

is approved. The record of trial is forwarded for action under Article 

65(b). 

NOTE. When confinement, not suspended or deferred, is approved together with 

forfeitures, the forfeitures apply to pay and allowances becoming due on and after 

the date of the action of the convening authority unless he defers such application 

for good cause (88d(3) ; Art. 57(a)). For the purpose of clarity, if confinement, 

unsuspended or deferred, 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 date of this 

action," or 

"The application of the forfeitures is deferred until (the sentence is ordered 

into execution) ( ) ." 

33. In the foregoing case of , (the sentence ia approved 

and will be duly executed, but the execution of that portion thereof adjudging bad-conmduet discharge is suspended for the period of confinement 

andmonths thereafter, at which time, unless the isuspension is sooner 

vacated, the bad-conduct discharge shall be remitted withlout further 

action. ( -- is designated as tihe place of wnfmement.) 

The record of trial is forwarded for aotion under Article 65(b). 

34. In the foregoiqg case of , the sentence is approved, but the execution 2rher.eof is suspended for monbhs, 

at which time, unless the suspension is sooner vacated, it shall be remitted 

without further action. The record of trial is forwarded for action under 

Article 65 (b). 

NOTE. The o5cer exercising general court-martial jurisdiction to whom the 

record of trial is forwarded under Article 65(b) may, in general, use the forms of 

actions indicated in forms 41-49 below except that, if the convening authority 

has modified, suspended or deferred the sentence, the superior should refer to the 

sentence as approved in the mnnner indicated in form 37. 
FORMLACTION BY CONVENING AUTHORITY 

35. In the foreming case of , the sentence is ag 

proved. The service oif the senten'ce to aonflnement at haTd labor for - (days) (months) (was defenwd on ) (is deferred effective 

this date) and will not begin until such time as the sentence 'is ordered 

into execution, unless such deferment is sooner rescinded. The record of 

trial is forwarded for action under Article %(b). 

36. In the foregoing case of - the sentence 

is approved. The service of the sentence to confinement at hard labor for 

-- (days, months) was deferred on -and the deferment 

(was rescinded on ) (is rescinded effective this date). 

is designated as the place of confinement. TZle record of trial is forwarded 

for action under Article 65(b). 

NOTE. When the service of the sentence to confinement is deferred prior to or 

at the time the initial action is taken, the following should, in appropriate cases, 

(see SSd (3)) be added to the form Of the action : 

"The application for forfeitures is deferred until the sentence is ordered 

into execution, unless the deferment of codnement is sooner rescinded." 

The deferment is terminated when the sentence is ordered into execution. The 

confinement at this time may be suspended but it may not be further deferred. When 

a sentence which includes deferred confinement is approved but suspended, the 

deferment is thereby terminated, and only the suspension of the sentence to confinement is operative. Deferment of confinement and suspension of the same period 

of confinement cannot exist concurrently. When confinement which has been deferred 

Is approved but suspended, the dates of the deferment should be included in the 

initial action. 

37. In the foregoing case of , the (sentence) (only so 

much of the sentence) as (approved) (suspended) (approved and suspended) (approved and deferred) by the convening authority (as provides 

for ) is (approved ( 1. 

38. In the foregoing case of ,the findings of guilty and 

the sentence as approved by the convening authority are disapproved and 

the charges are dismissed. The accused will be released from the confinement adjudged by the sentence in this case and all rights, privileges, and 

property of which the accused 'hasbeen deprived by virtue of the find,ings 

and sentence so disapproved will be restored. 

39. See 25 above. 

40. 	See 24 albave. 

c. GENERAL COURTS-MARTIAL. 

App 14b 

Approvalconfinement 

deferred on trial date or 

dateof action 

(See88f) 

ApproVal-

~~~~~~ 

deferment 

rescinded prior 

tO Or 0" date 

of act~on 

-Approval 

- ~ ~ 

ordered into 


execution by 


convening 


-Disapproval ; 

order of 

rehearing 

-Disapproval of rehearing 

Cases forwarded for examination under Article 69. Forms of action 12-29 above are 

generally applicable to general court-martial cases in which the sentence as approved 

does not affect a general or flag officer, extend to death, dismissal, dishonorable or badconduct discharge, or confinement for one year or more. 

Cases forwarded for review by a Court op Military Review. 

41. 	In the foregoing case of ,the sentence is approved. 

NOTE. For the purpose of clarity, if confinement, unsuspended, or undeferred, and 

forfeitures are approved, one of the following should be added at this point : 

(a) 	"The forfeitures shall apply to pay and allowances becoming due on and 

after date of this action," or 

(b) 	"The application of the forfeitures is deferred until (the sentence is ordered 

into execution) ( ) ." 

The record of trial is iorwarded to the (Judge Advocate General of the 

) (Commandant, United States Coast Guard) for review 

by a Court of Military Review. Pending completion of appellate review the 

accused will be (retained in this command) (confined in 1 

(transferred to the command of 1. 

42. In the foregoing case of , only so much of the sentence as provides for is approved. (The forfeitures shall 

Approval 

Confinement and 

forfeitures 

(see 88d(3)) 

Remarks as 

to forwarding 

-Temporary 

custody 
App 14b APPENDIX 14 

-Mitigation 

of dishonorable 

discharge 

-Confinement in 

lieu of discharge 

-Of rehearing 

Suspension 

-Punitive 

discharge ; 

confinement 

for less than 

one year 

-Entire 

sentence 

Approvalconfinement 

deferred on 

trial date 

or date of 

action 

(See 88f) 

apply to pay and allowances becoming due on and after the date of this 

action.) (The application of the forfeitures is deferred until -) 

The record of trial is forwarded to the (Judge Advocate General of the 

) (Commandant, United States Coast Guard) for review by 

a Court of Military Review. Pending completion of appellate review the 

accused will be (see form 41 above). 

NOTD.See forms 14-18 for other examples of partial approval. 

43.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 ) (Commandant, United States Coast 

Guard) for review by a Court of Military Review. Pending completion of 

appellate review (see form 41 above). 

44. In the foregoing case of , the dishonorable discharge is changed to confinement at hard labor for 

(thereby making the period of confinement at hard labor as approved 

total -months). The sentence as changed is approved. The 

record of trial is forwarded to the (Judge Advocate General of the 

) (Commandant, United States Coast Guard) for review by 

a Court of Military Review. Pending completion of appellate review the 

accused will be (see form 41 above). 

45. In the foregoing case of - , the sentence is approved. 

The accused will be credited with (confinement from - ,19-

to - , 19-- and) any (other) portion of the punishment 

served or executed from , 19- to , 19-

under the sentence adjudged at the former trial of this case. The record 

of trial is forwarded to the (Judge Advocate General of the 1 

(Commandant, United States Coast Guard) for review by a Court of Military Review. Pending completion of appellate review the accused will be 

(see form 41 above). 

46.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 

for the period of confinement and months thereafter, at 

which time, unless the suspension is sooner vacated, the suspended portioil 

shall be remitted without further action. - is designated as 

the place of confinement. The record of trial is forwarded to the (Judge 

Advocate General of the ) (Commandant, United States 

Coast Guard) for review by a Court of Military Review. 

47. In the foregoing case of , the sentence la approved, 

but the execution thereof is suspended for -months, at which time, unless 

the suspension is sooner vacated, the sentence shall be remitted without 

further action. The record of trial is fo~warded to the (Judge Advocate 

General of the ) (Commandant, United States Coast Guard) 

for review by a Court of Military Review. Pending completion of appellate 

review the aact~sed will be (retained in this command) ( ). 

48. In the foregoiug case of - . the sentence is approved. The service of the sentence to confinement at hard labor for 

(months, years) (!!-as deferred on (is deferred 

effective this date) and 11611 not begin until such time as the sentence is 

ordered into execution, unless such clefernlent is sooner rescinded. The 

record of trial is for~varcled to the (Judge Advocate General of the 

) (C'omlnaiidant, United States Coast Guard) for 

review by a Court of Military Review. Pending completioil of appellate 

review the accused will be --(see form 41 above). 
FORMCACTION BY CONVENING AUTHORITY App 14d 

49. In the foregoing case of - , the sentence is Approvalapproved. The service of the sentence to confinement at hard labor for ~~e~~~ 

(months) (years) was deferred on and the dede-deferment 

ferment (was rescinded on (is rescinded effective this date). rescinded prior 

The record of trial is forwarded to th~ (Judge Advocate General of the toor on date 

) (Commandant, United States Coast Guard) for Of act'on 

review by a Court of Military Review. Pending completion of appellate 

review the accused will be ({see fmm 41 above). 

NOTE.Where the service of the sentence to confinement is deferred prior to 

or at the time the initial action is taken, the following should, in appropriate cases, 

(see 88d (3)), be added to the form of the action : 

"The application of forfeitures is deferred until the sentence is ordered 


into execution, unless the deferment of confinement is sooner rescinded." 


Ordering the execution of the sentence terminates the deferment. The confinement at this time may be suspended but it may not be further deferred. When a 

sentence which includes deferred confinement is approved but suspended, the 

deferment is thereby terminated, and only the suspension of the sentence to confinement is operative. Deferment of confinement and suspension of the same period 

of confinement cannot exist concurrently. When confinement which has been deferred 

is approved but suspended, the dates of the deferment should be included in the 

initial action. 

d. FORMS FOR ACTIONS APPROVING AND SUSPENDING PUNISHMENTS MENTIONED IN ART. 58a AND RETAINING ACCUSED IN PRESENT OR INTERMEDIATE 

GRADE. 

Under the authority of Article 58a, the Secretary concerned may, by regulation, limit 

or specifically preclude the reduction in grade which would otherwise be effected under that 

Article upon the approval of certain court-martial sentences by the convening authority. 

The Secretaries concerned may provide in regulations that if the convening or higher authority taking action on the case suspends those elements of the sentence that are specified 

in Article 58a the accused may be retained in the grade held by him at the time of the sentence 

or in any intermediate grade. The following forms of action may be utilized by convening 

or higher authority in effecting actions authorized by the Secretary concerned in regulations 

pursuant to the authority of Article 58a. 

If the convening authority or higher authority when taking action on a case in which 

the sentence includes a punitive discharge, confinement, or hard labor without confinement 

desires to approve the sentence and to retain the enlisted member in the grade held by him 

at time of sentence or in any intermediate grade, he may do so if permitted by regulations of 

the Secretary concerned whether or not the sentence also includes a reduction to the lowest 

enlisted grade, by utilizing one of the following forms of action. The first action, 50, is appropriate when the sentence does not specifically provide for reduction. The second and third 

acbions, 51 and 52 are appropriate when the mntence specifically provides for reduction to 

the grade of C1, the action set forth in 51 being intended for a case in which the accused 

is to be probationally retained in the grade held by him at the time of sentence, and the 

action set forth in 52 for a case in which he 'is to serve probaltionally in an intermediate 

grade. 

50. I,n the foregoing case of , the sentence is approved and will be duly 

executed but the execution of so much thereof as provides for [(dishonorable) (bad-conduct) 

discharge], [confinement], [hard labor without confinement], [ I is suspended 

until , at which time, unless the suspension is sooner vacated, the suspended 

portions of the sentence will be remitted without further action. The accused will (continue 

to) serve in the grade of unless the suspension of the [ (dishonorable) (badconduct) discharge], [confinement], [hard labor without confinement] is vacated, in which 

event the accused at that time will be reduced to the grade of E-1. 

;31.In bhe foregoing case of , the s'entence is approved and will be duly 

executed but the execution of so much thereof as provides for [(dishonorable) (badconduct) discharge], [confinement], [hard labor without confinement], [- I, 

and reduction to the grade of E-1, is suspended until - -, at which time, unless 

the suspension is sooner vacated, the suspended portions of the sentence will be remitted 
App 14d APPENDIX 14 

without further action. The accused will continue to serve in the grade of 


unless the suspension of the [(dishonorable) (bad-conduct) discharge], [confinement]. 


[hard labor without confinement], or reduction to the grade of El, is vacated, in which 


event the accused at that time will be reduced to the grade of El. 


52. In the faregoing case of , the sentence is approved and will be duly 

executed but the execution of so much thereof as provides for [(dishonorable) (badconduct) discharge], [confinement], [hard labor without confinement], [ ], 

and that portion of the reduction to E-1, which is in excess of a reduction to the grade 

of is suspended until , at which time, unless the suspension 

is sooner vacated, the suspended portions of the sentence will be remitted without 

further action. The accused will serve in the grade of unless the suspension 

of the [(dishonorable) (bad-conduct) discharge], [confinement], [hard labor without 

confinement], or reduction to the grade of E-1, is vacated, in which event the accused at that 

time will be reduced to the grade of E-1. 
Appendix 15 

FORMS FOR COURT-MARTIAL ORDERS 

a. FORMS FOR INITIAL PROMULGATING ORDERS. 


The following is a form applicable in promulgating the results of trial and the action 


of the convening authority in all general and special court-martial cases. Omit the marginal 

side notes in drafting orders. 

General (Special) Court-Martial (Headquarters) (USS) Heading 

Order No. ,19-

Before a general (special) court-martial which convened at (on board) 

pursuant to , (as amended by 

(Place) (Description of convening orders) 

,) was arraigned and tried 

(Description of amending orders, if any) Arraignment 

[on a (rehearing) (new trial), the former proceedings having been published in-CMO No. 

(Hs)(USS) 

,19-I : 

- Accused 

(Grade) (Name) (Service No.) (Armed force) (Unit) 

Charge I: Violation of the Uniform Code of Military Justice, Article Charges 

Specification 1: (Set forth specification verbatim from the charge sheet if 

not amended during trial-or if amended during trial, as so amendedunless it was withdrawn by the convening authority before arraignment. 

Such withdrawal may be shown as follows : 

Withdrawn by order of the convening authority before arraignment.) 

Specification 2 : 

Charge 11: Violation of the Uniform Code of Military Justice, Article 

Specification: 

PLEAS Pleas 

To Specification 1,Charge I:Not guilty. 


To Specification 2, Charge I:Guilty. 


To Charge I :Guilty. 


To the Specification, Charge 11:Not guilty. 


To Charge I1:Not guilty. 


or 

To all the Specifications and Charges :Not guilty (Guilty). 

NOTE. If a plea is not entered to n specification or charge owing, for example, to Charges 

the fact that the court sustained a motion to dismiss, the fact will be briefly stated dismissed 

under "Pleas," as shown in the following example. In such a case the specification or on motion 

charge need not be listed under "Findings." 

To Specification 2, Charge I : Dismissed on motion of defense on ground of 

former jeopardy. 

FINDINGS Findings 

Of Specification 1,Charge I :Guilty. 

Of Specification 2, Charge I :Guilty. 

Of Charge I:Guilty. 
- - 

App 15b APPENDIX 15 

Of the Specification, Charge I1:Not guilty. 

Of Charge I1:Not guilty. 

or 

Of all the Specifications and Charges : Guilty. 

NOTE. If a specification or charge is dismissed or withdi'awn after a plea has 

been entered, the fact will be stated under "Findings." If dismissed m motion of the 

prosecution or withdrawn by the convening authority after evidence on the merits 

has been received, a notation 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 Specification 2, Charge I :Dismissed on motion of defense on grounds of 

res judicata. 

Of the Specification of the Charge: Withdrawn by order of the convening 

authority after evidence on the merits had been received because of military 

necessity occasioned by enemy action. 

Acquittal In the event of findings of not guilty of all charges and specifications : 

Of all the Specifications and Charges: Not guilty. 

The findings were announced on ' , 19-.

Sentence SENTENCE 

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.) 

Date The sentence was adjudged on 

ACTION 

Action of (Copy action of convening authority verbatim, including heading, date, and 

convening signature. See appendix 14 for appropriate forms.) authority 

Action of ACTION OF THE OFFICER EXERCISING GENERAL COURTthe officer MARTIAL JURISDICTION exercising general 

court-martial 

jurisdiction (if HEADQUARTERS 

appropriate) 

,19-


In the foregoing case of the sentence as approved (and 

suspended) by the convening authority is approved. The record of trial 

is forwarded to the Judge Advocate General of the for 

review (bya Cou,rt of Mi1,itary Review. Pending completion of ,appellate re 

view the accused will be confined in 

Major General, U.S. 

Commanding 

NOTE. Orders promulgating the proceedings of special court-martial cases, 

which include an approved sentence to bad-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 officer exercising general court-martial jurisdiction to whom 

the record has been forwarded pursuant to Article 65(b), his action will be copied 

verbatim immediately after the action of the convening authority. 

Authentication NOTE. The order mill be authenticated as prescribed by the Secretary of a 

Department. 

Joint or NOTE.In the case of a joint or common trial separate orders should be issued 

common trials for each accused. Joint specifications will be copied verbatim but only the pleas, 

findings, sentence, and action pertaining to the accused as to whom the order is 

l?romulgated need be shown. 

b. FORMS FOR SUPPLEMENTARY ORDERS PROMULGATING RESULTS OF AFFIRMING ACTION. 

NOTE.Court-martial orders publishing the final results of a new trial and of proceedings in cases 

in which the President or the Secretary concerned has taken final action are promulgated by departmental orders. In other cases the final action may be promulgated by an appropriate convenin~ 
FORMS--COURT-MARTIAL ORDERS App 15b 

authority, or by an oficer exercising general court-martial jurisdiction over the accused at the time 

of final action, or by the Secretary concerned. See 107. The following forms may be used where such a 

promulgating order is published in the field. If a sentence as ordered into execution or suspended by 

the convening authority is affirmed without modification and there has been no modification of the 

findings, no supplementary promulgating order is required. 

See a above. Heading 

In the (general) (special) court-martial case of , the Sentence 

sentence to bad-conduct discharge, forfeiture of -Alrmed 

and confinement at hard labor f o r , as promulgated in (General) (Special) Court-Martial Order No. , (Headquarters) 

(Commandant, Naval District) , dated 

, 19-, has been affirmed pursuant to Article (66) (67). 

The provisions of Brticle 71(c) having been complied with, the sentence 

will be duly executed. ( is designated as the place of confinement.) ( 

NOTn. As to the designation of places of confinement, see the applicable regulatlons of the Secretary of a Department. 

or 

In the (general) (special) court-martial case of , only so -A=rmed 

much of the sentence promulgated in (General) (Special) Court-Martial in part 

Order No. , (Headquarters) (Commandant, 

Naval District) ,dated , 19-, as provides for 

, has been affirmed pursuant to Article (66) (67). The provisions of Article 71(c) having been complied with, the sentence as thus 

modified will be duly executed. ( is designated as the place 

of confinement.) ( -1 

or 

In the (general) (special) court-martial case of ,pursuant to Article (66) (67), the findings of guilty of Charge I1 and its 

specification have been set aside and only so much of the sentence 

promulgated in (General) (Special) Court-Martial Order No. 

(Headquarters) (Commandant, Naval District) 

dated , 19-, as provides for has been 

affirmed. Article 71(c) having been compiled with, the sentence as thus 

modified will be duly executed. (- is designated as the place 

of confinement.) ( .) 

or 

In the (general) (special) court-martial case of , the -A5rmed in 

proceedings of which were promulgated in (General) (Special) Court- ~ , " ~ ~ ~ ~ ~ Martial Order No. , (Headquarters) (Commandant execution 

Naval District) ,dated , 19-, the findings set aside 

of guilty of Charge I and its specification, and so much of the sentence in part 

as is in excess of have been set aside and the sentence, as 

thus modified, has been affirmed pursuant to Article (66) (67) and will be 

duly executed. Article 71(c) having been complied with, all rights, 

privileges, 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. 

or 

Findings and In the (general) (special) court-martial case of , pur- sentence set 

suant to Article (66) (67), the findings of guilty and the sentence as .,ide 

promulgated by (General) (Special) Court-Martial Order No. 

(Headquarters) (Commandant, - Naval District) --, 

dated , 19-, were set aside on ,19-. (The -Charges dismissed charges are dismissed. All rights, privileges, 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 -Rehearing 

ordered another court-martial to be hereafter designated.) 

See a above. Authentication 
App 15e 	 APPENDIX 15 

C. FORMS FOR ORDERS REMITTING OR SUSPENDING UNEXECUTED PORTIONS OF SENTENCE. 

Heading 	 See a above. 

The unexecuted portion of the sentence to , in the 


case of , promulgated in Special Court-Martial Order No. 


, (this headquarters) (this ship) (Headquarters ) 


Remission ; (.uss -) , , 19-, is (remitted) (suspended 
 suspension 	 for months, at which time, unless the suspension is sooner (see 970) vacated, the unexecuted portion of the sentence will be remitted without 

further action). 

Summary Norm. Any order remitting or suspending the unexecuted portion of a sentence 

courts-martial 	 by summary court-martial or promulgating any other action taken on a summary 

court-martial case subsequent to the initial action of fhe convening authority will 

be promulgated in such orders as may be prescribed by the Secretary of a Department. 

Authentication 	 see a above. 

d. FORMS FOR ORDERS SETTING ASIDE ILLEGAL SENTENCE. 

Heading See a above. 

Setting aside Pursuant to the authority of paragraph 94,MCM, the findings of guilty 

-BY offlcer and the sentence in the special court-martial case of , as having promulgated in Special Court-Martial Order No. , (Head- supervisory 

authority quarters) (USS) , 19-, are set aside. All 

-Entire rights, privileges, and property of which the accused has been deprived by 

aentence virtue of the findings of guilty and the sentence so set aside will be restored. 

-In part Pursuant to the authority of paragraph 94,MCM, the 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 , 88 

promulgated in Special Court-Martial Order No. , (Headquarters) (USS) - , 19-, are set aside. All 

rights, privileges, 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. 

-By convening Norm. If, pursuant to 94a(2), the convening authority withdraws his previous 

authority 	 action, disapproves the flndings of guilty and the sentence, and dismisses the charge 

or directs a rehearing in a case in which a promulgating order of execution has 

previously been published, he shall publish a new promulgating order as shown 

in a above. The action shall be followed by the following notation : 

-Revocation Special Court-Martial Order No. , , this (headquarters) 

of prior order (SUP), 19-, isrescinded. 

Authentication See a above. 

e. FORMS FOR ORDERS VACATING SUSPENSION. 

NOTI. Orders promulgating the vacation of the suspension of a dismissal will be published by 

departmental orders of the Secretary concerned. Vacations of any other suspension of a general courtmartial sentence, or of a special court-martial sentence which as approved and affirmed includes a badconduct discharge, will be promulgated by the officer exercising general court-martial jurisdiction over 

the probationer (Art. 72(b)). The vacation of suspension of any other sentence may be promulgated 

by an appropriate convening authority under Article 72(c). See 97b. 

Heading 	 See a above. 

Vacation of So much of the order published in Special Court-Martial Order No. 

suspension ,this (headquarters) (ship), , 19-, as sus- -Under 

Article,S(e) pends execution of the sentence to (confinement) (forfeiture of pay) 

( ) in the case of is vacated. The unexecuted 

portion of the sentence to will be duly executed. 
FORMS--COURT-MARTIAL ORDERS 

So much of the order published in General Court-Martial Order No. 

,this headquarters, dated ,19-, as suspends 

execution of the sentence in the case of is vacated pursuant 

to Article 72. The sentence will be carried into execution. 

So much of the order published in (General) (Special) Court-Martial 

Order No. , (this Headquarters) (Commandant, 

Naval District) dated , 19-, as suspends execution of 

the sentence to (dishonorable discharge) (bad-conduct discharge) 

( ) in the case of is vacated pursuant to 

Article 72. Article 71(c) having been complied with, the sentence to 

will be duly executed. 

See a above. 

f. FORMS FOR ORDERS DEFERRING THE SERVICE OF A 

SENTENCE TO CONFINEMENT 

NOTE.When deferment of a sentence to confinement at hard labor, or any 

unserved portion thereof, is granted after the convening authority has taken his 

action in the case, the deferment will be promulgated in a supplementary order. 

See 88f. 

The unserved portion of the sentence to confinement at hard labor for 

-(months, years) in the case of , promulgated in 

(Special) (General) Court-Martial Order No. -(this headquarters) 

('thiswhip) (Headquarters ) (USS 1, -19-, 

is deferred until such time as the sentence is ordered into exacution, unless 

the defment of confinement is socmer rexinded. 

NOTn. In appropriate cases (see 881(3)) the following should be added to the 

form of the order : 

"The a~plication of the remaining forfeitures is deferred until the sentence is 

ordered into execution, unless the deferment of confinement is sooner rescinded,." 

g. FORMS FOR ORDERS RESCINDING DEFERMENT. 

NOTE. When any deferment previously granted is rescinded after the convening authority has taken his action in the case, such rescission also will be promulgated in a supplementary order. See 88g. 

The deferment of that portion of the sentence that provides for confinement at hard labor for -(months) (years) in the (special) 

(general) court-martial case of , as promulgated in (Special) 

(General) Court-Martial Order No. , (this headquarters) (this ship) 

(Headquartens -) (USS ) -19-, is rescinded. The 

(sentence) (unmed portion of the sentence) to confinement will be 

served. ( is designated as the place of confinement) 

(pending completion of appellate review the accused will be ). 

So much of the orders published in (Special) (General) Clou,rt-Martial 

Orders No. -(this headquarters) (this ship) (Headquarters -) 

(USS , 1 9 , as deferred the service of the sentence to 

confinement at hard labor in the case of is rescinded. The 

(sentence) (unserved portion of the sentence) to confinement will be 

served. ( is designated as the place of confinement) 

(pending completion of appellate review the accused will be ) . 

NOTE. In appropriate cases (see 88d(3)) the following should be added to the 

form of the order : 

"The (remaining) forfeitures shall apply to pay and allowances becoming due on 

and after the date of this rescission." 

APP 15g 

-General 

court-martial 

sentence 

forwarded for 

examination 

under Article 

69 

-Sentence 

including a 

punitive 

discharge or 

confinement for 

one year 

or more 

Authentication 

Deferment-after 

convening 

authority's 

action 

Hescission-deferment effected by 01 

reflected in action 

of convening 

authoriw 

Rescission-deferment promulgated 

in supplementary 

order8 
Appendix 16 

RECORD OF PROCEEDINGS TO VACATE 


SUSPENSION 


There is set forth below a copy of a form for the record of proceedings to vacate a suspension as 

required under Article 72. The officer exercising special court-martial jurisdiction over the probationer 

may either hold the entire hearing himself or designate a qualified officer to conduct a preliminary hearing subject to review of the officer exercising special court-martial jurisdiction. If such a preliminary 

hearing is held, the probationer will be given an opportunity to examine the record of proceedings and 

to present any objections to the oficer exercising special court-martial jurisdiction. The probationer, if 

he so desires, shall be represented by counsel at both the preliminary and final hearings. 

As a guide, sample entries pertaining to a member of the Alr Force have been entered. Items 1to 18, 

inclusive, may be completed by an officer designated to hold a preliminary hearing who shall a6ix his 

signature in space 19. 
APP 16 APPENDIX 16 

kl? 00000000 

Brown Air Force Base 


Absence without leave from 1 June 1967 to 2 August 1967 in violation 


of Article 06, Uniform Code of Nilitary Justice. 


The sentence was approved as adjudged. The Confinement Facility, 


Brown Air Force Base, was designated as the place of confinement. 


~ M NO.. O ~q , dated 

1. ACTION OF HlOHllR AUTHORITY 

On 10 September 1967, the Commander, 5000th Support \ling, approved 


the sentence but suspended the execution of the sentence to bad- 


conduct discharge for the period of confinement and six months there- 


after at which time tho discharge will be remitted unless sooner 
 vacated. As thus suspended, the sentence was ordered executed. 


On15 October 1967, the sentence, as suspended, was affirmed by the 


board of review. 


1. FINAL ORDERS OF PROMULOATION 

52 ,Hq 5000th Suvvort Wing, dsted10 Sev 1967{~xhibit 1 1. 

k. ACTION IN MITIOATION OR PETITION FOR NEW TRIAL 

None 


,&TE: Ifa ptaparod torn I.u.sd oldsddlllmal amso I.-1nd forany If-, mforlhs mddlll-1 marorla1 on a .eWnle .heel. Bo sure lo 

rdonrlly wch mm1erl.l rlth the pmpor nmerlsol and, when .ppmml.le, lollered haadlnl f.5xampls. *'7s0'J. Sosurely olbch any mddlllonl .hoot 

10 he lorn and add a nolo fn the .ppop.~a~o 11sm ol he lorn: ,'See addl~lonal aheel." ~ny mytten vhlch am no1 1donllll.bl. 'vlh .me olher

headlnl h ULa lorn should h Indlcaled ln 1lom 13. Remark., or, 11 added on an addlllonI .heel. aush aheol wllf be rolernd lo and ldsnrlllod 

b llam 15. 

SP ,
RECORD OF PROCEEDINGS TO VACATE SUSPENSION APP 16 
-- 

APP 16 APPENDIX 16 

CHECK AOPROPRIATE ANSWER fConllnuodJ - - ,Y_ES. 1- HO, 

,2. THE FOLLOWlND DOCUMENTS HAVE BEEN EXAMINED. SHOWN TO THE PROB'ATIONLR. AND ARE.APPENDED 

fdeacrlbe documenlr): 

~~~~L_S~,H~Q_QO~~?.~S,U~.O_~~W&.~P; ,.lC??ep~967_~-' ..

Extractcoovof_~t~?strength balance renorr. or ? Au . . . &tract con7- of uns a r - r stren~thbalance report 7 X 

- 5001.st SUDDO~.~~auadronfor 10 S~D1967 


Bxk&-wpy of guard re~sstrmtC~xabf -Defense 
 8-.-XXI--


S-. 10 ?Iov 1967 


HC REAL EVIDENCE WAS EXAMINED. SHOWN 10 THE PROBATIONER. AND IS NOW PRE3ERVEO FOR 1 1 I I): I I 

C and Law Ehforcement. 5001& I Il l 

AS INDICATED --.--- -- -----.--..--- . 

--. - -. ,.*. --..-.--. .- .: - VlOENCE WHICH WAS EXAMINED WAS NOT SHOWN TO THE PROBATIONER, STATE THE 

-
-- 

RECORD OF PROCEEDINGS TO VACATE SUSPENSION APP 16 

Prior to his escape and since his return to mnilitarf control 


the probationer's conduct while in confinement has been sati 


factory. His escape rnay have been attributable to the in- 


fluence of a fellow prisoner. Information indicates that 


probationer is easily led, particularly in matters tending 


toriard the breach of discipline. 


a. PRESENT AOE BASIC PAY PER MONTH L ALLOTMENXS PER MONTH 

22 6/12 $129.00 d. INITIAL DATE AN0 TERM OF CURRENT SERVICE None 

-Enlisted 15 I,Tarch 1965 for 


four years 
 o. 	PRZORSERVICE (Ae to each lomtlnated onllahnent plvo hslualvo &lo. of aervlso and or1Mlzatlon h lvhlsh eorvh.4 a1 lomlnallar. Qlvo almllar &la me lo aervlse no1 mderan allalmonl.) 

"one 

I. 	CHARACTER OF SERVICE PRIOR TO OFFENSE OF WHICH 1. CHARACTER OF SERVICE WHILE ON PROBATION. PRIOR i0 

CONVICTED ALLEOED VIOLATION OF PROBATION 

Good 	 Batisfactory 

----.-- h. PREVIOUS CONVICTIONS WHETHER OR NOT CONSIDERED AT TRIAL 	 I. INTELLIGENCE SCORE 

None 	 83 

1. CIVILIAN BACKGROUND 

111 MARITAL STATUS I21 NUMBER OF DEPENDENTS 

0MARRIED =SINGLE None LII EDUCATION 

Completed 9 years of school - -- 141 EMPLOYMENT 

Unskilled laborer in rubber factory earning about $50.00 per week. 

101 CRIMINAL RECORD 

Evidence of none 

111 EXPLANATORY COMMENTS 

k personal- interview with the probationer,after sentence by court-


martial disclosed that his father died when he was 16. His mother, 


two brothers, and one sister live in Nrron, Ohio. 


k. MILITARI RECORD (Edel.Utomsn1 of lnbln& sombal, award., desorallona, dellnquoncb., el=.) 

After enlisting on 15 ?<arch 1965, probationer received basic training 

at Laclrland.Air Force Base. On 1August 1965 he was assigned to 3000th 

Supply Squadron and on 1Ihrch 1967 transferred to 5001st Support Squad- ron. 
APP 16 APPENDIX 16 

*k. YILITARV RSCOID fB~I.I.0.Im.nlol LnkLU. eE4b.l. am&, d.omlla. d.ICqu.n~l..~ .la.) fc~lhnra 

IIis records indicate that his efficiency and character were considered 

bo be good. 

19. TYPED NAME. RANI(. AND OROANlZATlON PC OCCleER CONDUCT. DATE IN0 HEARIN. (11 0Ih.r o~~IE., .p~ldCMLMI~ 

J~I.~ICII.+ 

lh"7 .=.mI.blg 1December 1967 


Richard T. Johnson SICNAT 


14a ~~dlst 'or USRF 

suoaort Grouo ~AK&b---- '20. HEARINO BEFORE orrletzn SXERCISINO SPECIU COURT-MARTIAL JURISDICTIONI 

The foregoing report of pmceedlng. of the preumlrmry hewing has been subdttgd to the probmtlonar (md Na comael) 2. 

The prohmtlonm (and hla comael) 2 appeared before me and ram (were) given an opporlunlty to object to my item In the 

report ad to smbmlt my addltiorml matter In extenuation. mltigstion, or defense. Any ohjsctlona and other rnnttcn sub 

dtted by him are set fmth below (Appendd a. Exhlbil No. 9 )2. 

1 ~pptlubr. a.17 11 mlbbun hrrblg I. cprdllst.d by of~lc.~th., ~h.nL. O~IIC., ...PO I.IN *poldl DM-11.1 I~lmdlclion.In 


.-.I. O..", ."I" '.NO1 .ppllO.bl.." 


2 Lh. arl 11 no1 .pptlO.bl.. L I 
RECORD OF PROCEEDINGS TO VACATE SUSPENSION APP 16 
-- - 

- 

1 

Appendix 17 

SUBPOENA 

SUBPOENA FOR CIVILIAN WITNESS 

'~.ner,~..rasja~,or au-ry sourt..artlar. ~ ~ ~~u~t.~.rti.l ~ ~ of the ~ united astates. l U. S. Naval Station. 

ap1.s. .h.r. pros... 1. I,.YL~. an Dieao. California -

'N- of .ib.##. The President of the United Stater, to Cls~rrleM. Rickshv J -

, You arc hereby summoned end required toappear on themday ofav , d..llnated. 

1969. at 9 o'clock A . M., (bcfeie 

'Lln. out. .hen inape 

-

proprlat.. .Ib.lor. d..Iln.r.d designated to take your deposition for use)' before to ear. your d.po.i- llon for ul.).. 

generap ,.,.t....ti,l or the United staicr, at Building 73, 

%mar.~, areriai. or . .umarYcwr'.m*rli.l. U. S. Naval Station. San Dieao. California -, 7 

7p1ac**h*rec0urti' convened by an order of the Cornandant. Eleventh Naval Dist.: lo a~sembl~. 

San Dieao. California 8M,wria, 

gpr.,.su~ion.Or d,. datcd11.~lmpl969. to te9tifysra .itncrs for the defense 9 

fen#.... .pproprlata. 

in the case of United States v. Tom T. Tucker. Seaman A~prentice. '0.u.. .tc., el... su#.d$wother aubiecl ol Inv.*tl#atlen. U. S. Navy 10 (and bring with you 

"LI~. out. imp- rroprI.te, "and brlnl with YOU ).I1 ." Whan .pp,op,j.t. dearrib. Failure to appear and testify is punishsble by s fine of not more than 1500 or 

i ' imprisonment for a period not exceeding six months, or both. 

rewlrcd.to~roduc~bc-

/err the court. Bring this rubwne with you and do not dcrsrt fran the court without propr prmirrion. 

Subscribed at U. S. Naval Station. Sari Diego. Calif: this- day of 

"10 

l~l.I be ..Y..L~, 

nubacribnd $.. JU~V I~&. Adc, p13& ,, eOlder, etC. D A N I ~ ~ ~ ~ E I O f F I C I IYIUS A L

Captain, USMC 

Trlal Counsel The -itno.. i.roqua.tsd 10 aubnsrib. on on. copy of lheaubp~ona tha Iollo.ln( and 

1 , , LO return to tho person nervinl tho nubpoan. the copy thoreof so subssribod. 

MAIL th. .It".. .I11 b r.q~*.l.d lo nub- .crib. th1. .cknaledy mnr of .ccrpt.ns. 0" - , 19-

onocWy.nd to return PUCE DllE 

a- to the offlcor .hoisrucdtb.~b-.. I hereby accept service of the sbeve subpoena. I' 

SIGHAIURE Of VIllElS 

I4rhi, pt-I of aarriu .III sr nljedmr .~n Pers~nally appeared before mr, the underaimed suthorit'y. I' Caotain Osmer P. rmlq l.mr.m.1, nd th. eapy thus -1.td dl1 h r.tumnd lo tho Fox offlllser i.mInlrh sub a who, belng first duly sworn sccordinq to porn.. 

law, dopose. and ray. that at Marvsville. Ohio , on 11 Julv 

1 9 . he permonelly delivered to-Claude 

duplicate of the within subpoena. 

&>,?; 

M. Rickab 

SlGllTYRE g A10 GllOE 

en
a 

SUBSCRIBED AND SW~Nto before me at Fort Wilson, Ohio , 11th 

of July . 1969. 2dda. A>-a, ile~rruar.611DT,~1(001~1~1~~ sT1lUI 

VALENTINE QUODE 

Lieutenant Colonel, JAGC 
INDEX 

Abandoned property. See Captured or abandoned 

property. 

Abandoning guard or watch: 

See also Absence without leave. Par. Page 

Specification form ......................... App 6c(16) --------- A6-6 

Abandonment or surrender of command, military 

property, place, unit or ship: 

ShamefullyDiscussion- --- - ------- - - - -- - --------- 178b--------------- 28-28 

Proof---- - - - - - - - - --- - ---------------- 178b--------------- 28-28 

Specification form ..................... App 6c(44) --------- A6-9 

Subordinate, CompellingDiscussion- ---- - - - --- - - - ----- - -- - - --- 179a--------------- 28-30 

Proof-------------------------------- 179a--------------- 28-30 

Specification form ..................... App 6c(52) --- - ---- - A6-10 

Abettor, aider (See also Joint offenses) : 

Defined-----_-------__---------------------

Liability as Principal, Art 77 ---------------

Absence: 

AccusedDoes not affect action of convening 84a----------_----- 17-1 

authority on record. 

During trial--- -- -- ----- - ------ - ------ 1 lc- - _ ------- ----- - 4-3 

Convening authoritySuccessors........................... 84b----_--------_--17-1 

Who may actduring------_----------- 84b------_--------- 17-1 -

Defense personnel during trial, Art 38(b)-- - - 46c-- -------------- 9-11 

Members of general or special courts -------- 41c, d -----------_-- 9-4, 9-5 

Military judge---------------------------- 39d_----------_---- 9-2 

Prosecution personnel during trial ----------- 44c- --__---------- 9-7 

Absence without leave: 

See also Desertion. 

Discussion------------------------------- 165----------__---- 28-14 

Proof----------------------------------- 164a, 165----------- 28-15 

Specification form ........................ App 6c(13-16) ------ A6-5,6 

Civilian Authorities ....................... 164a, 165 ----------- 28-12,14 

Computation of time --_------_-_-_---------127c(3)------------- 25-10 

Defenses. See Defenses. 

Desertion, element of ...................... 164a--------------- 28-14 

Failure to go to or going from appointed 165, App 6c(13) ----- 28-14, A6-5 

place of duty. 

Field exercises, Absence with intent to avoid-- 165, App 6c(15) - - --- 28-14, A6-6 

Go from appointed place of duty. See Failure 

to go; this subject 

Guard, watch or duty section, absence with 165, App 6c(16) ---- - 28-15, A6-6 

intent to abandon. 

Inference of continuance--------__----------- 164a--------------- 28-12 

Joint offense, charging as- ----------------- 26d---------------- 6-2 

Morning report entries- ------------------- 164a--------------- 28-12 

Number of Days. See Computation, this 

subject. 

Offense,notcontinuihg-------------------- 215d--------------- 29-3 
INDEX 

Absence without leavecontinued 

Prisoner after discharge or dismissal ---------

Proof of------__------------------------ 

Statute of Limitations--- - -- -- ---- -- - ---- -

War, declaration of suspends maximum 

punishment. 

Absence without proper authority. See Absence 

without leave. 

Abusing public animal- - - -- - ------------------

Accessory after the fact: 

Discussion----------------------------

Proof----------------------------------

Specification form ........................ 

Jointly charged with principal-- ------------

Accessory before the fact. See Aider, abetter. 

Accident, as defense ........................... 

par. 

165----------------

165, 164a----..------ 

215d-- -- - -------- - - 

127c(5)-------------

App 6c(126) --------

157----------------

157----------------

App 6c(l) ----------

26d----------------

216b---------------

Accident, fleeing the scene of, specification form- - App 6c(152) -- - -- - --

Accomplice: 

See also Conspiracy, joint offenses, joint trial, 

common trail. . . Admlss~on............................... 


Charges and specifications, when not jointly 

charged. 

Common Trial of. See Common trial. 

Confession of. See Confessions --------------

Conviction of one, admissibility as evidence-- -

Evidence, general ......................... 

Joint trial. See Joint trial. 

TestimonyCompetency of----------------------- 

Corroboration of, when required- -- - ---- Promise of immunity ------------------

Self-incrimination, privilege against- - -- - 

Accusation, defined-----_---__--------------- 

Accused: 

Absence of during trial- ..------------------

Advising of charges and specifications- - -----

Announcement of name to court-martial -----

AppealAdvising............................. 

Civilian counsel during- ---------------

Custody pending ..................... 

Detailed counsel ...................... 

Appearance before court------------------- 

Assumed advised of rights by counsel --------

Certificate of correction, service on accused-- 

Character evidence - - - - - ..-- - -----..-- - ---- - 

Character of, in determining sentence - - - ----

ChargesAdvising of .......................... 

Preferred, when ..................... 

140b---------------

26d----------------

140b---------------

140b------ -- -- ---- -

140b---------------

148e---------------

153a-------- ------- 148e---------------

148e--------- -- - ---

24a----------------

llc- ---------------

32f(l), 33~- - -------

Page 

28-14 

28-12, 28-15 

29-3 

25-10 

A6-20 

28-5 

28-5 

A6-4 

6-2 

29-4 

A6-22 

27-20 

6-2 

27-20 

27-20 

27-19 

27-53 

27-65 

27-53 

27-53 

6-1 

4-3 

7-4, 7-5 

61c- --_------------ 11-2 

48j(3) ..------------9-13 

102c---------------

88f, 89c(6) ----------

102----------------

60-----------------

53h----------------

86c- ---------------

20-6 

17-10, 17-11 

20-5 

11-1 

10-5 

17-5 

138f (2) - - --- - ----- - 27-8 

76a(2)-..--- - - --- - - - 13-11 

32f(l), 33c-- ------- 7-4, 7-5 

25----------------- 6-1 

Unsworn, objection to -----_----------- 29e---------------- 7-1 

Charge Sheet, service of ----_-------------- 44h, 58c --------- --- 9-10, 10-13 

Compulsory self-incrimination. See Self-incrimination. 

Contempt................................ 118, App 8c --------- 23-8, A8-25 

Common trial. See Joint trial, common trial. 

CounselSee also Defense counsel. 


Interrogation........................ 30b---------------- 7-2 

INDEX 

Accused-Continued 

Counsel-Continued Par. Page 

Interview with----------------------- 48g-----..---------- 9-13 

Legal qualifications ------------------- 6, 61f -------------- 3-3, 11-3 

Right to ............................. 6c, 34c, 48a, 102c ---- 3-4, 7-10, 9-11, 

20-6 

Counter-interpreter, accused may employ- --- 50c- ------ - -- - ----- 9-16 

Cross-examination, right to ------_--------- 34b, 149b(l) -------- 7-9, 27-54 

Custody pending appeal ------------------- 88f, 89c(6) ---------- 17-10, 17-12 

Dress before court - - ---- -- -------- - ------ - 60----- - -- - -- - - -- - - 11-1 

EnlistedSee also Enlisted persons. 


Enlisted member of Courts-Martial, 4c, 41d, 618 --------- 2-2, 9-5, 11-5 


right to. 

Escape during trial, effect of - - - --- - ---- - --- llc, 4%- - ------- --- 4-3, 9-14 

Explanation of rights at trial -----_---_----- 53h, 7941) --------- 10-5, 14-2 

Explanation of rights before interrogation ---- 30, 140a, 150 ----_--- 7-1, 27-15, 

27-57 

Extenuation and mitigation ------_--------- 75c---------------- 13-10 

Failure to testify, argument on- ----- - -- - - - - 72b-- - - - - - --- - -- - - - 13-1 

Failure to plead-------------------------- 70a---------------- 12-9 

Guilt, reasonable doubt of ----------------- 73b---------------- 13-3 

Informed of charges- ...................... 32f(l), 33c ---------- 7-4, 7-5 

Innocence, presumption of- ---------------- 73b, 138a ----------- 13-3, 27-5 

Insanity. See Insanity. 

Interpreter, right to- ...................... 53i---------------- 10-5 

Investigation, right of accused to additional-- 33e(2) -------_------ 7-6 

Investigation of charges. See Investigation of 

charges. 


Joint trial. See Joint trial and common trial. 


Jurisdiction over by another armed force ----- 13----------------- 4-3 


Mental capacity and responsibility- 


Punishment, effect upon -_---_-------_-123-_-------------- 24-5 

Review, consideration required.. --_----- 86b(l), 124- - -----_- 17-4, 24-6 

Reasonable doubt ..................... 74a(3), 122a, b, 124-- 13-4, 24-2, 24-3, 

24-6 

Military judge only, right to request trial by- 4a, 53d(2) ---------- 2-1, 10-2 

Nonjudicial punishment, right to refuse ------ 16a, 132 ------------ 4-6, 26-8 

Notice ofCourt of Military AppealsReference to ..................... lOOb(2)-------_----- 20-2 

Right to petition for review to ------ 100c(l) (a) --- - -- - - -- 20-3 

Court of Military Review, decision of--- 100c(l)(a)---------- 20-3 


Officer, composition of court -----_------_---4c----------------- 2-2 


Perjury------_-------------------------- 210-_--------_----- 28-66 


Pleas--------__-_----------------------- 70..--------------_- 12-9 


Physical restraint at trial, degree of --------- 60----------------- 11-1 


Presumptions-


Innocence............................ 73b, 138a -------___-13-3, 27-5 


Sanity............................... 122a, 138a ---------- 24-2, 27-5 

Reasonable doubt of guilt -----_--------____73b---------------- 13-3 

Record of trialDelivery impossible ------------------- 91a, b-------------- 17-15, 17-16 

Receipt of ........................... 82g(l), 83 ---------- 16-3, 16-4 

Refusal or failure to plead, effect of --------- 70a_--------------- 12-9 

Rehabilitation of- ........................ 88b---------------- 17-7 

Restraint of .............................. 18b, 20, 22, 30h -----_ 5-1,5-2,5-5,7-2 

Revision of record. See Revision. 

RightsAdditional investigation, Article 32 _---- 33e---------------- 7-6 

Appeal, defense counsel must advise of 48k(3) ------------- 9-13 

right to 

Index-3 
Accused-Continued 

Rights-Continued Par. Page 

Appeal to Court of Military Review ----- 100------_-----_---20-2 

Appeal, counsel for the accused on, Arti- 102--------------- - 20-5 

cle 70. 

Appeal to Court of Military Appeals- --- 101----------- - ---- 20-4 

Assistance of trial defense counsel on 48k(2)---------_--- 9-14 

appeal. 

Civilian counselon appeal, Article 70(d) ----------- 102c--------------- 20-6 

at investigation ------------------- 34c---------------- 7-10 

at trial-------------------------- 48a---..------------ 9-11 

Cross-examination .................... 346, 79d(3), 149b(l)-- 7-9, 14-3, 27-54 

Demand trial by court-martial in lieu of 132----------_----- 26-8 

Article 15 punishment. 

Enlisted personnel on the court-- ------- 4c, 36c(2), 41d (2), 2-2, 8-2, 9-5, 

61g. 11-5 

Explained by counsel ------------_------48f- ---------_----- 9-13 

Explained by court- ------ - --------- -- 53h, 79d(l) -------- - 10-5, 14-2 

Explained at investigation- ------------ 34b--- - ---- ---- -- -- 7-9 

Interpreter, to be provided upon request 53i- --------------- 10-5 

when accused does not understand 

English. 

Limiting testimony to circumstances of 140a(2)- - - - -- _ ----- 27-15 

obtaining confession or admission. 

Military judge alone, request for trial by.. 4a, 53d(2) ---------- 2-1, 10-2 

Request for counsel normally disqualified- 6a----------------- 3-3 

Self-incrimination..................... 150b--------------- 27-58 

Special findings ....................... 39b(5), 74i ---------- 9-2, 13-8 

Summary court-martial ---------------- 79d(l)--- ---------- 14-2 

Testimony, copy of taken at Article 32 332'(2)------------- 7-8 

investigation. 

Testimony--------------------------- 148e--------------- 27-52 

Cross-examination of -------------- 149b(l)-- ---------- 27-54 

Unsworn statement after findings -----_- 75c(2)------------_- 13-10 

Sanity, presumption of .................... 122a, 138a ---------- 24-2, 27-5 

Search of, unlawful, evidence obtained by ---- 152---------------- 27-62 

Seating at courts-martial ----- _- - - ------ - --- - 61b--- - - -- - - - - ---- - 11-2 

Self-incrimination. 

See also Self-incrimination. 

General------------------------------ 150b----------..---- 27-58 

Rights explained ...................... 34b, 53h, 150b ------- 7-9, 10-5, 27-58 

Waiver of right ....................... 149b(l), 150b ------- 27-54, 27-58 

Service ofCharge sheet ......................... 44h, 58c ------------ 9-10, 10-13 

Court of Military Review, decision--- - - - 100b(2), 100c(l) (a) -- 20-2, 20-3 

Sickness, as a ground for continuance -------- 58c---------------- 10-13 


Silence, admission by .................... - - 140a(4)- ----------- 27-17 


Statement, right to make- 


At trial------------------------------ 53h-----------..---- 10-5 

At pretrial investigation --------------- 34b---------------- 7-9 

Unsworn, presentencing --------------- 75c(2)-------------- 13-10 

Statute of Limitations in bar of punishment-- 74h---------------- 13-8 

Summary courts-martial, right to refuse- - -..- 16a, 79b(l) - - - -- - _ _ - 4-6, 14-2 

Temporary custody pending review- -------- 88f, 89c(6) ----- ----- 17-10, 17-12 

TestimonyCross-examination with respect to ------- 149b(l)------------- 27-54 


Failure, effect of ...................... 72b, 150b ----------- 13-1, 27-58 


General.............................. 149b(1), 150b ------- 27-54, 27-58 


Limited purpose ...................... 140a, 149b(1) ------- 27-15, 27-54 


Right to copy ........................ 33i---------------- 7-7 

Accused-Continued 


Testimony-Continued par. Page 


Warning, prior to ..................... 53h---------------- 10-5 


Warrant officer, composition of courts- 4c------_---------- 2-2 


martial. 


Witness, as a ----,--------------------
 26d, 148e, 149a ------ 6-2,27-52,27-53 

Accuser: 

Seealso Challenges, Charges and specifications: 

Defined (Art. l(9)) ........................ 5a(4) -------------- 3-1 

Charges altered, effect of ------------------- 33d__--------------7-6 

Convening authority, acting as- ------------ 5a(3), 5b(2), 5c ------ 3-1, 3-2, 3-3 

Courts-martial, member of ----------------- 4a--_-------------- 2-1 

Defense counsel, acting as ------------------ 6a----------------- 3-3 

Depositions, notification by accuser of neces- 30f ---------------- 7-2 

sity for. 

Interpreter, may not serve as --------------- 7--__-------------- 3-6 

Investigating officer ....................... 34a---------------- 7-9 

Members of courts-martial-- -- - ---- - - ---- -- 4a.. _ _ ------ _ __ --__- 2-1 

Reporter, may not serve as.. --------------- 7_-_--_---_--------3-6 

Summary court-martial officer- - - ---- _ - - - --- 5c- -- - - _ _ _ - _ _ _ _ - _ - - 3-3 

Acquittal: 

See also Findings. 

Action by commanding officer concerning the 21d_-----__--------5-5 

restraint of accused upon. 

Action by convening authority ------------- 86b(2), 89c --------_- 17-4, 17-12 

Announcement (Art. 53) -------____--------749----------___---13-8 

Approval of not required -----_------------- 86b(2)----_-----_--- 17-4 

Finding of not guilty results if no other find- 74d(3) ------------- 13-6 

ing reached. 

Of greater offense, by finding guilty of lesser 74b(3)-----_-_-----_13-5 

included offense. 

Motion for-----_------------------------- 71a-..------------..- 12-11 

Required, if there is reasonable doubt as to 74a(3), 120b- ---- - - - 13-4, 24-1 

guilt, sanity. 

Reconsideration .......................... 74d33)-----__------ 13-6 

Review by SJA--_------------------------ 85b--_------------_ 17-2 

Withdrawal of specification not equivalent to-- 56c- --- _---- - - - - - - - 10-8 

Void proceedings .......................... 89c(l)-------------- 17-12 

Acting adjutant, authority to administer oaths, App 2 --------_-__--A2-34 

Article 136. 

Acting staff judge advocate, authority to admin- App 2 -------------- A2-34 

ister oaths, Article 136. 

Acting without authority to the detriment of 

another for the purpose of securing favorable 

treatment: 

Discussion---___------------------------ 184a-.._----------- 28-34 

Proof------__--------------------------- 184a___--------_--- 28-34 

Specification form ......................... App 6 (62) --------- A6-11 

Action by convening authority. See Convening 

authority. 

Action on record of trial. See Convening authority. 

Active duty: 

Defined .................................. 4a-----_------_----2-1 

Inference of--__-------------------------- 36a---------------- 8-1 

Prerequisite for courts-martial members- - - -- 4a- ---------------- 2-1 

Additional charges : 

See Charges and specifications. 

Defined------_-__------------------------ 24b------------_--- 6-1 

General--------___---------------------- 65b---------------- 11-10 
Adjournment: Par. Page 

Counsel, lack of defense- ------------ -- - - -- 15b, 61f(4) _-___-- _- 4-5, 11-4 

Defense counsel unqualified- - _ ---------_- 61f (3)--- ------- - -- - 11-4 

Military judgeAbsence_----__--_----------- 39d----_-----_-_--- 9-2 

Disqualification ....................... 62b, c __-_--_---_---11-6, 11-7 

Power to order general court-martial _-_-_-__39b-__-_-__--_----- 9-1 

President of spccial court-martial without 40 b(2)- - - - --- - - _ --- 9-3 

military judge, power to order. 

Prosecution disqualified .................... 61e- -------_---_---11-2 

Quorum, lack of ----_--_-___--_____--------- 62c--------_-----_-11-7 

Reconvening after- ---- __ - _ --- _ --- _-_----- 61c- - _ ------ -- - - _ -- 11-2 

Adjutant: 

Oaths, authority to administer (Art. 136) ---- App 2 _----__---_--_A2-34 

Admissions : 

See also Confessions. 

Accused, testimony of, re involuntary nature 140a(2), 149b(l) --- _ - 27-15, 27-54 

of; scope of cross-examination. 

Admissibilitjr as evidence- --__ _--..---_---_-140a--__---__-_- --_ 27-15 

Article 39(a) session, examined at __-___--__- 53d(l)----------_-_-10-1 

Coercion, effect of _--_-_____-______-------- 140a(2)--------___-27-15

Corroboration, requirement of --------_----- 140a(5)----------_- 27-18 

Counsel, right to ----_---__--___-_--------- 140a(2)--__--_---_-27-15

Cross-examination ....................... 149b(l)-_---___-----27-54 

Defined-_-_------_----------------------- 140a(l)----_---_-_- 27-15 

Guilty plea as--__---_-____-___----------- 70a--_--_-_----_--- 12-9 

Joint trial, effect upon co-defendants- - -_ - _-- 140b-------- ---- - _ - 27-19 

Silence.................................... 140u(4)----_------- 27-17 

Voluntariness required-_- _-__--------- - ---- 140a(2)-- - --------- 27-15 

Warning under Art. 31b, when required ------ 140a(2)-- - - _------- 27-15 

Admonition: 

Action by convening authority- - - _ - - - - -- - __ 89c(8)--__- - - - - __ - - - _ 17-13 

PunishmentCourt-martial ---__-___-____---------- 126f-----------_--- 25-4 

Non-judicial- _--_ - _ --- - --- - - - ------ --- 131b, 131c(l) ------ _ - 2G3, 26-4 

Terms of not specified by court-martial _..___- 126f------------_-- 25-4 

Written, under Art. 15 when given officers 131c(l)---------_--- 26-4 

and Warrant officers. 

Adultery, specification form- -------- - - _ -------- App 6c(127) -- - ---- - A6-20 

Advice of staff judge advocate or legal officer ----- 35_--_-----_---_---7-12 

Affidavits : 

See also Oaths. 

Admissibility as evidence- --___--__-__---_- 146b---_-------_---27-47 

After findings- - - -- - --- - - -- - - --------- 75c(l)_----------- _- 13-10 

Charges-------__--_--------------------- 29c, e--_---_---_--- 7-1 

Affirmation: 

See Oaths. 

Form-----__--__--__--------------------- 112a-------..-..----- 22-1 

Of sentence--------------------------_--- 98, lOOa--..--------- 20-1, 20-2 

Affirmative defenses. See Defenses, special. 

Age, Testimony pertaining to ---_______-___-_-_- 138d-__--__--------27-6

Aggravated arson. See Arson. 

Aggravation: 

Evidence in after findings ----_---_--------- 75b(3)-------------- 13-9 

Procedure............................... App 8 -------------- A8-19 

Aider, abettor: 

See also Joint offenses. 

Defined------_--_-_---~------- 156---------------- 28-4 

Liability-_--__--_-------------------- 156---------------- 28-4 
.4iding the enemy: par. Page 

Attempting to aid the enemy --------------- 183---------------- 28-33 

Discussion--------------------------- 183a-..------------- 28-33 

Proof-------------------------------- 183a--------------- 28-33 

Specification form _------ -- ------ ------ App 6c(60) ------ --_..A6-11 

Air force, unit of, defined ------------_-_____-__ 4a-____--_---------2-1

Alias : 

Use of in drawing specification -------------- App 6a(5) -------_-- A6-2 

Alleging ail offense. See Charges and specifications. 

Allowaaces : 

See also Pay and allowances. 


Forfeited only when selltence includes total 126h(2)- - -- - - -- _ _ _ _ 25-5 


forfeitures. 


Policy concerniilg approval by convening 88b___---_-_-_-_-_-
 17-7 

authority. 

Alteration of a document, effect on admissibility-- 143b(l)-----_____---27-29 

Alternative, we of in pleading improper-_ __-_-_-28b-__-_____-__---- 6-4 

Amending charges. See the specific subject title. 

Ammunition, cast,ing away: 

Proof--------_--------------------------- 178d-------..------- 28-28 

Specification form ----__--______----------- App 6c(46) ---___-- - A6-9 

Amnesty. See Pirdon. 

Animals, abusing, specification form--- - __ _ - __ - _ - App 6c(126) - ------- A6-20 

Appeals. See Appelate review. 

Appellate brief by trial defense counsel- _ _--__--_ 48k(2)- -- - _ _ - _- _ -_ - 9-14 

Appellate counsel: 

See Counsel. 

Appointment and qualifications of, Article 70.. - 102-..---- -- - - ------ 20-5 

Appellate defense counsel: 

Appointment............................. 102a, b --_____---__- 20-5 


Civilian-_------__------__....--..--..----..--- 102c---------------
 20-6


Communication with accr~sed, direct and 102b-_------------- 20-5 


privileged. 


Duties................................... 102b-----_-_-_-----20-5 


Notified of- 


Decision of Court of Military Review ---.100--_------------- 20-2 

Reference by The Judge Advocate General 100b(2), 103- - - - _ _ _ - 20-2, 20-6 

to the Court of RIilitary Appeals. 

lieference to Court of Military Review 103-__---____------ 20-6 

pursuant to Article 69. 

Right to_-_-_-______-____---------------- 48k(3), 102b-------- 9-14, 20-5 

Waiver of--_______________--------------- 48k(3)------------- 9-14

Appellate government counsel: 

Appointment (prt. 70) .................... 102a, b ------------- 20-5 

Appellate i\4ilitary Judge. See Court of Military 

Review. 

Appellate review: 

Branch Offices of The Judge Advocate 104--_-----_-------20-6 

General, Article 68. 

Counsel, Accused's right toCivilian------_---____--__-..__-----..--102c-----_-_-_---_- 20-6 

General-___________------.----- 48j, 102b --______--- 9-14, 20-5

Individual---____-_--___---__-------- 48a, 102b, c -----_--- 9-11, 20-5, 20-6 

Court of Military Appeals. See Court of 

Military Appeals. 

Court of Military Review. See Court of 

RiIilitary Review. 

Custody, pending ......................... 88f, 89c(6) --_-_-_---17-10, 17-12 

Ilischarge, bad conduct and dishonorable- --- 98------- ---------- 20-1 

Examinatioi~ by Judge Advocate General un- 110a--------------- 21-3 

der Article 69, not a part of. 
Appellate review-Continued Par. Page 

Final action required to constitute a trial 2156_---_--_-------29-2 

(Art. 44). 

Finality of court-martial judgments -_----___75b(2), 108- _ -------

General-------_------------------------- 98-----------------

Insanity during---__---------------------- 124___-------------

Mitigation of sentence ..................... 105b---------------

Nonjudicial punishment -----------_------- 134, 135 -_----------

Procedure, general ......................... 100a, 101, 103 -------

Review by same armed force as accused ----- 13_------_-_-------

Special court-martial, bad-conduct discharge- 98, 100 --___--------

Appointing authority. See Convening authority. 

Appointing orders. See Convening orders. 

Appointment in armed forces: 

FraudulentDiscussion-----------------__ 162-----_---------- 28-9 

Proof__--------____------------------ 162---------------- 28-9 

Specification form ...................... App 646) - --------- A6-4 

Unlawful, effectingDiscussion-----__-------------------- 163---------------- 28-10 

Proof---_-----_--------------------- 163---_------------ 2g-10 

Specification form-- - ----_------------ App 6c(8) ---------- A6-5 

Apprehension : 

General.................................. i7, 18 -------------- 5-1 

Authority to apprehend- ----__-----__--__- 19___-----_--------5-2

Distinguished from authority to arrest 19d-__----__-_-----5-2 

and confine. 

Civilian authorities.. -- - -- - _ ----- - ---- - 23- _ - _ _ ---,:- L - - - - - 5-5 

Military personnel, limitations upon- - _ _ - 19..---- - ----------- 5-2 

Custody, as incident to_-----_--_----_-____ 19d-----.---------- 5-2 

Deserters-


See also Desertion. 


Civil authorities, power to return to 


military control (Art. 8)-_--_---____-- 23----------------- 5-5

Unauthorized apprehension, effect of ---- 23----------------- 5-5 

Disorder, apl~rehension a.s incident to power 196---------------- 5-2 

to quell. 

Distinguished from authority to arrest and 19d_---_____------- 5-2 

confine. 

Jurisdiction, attachment as result of, con- ild--_----__-------4-3 

tinues for purpose of trial. 

Officers, report of ---_-----__-__-__-------- 19a----- ---------- 5-2

Police personnel, power to effect ----_-_---_-19a---------------- 5-2 

Procedure------------------------------- 19c---------------- 5-2 

Resisting, as an offense (Art. 95)- 

Discussion---_----------------------- 174a---_----------- 28-24 

Proof-------_-_---_----------------- 174a----__--------- 28-24 

Specification form- -- - - ---,-------- ---- App 6c(36) - - ------- A6-8 

Unlawful, as an offenseDiscussion--------------------------- 176---------------- 28-26 

proof-! .............................. 176_--------------- 28-26 

Specifications- - - - .................... App 6c(40) - -------- A6-9 

Warrant officer, report of --_--------------- 19a-_-------------- 5-2 

Appropriation of property. See Larceny, wrongful appropriation, captured or abandoned 

property. 

Arguments: 

Closing................................. 72----------------- 13-1 

Evidence, comment upon --___-------------72----------------- 13-1 

Instructions, proposed ..................... 73d---------------- 13-3 

Interlocutory questions .................... 53g---------------- 10-5 
Arguments-Continued Par. Page 

Motions------------__------------------- 67e---------------- 12-2 

Opening-------------------------------- 72----------------- 13-1 

Restricting of .......................... 53g---------------- 10-5 

Right to present----_-------------------- 53g---------------- 10-5 

Arms, casting away: 

Proof---------_----------------------- 178d--------------- 28-28 

Specifications form --------- ------_--------App 6c(46) --------- A6-9 

Arms, unclean, specification form- ----- - -- - - - - - - App 6c( 183) - - - - - - - - A6-26 

Army, unit of, defined ......................... 4a----------------- 2-1 

Arraignment: 

Additional charges- ---- - -- - - - - __- - - - -- - - -- - - 65b----- - - ---- - - - - - 11-11 

Charges and specificationPleading to- - - - _ _ -- - -..--- ---- -- - -- --- 65a------- -- - - -- - _ - 11-11 

Reading of, waiver by accused- ---- -- - - 65a- -------------_- 11-11 

Defined-------------------------------- 65----------------- 11-11 

Procedure, general------------------------- 65----------------- 11-11 

Summary court-martial, procedure ---------- 79d(2)-------_-_---14-2 

Arrests: 

See also Apprehension, confinement, restraint. 

Apprehension, distinguished from ----------- 18a---------------- 5-1 

Authority to ............................. 19d, 21a ----_-_-----5-2, 5-4 

Breach ofDiscussion--------------------------- 174b--------------- 28-24 

Proof------------------------------- 174b-_------------- 28-24 

Specification form ..................... App 6c(37) --------- A6-8 

Charges and specifications, delay in prefer- 22--_----------_---5-5 

ring, subsequent to. 

Confinement, distinguished from ------------ 18a---------------- 5-1 

Defined--------__-_-------------------- 18a--------------_- 5-1 

Duration of-_---_------------------------ 22----------------- 5-5 

Duty, effect upon, termination by ---------- 20a----_----------- 5-2 

Enlisted personnel-------------------- 21a(2)------------- 5-4 

General-------_-__---------------------- 20a_-----------_-_- 5-2 

Jurisdiction, failure to restrain as not 18b(l)------------- 5-1 

affecting 

Officer.................................. 21a(l) ------------- 5-4 

Persons inCharges preferred by --_--------------- 29b---------------- 7-1 

Courts-martial, members --------------- 4a----------------- 2-1 

Persons subject to- ------_---------------- 18b--- - -- -- - ----- _ - 5-1 

Prerequisites--; 

Personal knowledge or inquiry into 20d(l)----------_-- 5-3 

offense. 

Probablecause----------------------- 20d(l)------------- 5-3 

Procedure ........................... 20d(2)------------- 5-3 

ReleaseAuthority to, who may order ----------- 22----------------- 5-5 

Result of trial ........................ 21d---------------- 5-5 

Reports,req~~ed-----------__------------- 20d(5)------------- 5-4

Restraint----------_---------------------- 18b---------------- 5-1 

Requirements--_----__----------------- 20d---------------- 5-3 

Restriction, distinguished in lieu of ---------- 20b------__--------5-3 

Status of persons in-_-------------------- 20a---------------- 5-2 

Termination : 

Duty, effect of----------_------------- 20a--..------------- 5-2 

Who may order_--------_------------- 22----------------- 5-5 

Trial, promptness required 25----------------- 6-1 
Arrests-Continued 

Unlawful, liability forDiscussion--------_------_------------

Proof-------------_--_--------------

Specification form ..................... 

Warrant officer- -- __ __ _ __ _-_------ -- ------ -

Arrest in quarters ............................... 

Arson : 

Aggravated--

Discussion---------------------------

Proof------------_------------------

par. Page 

176---------------- 28-26 

176---------------- 28-26 

App 6c(40) --------- A6-9 

21a(l)- - - - - -- --_ _- - 5-4 

131b(l), 131c -------- 26-3, 26-4 

205a..-..----_------_ 28-59 

205a--------------- 28-59 

Specification form -----------------_-__App 6c(99) --------- A6-17 


Homicide in connection with ---_---_--- 197e---_----------- 28-45 


SimpleDiscussion---------------------------

Proof--------------------------------

Specification form ---_------ -- -- -------

Article 15. See Nonjudicial punishment. 

Article 39 (a) Session: 

Arraignment at- - - - ---------- -- -----------

205b------..-------- 28-60 

205b--------------- 28-60 

App 6c(100) -- - ---- - A6-17 

39b(2), 53d(l)-- ----- 9-1,10-1 

Called by military judge --_--___-----------39b(2), 53d(l) ------- 9-1,lO-1 

Challenge of military judge at --------------

Entering finding of guilty upon an accepted 

guilty plea. 

General............................... 

Interlocutory matters .................... 

Motions, hearing and determining -----------

Plea at ................................. 

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

Procedural functions not requiring presence of 

members. 

62 and App 8a ------ 11-6, A8-3 

39b(2), 53d(l)------- 9-1, 10-1 

39b(2), 53d(l) ------- 9-1,10-1 

39b(2), 53d(l) ------- 9-1,lO-1 

39b(2), 53d(l) ------- 9-1,lO-1 

39b(2), 63d(l) ------- 9-1,10-1 

61k,app 8a--------- 11-6,A8-3 

39b(2), 53d(l) -- - ---- 9-1, 10-1 

Request for enlisted members- - ..----,..-..--- 53d(l), 61b, app 8a--- 10-1,ll-2, A8-3 

Request for trial by military judge ---------- 53d(l), 61k, app 8a--- 10-1, 11-6, A8-3 

Assault: 

AggravatedDefined.............................. 207c-------_-_-----28-63 

Assault permitting increased punishment 

based on status of victimAssault consummated by a battery upon 

a child under 16- 

Discussion------------------- 207b(3)------------- 28-63 

Proof------------------------ 207b(3)------------- 28-63 

Specification form -------__--------App 6c(108) -------- A6-18 

Assault on commissioned, warrant, noncommissioned or petty officersDiscussion....................... 207b(l)------------- 28-63 

Proof--------------__-------------- 207b(2)------------- 28-63 

Specification form ------------ _ - - - - 

Assault on sentinel or lookout in execution of duties or on person in execution 

of police dutiesDiscussion....................... 

Proof----------------------------

Specification form -----------------

General.............................. 

Consummated by a battery ----------------

Specification formsChild under 16 years --------------

App 6c(103, 104) - - - - A6-17 

207b(2)------------- 28-63 

207b(2)------------- 28-63 

App 6c(105, 106) ---- A6-17 

207b--------------- 28-62 

207a--------------- 28-61 

App 6c(108) -------- A6-18 

General.......................... App 6c(107) -------- A6-17 

INDEX 

Assault-Continued 

Dangerous weapon, with- par. Page 


Defined .............................. 207c(l) ------------- 28-63 


Discussion ........................... 207c(l) ------------- 28-63 


Proof ..................................... 207c(l) ------------- 28-63 


Specification form ..................... App 6c(109) -------- A6-18 


GeneralDefined------------------__------------ 207a------..---..---- 28-61 

Discussion---------__----__-------------- 207a--------------.. 28-61 

Proof------------------__------------ 207a----..---..------ 28-61 

Specification form ..................... App 6c(102) -------- A6-17 

Grievous bodily harm intentionally inflicted- 


Defined.............................. 207b(2)------------- 28-63 


Discussion ........................... 207b(2)------------- 28-63 


Proof ................................ 207b(2)------------- 28-63 


Specification form ..................... App 6c(110) -------- A6-18 


IndecentAs lesser included offense of assault with 213f(2) ---- - - - --- - -- 28-76 

intent to rape. 

Defined----------- - - - -- - ---------- - -- 213f(2) ------- ------ 28-76 

Discussion........................... 213f(2) ------------- 28-76 

Proof ................................ 213f(2) ------------- 28-76 

Specification form ....................... App 6c(128) -------- A6-20 

Intent to commit certain offensesGeneral-- ------------ - -- -- ----------- 213f(l)-..- -- - -- - ---- 28.-74 

Specification forms-.. --- - ------------ - App 6c(129) - - ------ A6-20 

Intent to murderDiscussion- ---- - - - - _ - - - -- _ _ -- - - - - - - - - 213f (1) (a) ---- - -- - - - 28-74 

Proof................................. 213f(l) ------------- 28-74 

Specification form ..................... App 6c(129) -------- A6-20 

Intent to rapeDiscussion- -- _ --- -- - ---------------- - 213f(l) (c) -------- - - 28-75 

Proof ............................. 213f(l) ------------- 28-75 

Specification form-..- - _ -- - - - ------ - -- - - App 6c(129) - - - -- - - - A6-20 

Assault, indecent as lesser included offense- 213f (1) (c) --- - - - - - - - 28-75 

Intent to robDiscussion- -- - - _ _ - - -- - - - ----- - - - - _ --- 213f (1) (d)------ - - - - 28-75 

Proof------------------------------- 213f(l)------------- 28-74 

Specificatioa form -------------- -- --- -- App 6c(129) - - ------ A6-20 

Intent to commit sodomyDiscussion- ---- -- _ _ ---- - ----- - -- ----- 213f(l) (e) --- - ---- -- 28-75 

Proof-------------------------------- 213f(l)-----------..- 28-75 

Specification form ..................... App 6c(129) -------- A6-20 

Intent to commit voluntary manslaughterDiscussion- -- - - - - - -- - _ -- - - - -- - - -- - - -- 213f(l) (b) ---------- 28-75 

Proof ................................ 213f(l) ------------- 28-75 

Specification form --------------- - ----- App 6c(129) -------- A6-20 

Noncommissioned officer. See Warrant offi-


cer, this subject. 


Officer, superior commissionedDiscussion--------------------------- 169a--------------- 28-18 

Proof-------------------------------- 169a-_-----__------ 28-18 

Specification form -----__----_---------App 6c(20)- -------- A6-6 

Punishment, wartime ------------------ 127c(5)------------- 25-10 

Petty officer. See Warrant officer, this subject. 


Policeman or law enforcement personnel, App 6c(105) -- - - -- - - A6-17 


specification form. 

Prisoner after discharge or dismissal --------- 169a, 170a ---------- 28-18, 28-19 

Self-defense ........................... 207a--------------- 28-61 
-- - - - - -- 

Assault-Continued 

Warrant officer, noncommissioned officer, 

petty officerDiscussion------_-------_-----

Proof................................ 

Specification form ..................... 

Assault and battery. See Assault, consummated. 

Assembly: 

Absence of court members, effect: 

after ............................ 

before ----- -- -- - -- - -- __-------- Defined----------------------------------

General------_--------------------------

Assigned, defined under Article 15 --------------

Assistance: 

Not affording all practicableDiscussion-----_---_-----------------

Proof................................ 

Assistant Judge Advocates General. See Judge 

Advocates General, Assistant. 

Attachment, Warrant of: 

See also Witnesses. 

Issue of ---_----___---------- -- -- -- -------

Service of--- -- -- - __ -- - -- ---- -------- -----

Attempts: 

See also Specific offenses attempted. 

Defined................................. 

Lesser included offense .................... 

Specification form .................... ----

Attorney. See Counsel. 

Authentication: 

Business entries ....................... 

Deposition ........................ 

Documentary evidence. See Evidence 

documentary. 

Official records- - - ------- ------ -----------

Record of trial ........................... 

Writings.................................. 

Autopsy report, admissibility as evidence- -------


Avoiding duty. See Malingering. 


AWOL. See Absence without leave. 


Bad checks. See Checks. 

Bad-conduct discharge. See Discharge, bad conduct, punitive. 

par. Psge 

170b--------------- 28-20 

170b-_-_-_---------28-20 

App 6c(24)- -------- A6-7 

4144) ------------- 9-5 

41d(3) - - - -- -- -- - - - - 9-5 

61f------..--------- 11-3 

4a----------------- 2-1 

128a ------ 26-1 

178i--------------- 28-29 

178i--------------- 28-29 

115d(3)- -- - ------ - - 23-4 

115d(3)-- -I------ - - 23-4 

159----_----------- 28-6 

159----------_----- 28-7 

App 6c(2) ---------- A6-4 

144c----_---------- 27-37 

117b(8), 145a ---__--23-6, 27-42 

143b(2)------------- 27-31 

39j---------------- 9-3 

143b---------_----- 27-29 

144d-_--_ ---- _ ----- 27-39 

Banking entries, authentication -----_------------ 143b(3)-------_----- 27-35 

Battalion, detached: 

Commander, authority to convene special 

courts-martial. 

Defined.................................. 

Battery. See Assault, consummated. 

Belligerency, general courts-martial jurisdiction 

by occupying power during. 

Belligerent, exercise of military jurisdiction by ----

Best evidence. See Evidence. 

Bias : 

Challenge, ground for ..................... Defense counsel ........................... 

Trial counsel ........................ 

Witness------ - - - - -- - - -- -- - -- - - - --- - - - - - - - 

5b----------------- 3-2 

5b(3)--------------- 3-2 

14a--_-----_------- 4-4 

2------------------ 1-1 

62f ---------------- 11-7 

46b---------------- 9-11 

44b---------------- 9-7 

148e, 153b(l), 27-52, 27-66, 

153b(2) (d) 27-71 
Bigamy: Par. Page 

Discussion............................ 213f(9)------------- 28-78 

Proof................................ 213f19)------------- 28-78 

Specification form ---__----------------- App 6c(130) -------- A6-20 

Testimony, wife against husband- - - ----_--- 148e-------_------- 27-51 

Birth certificates. See Official records. 


Blood tests, illegally obtained evidence- - --------


Board of medical officers: 


Insanity questions, referral to --------------

Investigation by- - _ -- - _ _ --------- - - - --- - --

Report of-----------------__------------- 

Bodily harm: 

See also Assault. 

Branding prohibited ------------------

Grievous bodilyDefined.............................. 

Intent to inflictInference of ......................... 

Body, marking as punishment ------------------

Books. See Evidence, documentary. 

152---------------- 27-62 

121---------------- 24-2 

121-- - ---- - - -- - - - - - 24-2 

122c------..-------- 24-5 

125--------_------- 25-1 

207c(l), (2) --------- 28-63, 28-64 

207c(2)------------- 28-64 

125---------------- 25-1 

Branding, of person, prohibition _--------------- 125-----_---------- 25-1 

Breach of arrest: 

Discussion-----------------------------

Proof----------------------------------

Specification form ....................... 

Breach of the peace: 

Discussion............................. 

Proof 

Specification form ......................... 

Bread and water or diminished rations, confinement on : 

See also Nonjudicial punishment. 

174b--------------- 28-24 

174b--------------- 28-25 

App 6~137) --------- A6-8 

195b--------------- 28-43 

195b--_------------ 28-43 

App 6~184) --------- A6-14 

Certificate of medical officer ----------_----- 131c(5)------------- 26-5 

Confinement on, generally- -- - ---------- ---

Article 15 .............................. 

Courts-martial, sentence of -----------------

Maximum time--------------------------- 

Vessels, persons on.. -- -- _ -_----- -- - - -- ----- Breaking and Entering. See Burglary, Housebreaking. 

Bribery and graft, specifications, forms for -------

Burden of proof: 

Challenges-- - _ - - - - - --- - - ----------- - - - - - - 

Guilt................................... 

125, 131c(5) ----_--- 25-1, 26-5 

131c(5)------------- 26-5 

125---------------- 25-1 

125---------------- 25-1 

131b(2), 131c(5) ----- 26-3, 26-5 

App 6c(131) -------- A6-20 

62h(2)-- - - --------- 11-9 

73b---------------- 13-3 

Guilty plea, effect upon ---------------_--70----------_------ 12-9 

Insanity-----------__--------------------- 122a--_----------_- 24-2 

Instructions............................ 73b---------------- 13-3 

Motions---_--------__------------------- 67e---------------- 12-2 

Special defenses .......................... 214---------------- 29-1 

Statute of Limitations ..................... 68c --------_------- 12-5 

Unlawful search-------------------------- 152---------------- 27-62 

Burglary: 

Discussion---------__--------------------- 208---------------- 28-64 

Proof----------------------------------- 208---------------- 28-66 

Specification form ......................... App 6c(lll) -------- A6-18 

Housebreaking, as broader offense ----------- 209---------------- 28-66 

Killing in connection with ----_------------- 197e--------------- 28-45 

Business entries. See Evidence, business entries. 

Business lists, admissibility as evidence ---------- 144f--------------- 27-42 
__ _______ _ __ 

Cadets, conduct unbecoming: par. Page 

Discussion-_-_-_-__--------------------- 212-_-__--__--_-_-- 28-70 


Proof-_-__-___-_-_---------------------- 212_______-----_--- 28-71


Summary Court, Jurisdiction-_ _ _ -_ _ - - --- - -- 16a-- _ -.- _ ---- _ _ - - - 4-6 

Capital offenses : 

See also Death sentence. 

AccusedConfrontation with witnesses -__-___-- 145a __ --- 27-42 

Convening Authority, directions by- -___-___ 15a(3), 126a, 145a--.. 4-5, 
 25-2, 27-42

Courts of inquiry, record of --__-__-____-__- 145c--_-_____--_---
 27-46


Defined-


General-_---_--__-_---.------ 15a___-_-_-_------- 
 4-5


Wartime----------__----------------- 15a---------------- 4-5 


Depositions-


Cross-interrogations------------------- 117b-__-__-__--_---
 23-5 


Use of-_-__------_-_----------------- 145a-----------_--- 27-42 


Guilty Pleas-------__--__------------ 70a--__---___--_--_ 
 12-9 

Military Judge alone may not try -_--__--___14a_-_-.__-_-_-_--- 4-4 


Prior testimony, admissibility as evidence ---- 145b--__--_-------- 27-44 


Special courts-martial, jurisdiction- - _ -_____-15a-_--_ _ -___ - __---4-5 


Summary courts-martial, jurisdiction ---__-_-16a---__---_-__----
 4-6 

Testimony, prior, admissible as evidence__ _ -_ 145b- _ ----- ----- - -- 27-44 

Captured or abandoned property: 

Dealing in (Art. 103)- 

Discussion_----------------- 182c---__-__------- 28-32 

Proof----__-----_-------------------- 182c------__-__---- 28-32 

Specification form ....................... App 6c(58) --------- A6-11 

Engaging in looting and pillagingDiscussion----------------------- 182d-_--....-----_---28-32 

Proof-------------------------------- 182d--------------- 28-33 . . Specification form -_-__--___ __ ___------ App 6c(59) --------- 86-11 

Failing to report and turn overDiscussion-------__------------------ 182b----__--..--_--- 28-32 

Proof--------_---_------------------- 182b-_---_-------__ 28-32 

Specification form ..................... App 6c(57) --------- A6-10 

Failing to secureDiscussion--__--___------------------ 182a--------------- 28-32 

Proof------------__------------------ 182a----------_---- 28-32 

Specification form -_-__ -- _ - - _ _ _ - - -- -- - - App 6c(56) - - ------- A6-10 

Carnal knowledge (Art. 120) : 

Discussion---_--__---_-__--__--_-___-____ 199b-__--------_--_ 28-47

Proof------_---------------------------- 199b--___..-_-_----- 28-48 

Specification form -----_- - ....- -- --_--- ---- __ App 6c(89) ----_----- A6-15 

Credibility of victim --__-__-_---_--------- 153a, b_--__--_-----27-65, 27-68 

Casting away arms or ammunition (Art. 99) : 

Proof ................................... 178d--------------- 28-28 

Specification form--- _ _ - _ _ - - _ - ------- ------ App 6c (46) ---- - ---- A6-9 

Causing false alarms (Art. 99) : 

Discussion............................... 178g--------------- 28-29 

178g--.._---------- 28-29 

Specification form ---_____-____---.--.--- App 6c(49) -.-. ----. A6-10

Certificate of correction. See Records of courtsmartial. 

Challenges: 

Article 39(a) session ----__--__------------ - App 8a ------------- A8-3 

Ballot form- - - -- _ _ _ - __ ------ - --- ----- - -- - 62h(3)- ------ -- ---- 11-10 

Burden of proof .......................... 62h(2)------------- 11-9 

Cornlnon trial ............................ 53c---_----_-------10-1 

Disclosure of groundsActing upon ---- - _ - _ _ - _ -- _ -- ----- - ---- 62c- -- _ ---- _ - _ - - - - _ 11-7 

Duty to-----__----__-___------------ 62b---__----------- 11-6 
INDEX 

Challenges-Continued Par. Page 

Enlisted members, number reduced by --__-_-62h(4) - _- ----_-_-__11-10 

For cause--------------------.---------- 62j--_--_-_-------__11-7 

Combined rehearings -_---------------- 81b(3)--_-------__--15-3 

Disclosure by court personnel -__---_--_62b--___-----------11-6 

Examples---..----..--....--..----..------- 62f-- --_-..---------11-7

Grounds----------------------------- 62f-----_---------- 11-7 

Investigating Officer, defined- - - -- --- - - - 62j(5), 64 ----- _ - - - - - 11-8, 11-10 

Military judge rules finally on -_--_____- 62a_-___-_-_- _-_ _ .-11-6

Procedure------- ------ -------- - - - 62a, I&--- - ___-----__ 11-6, 11-9- 

Reconsideration of .................... 62d- _______________ 11-7 

Interlocutory questions arising during.. -- _ _ _ _ 62h(2)- _ - _ _ - _ _ _ --- - 11-9 

Joint trial----__---____------------------- 53c, 62e---_-------- 10-1, 11-7 

Military judge, amenability to ------._-___.. 62y--_____-----_-_- 11-8

For cause---____-_--------------- 62a,g-------------- 11-6, 11-8 

Peremptory-------------------------- 62e----_-_-_____-_-11-7 


Oath to challenged member- - ------____----1149-_-----____----22-3


PeremptoryGeneral_-_---._--------.------------- 62e---_____-_----__11-7 

Joint trial __--_-______----------.----- 53c, 62e ------------ 10-1, 11-7 

Military judge exempted ---.---_------- 62e- -___-_-_-_---_-
 11-7

Number of---____--_----------------- 62e-----_-_--___--_ 11-7 


Procedure : 


General--------------------. 621~~-___-___-_____-
 11-9 

1Militar)- judge detailed- - - .......---_ -- _ _ _ 62a, 62h(2) _ _ _ _ - _ - _ - 11-6,ll-9 

Without a inilitary judgeDeliberation by court - - - - -.-- - -- _ - 62h(3) - _ - _ -- --- - -.- 11-10 

Inquiry into grounds of -----------_ 62h(2) -----------_- 11-9 

Voting upon grounds -------------- 41d(l), 62h(3) ---_--- 9-5, 11-10 

Quorum, lack of .......................... 41dll), 62c, 62h(4)-..- 9-5, 11-7, 11-10 

Standing to raise ------------ -------------- 62a-_-_ .-___---__-- 11-6 

Summary court officer ..................... 5c, 62a ---__----_---3-3, 11-6 

Trial counselChallenges by- - - _ - - ---------- _ ------- 62a-- - - - - - - _ _ --- - - - 11-6 

Disqualification of-- -- -----_-_---_____ 61e--_---____-__--- 11-2

When made------------------------------ 62d---__.__----__--11-7 

Chaplains, privileged communications- - __------- 151b(2)-----__-- - - - 27-60 

Character evidence. See Evidence, character. 

Charge sheet. See Charges and specifications, 

charge sheet. 

Charges and specifications: 

See also specific offenses. 

Accessory after the fact, not jointly charged.- 26d_____-_-________ 6-2 

Accumulatioil of ______--_______-_--------- 25---------____--_-
 6-1

Accused-


Advising of- - --_ -._ - - _ _ ---- - _ _ --- _ _ _ - 32f(l), 33c--_ _ _ - _ - - _ 7-4, 7-5 


Arrest or confinement of-__----________ 25--____--__-___--- 6-1


Failure to inform of offense charged _____ 69b--______--____--
 12-7

Advising accused of ____-__-_________------ 32f(l), 33c ---___--__ 7-4, 
 7-5


Action on receipt of- 


Commander exercising immediate juris- 


diction under Article 15- 


Basic Considerations --__---------- 30-_________-_--_-_
 7-1 

Empowered to convene courts- 29b, 32a -___________ 7-1, 7-3 

nlartial. 

Generd----_------_------__------3P---_------------- 7-3 

Preliminary inquiry -__-_____-_____ 29b, 32b __-_--______ 7-1, 7-3 
Charges and specifications-Continued 

Action on receipt of-Continued 

Officer exercising summary courts-martial jurisdiction- Par. Psge 

General----------_----------- 33---~------1------ 7-5 

Basic considerations-- - _ -- - - - - -- --- 30- --- _ _ _ - - - - _ _ - -1- 7-1 ' Insanity suspected -_-___--------33m, 121 ---____,_--7-9, 24-2 

Officer exercising general courts-martial 


jurisdiction-


General----...................... 35- ---------------- 7-12 


References to SJA or legal officer- -- 35b- - ___ -- - -- ___ _ _ - 7-12 


Additional charges ........................ 24b, 65b _-----__----6-1, 11-11 


Cannot be added after arraignment- ---_ 24b--_--_------_-_-6-1 


Alteration-


Basis for new investigation -----_----_ 33d, 33e(2)- -------- 7-6 


Commander with immediate jurisdiction- 32c- -__------------ 7-3 


Officer with summary courts-martial 33d------------_--- 7-3 


jurisdiction. 


Withdrawal of a specification- --- - --- --- 56c, d- --- ----- _ -- 10-8 


Amending-


During trial _---_-_---_-------

69b, d --------___-_-12-7, 12-8


General-----.------------..----------- 33d, 69b, dl 215d ---- 7-6, 12-7, 12-8, 


29-2 


Arraignment, reading of charges, waiver ---__65a--L---__--_----- 11-11 


Charges-


Dismissal............................ 32d 33f, 35a --__----7-3, 7-6, 7-12 


Drafting............................. 27, App 6(a)----___. 6-3, A6-1 


Findings as to_-_------_-_------------ 74c--_------------- 13-6 


Wrong article, effect ------------------- 27, 69b(l) ---------_ 6-3, 12-7 


Charge Sheet- 


General............................ 27, 28 -------------- 6-3 


Joint offenses --_--___-_-___------------- App 
 6a_-------_---A6-2


Preparation of-----__-_____----------- 29d--_-------___--- 7-1 


Read into evidence after findings--- ____ 75b(l)-_--___-_---_- 13-9


Receipt of-- ---__--_____------.. 33b----------------
 7-5

Service onaccused----__----_--------- 44h, 58c___..-______- 9-10, 
 10-13


Common trial ............................ 331----_-_---_____-
 7-8 


Consolidation of ....................... 32c--___-----_-----7-3 


Date of receipt, effect on statute of limitations- 33b- - _ - _ ----- _ _ _ - - - 7-5 


Defective-


Accused misled ----____---__----------69b(3)----_---_____-
 12-7


Accused not misled .................... 69b(2)__------___---12-7 


Defined.................................. 24a--____------_---
 6-1 


Delay in preferring (Art. 98)-------__----__25, 177a --_______--- 6-1, 
28-27


As an offense-_-__------_------------- 177a-----___-----__ 28-27 


Discussion- -- _ __ -- - ------ - - - -- - -- 177a- _ _ _ -1- - - _ _ __ -- 28-27 


Proof ............................ 177a---__---____---
 28-27 

Specification form _--___-----__----App 6c(41)---_----- A6-9 


Arrest, effect upon ------__----___-----22, 25 --_---___--__- 5-5, 6-1


Responsibility for -----____--___------- 25---_------------- 6-1 


Dismissal of .............................. 89c(2), 92, lOOb(3)--- 17-13,18-1,20-2 


Article 15 officer-.__-----_-__---------
 32d_--___----__---- 7-3 


Court of Military Appeals- -- - _ - - - _ - _ - - 101-- _ _ - - - - -------- 20-4 


Court of Military Review -_---__-------100b--------------- 20-2 


In lieu of rehearing .................... 100b, 101 ---_-----_-20-2, 20-4 


Motion in bar of trial ------_----______ 214--____--_---__--
 29-1


Rights restored .................... --- lOOb(3)------------- 20-2 


Summary courts-martial jurisdiction-_ _ - 33f- - --__----__----7-6 


Disposition by trial 33h_-____--___-___-
 7-7 
Charges and specifications-Continued 

Drafting of- Par. Page 

Charges-----___-_------------------- 27-____.-------__-- 6-3 

General---------------------- 26------------_--__ 6-2 

Specifications----_-------------------- 28-----------_---__ 6-3 

Contents-----____-_-------------- 28a__--_-___-__---.. 6-3

Oral statements -_---_-_-----------28c----_---_____--- G4 


Errors in- 


General------------------------------ 69b-------------__- 12-7 


Wrong offense charged --_-------------- 55-------------_-_- 10-7 


Failure to allege offense- 


Convening authority, action by--- --- ___ 87a(2)- - - - - _ - _--- _ - 17-5 


Motion to dismiss based upon -------_-- 67a, 68 ----------__-12-1, 12-4 


Objection to, cannot be waived --------- 67b----________--__
 12-1 


Findings as to- 


Charges------_-_--_-----------------74c_-_-----_---_---13-6 


Specifications-----------.------------- 74b---_-------.__..- 13-5 


Forms, use of----_----_-______------------ 28d__-------_______ 
 6-4


Forwarding of- 


General.............................. 32f, 33i -------u-_-- 7-4, 7-7 


Minor offenses ---- _ _ --- _ - -- - - --------- 32f(3) --- - - --- -- _ _ - _ 7-4 


Serious offenses-_ - _ - _ _ _ _ _ _ - -- - - - - - ---- 32f (4) --__ - - _ _ _ _ _ _ _ _ 7-4 


Informing accused prior to- _ _ - - _ - - - - -- - _ - - - 32f(l), 33c--_ - _ _ - - _ _ 7-4, 7-5 


Indorsement for trial --____-----_----------33j-- ----------_--- 7-8 
 . . Initiation of .............................. 29a__--------_---_-7-1 


Inquiry into. See Preliminary inquiry, this 


subject; Investigation. 


Insanity--______----_____---_-_----_---__
 33rn----_-_-_-_-_.._- 7-9 


Joint charges- 


Motion to sever.. - --------.----------- 69d_-__--_-----_--_ 
 12-8


Jointoffenses-----_---__.-.--------------- 26d_______-____----
 6-2 


Letter of transmittal --______----.---------
 33i --___-___-___-_- 7-7 

Minor offenses joined with serious -----_--___26c- -____.______-_- 6-2 


BIisnomer of accused --_-_---__._---..--_._ 69b(l), 70a--- ____-
 12-7, 12-9


lMotions for appropriate relief from defects in- 69b- -- - - - _ _ _ _ _ _ _ - _ _ 12-7 


Multiplication of charges- 


Findings, effect on _-_______-_-__------ 74b(4)----______--_-
 13-5


Sentence, effect on_----------------___ 76a(5)..--------_-_- 13-12 


Unnecessary-----_---..-------------- 26b--_---.------_..- 6-2 


Nonjudicial punishment- 


Effect upon------_-_____-_----------- 32e--_______-_-__..-
 7-4 


Refusal of, recorded _-__--_____------- 32f(2)_-_-_---_-_--_ 
 7-4


Oath, swearing to- - --- - - - -- ------ - -- ---- - - 29e, 114;- _ ----_- _ _ _ 7-1, 22-3 


Officer exercising summary courts-martial 33i-_-_______----_-
 7-7


jurisdiction by. 


Preferral of charges- 


Arrest, persons in____._______.__-----. 
 29b--_---------__-_ 7-1 


Basic considerations ------------------- 30__-----------____ 
 7-1


Belief in truth of charges required ----___5a(4)---_--__--_-__
 3-1 


Reasonable delay in_--.--_---_-----___ 25-------------__-_ 6-1 


Signing and swearing to charges- _-_____ 5a(4), 29e- - - --..____ 3-1, 
 7-1


Standing to prefer ---__-_-_____------- 29b, 32c -____-______ 7-1, 7-3 


When preferred..-- _ - - - _ _ - --- --- - - - ---- 25- _ _ _ - _ __ _ _ - _ _ __-- 6-1 


Who may prefer. See Standing to prefer, 


this subject,. 


Preliminary inquky- 


Commander exercising immediate juris- 29b, 32b _-_-_--__-__ 7-1, 
 7-3


diction under AI-ticle 15. 


Officer exercising summary courts-mar- 38a--__--------_-__7-5 


tial jurisdiction. 

INDEX 

Charges and specifications-Continued Par. Page 


Receipt of by officer exercising summary 3%-------_--______ 7-5


court-martial jurisdiction. 


Serious offenses joined with minor _---------- 26c---------------- 6-2 


Service of- 


Accused-----_______-----------------44h---------_----..- 9-10 


Failure to----___--------------------- 58~---------------_ 10-13 


Signing and swearing to --_--_-__--____---- 29e-____-______--__ 
 7-1


Specification-


Drafting_________-_------------------ 28-------------_--- 6-3


Findings as to --____________---------- 74b--___---.____--- 13-5

Legal sufficiency--___----------------- 87a(2)-----____---- 17-5 

Withdrawal-_______------------------ 56---------__----__ 
 10-7

Swearing to, oath ..___-_-_-----------------
 29e, 114i ----------- 7-1, 22-3 

Trial counsel- 


Corrects errors--- .................... 44f(l)-------------- 9-6 


Prepares copies for court members-- ---- 44f (3)---- -- _ - _ - _ - _ _ 9-8 


Unsworn, objection to ..................... 29e----_-------___-7-1 


Waiver to reading at arraignment ------- ---- 65a--------_-_-_-__11-11 


Withdrawal--_--------------------------- 56-----------.----- 10-7 


Effect of----------------------------- 56c---------..------ 10-8 


Trial counsel's actions ---------_------- 56d------_---____--
 10-8 

Charging the court. See Instructions to court. 

Chastity, issue in rape cases-. ------------------ 199a---------_-__--28-47 

Checks: 

Dishonorable failure to maintain funds for 

payment of (Art. 134)- 


Discussion- -- - - _ -- - - ------ - - - - - - - --- - 213f(8)--- - _ -_ _ _ _ _ _ _ 28-78 


Proof................................ 213f(8).------------
 28-78 


Specification form ---------- - --__------App 6c(134) -- -1_--- A6-21 


Making, drawing, or uttering checks, drafts, 


or orders without sufficient funds- 


Discussion--------------------------- 202A--------------- 28-55 


Proof-


Instrument given for procurement 202A---------_-_---28-55 

of an article or thing of value. 

Instrument given for payment of 202A.-------------- 28-55 

past due obligation or any other 

purpose. 

Nonpayment, prima facie evidence of requi- 202A_-------------- 28-55 

site intent. 

Specilication forms-- -------- --- ----------- App 6c(95-96)-_ ---- A6-16 

Chief custodian of personnel records of armed 

forces: 

Fingerprint comparison, certificate of-- ------ 143a(2)(f) - - _ - - -- -- 27-28 

Children : 

Competency as witness .................... 148b--..___-_-_---_- 27-51 

Indecent acts with- 


Discussion........................... 213f(3) ------------- 28-76 


Proof ................................ 213f(3) -------_-_-_-28-76 


Specification form ---------___-__-- - - - - App 6c(156)_ __ - ___-A6-23


Circumstantial evidence. See evidence, circum- 138b---_-_-----_---27-6 

stantial. 

Civil authorities: 

Apprehension and arrest of deserters-.. ------ 23-------_-_-_-----5-5 

Delivery of offenders to .................... 12,23------_------- 4-3, 5-5 

Detention of members of armed forces, effect- 165 -----_-_-__-_--- 28-14 


Jurisdiction over military personnel -----____11, 12, 68d _-----_-_-4-2, 4-3, 12-6 


Return of offenders from -----------------_ - 23--_----_-_-_----_5-5 . 


Superseded by military occupation ---------- 14a---------------- 4-4 


Unauthorized apprehension of deserters, 23----------------- 5-5 


effect. 

18-Index 
INDEX 

Civil courts: Par. Page 


Acquittal by, effect of ..................... 716, 215b ----------- 12-12, 29-2 


Conviction, affect on courts-martial sentence- 97c- - _ -- - --- ___ _ -_ - 19-4 


Jurisdiction, exclusive in courts-martial- _ _ - -- 12-- _ - _ -- - --_ - - ---- 4-3 


Jurisdiction of ............................ 12------_---_------4-3 


Prior adjudication ......................... 716, 215b ------_---- 12-12, 29-2 


Res judicata ............................. 71b, 215b _-----_-__-12-12, 29-2 


Testimony, admissibility as evidence in 145b----______-----
 27-44 

courts-martial. 

Trial in, as bar to courts-martial--- --- --- - - - 12, 68d--- - --------- 4-3, 12-6 

Civil law: 

District of Columbia Code affecting punish- 127c---__-_-_------25-8 

ment. 

Jurisdiction, concurrent with military courts- 12___-.-----.__-_-- 4-3 


United States Code, affecting punishment _-_-127~-_--_-___---__-
 25-8 

Violations of, jurisdiction of courts-martial..-.. 12_--- -------- - ---- 4-3 

Civilian counsel. See Counsel, civilian. 

Accused rights on appellate review ----.____- 102~-
 -___-_--------20-6

Fees paid by accused ...................... 48a__--------------9-11 


Oath----_-----_---------------- 112b, c, 114c------_- 22-1, 22-2 


Right to be represented at courts-martial ---_ 48a-__-_----___-__-
 9-11 


Right to be represented by at pretrial investi- 34c- ------ -- - _ - _ -- - 7-10 


gation. 


Civilians: 

See also Civil authorities. 

Aidingthe enemy------------------------- 183a--__-_----_-__- 28-33 


Apprehension of deserters --_-___-----------23-_-__-------_--_-5-5 


Arrest by_------------------------------- 23-____-_---_____--
 5-5 


Arrest of --------------------------------.. 21a(l) ----_--___---
 5-4


Assault by civilians subject to military law--- 169a, 170a --___--__- 28-18, 
 28-19


Charges initiated by ....................... 29a--_-__--_----_--
 7-1 


Confinement of -__-- - - ---_- _ _ _ -- - - -- ---- -- 21a(l)------ - - -- _ _ _ _ 5-4 


Jurisdiction of military over ---------------- 9, llb---_---__-_-_- 4-1, 
 4-2


Law of war, subject to ..................... 12_-_--____-_-_-___
 4-3 


Punishment of, fines ....................... 126h(3)------______-
 25-6 


Spies, liability as .......................... 185_-__--_--___----
 28-35 

Claims. See Fraud against United States. 

Clemency: 

Recommendation for- 


Defense Counsel, action of _ _ - _ --_ _ _ __ _ _ 48k(l) - - - ---- _ -- - - _ 9-14 


General------------------------------ 77a---------__-_-_.. 13-15 


Record of trial, attached --------_______826(5)-----_---____-16-2 


Clergy, privileged communications-- - ------- -- - - 151b(2)----_-__ -- 27-60 

Clerks, detail of to courts-martial- - ------- - ---- 51_ - _ _ _ - _ _ _ -- - --- _ - 9-1 6 

Closed sessions: 

Written instructions ---------- - -- .---__--_- 73d-----__--__-_ _ _ - 13-3

Coast Guard: 

Petition for new trial -----_-_---_---------- 109~--- --_________- 21-1 


Right to demand trial by courts-martial 132--_-_____-_-_--_ 26-8


limited. 

Code of District of Columbia: 

Offenses not capital under General Article 213e_--_-___--____- 28-73 

134. 


Punishments, limited by --_-______---______ 127c---_-_----__---25-8


Code, penal. See United States Code. 

Code of the United States. See United States 

Code. 

Coercion: 

Defense to trial -___-_----____------------- 216f_--------_----- 29-6 


Of courts-martial- - ---- - ----_- -----___ _ - _- 5a(6) - - - - -__-_--__-3-2 


Statements, admissions, confessions- - -_----- 140~--__-_-----_-_-
 27-15


Witnesses------_-_____------____--------- 53f -_------___-----10-4


Index-1 9 
Command: 

Abandoning, surrendering, delivering up (Art. 

99)- Par. Page 


Discussion_--_-----------------.----- 178b-.-------_-_-_- 28-28 


Proof----_-_------------------------- 178b-------_--__--_ 28-28 


Specification form ..................... App 6c(44) ----______
 A6-9 


Compelling surrender or abandonment of 


(Art. 100)- 


Discussion--------------------------- 179a-----------1--- 28-30 


Proof----_---_------_---------------- 179a---------___--- 28-30 


Specification form ---_- ----_---- -- - - - - - App 6c(52) ----- -_-_.
 A6-10 


Detached unit- - _ - - - - - - - ----- ---- - - - - ---- 56(3), c_-- _ ---- - - -- - 3-3 


Devolution of --_-___-----_---------------5a(5)-------_------ 3-2 


Endangering safety of (Art. 98)- 


Discussion--------------------------- 178c---------_____-28-28 


Proof--_-----_-_-_------------------- 178c---_-----_-__-- 28-28 


Specification form ..................... App 6c(45) --_-_-_-__A6-9 


Separate unit ---___...-----_--------------- 4a, 5b, c --_-_____-_- 2-1, 3-1, 3-3 

Suspensionfrom_-------_----------------- 126i-----_---_--l-- 25-7 

Command influence. See unlawfully seeking to influence court-martial. 

Commander. See Commanding officer. 

Commanding another to commit an offense- - - _-_ 156_-_-_-___-_-_-_- 28-4 

Commanding officer: 

See also Convening authority. 

Defined for purposes of arrest or confine- 21a(l) _-___-_--_-__ 
 5-4

ment. 


Abandonment of command, military prop-


erty, place, unit or ship. See Abandonment 


of command, military property, place, 


unit, or ship. 


Agency of military jurisdiction-_ ---------_- 2--_-----------_-_-1-1 


As accuser--__----------..--------------__ 5a(3), (4)-----_-_-__ 3-1 


As convening authority .................... 5, 21a(l) -----____--3-1, 5-4 


Arrest, power to- 


Civilians-_-_------------------------- 21a(l)---____----__5-4 


Enlisted__-..-----------------------_- 21a(2)-----------_- 5-4 


Officer---_--------------------------- 21a(l)-_--_--_-___-
 54 


Warrant officer-------_-_------------- 21a(l)-__--_-__-_-_
 5-4 


Article 15. See Nonjudicial punishment. 


Charges, and speci6cations1 action on. See 


Charges and specifications. 


Codnement of enlisted persons- - - - --_--- _ - 21a(2)---_-__-_-_-_5-4 


CourB-martial, duties of- 


Personnel to be furnished by - --------___-36_--___---_-___-_- 8-1 


Suspension and remission of sentence-- ---- 97a------_-_-___-_-
 19-3 


Defined for purposes of arrest and confine- 21a_-_---_--_---_-_5-4 


ment. 


Delegation of power--- - -- - - - - - - - - - - ----- - - 5a(5), b(2), c_ ---- _ _ 3-2, 3-3 


Exercising immediate jurisdiction- - - _-_-- - -- 32.. _ _ _ -_ -_-_- ___ _ __ 7-3 


Influencing military judge, counsel, or members- 5a(6), 38 - - - ---- _ - - - 3-2, 8-3 


Nonpunitive measures-- - - - --_---- - - - - ---- - 128~-- - - _ _-------_ - 26-2 


Punishment nonjudicial- 


See also Nonjudicial punishment. 


Remission and suspension of cour~s-martial 97a --_-_-__-__-_-__
 19-3 


sentence. 


Remission and suspension of nonjudicial 134-______-_--__-__
 26-11 


punishment. 


Restraint of person tried ---.-___-_-_-__-___ 21d, 88f _____-._____ 5-5, 17-10


Suminary courts-martial ----_-------------- 5c- ----__--_---___- 3-3 


Summary court records --_______-_--------- 91c- __-_-_--____--_ 17-16

Commanding officer-Continued 

Surrender of command. See Abandonment of 


command, military property, place, unit, 


or ship. par. Page 


Trial, notification of results to -------------- 21d------------_--- 5-5 


Commissioned officer, See Officer. 


Commissions. See Military commissions. 


Common trial: 


See also Joint trial. 


Accused rights ............................ 53c, 69d ------------ 10-1, 12-8 


Authority for ......................... 331- - ------_-_-----7-8 


Challenge, peremptory, number of- - -------- 62e- --------------- 11-7 


Different armed forces, accused members of -- 13---- -------_--_-- 4-3 


Enlisted members, procedure if requested -- - - 61g.. - - - - - - --- --- - -- 11-5 


Reference for trial- - _ _ _ - - _ _ --- _ ---- --- - - -- 33j(l) - - ----- _- _ - _ - 7-8 


Rights and privileges of accused ----------_- 53c- ---------_-_---10-1 


Sever, motion to-----_-------------------- 69d----------_----- 12-8 


Stipulations, instructions concerning ----- --- _ 154b(3)- - ----- _---- 27-73 


Communicating a threat (Art. 134) : 

Discussion _----------..------------------- 213f(10) -----_-_-_-
 28-79

Proof 213f(10) ----------- 28-79 


Specification form ----__- _-_----------_---App 6c(181) -------- A6-26 


Communicating, corresponding, or holding intercourse with the enemy (Art. 104) : 


Discussion---------__------------------ 183d---------_----- 28-34 


Specification form -----_-_--------

Proof ............................... 183d--------------- 28-34 


App 6c(61) --------- A6-11 


Communications Act of 1934, ~vidence in viola- 152---------------- 27-65 


tion of, inadmissible. 


Communications, privileged. See privileged com-


munications. 


Commutation of sentence. 


See also remission of sentence: Sentence. 


Commissioned officer, war or national emer- 126d--__-_-------­ _25-3 


gency-From dismissal to reduction to an enlisted grade. 


Convening authority's action --_------------ 89----------------- 17-11 


Definition----------__-----_------------- 105a---------_----- 20-6 


President-------------------------- 105a--------------- 20-6 


Secretary concerned-_-_----_-------------- 105a--__-_--------- 20-6 


Supervisory a~~thority- -----_-__-------_-- 94--__-_-_-----__19-1 _-


Compulsory self-incrimination. See self-incrimination. 

Concealed weapon, carrying (Art. 134) : 

Specification form Art. 134 ----------___---_App 6c(186) - - ------ A6-26 

Concealment of a felony: 


Bee also Misprision of felony (Art. 134). 


Discussion- -- - ------ _ ---- _ --- - ---------- - 213f (6) ---- --..- -- --- 28-77 


Specification form- -_------ --______--------- A6-24 


Proof-----------_--____----------------_ 213f(6).--­ ..-------- 28-77 


App 6c(163)- --__-_-

Concurrent jurisdiction: 


See also Jurisdiction. 


Civilian courts-----___------------------- 68d--___._-­ ..--_---12-6 


Crimes and offenses, not capital- -- - - __ _ __ _ - 213d-_-_ -- -- - -- - -- - 28-73 


Military courts--------____--------------- 12------_---------- 4-3 


Conduct: 

Bringing discredit upon the Armed Forces 

(Art. 134)-


Discussion........................... 213c--------------- 28-72 


Proof-------------------------------- 213d--------------- 28-73 

Conduct-Continued 

Cowardly (Art. 99)- par. Page 

Discussion--__--__------------- 178e--------------- 28-28 

Proof---------_-..---_--------------- 178e----____-..-___-28-29 


Specification form -------_----___-----App 6c(47) --------- A6-9 


Prejudicial to good order and discipline _-_-- - 213b-_-__--_----__- 28-72


Unbecoming an officer- - - - _ _ - - _ _ _ -- - - - - - --- 212------- - ----- - -- 28-70 

Confessions. 

See also Admissions. 

Defined.............................. 140a--------------- 27-15 

General-.--_---__--__----------------- 140---------------- 27-15 

Admissibility as evidence- -- __------------- 140a--- --__----_-_-27-15 

Article 39(a) session, examined at --__-_-___----- 53d(l)-_---__---_---
 10-1

Coercion, effect of ----_--___---___---------
 140a----__---------27-15 


Corroboration, requirement of, what con- 140a(5)_----__-_---27-18 


stitutes. 


Counsel, right to ---_--_-_--_----------140a--------------- 27-15 


Cross-examination -----------_-_----149b(l)-----_---__-_27-54 


Guilty plea----__---__---_---------- 70a-__--------..--_- 12-9 


Immunity, promise of ..................... 140a-_--__-_---___-
 27-15 


Joint trial, effect upon co-defendants -----___140b----__-----_---27-19 


Knowledge of right to counsel ---------__-_-140a-_-___---------27-15 


Knowledge of right to silence ---__-_-----__-
 140a---__----------27-15 


Silence-


Accused, effect of ---_--__-_-_--______-
 140a---_---------_-27-15 

Construed------_-_----_---_---_-_---140a(4)------------ 27-17

Right to --___---__-----_------------- 140a---------------
 27-15

Voluntariness---__--~----------
 140a(2)------------ 27-15 

Warning under Article 31b ---__------------140a(2)------------ 27-15 

Effect of ---_-_-__----_---------------140a(2)------------ 27-15 

Whenrequired-------__-------------- 140a(2)------------ 27-15 

Confinement: 

See also Apprehension; Arrest; Punishment. 

Appellate review, when required-- ___--__ -__ 98- - -__---__---___- 20-1 

Apportionment of sentence by summary 16b, 126c(3), 127~---- 4-7, 25-3, 25-8 

court. 

Arrest, distinguished from ----__------___--- 18, 174b --------_--- 5-1, 28-24

Authority to -----__-_------__------------21a------_-----_---5-4 

Bread and waterDiscussion- _ -........................ 125, 131b, 131c(5) _ -- 25-1, 26-3, 26-5 

Medical certificate---------____------125----_---_-----_-25-1 

Vessel, on------------_--------------- 131b-----------_--- 26-3 

Civilians--_____------_----__---_-___-__-- 21a(l)-----..-------
5-4

Contempt, punishment for- -____-_-----___- 118--_--__---------
23-8


Continuous, exceptions .................... 97c------_--------- 19-4 


Deferment of. 


Sce also Deferment -___------------.----- 88f _------_----_---17-10 


Definition------------------------------ 18a___---__--------5-1 


Delay in preferring or prosecuting charges, 22-_-_---_---_-..---
 5-5 


effect upon. 


Designation of place ----- -____--- - - ------ - - 89c(5) --- - 17-12 


Diminishedrations------_-_-_-------------125--_..------------ 25-1 


Duration----_-------_---_------___-----_ 22----..----------..- 5-5 


With Enemy prisoners --------------------u 18b---------------- 5-1 


Enlisted persons, who may confine.. -----_-_-21a(2)-- ----------- 5-4 


Escape from (Art. 95)- 


Discussion--_-------__-_-_----_-_---_174c--..--_--------- 28-25 


Proof................................ 174c--------------- 28-25 


Specification form -_-___---_-____------ App 6c(38) --------- A6-9


At hard labor. See Hard labor. 

Interruption of ----__-___---_-__---------- 126j, 97c ----------- 25-7,19-4
Confinement-Continued Par. Page 

Knowledge of offense or inquiry into as pre- 20d(l)_---_-------_5-3 

requisite before. 

Limitations uponAppellate review ........................ 98----------------- 20-1 

Enemy prisoners and foreign nationals, 18 b(2), 125- --- --_- - 5-1,25-1 

with. 

Officers and warrant officers --_-----_-__126j-- -----____----25-7 

Solitary-----_--__-------------------- 125-------__----_-- 25-1 

Voting percentage required- -- - - - - - - - - - - 76b(3)---- - _ _ -- - -- - - 13-14 

MaximumSpecial courts-martial- -- _ -- -- _ - - - - - _ -- 15b, 126~- _ _ _ _ _ - - _ - - 4425-3

Summary courts-martial -_-__----____ 16b, 126c --____----_4-7,25-3 

Various offenses ....................... 126d, 127c -_--_-----25-4,25-8 

Minor offenses -_--_ __ _ - -_--- - - ----- -- - - -- - 18b(l)-----_- - _ ----- 5-1 

As nonjudicial punishment on vessels ------_- l3lb---------.----_ 26-3 


Officer, warrant officer, civilian, authority 21a(l)-._-_____-_--- 5-4


cannot be delegated. 

Officer and warrant officerAuthority to confine ------------------- 21a(l)------------_ 5-4 

General---___--__---_--------- .-----126d---__.---._____ 25-4 


Pending trial as basis for mitigation or re- 88b, c -_----__-----_17-7 


mission. 


Personal knowledge or inquiry into offenses 20d(1) ----L-------- 5-3


as prerequisite before. 


Persons subject to-----___-----___..---____ 18b----_---_____..--51


Place of-------_------------------------- 93..----------..----- 18-3 

Changein-------_-------------------- 97d--_--------_---- 19-5 

Designation of ----_-___---_____------- 89c(5), 93, 126j ------ 17-12, 18-3,25-7 

Probable cause, requirement of --__-_----___20d(l)- ------------ 5-3 

Prior to trialGeneral-----___--___------- . - .-.__-18b(l), 20c, 20d(4)-_- 5-1, 5-3, 5-4 

Notification to accused ---------------- 20d(4)--- ---------- 5-4 

Procedure---------------------_--------- 20d(3)-----_-_----- 5-4 

Release, authorityto---___----_-_---------22--..------..------- 5-5 

Release from unauthorized (Art. 96)- 

Discussion-__--_--------------------- 175a-__----_-_--..-- 28-25 

Proof-----__-_----_------------------175a------__------_28-25 

Specification form ---__----__----------App 6c(39) --------_ A6-9 

Remission of sentence affected by discharge-- 88e -------_-------- 17-9 

Report of-----____------__--------------- 20d(5)-------_----- 5-4 

Solitary----_--_------------------------ 125_____---_-..----- 25-1 

Summary courts-martialApportionment of sentence ---___-_-----16b, 126c(3), 127c ---- 4-7,25-3,25-8 

Length------------_----------------- 16b-__-_---___-----47 


Suspension of ............................. 88e--___--__-------17-9 


Termination of---------_-----__---------- 22-___----_-..-----_ 5-5 


Trial-


214 88f--___--_____ 5-5, 17-10


Prior to ----___--------__-------------20c-----___--_--___ 
 5-3

Unlawful detention or Confinement (Art. 97)- 


Discussion........................... 176---------------- 28-26 


Proof................................ 176--__----_-------28-27 


Specification form ---___-----_-_-------
 App 6c(40)-- -_----- A6-9 


Vessels,, on, as nonjudicial punishment -_---__131b-___---___---__
 26-3 

Warrant officer, authority to confine -------- 21a(l)-----_---_-__5-4 

Voting percentages ----_-_------------- --- 76b(3)------__----_-13-14 

Congress: 

See also Contemptuous words against. President, Congress, etc. 
INDEX 

Congress-Continued Par. Page 

Courts-martial jurisdiction, source of_- -- _ --- 8_----------- -- _ --- 4-1 

Military jurisdiction, source of -------- .----- 1, 8 --_-_-------_-_-1-1, 4-1 

Conjunctive, use in pleadings -----------_------- 28b-- ----_-_-_-----f3-4 

Consent, trial by summary courts-martial --_----- 79d--------_-_----- 14-2 

Waiver distinguished---------------------- 154d---------_----- 27-73 

Consequences: 

Foreseeable----------------------------- 198b-___--------___28-46 

Murder, natural and probable -----__------- 197c--__---------_-28-44 

Conspiracy (Art. 81) : 

Discussion------------------------------- 160_--------------_ 28-7 

Proof---_----------__--------------------- 160---------------- 28-9 

Specifications------- -------------------- App 6c(3) -----__---A6-4 

Co-conspiratorsWitnesses against one another __----_---148e-------___-----27-52 

Evidence ofAct and statement of co-conspirators _-_-140b--_--------_---27-19 

Co-conspirator witness against another.._- 148e- -- _-------___-27-52 

Contempts: 

Defined--------------------------------- 118a---------_____-23-8 

Jurisdiction to punish for _--_-----------_--10, 118- _----------_ 4-2,23-8 

Persons liable- - - - - - - - - - ---- - -- - -__- - ---- 10, 118a-- -- - -- - ---_ 4-2,23-8 

Procedure----------_-------------._---_._ 118b, App 8c-- .- .---23-8, 
 A8-25

Punishment for- 


Approval---------------------------- 118b--------------- 23-8 


Confinement......................... 118b, c-____ .-.------23-8,
 23-9 

Fine...................... -- ------ - ._ 126h(3)--- - .-.----- 25-6

Maximum---------------_--_-------- 118a-------..-----.... 23-8 

Records of courts-martial ----_---__--------11%-___-_---------23-8 

Contempt toward (Art. 88) : 

Congress, member ofDiscussion----------_---------------- 167---------_----..- 28-16 

Proof---------------_---------------- 167---..------------ 28-16 

Specification form ---------- - - - __ --- - - - App 6c(18) - - - ------ A6-6 

Noncommissioned officer (Art. 91)- 

Discussion--------------------------- 170d---..----------- 28-20 

Proof-------,-------------------_---- 170d--, ------------ 28-20 

Specification form ..................... App 6c(26)- - - ------ A6-7 

Officials, government (Art. 88)- 

Discussion........................... 167_---_----------_28-16 

Proof ................................ 167----_----------- 28-16 

Specification form -------____----------App 6c(18) --------- A6-6 

Petty Officer (Art. 91)- 

Discussion--------------------------- 170d-_-----....-..--.... 28-20 

Proof................................ 170d-_------------- 28-20 

Specification form ------- --_-_-_---- --- App 6c(26)- -------- A6-7 

President (Art. 88)- 

Discussion-_-_----------------------- 167..--:------------ 28-16 

Proof ................................ 167-. ------_----__-28-16 

Specification form ----- --_-__----------App 6c(18) - - ------- A6-6 

Warrant officer (Art. 91)- 

Discussion........................... 170d---_----------- 28-20 

Proof ................................ 170d-_------------- 28-20 

Specification form ..................... App 6c(26) --------- A6-7 

Continuance: 

General-------_------- --- --- ----- ---- ---- 586-_--._____ .--_-- 10-13 

Grounds for granting .................... - - 58c- ---_----------- 10-13 

Additional charges--- - ___---_---- - - - ---- - - 69b(3)-----____---_-12-7 

Defective specification ---- --- - - -- -- - - ---- -- 69b(3)-------- - --- - - 12-7 

Witnesses, absence, ground for ----_----_--__58c---------- ------ 10-13 

Continuing condition, inferred-- - - - ___ - - - - -- - --- 138a-- - ------ - -- --- 27-5 

24-Index 
-- - --- - 

Par. Page 

Continuing offenses- --------------------- - --- - 68c, 215d- ---------- 12-5, 29-3 

Contributions, illegal sentence ---- - --____---- - - 126h(l)-- - - _------ - 25-5 

Convening authority: 

Absence of----------------_-------------- 84b----------_-__-.. 17-1 


Absence of accused ---- .................... 84a-----..--------- 17-1 


Accused, under command of -------__-__----84a___------_---_--17-1 


Accuser, acting as ......................... 5----------_---_-_-3-1 


Acquittal, action on ....................... 89c(l)--.. --_---_-_-17-12 


Admonition by- -- - - ------- - ----__- ------ - -- 89c(8)---- - - --- - ---- 17-13 


Appointment powers. See Detail, this subject. 


Authority to detail counsel --____-_-_-_____ 6a_-_-----__.-_____ 3-3


Capital offenses.......................... 15a(3), 126a, 145a-_.. 4-5, 25-2, 27-42 

Censure of court .......................... 86b(2)------------- 17-4 

Certificate of delivery of record ------------- 82g(l)-------------- 16-3 

Certificate t~finability to obtain: 

Defense counsel ---- ----_-------------- 6c----- .---_- .-.___3-4 


Defined.......................... .-._5, 84a --.--_ 3-1, 17-1 


Military judge - - - _ -.---.- .-._ 15b--.----- __ .-. - _ _ 
 4-5


Charges, action on-_-_-_-----___-_-------- 
 30__-_----------_-- 7-1 


Charges dismissed- ---------_------- --- ---- 89c(2)---- -___---__-17-12 


Clemency------_-------------------------


Coercion of courts-martial- - - -- _ -_ -------_ _ 
 Command, devolution of ---- _--------------


Commutation of sentence ---__-_-___ 


Confinement, place designated--- -- - - - - - ----


Contempt, punishment- - ----------------__ 


Continuances-----------------------------


Correction on records- ---- ------------ ----


Correction of errors- 


General------------------------------ 86c--------_------- 17-4 


In special and summary courts-martial 94a-_-----------___19-1 


proceedings. 


Court of Military Review, decision forwarded 100c(l)-_-_ - _ _ ._ _ - _ .. 20-3 


to. 


Courts-martial, control limitations on- _ -- _ _ - 5a(6)- - -- _ -- - _ ..---- 3-2 


Custody of accused, pending review --_ ._ .- 88f, 89c(6)-- -_. _ _--- 17-10,
 17-12 


Defense counsel, individual ---_-_----------48b_--------------- 9-12 


Defense counsel, offer of- ----____- .-.----- 6c------... - .-.-.---3-4 


Delegation of power ....................... 5a(5), b(2), c, 84a--. . 3-2, 3-3, 


17-1 


Designation of place of confinement -_-_-_---89c(5)---- --_------- 17-12 


Detail of- 


Counsel-----_-_--------------------- 6----..--------..---- 3-3 

Defense- counsel, pretrial.. _ ----- _ - - ---- - 34c- - - - - - - - _ - - - - - - - 7-10 

Guards, clerks, orderlies --------------- 51----------------- 9-16 

Interpreter-___-___------------------- 7, 50-_------------.. 3-6, 9-16 

Members of courts-martial __-_-....-----_ 4, 36, 37 ---______-_- 2-1, 8-1, 
 8-2

military judge---_--_-____------ -----_ 4e---_---_____-_--- 2-3


Reporter------_--___--------.---------- 7, 33k, 49 --_------- 3-6, 7-8, 9-15 


Devolution of command ---_--____-_------- 5a(5) _-_----__-_-_-
 3-2


Discretion in common trial --__-___------___ 331--------___-_---
 7-8


Dismissal of charges by --_ _ _-- _ -- ------- 92, lOOb(3) -- _ --- --- 18-1, 20-2 


Enlisted members, absence at trial, report to- 61g--------_------- 11-5 


Errors in trial, action on-_ --________-_ - _ - - 87c-- _ --- -_-_ _-_ 
 - _- 17-6


Expurgation of record by ---____-_-------__
 82g(1)-----_----_---16-3 


Findings, action on ....................... 87---_----__-------17-5 


Findings, apl~rovel of ----_-_----______---u-
 86a-__------__-_-_
 .. 17-3 


Findings, not guilty ....................... 86b(2)-----_-__-_-_-
 17-4 


Findings, inconsistent, action on -----------_ 87b----------_----- 17-6 

INDEX 

Convening authority-Continued par. Page 

Forfeiture power- - --- - - - -- - - - --- - -- - - - - _ - - 83d(3), 88e(2) (c) 17-8,17-10,25-6 

126h(5). 

Inactivation of unit ....................... 84c---------------- 17-1 

Influencing military judge, counsel, or 5a(6), 38 ---------__ 3:2, 8-3 

members. 

Initial Review ............................ 84----------------- 17-1 

Insanity of accused, action when suspected or 86e, 122b, 124- ------ 17-5, 24-3, 

shown. 24-6 

Insanity, action on review ----------------- 124---------------- 24-6 

Instructional or informational lectures in 38b---------------- 8-3 

military justice. 

Invalidity of proceedings, action to be taken-- 92a------------_--- 18-1 

Lesser included offense, approval of- -- ------ 87a(4) ------------- 17-6 

Members of courts-martial, changing--- ----- 37------------ ----- 8-2 

Modification of initial action- - --_ ---- - ----- 89b------..---- --..--' 17-11 

Motions, directing reconsideration of-- -- --- - 67f- - - - - - ---- _ ----- 12-3 

New trial, action on ....................... 89c(7) (b), 109, 110--_ 17-13, 21-1, 

21-3 

Officer in charge, Navy and Coast Guard ---- 5c----------------- 3-3 

Officer having supervisory powers, reference 94a---------------- 19-1 

from. 

Officer with temporary command ------------ 84b---------------- 17-1 

Power to detail, cannot be delegated .----_--- 6a-_-_---------_-3-3

Power to detail counsel from other armed 6a----------------_ 3-3 

force. 

Punishment, action as to--- --..------------- 88a------- ..-..-----1 17-7 

Punishment, cannot increase- - - - - ---------- 88a-._-_-------_-_- 17-7 

Reasonsfor disapproval of sentence --------- 92a----------------- 18-1 

Reconsideration for motions ---- _ _-_ -------- 67f- ------ _ -----:-- 12-3 

Record of trial, action onAcquittal- -- - - --- - -- - - -- _ - _ - - - - _ - _ --- 86b(2), 89c(l) -- ..- --.. 17-4, 17-12 

Admonition .......................... 89c(8)-------------- 17-13 

Bad-conduct discharge --_-----_------- 84d--------------_- 17-2 

Corrective action ...................... 89b--------_r--_-_- 17-11 

Custody of accused, pending review ----- 88f, 89c(6) ---------- 17-10, 17-12 

Correction of errors ------------------- 86c---------------- 17-4 

Disposition of records ----------------- 94b---------------- 19-2 

Evidence, suffii?iency of 87a(3)-------7----- 17-6 . . Flndlngs ............................ 87-----------..----- 17-5


Forms of action ....................... 89a---------------- 17-11 

Forwarded to for initial review-- ----- - - 82g(2), 84a- - - ------ 16-4, 17-1 

Inability to act ....................... 84~------_---____-17-1

Modification-------------------_--_-_ 89b-----___-__----- 17-11 

Orders------------------------------- 90..--_..-..--..------- 17-14 

Power, non-delegable ----------------- 84a --------------- 17-1 

Preparation of additional copies- ---- - _ - 49b(2) ------ - -----_ - 9-15 

Reference of matter to Staff Judge 52----------__-__--10-1 

Advocate. 

Rehearing, action on ----------------__89c(7)-- 17-13 

Reprimand-.------------------------- 89c(8)-------------- 17-13 . . Revlslon............................. 86d----_-_---------17-5 


Signature............................ 89a-_-____-_-_-----
 17-11 

Supplementary action.. - ---------______89b--_-_-_---------17-11 

Records, correction for appeal- _ __ _ _ - _ - - -- - - 95- -.- - - - - ------ --- 19-2 

Records of new trial, action on __-_____--_-_ 109, 1106 ______-.--- 21-1, 21-3

Rehearings, action onCombined rehearing-__ __ _ _ - _- - - - - - - - - - 92a-- - _- - - _ - _ ____-- 18-1

Full rehearing--________-------------- 92a-----__-___._---18-1

General--- - - - - _ _ _ -- - - - - ------ - - - - - - - - 89c(7)---- _ _ _ :_ - _ - - - 17-13 

On sentence only- - - ---___-_-_-_------ 92a---__-_---------18-1
Convening authority-Continued 


Rehearings, action on-Continued par. Page 


Ordered by Court of Military Appeals-..- 101------- - ---- ---_ 20-4 


Ordered by Court of Military Review--- 100______-_-_-----_
 20-2 

Power to order--------------__--------- 92a--_---__-___---_ 18-1 

Reports toUpon disqualification of the prosecution- - 61e- -- - - - - -- - _ - - _ -- 11-2 

Upon adjournment as result of challenges-- 62h(4) - -- - - - _ -- _ _ -- 11-10 

When defense counsel is not legally 61f(3)------------__11-4 

qualified. 

When evidence of uncharged offenses 55-------_-_-_--_--10-7 

offered is produced at trial. 

Reprimand by ............................ 89c(8)----------_--- 17-13 

Rescinding or revoking actions- - - --_-_-----37c- -- - ------_----- 8-3 

Review of------------------------------- 84--------..----_--- 17-1 

Revision proceedings, action on ---_-___- _--- 86d_______-_------- 17-5

Sentence, action onApproval of .......................... 86a, b, 87a, 88a, b, 17-3, 17-4, 

89~(3), 98 17-5, 17-7, 

17-12, 20-1. 

Approval of, in part ------------------- 88c----------___---17-7 

Cannot increase ...................... 88a----------_-__--17-7 

Clemency--_-_----------------------- 88c---------..------ 17-7 

Commutation........................ 88a, c -------------- 17-7 

Court of Military Review, reversal, lOOb(3)---________-- 20-2 

procedure by. 

Deferment of service of confinement- --- 88f, 89c (17) _ ---- _ - 17-10, 17-13 

Disapproval of ....................... 86a, 88a, 89c(2) ----- 17-3, 17-7, 

17-12. 

Execution and suspension-- ----------- - 89c(4)-------- --- - - - 17-12 

General--------------------- 88----------------- 17-7 

Modification of initial action ---________ 89b--------_-------- 17-11 

Reasons for disapproval- --___-_------ - 89c(2)---- _-_---_---17-12 

Rescission of deferment of confinement-- 889---_------______17-11 

Suspension of execution ------------ ---- 88e- - __ ---- ------__17-9 

Special courts-martialBad-conduct discharges ----_---_-------84d--_-___--____--- 17-2 

Deferment, remission, or suspension of 88f, 97a ------------ 17-10, 19-3 

sentence. 

Rehearings ordered-.. ----------------- 94a(2)------- ------ 19-1 

Rescission of deferment- ----- -- - - -- - - - - 889- --- _- - - _ _ _ _ __ _ _ 17-1 1 

Vacation of suspension of sentence ------ 97b----_---_-_-_-_- 19-3 


Staff Judge Advocate- 


Advice to---------------------------- 85a----------_----- 17-2 


Disagreements with- ------_----------- 85~- _-----_-_---_-17-3


Relations with----------------------- 35b------------_-_- 7-12 


Succession------------------------------ 5a---_--_--------_.. 3-1 


Summary court-martial- 


Detail of---_----__------------------- 5c---_._-_---_-___-
 33 

Officer in charge of Navy or Coast 5c ----_------_----_3-3 

Guard unit. 

Only Officer with command, review -_-_-79e--__--__________ 14-3 

Power to withdraw action ----_-__--___- 94a(2) - _ _ _-_-------19-1 

Procedure when only officer present 5c----------------- 3-3 

with command. 

Trial, in absence of enlisted members-.. _ - _ - _ - 61y-- _ - _ _ _ - - - - -- - - - 11-4 

Convening orders: 

Amendments-___-______________________-_ 37c(l)--..-..-_-....----8-2 


Announcement at trial ..................... 61c_-____----------11-2 


Change in court personnel, amending, 37c_--__-----------8-3 


rescinding or revoking to accomplish. 

Convening orders-Continued par. Page 


Content................................. 5a(2), 5b(2) 36b ,-----3-1,3-2, 8-1 


Examination of, at trial .................... 61a---------------- 11-1 


Form.................................... 36b, App 4 ---------- 8-1, A4-1 


General courts-martial- 


Authority to convene ----------------_- 5a(2) -------------- 3-1 


Counsel, qualifications of ----_---_-----6b, d, 36b ----__-___-
 3-4,3-5,8-1 

Military judges, qualifications of -------- 4e, 36b, 62g -_------- 2-3, 8-1, 11-8 

Oral.................................... 37c---------------- 8-3 

Personnel of courts-martialActive duty, presumption of ------- --- -- 36a- - ----_-_-------8-1 

Selection of .......................... 36c------_--------- 8-1 


Qualifications of counsel- - --_-_----_-------61f ---_------------ 11-3 


Rescinding or revoking .................... 37c---------------- 8-3 


Selecting courts-martial personnel--- - - - - ---- 36c-------- - __ _ - _ - _ _ 8-1 


Special court-martial qualifications of counsel- 6c.. - ------ _ -- - ----- 3-4 


Conviction: 

By civil court, effect on court-martial, sen- 97c------_-_------- 19-4 

tence. 

Lesser included offenses. See Lesser included 

offenses. 

Evidence of accomplices convictions--- --- - _- 140b-----_-- - _ _ _ --- 27-19 

Evidence of previous conviction. See Evidence, 

previous conviction. 

Self-incrimination after conviction- _ _ _ - _- - _ _ 150b-_ _ _ - _ - _ - - - _ --- 27-58 

Witnesses, credibility and disqualification- - - - 148d-- _ ---- - _ _ - __ _ - 27-51 

Copies. See Evidence, documentary. 


Correction of action by higher authority -___-_-_- 95----------------- 19-2


Correction of record of trial: 

See also Revision; Records of trial; Records 

of courts-martial. 


Certification of authenticating officers- ----_- 86c- --------------- 17-4 


Procedure................................ App 9d ---------_--- A9-5 


Correctional custody: 

Nonjudicial punishment -------------_---_-131b(2), 131c(4) ---_..26-3, 26-5 

Offenses against (Art. 134)- 

Discussion........................... 213f(13)------------ 28-80 


ProofBreach of---------------_-------- 2133'(13)..-_--__--_- 28-81 

Escape from ...................... 213f(13) ------_----- 28-80 

Specification form ..................... App 6c(135-136) ---- A6-21 

Correctional institutions, as place for confinement- 93- - ..- - - -- - ------ - - 18-3 

Corresponding with the enemy. See Enemy. 

Corroboration: 

Accomplice's testimony .................... 153a--------------- 27-65 

Complaint of victim of sexual offenses -_-_-_-14%---_-------_--- 27-24 

Confessions- - ---- - - - --- --- --- - - -- - --- - - - - 140a (5) - - -- _ ------- 27-18 

Perjury................................. 210---------------- 28-66 

Prior statements as- - - .................... 153a-_---_-_-------27-65 

Sexual offense, testimony of victim --_-_--___153a-----_--------- 27-65 

Counsel: 

See also Counsel for accused; defense counsel; 

Trial counsel 


Accused's right to pretrial investigation- ---- 30b-- - -- --- - ------ - 7-2 


Appellate Defense Counsel- 


Civilian, accused's right to-.. ----- - - - -- - 102c-- ------- ----- - 20-5 


Communication with accused ------ ---- - 102b-------- --- - - - - 20-5 


Detail of---------------__------------ 102a-----_---_----- 20-5 


Duties............................... 10%--------------- 20-5 


Qualifications......................... 102a--------------- 20-5 

Counsel-Continued 


Appellate government counsel- pa. Page 


Detail of-----_----_--___------------- 102a-----------_--- 20-5 


Duties--------_--_-------.-.----- 102b-----------_--- 20-5 
 ----


Qualifications-----------.------------- 102a---------------
 20-5


Certification, general----_----__-----_- 6b----------------- 3-4 


Civilian counsel- 


Oath--__-----___------------- 112b, c, 114c-----___ 22-1,22-3 


Right to be represented by- 


Appellate review _----.-.-----.---- 204 


Appeal------------------------------ 102c­ ..---------_-_- 20-6 


Fees paid by accused ------------------ 48a-----------_---- 9-11 


102~---____._______ 


Court-martial.................... 48a------_-------_-9-11 


Investigation of charges- ---------- 34c---------------- 7-10 


Conduct, general------__-_--------------- 42b-_----___----_ __
 9-6 


Defined-----_--__-_----_----------------- 42a__­ ..---_-__---_9-6 
 -

Detail from- 


Individual counsel- 


Accused, right to selection of ---_-_----- 48a, 61f _-___--__--- 11-3 


Commands of other armed forces- - ----- 6a----------------- 3-3 


Joint commands------__---_----------- 6a----------------- 3-3 


Other commands of same armed force- -- 6a---­..---- --- ----- 3-3 


General court-martial-- - --_----------- 6b----------------- 3-4 


9-11, 


Defined------------------------------ 42a_..---__..-..--_--- 9-6 


Defense, this subject. 


represented at. 


Misconduct 


Oath--------_--___----___-_--____-__----


Duties. See Counsel for accused; Counsel, 


Investigation of charges, right to be 34b------_----_----7-9 


Oath----_-_---_-_------------------- 114---____--------- 22-2 


Interview of witness, pretrial -_-------_-----42c----__---------- 9-6 


Legal research by--_ _ - _ - - -- _- - ------- - - --- 44f(4)--- --- _------- 9-8 


General-------_--------------------- 42b---­ ..----------.. 9-6 


Grounds for suspension---__----------- 43 -­ ....-_-_-----..--- 9-6 


112b, c, 114c----_--- 22-1,224 


QualZcations-


Convening order, stated in -_---_-----_-61f(2)---__--------- 11-3 


General _-___---_-----------_---6-----__-----..-----
 3-3


Must be officer----_-----_------------ 6a---__-----_------3-3 


Right to present contentions - ---- - _----_---53g, 54 -_-----------

Suspension of _-_-___--_--_-_------------- 9-6 


10-5 


Special court-martial ...................... 6c----- ------------ 34 


43-----------------


Witness, pretrial interview- - _ - _ _ - - ..-- - _ _ --- 42c- - -- _----..---- - - 9-0 


Counsel for the accused: 


See also Counsel,; Individual civilian; Appellate 


defense; Defense counsel. 


Accused's right to ......................... 6c, 48a ---_--__--__-
 3-4,9-11 


Civil counsel. See Counsel, civilian. 


Communications, privileged-__ --___--------151b(2)----- ---_---- 27-60 
 I\ Defined.................................. 42a---------------- 9-0 


Demeanor at trial -------_____-------------
 42b------_--------- 9-6 


Explanation of rights to, presumption- __ _--- 53h----_----------- 10-5 


Fees----- --- - ----__ -- - - - -- --- ----- ---- - - 48a---__ -------- --- 9-11 


General-----____:-----______--_____--___
 48c---___..--_..--_..-9-12 


Individual counsel, See Individual counsel. 


Investigations of charges- - - - ----_-____. 34c- _-_----­__- ...-..--
 7-10 


Pretrial interrogation, accused right to ----- - - 30b---- ------------ 7-2 


Privileged communication ---__--.- - - - - - - - - 151b(2)_--_-- - ---- - 27-60 


Record of trial, right to examine-- -- - - -- - - - - 44h- - - - - -- - - --- --- - 9-la 


Proceedings to vacate suspension of a sentence- 97b- --_ _ - - -- -.----- 19-3 


Revision proceedings ...................... 80b------- -------- .. 15-1 

Counsel for the accused-Continued Par. Page 

Selection by accused- - - - --_--------------- 48a------_--------- 9-11 

SuspensionMember of other armed force ----_--_-__43----------------- 9-6 

Temporary---____-------------L------ 43------.._---_--_-- 9-6 

Trial counsel, association with -------------- 44h---------------- 9-10 

Vacation of suspended sentence -_----------- 97b---- --- - ------__ 19-3 

Witnessee, interview of .................... 42c--------_------- 9-6 

Counseling another to commit an offense, Liab ility 156- ..-- -- _ _ _ - _ _ _ -- - 28-4 

for. 

Counterfeiting: 

See also Forgery. 

General offense under Art. 134-- - ---_------ 213e(l) -----------_- 28-73 

Statute................................. 213e(l)---_-___-----28-73 

Counter-interpreters, use of .................... 50c- -------_-_-----9-16 

Countersign: 

Disclosing to one not entitled to receive itDiscussion........................... 180a----_---------- 28-30 

Proof-------------------------------- 180a-------_--..--_- 28-31 

Specification form -----_-----_---- - - - - App 6c(53) --------- A6-10 

Giving different from that authorizedProof-----__-___--------------------- 180b------..--_-__..- 28-31 

Specification form -------_-_-__-------- App 6c(54)- - ---____ A6-10 

Court-martial orders : 

Action of convening authority ____--_-_----- 90a------_-_--_-_--
 17-14

Acquittal------_-__--------------------- 90a--..---_---_-__-- 17-14 


Bad-conduct discharge by special court-martial- 90a,b------- --_ - _ _ _ _ 17-14 


Classified matter, procedure --_----__-------90c- - --------- -_ -_- 17-15 


Convening authority, action of- - -_____-_--_
 90a--------------_- 17-14 


Copies, to be forwarded .................... 91------_-_-----_--17-15 
 . . Counsel, qualification of -----___-----___-__ 6c---------_-__--_-3-4

Date of----------_----_------------------ 90a------__---_---- 17-14 

Departmental level, promulgation at - _ -_ _-_- 107------_--_----_-20-7 

Distribution ............................ god, 97e ----------_- 17-15, 19-5 

General courts-martial -------- - - -- ---- ---- 90--------__------- 17-14 

IssuedGeneral---------------------------7- 90a--------_----_-.. 17-14 . . Initial............................... 90b(l)---------_---_ 17-14 


Subsequent- - - ....................... 90b(2)-----_: __-__-
 17-14


Military judge, certification of ---________--_
 4e------_---------- 2-3 

Obscene matter ........................... 90c- ----_-__-------17-15 

Preliminary promulgation of _ - _ -- - _- _ _ - - - _ - 99-- - _ --- _ --- _ -- - - _ 20-1 

Prior convictions shown on -------_-_-_--__- 75b(2), 153b(2)(b) -
.. .. 13-9, 27-67 

Promulgation-


Action on new trial- - - --__-_------_--_ 110b------------..--21-3


Appellate review, subsequent to- _ - _ ___ _ 100b,c, 107 -----__---20-2, 20-3, 20-7 

Departmental level -------_---_ -_----- - 107----- - ---- ------ 20-7 

General courts-martial ----- ---- - - - - ---- 90--- - - - - --_------- 17-14 

General-----_-----_----------------- 90a--_-_------_--_-17-14 . . Prel~minary.......................... 99-_--_-_--------_-20-1 


Special courts-martial- - - ------- - - - - --- 90------ - - --------- 17-14 


Summary courts-martial- ..--______-___- 90e- ----_--_----..--
 17-15


Restoration of rights by - ---------_-----___ 106------_--------- 20-7 


Result of trial-_- - - - -- _ - _ _ _ - - - --- - - - - - ---- 90a,b----___ _ - ------ 17-14 


Sentence................................. 9Oa---------------- 17-14 


Special courts-martial- _ - - -- - - - - -- -- - - - - - - - 90-- - _ __-- _-__-_ - - - 17-14 


Summary courts-martial --___-------------- 908- __----__-----_- 17-15


Court of Military Appeals: 

AppealRight to ---_-_____-___._----L-------- 48k(3), 100c, 103 --_- 9-14,20-3,ZO-ti 

Time allowed for ...................... lOOc -------------..-20-3 
INDEX 

Court of Military Appeals-Continued Par. Page 


Appellate defense counsel --------_--------- 102b--------------- 20-5 


Appellate government counsel- --- _ - - - - -- -- - 102b-_ - _---- _ - - ___-20-5 


Disbarmentfrom, effect------------------- 43----------------- 9-6 


Judge Advocate General's: 


Action subsequent to decision- - -------- 101-----_---------- 20-4 


Forwarding decisions to ---------------- 100b(2), 101- - ------ 20-2, 20-4 


New trial, petition for ..................... 109c, f- _ --_------__21-1,21-2 


Powers and duties-- - ..................... 101-----------__--- 20-4 


Rehearings ordered- - - -------- -- - - - ------ - 101---------- - - ---- 20-4 


Review by________--- - -.____ _ ._.--.-- 98, 101______- -.___
 20-1,20-4 

Right to petition to ....................... 100c, 103 --_-------- 20-3, 20-6 

Time for appeal to------------------------ lOOc--__--------..-- 20-3 

Court of Military Review: 

Accused's petition for review of court's 100c(1), (2), 101-_--_ 20-3, 20-4 

decision. 

Additional courts------------------------ 104----_---------_- 20-6 

Affirmation of sentence .................... 100a, 100c ---------_ 20-2, 20-3 

Appellate defense counselDuties of----__---------------------- 102b-------------..- 20-5 

Right to---_------------------------- 48k(3)------------- 9-14 

Waiver of--_ -- - - - ---- - -- - ------ - ---.- 48k(3)-- - - ------ - - _ 9-14 

Appellate Government counsel, duties of ---__ 102b-___-----__--__ 
 20-5

Appellate Military Judge -------___--------100a-___-----_-___20-2 


Appellate review by the Office of The Judge 103-_--_---------__20-6 


Advocate General. 


Branch offices ofJAG--------------------- 104---------------_ 20-6 


Cases referred to .......................... 100a---_-------_-_-20-2 


Confinement for one year or more, sentence 100c(l)-_--_-_--_---20-3 


of, procedure subsequent to court affirm- 


ance. 


Death sentence, procedure subsequent to 10042)------------- 20-4 


court affirmance. 


Discharge, bad-conduct or dishonorable, pro- 100c(l)---------- _ -_ 20-3 


cedure subsequent to court affirmance. 


Discretion, limitations upon -------- -------- 100a-_ __--------- - 20-2 


Dismissal, sentence of, procedure subsequent 100c(l)------- _ _ __ _ - 20-3 


to court affirmance. 


Duties of-------------------------------- 100--------------_- 20-2 


Evidence, power to weigh ------------------ 100a-__------------ 20-2 


General or flag officer ..................... lOOc(2)-_----------- 20-4 


Judge Advocates General, referral to -------- 103---------------_ 20-6 


Limitations on review ------_--__----------100a____--------_--20-2 


New trial, petition for- --------_ - - - _ __ --- -- 109c, 109f -- - -- _ _ _ - - 21-1,21-2 


Notifying accused of decision- - ---------- - - - 100c(l) (a), 100c(2)_-_ 20-3, 20-4 


Petition for review from decision of- - - __ - - - - 100c(l) (a) - ____ _,___ 20-3 


Presidential approval of sentence, when 10042)------------_ 20-4 


required. 


Procedure, rules of---------------_-------- 100d-_-_------__-__20-4 


Questions of fact, power to determine -------- 100a_--_---------__20-2 


Rehearing ordered- 


By Court of Military Appeals --__-----_101_-_-__--___-____
 20-4 


By Court of Military Review ---------- 92,100b--___-------18-1,20-2 


Review of decision of court- ---- -.- -.- - - - - - 100c(l) (a), 101-- --- - 20-3, 20-4 


Sentence, setting aside ..................... 100b-___---__--_-__
 20-2 

Time for petition to Court of Military Appeals- 100~--._ - - - -- --- _ - _ 20-3 

Witnesses, credibility, power to weigh --__-__100a_.___--___-_-__ 20-2 

Courts-martial: 

See also General courts-martial; Special 

courts-martial; Summary courts-martial; 

Challenges; Motions. 
----- -- ---- 

INDEX 

Courts-martial-Continued 

Accused- Par. P@e 


Announcement of-----_--__---_------- 61c---------------- 11-2 


Attendance of---_---__-__---------- 60------..--------..- 11-1 


Authority to restrain _--__-_-_---------2113---------------- 5-5 


Explanation of rights to- - _-..__-------- 53h--.------------- 10-5


Right to trial .................... 132--_---------_---26-8 

Seating---------------------- 61b------..--------- 11-2 

Adjournment, Generally less than quorum 41d(l) _ - - - - - - - - ---- 9-5 

forcing. 

Administrative discharges ----- - _ - _ --- - - - - 126a--- - - - - - -- ----- 25-2 

Admonition, censure or reprimand of ---_-__-38-_--------------- 8-3 

Appellate review. See Appellate review. 

Arguments before. See also Arguments to the 539, 72 ---- --------- 10-5, 13-1 

court. 

Arraignment. See Arraignment. 

Arrangement of courtroom--.. -__- - _ _---- --- 61b, App 8 ----_-..--, 11-2, A8-1 

Broadcast of trial ......................... 53e- --------------- 10-4 

Censure by convening authority - - _--_--_---86b(2)----.--------- 17-4

Challenge. See Challenges. 

Charges and specifications. See Charges and 

specifications. 


Charging the court. See Instructions to the court. 
 . . Classification of ---------_--_----__----- 3--_-___----- 2-1 


Clemency recommendations -_-_------------77a--__------------13-15 


Closed session- 


General....................... 5343)------------- 10-3 

Interlocutory questions ------_--_------57c, d -_-_-_---_---.. 10-11, 10-12

Military judge, attendance of --__-___--- 53d---_------------ 10-1 

President of a special court-martial 57g(3)-------------- 10-13 

without a military judge, request of. 

Proceeding~~helpin-_-----_----_------ 53d---------------- 10-1

Voting onNot guilty motions- _---__-___-__- 57c, 71a ---_..-.-.---10-11, 12-11 

Sanity questions --__-___ ._-_-_.---57a(l), 122b- -._--_- 10-10-10, 24-3 

Sentence, deliberation- --_--------- 76b(2)------_-_----- 13-14 

Verdict ----- ..................... 74d-- --_-------- --- 13-6 

Completeness of proceedings- - - ------------ 53b------_-----..--- 10-1 


Composition. See Members and military 


judge, this title-- 


Contempts-----------_..--------_--__----- 118------..-------..-
 23-8


Continuance. See Continuance. 


Convening authority. See Convening au-


thority. 


Counsel for the accused. See Counsel for the 


accused. 


Defense counsel. See Counsel, defense. 


Detail to. See Convening authority, Detail 


and members, this subject. 

Enlisted persons, members of- 


Eligibility............................ 4a----------------- 2-1 


Unavailability of -------_--__--_------4c----------------- 2-2 


Evidence. See Evidence. 


Evidence of offense not charged report to 55-------------- --- 10-7 


convening authority. 


Exclusion of members on preliminary ques- 57g(2)-------------- 10-12 


tions. 


Explanation of accused's rights __.______-_-_ 53h_-_--_-_--_-----
 10-5


Expenses---------__--------------------- 119..-_------------- 23-9 

Courts-martial-Continued Par. Page 

Finality of judgments- - - - - - - - - - -- - - - ---- 108-- - - - - - - - - -- - - - - 20-7 

Findings. See Findings. 

General. See General courts-martial. 

Inquiry into cause of absent member -___-_--41c, d_-----_-.-__-- 9-4, 9-5 

Inspections of the scene -----,------------ 54e-------- ._------ 10-6 

Instructing the court. See Instructions to 

the court. 

Interpreters, detail of ...................... 7------------------ 3-6 

Judgments, finality----------------------- 108---------------- 20-7 

Judicial notice. See Judicial notice. 

Jurisdiction: 

See also Jurisdiction and Specific courtsAccused, absence of ------------------- llc- --------------- 4-3 

Civilians in peacetime ------------- 9------------------ 4-1 

Concurrent-------------------------- 12----------------- 4-3 

Constitutional source ------------------ 8------------------ 4-1 

Contempts-------------------------- 10---------..------- 4-2 

Discharge, effect of-------------------- 11----------------- 4-2 

Disciplinary only ..................... 8------------------ 4-1 

Elements of-------------------------- 8------------------ 4-1 

Exclusive---------------------------- 12----------------- 4-3 

General------------------------- 8-----------------.. 4-1 

Lack of- .-

Effect on trial-------------__---- 68b----..-----..-_--- 12-4 

Motion to dismiss, for ------------- 67a, 68b ------------ 12-1, 12-4 

Several offenses, effect--- --- - - - ---- 87c--- - - - - -- - - -- - - - 17-6 

Legality of courts make-up ------------- 86b(l)------_------- 17-4 

Location of court immaterial ---------__ 8------------------ 4-1 

Military offense-,,-------------------- 12---------..------- 4-3 

Motion to dismiss------------------- 68----------------- 12-4 

Penal only-------------------_----- 8----..------------- 4-1 

Personnel of other armed forces --------- 13----------------- 4-3 

Persons subject toDischarged persons --------------- llb----__----------4-2 

Dishonorably discharged prisoners- - 11b-- - - .--- - --- - -- - 4-2 

General----------------' --------- 9-----------_------ 4-1 

Reciprocal--------------------------- I%----..----------- 4-3 . . Requisites........................... 8------------------ 4-1 

Review of ............................ 86b(l), (2) ---------- 17-4 

Source, Constitution and Congress ------ 8--___-------------4-1 

Termination of ----------------- __- ---- - 11-- _------ - - --- -- - 4-2 

Military judge. See Military judge. 

Legal materials, use during trial ------------ 53d------- _-_------10-1 

MembersAbsence ofAfter assembly ------------------- 4144) -----___-__-_9-5 

Anticipates challenge ----------_-__ 41c---------------- 9-4 

Before assembly --------__--------4143) ------------- 9-5 

Enlisted persons ------------------ 41d(2)------------- 9-5 

General------------------------- 41d--------_---..-.... 9-5 

Physical disability, result of -------- 41c----____-_------9-3 

Procedure----------------------- 41c, d--_---__--__--9-4, 9-5 

Accuser, action as ..................... 4a----------------- 2-1 

Active duty, presumption of ------------ 36a--_--___--------8-1 

Announcement of at trial --------_----_ 61c----_-____-_-_-- 11-2 

Arrest, persons under, barred ----------- 4a___-_- - ---_-- -_- 2-1 

Attendance, excusing ------------------ 37c--_________----- 8-3

Challenge. See Challenge. 
INDEX 

Courts-martial-Continued 

Members-Continued Par. Page 

Challenges, reduced below quorum ------ 62h---------------- 11-9 

Changes inAfter assembly ------__----------- 37b------------.--- 8-2 

Announcement of - - - _ -- - - - _ -- - - --- 61c- ------ - - - --- - -- 11-2 

Procedure...................... 37c------------_--- 8-3 

Clemency recommendations by-_ --___-_77a---------------- 13-15 

Coercion of ........................ 38----------------- 8-3 

Demeanor during trial -----------_----- 41b--------------- I 9-4 

Discussing the case-----------------.. 41b..--------------- 9-4 

Detail ofCommands of other armed forces- - - 4g(3)--------------- 2-4 

General------_-?---_------------- 4a, d, 36 -------..-_-2-1, 2-3, 8-1 

Joint command---------------- 49(2)-----_------_-- 2-4 

Same armed force ---_---------- - - 4a-- - - - - ------- ---- 2-1 

Other commands of same armed 4f 2-4 

force. 

Duties----------------..-----..-------- 41b-------------_--'9-4 

Eligibility ofArrest, confinement, etc., effect of--- 4a----------------- 2-1 

Environmental Science Services Ad- 4a- _ ------ -- -- -- --- 2-1 

ministration. 

General---------------------- 4a---------------..- 2-1 

Other commands ----_-----_------- 4g(3)--------------- 2-4 

Public Health Service personnel-- - - 4a----------------- 2-1 

Reserve personnel ----------------- 4a----------------- 2-1 

Retired personnel-_ ---- - - -- - _ ---- - 4a-- - - - - - -----1_ - _ -. 2-1 

Enlisted personsChallenges, reduced below %-- --..- - 62h(4)--- --- - - ..----.11-10 

General- - - - - _ ------- - --- - -- - .-.- 4c, 41d(2) - - - -- _ - _ _ - 2-2, 9-5 

Quorum of--------------------.. 41d(2)------------- 9-5 

Request for- ----------- -...-.----- 4c, 61h-- - _ --- .---- - 2-2, 11-5 

Right to---------------------- 61g-------..-------- 11-5 

Equality of voice and vote ------------- 41b---------------- 9-4 

Excusal of-------------__---------- 37--_-------------- 8-2 

Influencing of----_-----_----------- 38----------------- 8-3 

New members, procedure -------------- 41e, f-------------- 9-5, 9-5 

Newtrial-----------__-__--------.. llOa------..-------- 21-3 

Number required- ---- _ _ - -- - - - - --- - --- 4b- -_- - ----- -- -,- - - %-I 

Objections to rulings- ----_-----_------ 57--_---_---------- 10-9 

Other armed forces- - - - - ---..---_---__.. 13-- - -------------- 4-3

Other commands- - - ------------------ 4 f---_------------- 2-4 

Presumption of active duty --__-__----_36a-----_---..------ 8-1 

Punishment of .......................... 41b_-----_--------- 9-4 

QuorumEnlisted personnel- --------------- 4142) - - - ---------- 9-5 

General------____-______._--____ 41d___-___---.-----
 9-5

Rank of officer accused, effect of --_----- 4c- --_--__------..-..
 2-2 

Rehearing---------_----------------- 4a,92--_--_-------- 2-1,18-1 

Seating arrangement- - - - _- - - --- --- --- - 61b--_--- _ - _ ---- --- 11-2 

Selection----------_---_-_-_-__-____-36c-----__--------- 8-1 

Senior member, recommended rank -_--_4c-----_-_---------2-2 

Witness for prosecution, acting as --_---- 63-----------.----- 11-10 


New trial, members of court ---- _.-_------_ 110a---------------
 21-3


Nonjudicial punishment- 


Bar to ............................... 689---------------- 12-6 


Effect on ............................ 128b..-----_-----..--26-1 


Not,icc of time and place of sessions -_--___--39b, 40b ------ .----9-1, 9-3

Courts-martial-Continued 

Oaths: 

Authority to administer ----------- ----

Certified personnel, one-time oaths--- --- Forms------------------------------

Persons required to be sworn -----------

Presence of accused not required -------

Procedure, administering or establishing 

prior swearing. 

Secretarial regulations ------------- ----

Specialized oaths- -- - ------------ ----

Objection to rulings by members ------- ----

Personnel. See Members, this subject. 

par. Page 

113--------_----___22-2 

112~---,---- - _ - - - - - 22-1 

114--_---..__------ 22-2 

112b-_-------L----- 22-1 

112c----------- .-_-22-1 

61i, 112c1 112d-- _ __ _ 11-5, 22-1, 22-1 

49b(3), 50b, 61i1 112~- 9-16> 9-16, 

11-5, 22-1 

114----_-----_-----22-2 

57c, d--- ------- 10-11, 10-12 

Photographs of trial-- - - ----------------__ 53e---_----____----10-4 

Post trial matters ......................... 

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

President, defined------------------------ 

Announcement of sentence -------------

Pretrial Investigation, defect, action on ------

Prior adjudication (res judicata), nonjudicial 

punishment. 

Procedure. See also Procedure --------------

Public, open to---------_----------------- 

QuorumEnlisted persons ......................... 


General----------------------------- Reciprocal jurisdiction- -- - ------------- -- - 

Recording the proceedings for public release-- 

Records of trial. See Records of courts-martial. 

Rehearing,. members eligible to serve during 

ordering of. 

Reporters, detail of ....................... 

Reprimands.............................. 

Requirements of jurisdiction ---------------

Responsibility for additional evidence- ------

Restrain, authority to -.------------LRevision proceedings ........................ 

Seating arrangement ...................... 

Sequence of events ........................ Sessions-, 

Duration andtime-------------------- 

Notice of time and place -------- -------

Public-------------------------------

Witnesses attending -------------------

Special courts-martial. See Special courtsmartial. 

Specikations. See Charges and specifications. 

Spectators------------------------------

Summary ,courts-martial. See Summary 

court-martial. 

Telecast of trial ........................... 

Trial counsel. See Trial counsel. 

Trial, matters after ----- ------------------

Uniform77-2------__-------_13-16 

61----_-_------__-11-1 

40a--------_--_l--- 9-3 

76c----------_----- 13-15 

69-------_-------_-12-6 

68-,--------- ------ 12-4 

53a, App 8 --------- 10-1,A8-2 

53e-------.._------.. 10-4 

41d(2)- ----------- - 9-5 

41d-------- .-.---_-9-5 

13----------- --_--- 4-3 

53e- ------- - - ---- - - 10-4 

4b, 92a --------- ____ 2-1, 18-1 

7------------------ 3-6 

126f --------------- 25-4 

8------__-_--_---_-4-1 

54b---_----------__10-6 

21c----------------- 5-5 

80,86d------_------ 15-1, 17-5 

61b, App 8 -_------_-11-2, A8-2 

53a---------------- 10-1 

59--..---..---------- 11-1 

53e- - ------_------- 10-4 

53e-----------..----- 10-4 

53f- - --------__----10-4 

53e----------_-_--- 10-4 

53e---------------- 10-4 

77c---------------- 13-16 

Notice to members--- -..- - -- -- - -- -- - -- - 44f(2)--- -- ..- -- - ---- 9-8 

Prescribed for members --------- -------

Views of the scene-- - ..................... 

Voting. See Voting. 

Witnesses. See WitnessesAttendance of ........................ 


40b(l)--------_----- 9-3 

54e---------------- 10-6 

115a--------------- 23-1 
Courts of inquiry: Par. Page 

Admissible as evidence ----- ----------_--145c---------------- 27-46 

Interpreters, detail of ..................... 7------------------ 3-6 

Jurisdiction--_---___--------------------- 2------------------ 1-1 

Limitations on punishments-- --- - -- _--- - - - -- 126a-------- - - - - --- 25-2 

Nonjudicial punishment, Navy, Coast Guard- 133b-- -- - -- -- - -- -- - 26-10 

Oaths, authority to administer ---------__--113---------------- 22-2 

Records................................ 145c--------------- 27-46 

Reporters, detail of ....................... 7------------------ 3-6 

Cowardly conduct (Art. 99) : 

Discussion---_----------------------- 178e--------------- 28-28 

Proof--------------_---------------- 178e-----------..--- 28-28 

Specfication form ...................... App 6c(47) - - - 2 ----- A6-9 

Credibility of witnesses. See Witnesses. 


Crimes. See Offenses. 


Criminal investigator, power to apprehend- - - - --- 19a------ - - --- - ---- 5-2 


Cross-examination- ....................... 344 79d(3), 149b(l)-- 7-9, 14-3, 27-54 


Cruelty and maltreatment (Art. 93) : 


Discussion----_----_------------------ 172---------------- 28-22 


Proof------- --------- ---------------- 172---------------- 28-22 


Specification form --------_-------- App 6c(31) --------- A6-8 


Culpablenegligence----__---_--------------198b--------------- 28-46 

CustomDefined--------------------------------- 213b--..------------ 28-72 

Service, breach of ......................... 213b--------------- 28-72 

Custodian of personal records of armed forces 

fingerprint comparison, certificate of ---- ---- - -- 143a(2)- - - --------- 27-26 

Custody: 

See also Confinement; ArrestCorrectional custody: 

Offenses against (Art. 134)-Discussion- --- 213f(13)-- - -- - ------ 28-80 

ProofBreach of ------ - - --------- - - - ---- 213f(13)--- --------- 28-80 

Escape from ...................... 213f(13)------------ 28-80 

Specfication form ..................... App 6c(135, 136) ---- A6-21 


Escape from (Art. 95)- 


Discussion-------------------------- 174d--------------- 28-25 


Proof.............................. 174d--------------- 28-25 


Specification form ..................... App 6c(38) --------- A6-9 


Police, duties ............................. 19d---------------- 5-2 

Prisoner before court, responsibility for ------ 214 c, 60 ----------- 5-5, 5-5, 11-1 

Securing, of offender-------------_-------- 19d---------------- 5-2 

Temporary, pending appellate review- ---- - - - 88f, 89c(6) ---------- 17-10, 17-12 

Damages, courts-martial cannot award- - ----- - -- 8--..- - - ------------ 4-1 

Damaging or destroying : 

Military Property- 


Discussion--------------------------- 187b..-------------- 28-36 


Specification form -----------_- _- - -- - - - App 6c(67) _ - -- - - - - - A6-12 


Private Property, reparation f or damages, Art 139- App 2 _ - -- _ - -- - ----- A2-37 

Property other than militaryDiscussion ........................... 188b--------------- 28-38 

Proof------------_------------------. 188b---------------- 28-38 

Specification form ------ ..-- ----- ------- App 6c(69) - - ----- - - A6-12 

Dangerous weapon. See Assault. 

Death: 

Authentication of record ----------------- 82f- --- ------------ 16-3 


Devolution of command upon- --- ..---------5a(5) - - - - ---------- 3-2 


Suspended sentence remitted.. _----- - - -..- - - - 88e(3)---- -------- - - 17-10 


Death certificates. See Official records. 
INDEX 

Death sentence: 


See also Capital offenses: par. 


Appellate review required ------------------ 100, 101 ------------


Approval, President's required ----- - - ---- - -- 98- ---- - - ------ _ -- -


Page 

20-2, 20-4 

20-1 

4-4, 25-2 

11-5 

4-5 

Authority to give ......................... 

Conscientious scruples against, grounds for 

challenge. 

Definition of capital offenses ------ ----------

ExecutionConvening authority without power to 

order. 

14a, 126a -----------

62b----------------

15a(2)- - - ----------

88d---------------- 17-8 

Method prescribed by authority ordering- 88d- ------ - - - - - _ _ - - 17-8 

Military judge alone, not empowered to adjudge. 

Prohibited, when .......................... 

Special court-martial ...................... 

Summary court-martial .................... 

Suspension not permitted- - - - - - - - - --- - ---_ -

Voteunanimous--------------------------

Debts: 

Dishonorable failure to payDiscussion- - _ -- - --- - - - - --------------

Proof................................ 

Specification form-.._ ------ - -- - - - - -----

Officer, nonpaymentby-------------------- 

14a------------__--4-4 

14a, 126a ----------- 4-4, 25-2 

15b-----------___--4-5 

16b---------------_ 4-7 

88e( 1) ----- - --- - - - _ - 17-9 

76b---..----------..- 13-13 

213f (7) _-------- - -- - 28-77 

213f(7)------------- 28-78 

App 6c(138) -- - ---- - A6-21 

212-----....--------- 28-70 

Private, not collectible by court-martial --__- 126h(l)--------_--_ 25-5 

Defendant. See Accused. 

Defense counsel: 

See also Counsel, Civilian, individual, counsel 

for the accused, appellate defense. 

Defined-----------_----------------------

Absence of-- 1------ - -- - -- - -- ----- ----- -- - 

AccusedAppellate rights, advises on- - -- - - - - --- -

Consultation with ..................... 

Rights, may presume defense counsel has 

advised. 

When offered qualified counsel ----------

Accuser, effeci of being -------------------

Appeal, duty to advise accused of right ------

Assistant defense counselAbsence, effect of- -- -- - - ---------- - ---

Appointment of. See Detail, this subject. 

Defense counsel, when included in term-- 

Detail of----------------------------- 

Duties of----------------------------- 

General------------------------------

Qualifications required--- --------- - ----

42a----------..-_--- 9-6 

46c- -- - -------- ---- 9-1 1 

48k(3)---------_- - - 9-14 

48f ---------------- 9-13 

53h-------------- _ - 10-5 

6c- -----------_---- 3-4 

6a--------------__-3-3 

48k(3)----------_-- 9-14 

46c- - - -- - ------- -- - 9-11 

42a----------_-__-_9-6 

6_---------..-_---_- 3-3 

47-------------_-_- 9-11 

47----.------------ 9-10 

6d- - - - ------------- 3-5 

Bias, prejudice, etc., of defense, report of ----_ 46b ----_-----_-___- 9-11 

Challenges. See Challenges. 

Change of ----- - -1----- - - - - ---- - - - - -------

Civilian counsel, duties of--- --- ------- - ----

Clerks and orderlies for- ----- -------- - - - - - -

Conduct of-----------_------------------- 

Detail of--------------------------------- 

Disqualification of ......................... 

DutiesAfter trial ------ _ - - - __ -------- - -- ;----

Appellate brief -- _ - - - - - - - - - - - - --- - - - - -

Before trial- - - ------- --- ----------- - -

6 lf (4)----------- - -- 11-4 

46 d- -- - ------- -- --- 9-11 

51.. --- - _ - _ _ _ --- _ _ _ - 9-16 

42b----_-_-----____9-6 

6_-------------__..- 3-3 

6a, 43, 46b, 61f ------ 3-3, 9-6, 9-11, 

11-3 

48j- -- - _ _ _ _ _ _ _ - _ _ _ _ 9-14 

48k(2) -___ _ _ _ - _ _ _ _ _ _ 9-14 

48 d,e,f,g.- -_---- - -__ 9-13 
Defense counsel-Continued 

Duties-Continu ed Par. Page 

Clemency recommendation- ----- --- - -- 48k(l), 77a ---------- 9-14, 13-15 

General--------_------------ 46d, 48c------------ 9-10, 9-12 

Record of trial ....................... 82e---------------- 16-2 

Witnesses, action to obtain ---------___-48d, ll5a --_-------- 9-13, 23-1 

Excused during trial ----- - - - -- _ _ ---- - - - --- - 46c- _ - - - _ _ - - -- - -- - - 9-11 

Explanation of rights to accused ----_--- _-- 48f ---------------- 9-13 

General court-martial -------------__--6b-___--___ --___---3-4 

Instructions to court, request for. See instructions to court. 

Interview with accused---------_--__-------- 48g---------------- 9-13 

Joint trial, must advise accused to conflicting 48c- -- ----- -------- 9-13 

interests. 

Not legally qualified ----- - - - _ -- - ------ - --- - 61f (3) --- _ ---- - ---- - 11-4 

Oath---__-..-_-----_--------------------- 114c---_----------- 22-3 

Privileged communications -_--------------- 102b, 151b(2) - - --- - - 20-5, 27-60 

QualificationsCertification of, when required ----- - _ --- 6c, 61f (1) ----- ------ 3-4, 11-3 

General------------------..----------- 6------------------ 3-3 

Trial, ascertaining at- - _ _ -- - --- - -- - _ _ _ - 61f (2)--_ _ ----_ -- - -- 11-3 

Special court-martial ----------- - - - - - 6c- - __--_-_---_--- 3-4 

Stipulations. See Stipulations. 

Defenses: 

See also Motions. 

Bar to trialConstructive condonation of desertion- - - 68f- - - - --- -- -- -- --- 126 

Former jeopardy ...................... 684 215b ----------- 12-6, 29-2 

Former punishment --_-----_----------689 215c ,--------..--12-6, 29-3 

General------_-----__------------------ 214---------------- 29-1 

Immunity, grant, or promise of --------- 68h_--------------- 12-6 

Jurisdiction, lack of ------------------- 68b, 215a ----------- 12-4, 29-2 

Pardon 68e----------- ---.. 12-6 

Speedy trial .......................... 68i, 215e ----------- 12-6, 29-4 

Statute of Limitations--- --- ------- - --- 68c, 215d- ------1--- 12-5, 29-3 

Drunkenness------------_-..---__--------- l54a(3)------------- 27-71 

Ignorance or mistake of fact ------_--------- 154a(4)---_--------- 27-72 

Ignorance or mistake of law ---------------- 154a(5)------------- 27-72 

Required to be raised before plea --_----_---67b- ----..----------12-1 

SpecialAccident or misadventure --------- ----- 216b-- ----- ------- - 29-4 

Coercion or duress-- ------------------ 216f ------------ +-- - 29-6 

Entrapment.......................... 216e----_---------- 29-5 

Financial inability- -- _---------------- 2169-- -_----------- 29-6 

General.............................. 214--_--__-z------- 29-1 

Justification---_---------------------- 216a--------------- 29-4 

Obedience to lawful orders- -__----_----216d------' --------- 29-5 

Physical inability ----------------- - --- 216g- ------ ---- ---- 29-6 

Self-defense--..--__-----_------_--___- 216c ----__---_-----29-4 

Deferment of service of confinement: 

Defense counsel, duty to advise accused- _ - _- 48k(4)-_--_--------- 9-15 

Effective date of-- - _ - _ _ - - - _ _ - - - _ _ - - - - - --- - 88f, 126; ------ _ _ -- -- 17-10, 25-7 

Forms for actions and orders -----------_-- - App 14, App 15f, g-- A14-1, A15-5 

General----_--____----___-___-----__----_ 88f ---------------- 17-10 . . Rescission of____-------_---_-------------889-----_---------- 17-11 

Summary court-martial, duty to advise ac- 79d(4)-------------- 14-3 

cused. 

Terminated, when ......................... 88f ----_----------- 17-10 

Degrading questions : 

See also Self-incrimination. 

General................................. 150a--------------- 27-57 
INDEX 

Delay: Par. page 

Charges, in preferring- - - - ----- - - - - - - -- - --- 25---- - - - ----- - - - - - 6-1 

Unnecessary, as an offense (Art. 98)- 

Discussion and proof ------------------ 177a--------------- 28-27 

Specification form ..................... App 6c(41) --------- A6-9 

Delegation of power to convene courts-martial---- 5a(5), b(2), c--_-- --- 3-2, 3-3 

Delivering less than amount called for by receipt. 

See Fraud against the United States. 

Depositions: 

Generally------------------------------- 117---------------- 23-4 

Admissibility--------------------------- 145a-----------_--- 27-42 

Authentication by civil officers ------------- 117b(8), 145a ------- 23-6, 27-42 

Availability of witnesses 145a--------------- 27-42 

Capital offensesAdmissibility......................... 145a----- .-.- ._-___ 27-42

Definition of capital case --------------- 145a---------_----- 27-42 

Convening authority's action on request for.. - 117b(3), (4)--- - - - - - - 23-5,23-6 

Counsel, right to during taking -_--------_--117b(2)-------__--__23-5 

Denial of request- -- - --- - - - - -------- - - - - 117b(3)--- -- - - -- - - 23-6 

Deponent 

Residence---------------------------- 138a---..----------- 27-5 

Signing by- ---- - -- - ---- - -- - - - - - -- - -- - 117c(4)------ - -- - - - - 23-7 

Evidence, introduction .................... 145a--------------- 27-42 

General-----------_--------- -- --- - ---- - - 117.. --- - ----- - - ._ - _ 23-4 

InterrogatoriesAnswers- - - - - - - - -- - - - ----- - - - - - - - ---- 117c(4)------ - - _ -_ _ - 23-7 

Examination, duties of person conducting- 117b(4) ------ - - - - - - - 23-6 

Notice of- --- - -- - --- - ------ --- -- - ---- 117b(4)---------- -- - 23-6 

Objections to--- -- - -- - - -- -- ----------- 117b(7), 145~- - - --- - 23-6, 27-42 

Unknown deponent------------------- 117b(l)------__---- 23-5 

Return of--- -- - ----------- -- - - ------- 117c(2)------ _ - -- --- 23-7 

Interpreters---------------------------- 141-------------_-- 27-20 

Introduction as evidence ------------------- 145a--------------- 27-42 

Limitations upon use of not applicable ------ 145a--------------- 27-44 

Military judge, submission of request to ----- 117b(l)----- .-.----- 23-5 

Notscation of necessity ------------------- 3Of, 34d ----------__7-2,7-10 

OathAuthority to administer -----_-_-------117b(7)-------_-_---23-6 

Forni-------------------------------- 114k------..----__-- 22-4 

Oral------------------------------------- 117a, d----------..-- 23-5, 23-7 

President of special court-martial without 117b(l)----_--- _ - _ _ _ 23-5 

military judge, submission of request to. 

Pretrial----__--_-_---------------------30f, 344 117a -----__7-2,7-10, 23-4 

Procedural requirements, waiver of ---- - ----- 145~---------- -- -- - 27-44 

Procedure for taking- ----------_-_-___.._117b, c- ---- .-.- ---- 23-5,23-7 

Qualification of person taking ---------- - - - - - 117b (8)- ---- ------- 23-6 

Receipt by an officer ...................... 117c(3)------ ------- 23-7 

Record, incorporation in ------------------- 145a--------------- 27-44 

Refusal to appear for, Article 47- - - - - -- - --- _ 115d-- - - - - - -- - - - - - - 23-2 

Right to counsel-- -_-_--_------- -- -- - -- - - - 117b (2) --- - - - _-_-_ _ 23-5 

Subsequent trial, use during --_-_-_---------145b---- ----------_ 27-44 

Written----_-_----------____---_--------- 117c--------------- 23-7 

Deposits : 

Forfeiture as illegal sentence- - - ------------ 126h(2)- - ---------- 255 

Derangement, Mental. See Mental derangement. 

Dereliction in the performance of duties: 

Discussion.............................. 171c--________----- 28-22 

Proof----__--____------------------------171c--------------- 28-22 

Specscation form ----- - -- - - - - - - - - - - -1-- - - - App 6c(30) ----- - -- - A6-7 

Deserter. See Desertion. 
Desertion: 

Discussion: 

Absence without authority with intent to 

remain away permanently. 

General-----_------------------------

Quitting unit, organization, or place of 

duty with intent to avoid hazardous 

duty or shirk important service. 

ProofAbsence without leave-----_----------- 

Desertion by absence with intent to 

remain away permanently. 

Desertion by quitting post or duties 

prior to notification of acceptance of 

resignation. 

Desertion by quitting unit, organization, 

or place of duty to avoid hazardous 

duty or shirk important service. 

General-------_-------------------

Intent shown by absence with intent to 

remain away permanently. 

Intent shown by quitting unit organization, or place of duty with intent to 

avoid hazardous duty or to shirk 

important service. 

Advising. See Solicitation. 

ApprehensionCivil officer ......................... 

Attempt 

Discussion-------------------------

Proof................................ 

Specscation form .................... 

Constructive condonation, motions in bar of 

trial. 

Limitation, Statute of ..................... 

Restoration to duty as constructive condonation. 

Solicitation of. See Solicitation. 

Destruction of property. See Property. 

Detached unit 

Defined------------------------------ . . Determination--------------------------

Detachment. See Detached unit. 

Detention of pay. See Pay and allowances. 

Detention, unlawful: 

Par. Page 

164a(I)-- - -- - ------ 28-11 

164a----_--.-.---..- 28-11 

164a(2)------------ 28-11 

164a--------------- 28-12 

164a---------_----- 28-11 

164a-..-----..---..---28-12 

164a-- ------ - ---- - - 28-12 

164a---._---_._---- 28-11 

164a--------------- 28-12 

164~---_ ---_- - --1- - 28-13 

23----------------- 5-5 

164b--------------- 28-13 

164b--------------- 28-14 

App 6c(12) -------_- AG5 

68f- --------------- 12-6 

215d--------------- 29'3 

68f ---------------- 12-6 

.5b(3)--- ----------- 3-2 

5b----------------- 3-2 

discussion---------------^------------ 20e, 176------------ 5-4,28-26 

Proof................................... 20e, 176 ----_------- 5-4, 28-26 

Specification form ------_---------------- App 6c(40) -- ---- - - - A6-9 

Diminished rations. See Confinement; Punishments; Bread and water. 

Direct evidence. See Evidence. 

Direct examination. See Witnesses. 

DischargeAdministrative, substituted for punitive dis- 97a, 110d- ---- - - _ -- - 19-3, 21-4 
Discharge-Continued 

Bad-Conduct-Continued PEW. Page 

Authorized when ----- - ..... .. .- .- - - .- .-- - 6c, 15b, 76a(4), 127c, 3-4,4-5, 13-12, 

Sec. A, Sec. B. 25-17 

Counsel absent, effect of-- ----- .- .- - --- 15b---_-- _ ---.-- _ _ - 4-5 

Errors in trial, correction subject to 95----------------- 19-2 

review. 


Military judge absent, effect of--- - - ---- 15b------ .--------- 4-5 


Record of trial- 


Disposition ----------------- .-........ 91a, b --_-._._._.___17-15, 17-16 

ReviewOfficer exercising general 84-------------__-- 17-1 

courts-martial jurisdiction. 

Action by staff judge advocate 85----------------- 17-2 

or legal officer. 

Dishonorable 

Additional punishment ---------------- 127c, Sec B-------- 25-17 

Administrative discharge in lieu of ----_- 97a, 110d -------_--_ 19-3, 21-4 

Appellate review --__------------- 98----_--___-__---- 20-1 


Appropriate, when .................... 76a(3) _---_--_-__--
 13-12 

Death sentence implies- -- -------_----- 126a---__------ --- 25-2 

Enlisted person reduced to lowest grade- 126e----------_---- 25-4 

Offenses punishable by ---------------- 127c-----------___-25-8 

Punishment, when proper ---------_--_- 76a(3)-- ---_____-__13-12 


Special court, cannot adjudge --------___15b-_--- - -------- - _ 4-5 


Summary court, cannot adjudge--- ----- 16b---------------- 4-7 


Suspended punitive discharge, effect on-- 126e-----__--__-___
 25-4 


Suspension of ----- -- - - - - -- - - - - - -- - - - -- 88e(2) (b) _ -- - - _ _ - - - - 17-9 


Warrantofficers---------------------- 126d---_-__----..--- 25-4 


FormerMitigation- ---- - ---- - - - - - - - - ----- - - - - 75c(4)--- __ _ _ _ - - _ _ - - 13-10 

Fraudulent. See Fraudulent separation, Unlawful enlistment, Appointment, Separation. 

Fraudulent jurisdictional effect- -- _ _ _ _ _ - - - _ - 11----_ _ _ _ _ _ _ _ _ - - -- 4-2 

General courts-martial ---------------- ----- 126b--- - ----------- 25-3 

Honorable remission of suspended sentence--- 88e(l)--------- - ---- 17-9 

In lieu of dishonorable ----------------- 127c(4)-----____-_-- 25-10 

Jurisdiction after- ----- _ - - --- - - - ---- - - - --- 11--- _ _ - - _ _ - - - - ---- 4-2 

Officers, not punishable by -----_-___---_---126d-__-__ _-_--__-_25-4 

Officer exercising general court-martial jurisdictionAction by--.. -- -- - ---- -- - - --- ---- - - - - - 84, 94a(3) --- _ - - - --- 17-1, 19-2 

Record, review of ......................... 94a(3)------------- 19-2 

Sentence toEnlisted persons ...................... 126e-__________----
 25-4 

Prisoners----__--_------------------- 126e-..__--___._--- 25-4 

Reduction in grade as incident of -__----126e---_---__----__25-4 

Speical courts-martial sentence toAppellate review required --______ - - 98_____ -- -- ..--.._--- 2C-1 

Officer exercising general courts- 84d, 9443) --- - - - - - - 17-2, 19-2 

martial jurisdiction, action by. 

Record of trial -----____--_--__--- 15b, 83a -_--________ 4-5, 1&4 

Summary courts-martial, no power to 16b--______--__---- 4-7

impose. 

Suspension of sentence ----- - - - ---- - -- _ _ 88e(2)(b) -- - - -- -- - - - 17-9 

Vacation of suspended sentence ---__---- 97b-------_--__--__19-3 

Warrant officer, not punishable by --___-126d-__--______---- 25-4 
INDEX 

Discharge-Continued 

PunitiveSee also Bad-Conduct, Dishonorable, this 

subject. ~a. Page 

Administrative discharge substituted for- 97a- -- _ --- - _ --- _ - - - 19-3 

Time limit for suspension --___---__----- 88e(l), (2) ---------_ 17-9 

Suspended sentence, effect on -_------------- 88e----_--___--_---17-9 

Discharge certificates, false and unauthorized. 

See Passes. 

Disciplinary punishment under Article 15. See 

Nonjudicial punishment. 

Discipline, conduct prejudicial to. See conduct. 

Disclosing parole or countersign to one not entitled to receive it (Art. 101). 

Discussion---___------------------------- 180a----_---------- 28-30 

Proof-----_----_------------------------ 180a----_---..------ 28-31 

Specification form ----_----__----_--------- - App 6c(53) - - ---_-- - A6-10 

Dishonorable failure to maintain funds for payment of checks: 

Discussion- -- _ _ -- _- ---- - - --- - - - --- - --- - - - 213f(8)------------- 28-78 

Proof....................... ---- -------- 213f(8)---_---____-- 28-78 

Specification form .................... App 6c(134) - - ----__ AG21 

Dishonorable failure to pay debts: 

Discussion--__---_---------------------- 213f(7)--__-----_--- 28-77 

Proof -----___--_-_----------- ---------- 213f(7)_--_-_-_-----28-77 

Specification........................ App 6c(138)-- ------ A6-21 

Disloyal statement undermining discipline and 

loyalty: 

Discussion- -- ----- - - - -- - --- - ----

Proof.................................... 213f(5)----__-2-_--- 2&77 

Specification form -_--- ..-_- ---- ------- App 6c(139) - - ----- - A6-21 

Dismissal : 

Cadets----_---___----------------------- 98------..---------- 20-1 

Flag officer--------___-_------------- 98----------------- 21-1 

General officer _-----__--_-----------------98, lOOc(2)--- -____-20-1, 20-4 

OfficerAdministrative discharge in lieu of -_---- 97a----__---------- 19-3 

Mrmation by Court of Military Review-. 98 -----.---..---..----20-1 

Approval by Secretary- - - _ - _--__------ 98, 100c(l)(b) - - -__- - 20-1, 20-4 

Newtrial---_-_---------------------- llOd---_----------- 21-4 

President's power to order- --___---- -_ - 111--_ ---- -_--__-__ 21-5

Reappointment by President ------_---- 110d--------------- 21-4 

Reduction to enlisted grade in lieu of -_-- 126d--_--------_---25-4 

Right to trial- -- - --- -- _ _ _ _ ---------- - 111-- _ - - _ - _ _ - - - - - _ _ 21-5 

Dismissal of charges. See Charges and Specifications. 

Disobedience: 

General order or regulationDiscussion---_-----_----------------- 171a--------------- 28-21 

Proof--------_---_------------------- 171a-_----_-------- 28-21 

Specification form -----_-_--_--_-..----- App 6c(27) - - -..-----A6-7 

Noncommissioned officerDiscussion 170c-----..-------..-28-20 

Proof-----___--__-------------------- 170c--------------- 28-20 

Specification form --_-__-----_-_-------App 6c(23) - - ------- A6-7 

Superior officerDiscussion_--_---_------------------- 169b--_----_----__- 28-18 

Proof----___--___-------------------- 169b-_--_------_--- 28-19 

Specification form -_-_-------------..--- App 6c(23) - - ---- -..- A6-7 
Disobedience-Continued , 

Other order- Par. Page 

Discussion- _ - _ - _ -- - ------- - --- --- - - - - 171b--------------- 28-21 

Proof-------------------------------- 171b-----_--------- 28-22 

Specification form ---------__------ --- App 6c(29) - - ------_ A6-7 

Petty OfficerDiscussion- _ - _ _ - _ -- _ --..--..- - --- - - _ - - - 170c-_------------- 28-20 

Proof--------------__------------------ 170c--------------- 28-20 

Specification form -------- - - --- -------- App 6c(25) _ _ - _ - _ _ - - A6-7 

Warrant ofi cerDiscussion- _ - ._ _ - -- .- --- -. . _ -.- - --- 170~___--..-.----.- 28-20 

Proof-----__------------------------- 170c--------------- 28-20 

Specification form ----------_-__------- App 6c(25)____-____ A6-7

Disorderly conduct. See Conduct. 

Disposition of military property. See Military 

property. 

Disrespect toward. See also Contempt toward. 

Superior commissioned officer- 


Discussion- -- - --- _ - - - ----- _ - - - ---..-..-


Proof--------------__------------------


Specification form ------ ---------- - --------

District of Columbia Code: 

Punishment, limitations on. See Punishments. 

Documentary evidence. See Evidence, documentary. 

Documents: 

Admissibility: ............................ 143b(l)------------- 27-29 

Alteration----- - -- - -- - -- - -- - ------ - ---- - - - 143b(l)-------- --- - - 27-31 

Destruction of, public, specscation form__- - - App 6c(172) -- ------ A6-25 

Double jeopardy. See Former jeopardy. 


Doubt. See Reasonable doubt. 


Drafts, making, drawing, or altering without 


sufficient funds. See Checks. 

Driving while drunk. See Drunkenness. 

Drugs: 

Drug-induced interviews ---- ---__ ------ - --- 142e---__---------- 27-25 

IntroductionSpecification form._- - -- -..- - _ _ - -._ _ _ _ - App 6c(146) -- ----- - A6-22 

Possession, wrongfuInferred--_____---------------------- 213b-_-_----------- 28-72 

Specification form __-__-- - ---____------ App 6e(144) -- - - - - -_ A6-22 

Use, transfer, saleSpecification form -------- ---- ..--- - -- -- App 6c(145) - - -- - ..- - A6-22 

Drunkenness : 

By guard. See On duty, this subject. 

By lookout. See On duty, this subject. 

By sentinel. See On duty, this subject. 

Driving whileDiscussion........................... 190_--------------- 28-39 

Proof----___----_-_------------------ 190_-_--___-------- 28-39 

Specscation form ---_---_-_-___------- App 6c(75) -----.--_ A6-13

Duty, unable to perform because of prior, App 6c(143) - - - - - -- - A6-22 

specification form. 

In barracks, command quarters etc.- 

Specification form _--_- _ - - -- _ _ _ _ _ - - - -- - App 6c(140) - - -- - - -- A6-21 

Intent, effect upon__-__-_------_---------- 154a(3)-_-_-__------27-71 

On dutyDiscussion---___--_------------------ 191_--____-___----- 2840 

Proof_--____-_--____------------------ 191---____-_-------28-40

Specification form _--------___-----.- -- App 6c(76)- --- -- -.- A6-13 
- ----- ----- 

-- ------ 

INDEX 

Drunkenness-Continued 

On post. See On duty, this subject. par. Page 

Premeditation, effect upon- ----------- ----- 154a(3)-- - --------- 27-71 

PrisonerDrinking with, specification form- - - _ - - - App 6c(141) - - -- _ - - - A6-21 

Drunk, specification form- - - _ - _ _ --- - -- - App 6c(142) - - --_-_ - 86-22 

Punishment, effect upon ---_--_-_-__--__---154a(3)-- - - ----_--- 27-71 

Voluntary, nature of -- - - _ -_ - - - _ - _ -- - - __- ---- 154a(3)- --------- - - 27-71 

Dueling: 

Fighting a duelDiscussion---_------_------_--------- 193a--------------- 2842 

Proof--------------_------__------------ 193a--------------- 2842 

Speciiication form ..................... App 6c(78) --------- A6-14 

Promoting, being concerned in, etc.- 

Discussion-------_------------------- 193b--------------- 2842 

Proof-------------------------------- 193b--------------- 2842 

Specification form ---------- ----------- App 6c(79, 80, 81) - - - A6-14 

Duress, as defense to trial -----_-----_-_---_----216f ---_----------- 29-6 

Duty: 

Arrest, effect-_--------------------------- 20a---------------- 5-2 

Dereliction ofDiscussion- - ---- - _ _ - - - - _-_ - - - - - - - - - - --- 171c- - -- - - ----- _ --- 28-22 

Proof-----------__-__------------------ 171c--------------- 28-22 

Specification form ------. ----------_--- App 6c(30) - -------- A6-7

Drunk on. See Drunkenness, On duty. 

Extra duty as punishment- --------..---_-_- 131b, 131c(6) -------- 26-3, 26-6 

Limitations while arrested- - - ----_--------- 20a----_----------- 5-2 

as Punishment--------_------------------- 131b--------------- 26-3 

Dying declarations: 

See also Evidence. 

Admissibility as evidence- - -- _ -- _ - ------- - - 142a--- - _ _ - - - - ---- 27-22 

Efficiency reports, military judge, court members, 

counsel. See Unlawfully seeking to influence 

courts-martial. 

Election: 

Motion to elect -__---_-_-_---------- 69f- ---- ---- -1 12-8 

Nonjudicial punishment, election of- -- __ _ - - - 132-------- -------- 26-8 

Embezzlement. See Larceny. 

Endangering safety of command, unit, place, or 

military property through disobedience, neglect, 

or intentional misconduct 

Discussion---_-------------------------- 178c---_----------- 28-28 

Proof -------_------__----___-------_----_ 1786--------------- 28-28

Specification form -_--- - ____-_ ----- App 6c(45) ----- _--- A6-9 

Enemy: 

Aiding. See Countersign. 

Aiding or attempting to aid, Article 104- 

Discussion-----_--------------------- 183a--__----------- 28-33 

Proof.................................. 183a--------------- 28-33 

Specification form ------------------- - - App 6c (60)- --- -- --- -46-11 

Communicating, corresponding, or holding 

intercourse with, Article 104- 

Discussion-----_--------------------- 183d--_------------ 28-34 

Proof ................................ 183d-_--------_---- 28-34 

Specification form ---- _ --- - - _ - - - -- - - -- - App 6c(61) ----- - --- A6-11 

Courts-martial and military commissions, 183---------------- 28-33 

concurrent jurisdiction of Article 104. 

Enemy prisoners and foreign nationals, con- 18b(2)-------------- 5-1 

finement with. 

Failing to engage. See Failing to engage 

enemy. 
Enemy-Continued 

Giving intelligence to, Article 104- 

Discussion---------------------------

Proof--------------------------------

Specification form ..................... 

Harboring or protecting, Article 104- 

Discussion---------------------------

Proof--------------------------------

Specification form ..................... 

Misbehavior before, general, Article 99 ------

Prisoners. See Prisoners, enemy. 

Running away before, Article 99- 

Discussion---_-_---------------------

Proof................................ 

Specification form ..................... 

Spying. See Spies. 

Territory, jurisdiction of court-martial in ----

Willful failure to do utmost to encounter, 

engage, capture or destroy, Article 99. 

Witnesses, competency .................... 

Enlisted persons: 

Arrest of, who may arrest--- ------ -- - ------

Authority to apprehend .................... 

Challenges of, at court-martial; reduction to 

fewer than one-third of court. 

Par. Page 

183c---------..----- 28-33 

183c--------------- 28-33 

App 6c(61) --------- A6-11 

183b-----------..--- 28-33 

183b--------------- 28-33 

App 6c(61) --------- A6-11 

178---------------- 28-27 

178a------------_-- 28-27 

178a--------------- 28-28 

App 6c(43)-- ------- A6-9 

2, 14 ---------_-___-1-1,4-4 

178h---------__--_-28-29 

148e--------------- 27-52 

21a(2)----- _ _ - _ -- - - 5-4 

19a---------------_ 5-2 

62h(4)-- ----------- 11-10 

Confinement of, who may confine -__--------21a(2)-----__------5-4 

Courts-martial, members ofEffect of absence ...................... 

Eligibility-----_----------------------

Request by accused for ----------------

Punishment ofFine in lieu of forfeiture ---------------

General.............................. 

Hard labor without codnement --------

Limitations, table of ------------------

Reduction to inferior grade ------------

Reduction to lowest grade -------------

Summary courts-martial, punishment byRight to have enlisted persons on court. See 

Courts-martial, members of, this subject. 

Termination of enlistment, effect on courtsmartial jurisdiction. 

41d(2)--------_---_9-5 

4a-----------_----- 2-1 

4c, 36c(2), 53c, 61g-- 2-2, 8-2, 10-1, 

11-5. 

126h(3)--------_-_- 25-6 

126e, 127c --__-------25-4, 25-8 

126e, 126k ---------- 25-4, 25-7 

127a--------------- 25-10 

126e-- - - -------_-- 25-4 

126e-------------__25-4 

16b---------------- 4-7 

11--.----------_-_- 4-2 

Time lost to be made good, Section 6 .-------App 3b ----____--_-- A3-4

Enlistment: 

AWOL, in another armed force does not 164a(l)- ----------- 28-11 

terminate. 

Desertion, subsequent enlistment as evidence 164a(l)- - ---------- 28-1 1 

of. 

Discharge, certificate of, issued before end of App 3c ------------- A3-4 

enlistment. 

Fraudulent. See Fraudulent enlistment. 

Oath of ----_--.-------------------------- App 3b ------------- A3-3

Papers as official records 

Termination of, effect on jurisdiction --------

Unlawful, effectingDiscussion----_----------------------

Proof--------_-_---------------------

Specification form .................... 

Entrapment, as defense to trial -----------------

144b--------------- 27-36 

11---_-_---_-_-__-- 4-2 

163---------------- 28-10 

163---------------- 28-10 

App 6c(8) - -- ------- A6-5 

216e--------------- 29-5 
Entry: par. Page 

Burglary, element of ---------------------- 208---------------- 28-64 

Housebreaking, element of ----------------- 209---------------- 28-66 

Unlawful, specilication form, Article 134 --__-App 6c(185) ------_- A6-26 

Environmental Science Services Administration, 4a----------------- 2-1 

personnel, eligibility for courts-martial. 

Equivalent punishments, table of- --_-------- --- 127c(2)------------- 25-9 

Errors: 

Considered on review ...................... 86b(l)-------------- 17-4 

Convening authority's action on ------------ 87c--------------_- 17-6 

Correction of, subject to appellate review ---- 95----------------- 19-2 

Finding of guilty, effect ----- _ _ --- - - ---- - - - - 87c- ---- - - -- - - - _ -- - '17-6 

Harmless................................ 87c---------------- 17-6 

Nonjudicial punishment- ----_------__-_---130 -__---_--_-----26-3 

Prejudicial, defined ........................ 87c----------_----- 17-6 

Record of trial, corrections ----------------- 86c---------------- 17-4 

Trial, effect on ........................... 87c, 100a -__--------17-6, 20-2 

Escape: 

Accused, effect on trial of ------_-------_---llc, 48i ------------ 4-3, 9-14 

Attempted------------------------__----- 174c---------_-_--- 2&25 

From confinement, Article 95- 

Discussion---_----------------------- 174c-----__-------- 28-25 

P~oo~----------------------__------_- 174c-----_---------' 28-25

Specification form ------ - - - _ --- - - - -- - -- App 6c(38) - - - -:'_ ---. A6-9 

Suffering a prisoner to escape through neglect 

or design, Article 96- 

Discussion----__--------------------- 175b, c----__-----__ 28-26 

Proof-------------------------------- 175b, c----------_-- 28-26 

Specification form ..................... App 6c(39) --------- A&-9 

Escort, Oath of ............................... 114h--------------- 22-3 

Espionage. See Spies. 

Evidence. See also Testimony: 

Accomplices, acts and statements of -------_- 140b--------------- 27-19 

Additional, reopening case to receive ----_--- 149a-----_--------- 27-53 

Admissibility, determination ofArguments as to preliminary evidence- -- 57g(2)-----_---- -- 10-12 

Military judge's examination ------__---57g(2)----- ----- 1--- 10-12 

Preliminary evidence ------_----------- 57g(2)-------------- 10-12 

President of special courts-martial with- 57c- -----_--------- 10-11 

out a military judge. 

Admissions. See Admissions. 

Affidavits............................... 146b--------------- 27-47 

Age, testimony of ......................... 138d--------------- 27-6 

Aggravation of offense--- -- - - ------- -- - - - -- 75b(3)------ ------ - - 13-10 

Appellate review, weight on ----_-----__--- - 100a-_---_-----_---20-2 

Argument to court concerning -------------- 72----------------- 13-1 

Autopsy reports, admissibility -------------- 144d--------------- 27-39 

Banking entries ---_- - - - - _ _ - - - - -- - ----- ---- 143a(2) (e), 1436-.. --- 27-28, 27-35 

Best evidence ruleSee also Documentary evidence, this subject. 

Banking entries--- - - - - _ - - - -- - - - - - -- - - - 143a(2) (e) -- ---- _ --- 27-28 

Business entries, absence of- - - - - - --_-- - 143a(2) (h)--- --- _- - - 27-29 

Copies, admissible as evidence..- - - ---__-143a(l) -- - - _------- 27-25 

Exceptions-_------------------------- 143a(2)----------..- 27-26 

Method for proof of contents -_-----_--- 143a(l)----_------- 27-25 

Objection, failure to make -_----------- 143a(l)------------ 27-25 

Official records- ---- - -_--- _ -------- - -- 143a(2) (c), (d) - --- 27-27 

Proof, method of ..................... 143a(l)--------.--- 27-25 

Telegram copies- ---_--- - ---------- 143b(l)------------- 27-29 

Waiver of objection- --- -- ----- - -- -- - -- 143a(l)- - - - _ ------- 27-25 
INDEX 

Evidence-Continued 

Best evidence rule-Continued Par. Psge 

Writings, mechanical or coded-- - - _ --- -- 143a(2) (a) ---- _ - _ --- 27-26 

Writings not feasibly produced- --- - -- -- 143a(2) (a) ---- -- - - _ - 27-26 

Business en tries: 

Absence of- -- - -- -- - -- - ---------- - ---- 143a(2)(h)-- - - ------ 27-29 

Authentication----------------------- 144c--------------- 27-37 

Copies............................... 144c--------------- 27-37 

Insanity, medical records concerning- - - - 122~---- - ---------- 24-5 

Limitations-------------------------- 144d--..-..--------- 27-39 

Memoranda-------------------------- 144c------------..-- 27-37 

Opinion entries ....................... 144d--------------- 27-39 

Certificates, authenticating certain docu- 143b(l)------ - - - _ - _ - 27-29 

ments. 

CharacterSee also Witnesses, credibility. 

Accused............................. 138f(2)------------- 27-8 

Affidavits of .......................... 146b--------------- 27-47 

Chastity in rape case ---- ---- -- --- -- --- 153b(2) (b) ------ - --- 27-67 

Opinion-.---------------------------- 138f(l)-------_----- 27-8 

Presentencing evidence- --------------- 75-------------- --- 13-9 

Prior convictions and acts of misconduct- 138g------------ - _ - 27-10 

Proof of character ..................... 138f(l)------------- 27-8 

Third parties, when relevant- _ - _ _ ----- - 138f (3) ----- - - _ - - - -- 27-9 

Witnesses, truth and veracity of- ------- 153b(2) (a) - -- - -- _ --- 27-67 

Charge sheet, read after sentencing ---------- 75b(l). -------_---_-13-9 

CircumstantialDefined and explained ----------------- 13%---------_----_27-6 

Guilty state of mind proved by .--------154a(l)- -------__-_27-71 

Weighing of, rules ..................... 74a(3)---------_-_-13-4 

Clemency, recommendation of -------------- 75c, 77a --------_--- 13-10,13-15 

Coded documents------------------------- 143a(2)(a), 144b----- 27-26, 27-36 

Comment uponArgumentsto court------------------- 72-----------..-_--- 13-1 

Military judge ........................ 73c---------------- 13-3 

Common lawrules------------------------ 137----_----------- 27-4 

Common trial ............................ 53c----------_-__--10-1 

Communications Act of 1934 --------------- 152---------------- 27-65 

Communications of informants-.. ---_------- 151b(l)------------- 27-59 

Cumulative.............................. 137----------_--_-_27-4 

Confessions. See Confessions. 

Confidential, privileged communication--- --- 151-- _ - __------- - -- 27-59 

ConspiracySee also Conspiracy. 

Co-conspirator, statement of- ---------- 1406-- -- -_-___---_-27-19 

Conspirators, acts and statements of -------- 140b---------_----- 27-19 

Corroboration. See Corroboration. 

Courts of inquiry, records admissibility ------ 145c--_____________ 27-46 

Court of Military Review, power to weigh ---- 100a--------------- 20-2 

Cumulative-----_------------------------ 137--------..---___- 27-4 

Defense, rebuttal by prior acts ------------- 138g(6), (7) -------_- 27-12 

Depositions. See Depositions. 

Direct, defined--------------------------- 138b--------------.. 27-6 

Discharge, former as mitigation ---_-_------- 75c(4)------____-___ 13-10 


Documentary-


See also Best evidence, this subject. 


Authentication of - - - - ------- - - - - --- - -- 143b (1) ----- _ ----- -- 27-29 


Authenticity, waiver of proof of -------- 143b(l)----____-_-_- 27-29


Coded or mechanical- --- _ --- _ - -------- 143a(2) (a), 144b--- - - 27-26,27-36 

Collection of documents- -------------- 143a(2) (b) ----- - ---- 27-27 

Copies of ............................ 49b(2), 54d, 143a(l)_- 9-15,lO-6,27-25 
INDEX 

Evidence-Continued 

Documentary-Continued par. Page 

Courts of inquiry, record of ------------ 145c---_---_-------27-46 

Custody by military authorities -------- 115c-------_----_--23-2 

Descriptions of bulky documents ---_-- - _ 143a(2) (b) --_------- 27-27 

Excluded, marking of -------------_---- 54d---------------- 10-6 

Extenuation. See Extenuation and mitigation. 

Extracts---- _ - - - _ _ ------- _ - - - _ - - -- - - - 544 143a(2), 10-6,27-26, 

Fingerprints.......................... 144e---_----------- 27-41 

Former jeopardy, proof of -------------_ 68d---------------- 12-6 

Genuineness, proof of ----------------- 143b(l)------------- 27-29 

Handwriting- --- - ------------ - ------- 143b(l)--------=- --- 27-29 

Investigations--_-----_------__---34d---------------- 7-10

Limitations upon _--_-----_---_..----_- 144a, d- .----------- 27-36, 27-39 

Marked for identification- ------------- 54d---------------- 10-6 

Memoranda..- ------_ - - ---- - ---------- 146a, 149c(l) (b) _ --- 27-47,27-56 

Official documents .................... 144a, b---------_--- 27-36 

Previous convictions, record of- - - --- _-_75b(2), 153b(2) (b) ---- 13-9,27-67 

Procedure---_------_------------------ 143c---_-----_----- 27-36 

Proving contents, method of -------___-143a(l)----_------- 27-25 

Stipulations concerning- -_ - - - - _ _ - - ----- 1546 (1) -----_ - -- - - 27-72 

Substitution by description or extract of- 542, 138c ---_---_--- 10-6,27-6 

Waiver of objections- ------ -- - ---- - --- 143a(l)-- - ---:_ - _ 
- 27-25

Waiver of proof of authenticity --__--___143b(l)-----------_- 27-29 


Drug induced interview .................... 142e---------_--_--27-25 


Drunkenness, opinion of -_---_---_-_--__--_ 138e-----_-_---_---27-7


Dying declarations------------------------ 142a----__-----_--- 27-22 

Exhibits. See Exhibits. 

Extenuation and MitigationAfter findings ........................ 75c---------_--_--- 13-10 

Nonjudicial punishment- -- _---_-_---_-75c(4)---_---------- 13-10 

Rebuttal of----_---_-----_----------- 75d---_..---_----_-- 13-11 

Rules of, relaxed ...................... 75c(l)-----__--__-.- 13-10 

Federal records, authentication- _ - -- _ --- _ --- 143b(2) (c) - - _ -- - _ - - - 27-32 

Findings................................ 74a 13-4 

Foreign lawSee also Foreign law. 

Admissibility as evidence- - - ---_---_---147b----- --------- 27-50 

Foreign records, authentication- _ - --- - ---- - - 143b(2)(e) - - _ - - --- - - 27-34 

Former jeopardy .......................... 68d, 215b ---_---_---12-6, 29-2 

Fresh complaint .......................... 142c----- -----_--- 27-24 

General_-------------------__..--_---__--_ 137----_---_---_--.. 27-3 

Guilty plea, introduction after ----_--_---__-70a--_--__--_----_-12-9 

HearsayGeneral rule -------- _ - - - - _ - - ---- -- ---- 139-- - - _ --- - - _ - - - - - 27-13 

ExceptionsAccomplices, acts and statements of- 140b-- ---_- - - _---- - 27-19 

Affidavits of character -----_------- 146b 27-47 

Business entries ------- - - - _ - - ---- - - 144c--- _ ---- - - - _ -- - 27-37 

Business lists-__ _ _. __ _. _ ___-------144f-- --- - _-___-- _ - 27-42 

Catalogues, registers, and directories- 144f- -- _ --- --- - - - -- 27-42 

Character of accused, affidavits of--- 146b--------------- 27-47 

Charts........................... 144e--------------- 27-41 

Conspirators, acts and statements of- 140b----- - ------- - - 27-19 

Documents, authenticated, limita- 144d---_--..--------27-39 

tions upon. 

Fingerprints ...................... 144e--------------- 27-41 

Fresh complaint --_-_-_-----------142c---_--_------_-27-24 
Evidence-Continued 

Hearsay-Continued 

Exceptions-Continued Par. Page 

Interpreters, statements through ---- 141---------------- 27-20 

Maps-.-------------------------- 144e --------------- 27-41

Official records ------------------- 144b--------------- 27-36 

Photographs..................... 144e--------------- 27-41 

Professional lists --------------_-__ 144f-- ------------- 27-42 

Public lists ....................... 144f--------------- 27-42 

Sexual offenses, complaints of victim- 142~-- - - --- - --- _ --- 27-24 

Spontaneous exclamations ---------- 142b--------------- 27-23 

State of mind--- ----------------- 142d--------------- 27-24 

State of body--------------------- 142d--------------- 27-24 

Testimony, previous --------------- 145b--------------- 27-44 

Husband and wife, testimony of-- ---------- 148e--------------- 27-52 

Hypnotically induced interviews- ----------- 142e--------------- 27-25 

Identification of accused by prior or later 138g(l)--- _ - _ - _ -- - -- 27-10 

acts or offenses. 

Identification through lineup without counsel- 153a-- - - -- -- - -- ---- 27-65 

Illegally obtained------------------------- 152---------------- 27-62 

InadmissibleCommunication Act of 1934 ------------ 152--------------_- 27-62 

Court's action on ..................... 54c--------------_- 10-6 

Identification 'through lineup without 153a-- - - - _ - - - - --- - - 27-65 

counsel. 

Unlawfully obtained -----__-----------152---------------- 27-62 

Inconsistent statements, for impeachment- -- 153b(2) (c)- - -- - ----- 27-69 

Indicates offense not charged--------------- 55----------------- 10-7 

Inferences. See Inferences and presumptions. 

Informants, communications of ------------- 151b(l)-- - - -------- 27-59 

Insanity-------------------------------- 122c--------------- 24-5 

Inspection by court ------_---------------- 54e---------------- 10-6 

Intent proved by prior acts ---------------- 138g(3)------------ 27-11 

Interlocutory matters ..................... 137---------------- 27-4 

Interpreters-----------------_--------- 141--------------- 27-20 

Introduction of, sequence- ------- - --- - - - - - - 44f (3)-- ----- - ----- - 9-8 

Irrelevant- - - - - -.-------- - -- - - _ ------ - - - _ - 137---- - - - -----_ --- 27-4 

Joint trial- -- - ---_------- - --- ---- ---- - - - - 53c, 140b- ----- - - --- 10-1, 27-19 

Judicial notice, See Judicial notice. 

Lack ofSee also Acquittal. 

Duty of Court ......................... 54b---------------- 10-6 

Lie detector test ........................ 142e-----------__--27-25 

Maps, photographs, charts ---------------_- 144e-------------_- 27-41 

Materiality of ------------_-_---------.-- 137------------___ 27-4 

Military judgeComment upon-------_-_------------- 73c---------------- 13-3 

Determination of admissibility- - - - - - - -- 57g(2)- - - - - ------- - 10-12 

Interlocutory matters, relaxation of rules- 137-- - --- _ ------ - - - 27-4 

Military records, authentication- --- - ------- 143b(2) (b) - ------- - - 27-32 

Misconduct, acts of, admissibility of ---- ---- 1389-----_-_-_--_--27-10 

Mitigation. See Mitigation of sentence. 

Motive --_-_-_-_-_-_--------------------- 138g(5), 142d--- -_- 27-11,27-24

Newly discovered ......................... 109d,_-_----------- 21-1 

Nonjudicial punishment, introduction of 

mitigating. 75c(4)-------------- 13-10 

Nonpayment of checks, Article 123a --------- 202A--------------- 28-55 

Objections to admissibility, waiver of ------_- 154d--------------- 27-73 

Offensesnotcharged--------------------.- 55-_--------------- 10-7 
- -- ----- - - 

Evidence-Continued 

Official recordsSee also Official records. Par. Page 

Absence of --_---- - --- - - ----- _- ------- 143a(2) (9) --- - - ----- 27-28 

Authentication ---_---------_-_---_---143b(23------------- 27-31 

Copies----_---_-------------- 143a(2)(c)---------- 27-27 

General............................. 143a(2)(c), (4, 144b- 27-27,27-36 

Summaries-_- - --- _ ------------------- 143a(2) (d) --- ------- 27-27 

OpinionSee also Witness, expert. 

Character........................... 138f(l)------------- 27-8 

Defined....................... 138e--------------- 27-7 

Handwriting-----_. ------------------ 143b(l)------------ 27-29 

Insanity--_---_-__--~------_--- 122c--------------- 24-5

Malingering------------------ 194--------------- 28-42 

Plan or design of accused proved by other 138g(2)------------- 27-11 

acts. 

Preponderance controls interlocutory ques- 579---------------- 10-12 

tions other than challenges. 

Presumption-See Presumptions and Evidence, circumstantial and Inferences. 

Previous convictionsAdmissibility of ...................... 75b(2), 1389 --------- 13-9, 27-10 

Credibility of witness ------ _ - - - - - - _ - - - - 153b(2) (b) ----- - --- - 27-67 

Presentencing procedure ------_-------- 75b(2)_------------- 13-9 

Proof of guilt ------- - _----- - -- - -- -- --- 138g-----------_--- 27-10 

Prior acts or offenses ----_------------ 138g--------------- 27-10 

Prior testimonySee also Former testimony. 

Admissibility of ....................... 75b(2), 138g -------- 13-9,27-10 

Privileged communications. See Privileged 

communications. 

Radiograms, copies- ...................... 143b(l)------------- 27-29 

Reasonable doubtDefined------ --- - -- __- ------ - -- - -- -- - - 74a(3)----- -------- 13-4 

Instructions as to ..................... 40b(2), 73b --------- 9-3, 13-3 

Rebuttal of matters in mitigation or aggrava- 75c(2), 75d - --- _ -- - 13-10, 13-11 

tion and of unsworn statement of accused. 

Records of courts-martial at later trial- - - --- 145b----: 27-44 

Records of courts of inquiry -----_---_------ 145c---_----------- 27-46 

Relevancy of--__--__---_----------------- 137---------------- 27-4 

Search and seizure, unlawful--- -_-----_---_152---------------- 27-62 

Secondary. See Best evidence. 

Secret, privileged communications--_ - - - - ---- 151b (3) -- - - -------- - 27-61 

Self-incrimination ...................... 150b--------------- 27-58 

Sentence, matters affecting .---_------------ 75_---------------- 13-9 

Service recordsDesertion-__--__--_-------__--- 164a--------------- 28-10

Prior discharge -_--_-------------162---------------- 28-9 

Sexual offenses, complaint by victim -------- 142c--------------- 27-24 

Spontaneous exclamations ---------------- 142b-------- ------- 27-23 

State of mind_---_--_---_---------------- 142d--------------- 27-24 

State records, authentication- - _ - -- - - - - - - - - - 143b(2)(d) ------ - --- 27-33 

Summary courts-martial -_----------------- 79d(3), 137 --------- 14-3, 27-3 

Telegrams, copies ......................... 143b(l)------------- 27-29 

Testimonial knowledge- ----_--_--------- - - 138d---------- ----- 27-6 

Testimony, former ---- _------------- - - ----- 145b--------------- 27-44 

United States records, authentication-- .._ - - - - 143b(2) (c) -- - ----- - - 27-32 

Unlawful search or seizure ----------------- 152--_-_-----------27-62 

Unsworn statement of accused _-------.----- 75c---------------- 13-10
INDEX 

Evidence-Continued par. Page 

Views and inspections by court- ------------ 54e--------..-------10-6 

Waiver of rules of admissibility -------_-----154d--------------- 27-73 

Waiver of objections ...................... 154d--------------- 27-73 

Weight of, byConvening authority- --------- __------87a(3) - - ----------- 17-6 

Court of Military Review -------------- 100a--------------- 20-2 

Courts-martial-- - - --- - - -- - - - ---- - - - - - - 74a(2)-------- - -- - - 13-4 

Wiretapping............................. 152---------------- 27-62 

Witnesses. See Witnesses. 

WritingsDefined------------------------------ 143d--------------- 27-36 

Not feasibly produced- --- - - -- - -------- 143a(2) (a) ------ - - - - 27-26 

Examinations, Copying; specification form- - - - - -- App 6c(122) -- - --- - - A6-20 

Exceptions and substitutions: 

Lesser included offenses, finding of guilty by-- 74b(3) -------- - -- - - 13-5 


Limitations and restrictions upon ----------- 74b(2)-------- ---- - - 13-5 


Statute of limitations barring finding of 74h_-__--------_-_-13-8 


guilty of lesser included offense by. 

Exclusive jurisdiction. See Courts-martial Jurisdiction, exclusive. 

Excuse, as defense to trial ........................ 216b, c, 216d, el 29-4,29-5,29-6 

216f1 g. 

Execution of nonjildicial punishment. See Nonjudicial punishment. 

Execution of sentence. See Sentence, execution of. 

Exhibits: 

See also Evidence, Documentary. 

Substitution by description or extract of ----- 54d, 138c ----------- 10-6,27-6 

Copies of - - ----- - ----- _ ---_------- - -- - - -- - 49b(2)----- - --_----- 9-15 

Expenses of courts-martial- - - - - __- ------ - - - - - - - -- 119--- - -- - - _ _ --- - - - 23-9 

Expert witnesses. See Witnesses, expert. 

Explanation to accused. See Accused, explanation of rights. 

Extention of term of service for trial ------_----- 11--_---------_----4-2 

Extenuation and mitigation: 

See also Mitigation of sentence. 

Affidavits concerning---------------------- 146b-_------------- 27-47 

Basis for determining sentence -------------- 76a---------------- 13-11 

Drunkenness, as .......................... 154a(3)------------ 27-71 

Evidence, rules of relaxed ---_----_--------- 75c(l)-------------- 13-10 

General--__-__----------------------- 75c---------------- 13-10 

Ignorance or mistake of fact --------_------_ 154a(4)------------ 27-72 

Ignorance or mistake of law --_------_-_-_- 154a(5)-- - - - --_---- 27-72 

Nonjudicial punishment, cases of _-----_--_-133--__--____------ 26-9 

Rebuttal of ---_----_--_--_-------------75d--__----__------13-11 

Extortion, Article 127- 

Discussion-------__---_-_------------ 206---_------------ 28-60 

Proof----_---__--__----------------- 206--------_-_----- 28-61 

Specification form ........................ App 6c(101) -- - ----- A6-17 

Extra duties. See Nonjudicial punishment. 

Failing : 

See also Failure. 

To afford all practical relief and assistance 

(Art. 99)- 

Discussion--------------------------- 178i--------------- 28-29 

Proof---------------------------- 178i--------------- 28-29 

Specification form ---------------- ---- App 6c(51) - - ------- A6-10 
INDEX 

Failing-Continued 

To enforce or comply with provisions of the 

code (Art. 98)- par. P%e 


Discussion........................... 177b--------------- 28-27 


Proof............................... 177b--------------- 28-27 


Specification form ..................... App 6c(42) --------- A6-9 


To engage enemy, to do utmost to encounter, 

capture or destroy (Art. 99)- 


Discussion-----------_-------------- 178h--------------- 28-29 


Proof----_------------------------- 178h--------------- 28-29 


Specification form ..................... App 6c(50) --------- A6-10 


Failure: 

See also Failing. 

Disapproval required by convening authority- 87a(2) ---------:--- 17-5 


Motion to dismiss waver of assertion 68b(3), 67a ---------- 12-4, 12-1 


To allege an offense. See Charges and 


specifications. 


Waiver of assertion ........................ 67a---------------- 12-1 


To expedite a case (Art. 98)- 


Discussion ........................... 177a--------------- 28-27 


Proof ............................... 177a--------------- 28-27 


Specification form ---_----------- - ---- - App 6c(41) ----- -1-- A6-9 


To go to appointed place of duty. See 


Absence without leave. 


To maintain suficient funds for payment of r 


checks (Art. 134)- 


Discussion........................... 213j(8)------------- 28-78 


Proof............................... 213j(8)------------- 28-78 


Specification form ..................... App 6c(134) A6-21 


To obey order or regulation (Art. 92)- 


Discussion-------_------------------- 171---------------- 28-21 


Proof............................... 171---------------- 28-21 


Specification form ..................... App 6c(27-29) ------ A6-7 


To pay debts (Arts. 133, 134)- 


Discussion- --- - -- - - - - - - - _- - _- - - - -- - -- - - 212, 213j(7) --- - -- - - - 28-70.28-77 


Proof......................... 212, 213j(7) --------- 28-70.28-77 


Specification form ..................... App 6c(124, 125, 133) A6-20, A6-21 


To plead at trial .......................... 70a---------------- 12-9 


To report, prevent, or suppress a mutiny 


or sedition (Art. 94)- 


Discussion............................ 173c, d------------- 28-23 


Proof.............................. 173c,d------------- 28-23 


Specification form ..................... App 6c(34) --------- A6-8 


TO secure or report captured or abandoned 

property (Art. 103)- 


Discussion ......................... 182a, b 28-32 


Proof------_--__-_------------------- 182a, b------------- 28-32 


Specification form ..................... App 6c(56, 57) ------ A6-10 


False alarms (Art. 99) : 


Discussion---_----------------------- 178q--------------- 28-29 


Proof............................ 178q--------------- 28-29 


Specification form ...................... App 6c(49) --------- A6-10 


False and unauthorized passes, permits, discharge certificates and identification cards (Art. 

134): 

Discussion- ----- - - - - -- - -- - -- - ---- - - - - - --- 213j(ll)--- ---- - - - - - 28-79 


Proof-


Wrongful use or possession ------------- 213f(ll) ------------ 28-79 


Wrongful sale or disposition ------------ 213f(11)------------ 28-80 


Falsely making or altering- - ------- - --- 213f (11)--- - - ------ - 28-80 


Specification form ...................... App 6c(147) -------- A6-22 

- - 

INDEX 

False claims against the United States. See Fraud 

against the United States. 

False official statement (Art. 107) : 

Discussion-------------------------

Proof--------------__-----------------

Specification form ......................... 

False pretenses. See Larceny. 

False swearing: 

See also Oaths; Perjury. 

Discussion- - - - -- - - - __- - - - -- - -- - - -- - - - - - - -- - 

Proof.................................... 

Specification form ......................... 

Falsification of accounts ..................... 


Family allowances. See Forfeitures. 


Federal courts: 


Evidentiary rules, applicability -------------

Par. Page 

186---------------- 28-36 

186-----------..---- 28-36 

App 6c(65) --------- A6-12 

213f (4) ------- - - - -- - 28-76 

213j(4)------------ 28-76 

App 6c(149) -------- A6-22 

138g(5)-- ---------- 27-11 

137---------------- 27-4 

Former jeopardy ---_-_---------------- 68d,215b-- - -------- 12-6, 29-2 

Former trial .............................. 68d, 215b -__-------- 12-6, 29-2 

Members of bar as counsel in military courts- 6b,c, 61f (1) ---- - -- - - 3-4, 11-3 

Federal penal code. See United States Code. 


Fees and mileage. See Depositions and witnesses. 


Felony: 


Concealment of (Art. 134)- 

Discussion- --_ _ --- - _- ---- -- -- - --- -- - --

Proof-----------__-------------------

Specification form ----_----------- -----

Defined----- --_---- -- - -------------- - - - --

Misprision. See Felbny, concealment. 

Field grade officers, nonjudical punishment by ----

Fifth Amendment. See Constitution of the United 

States. 

Fighting a duel (Art. 114) : 

Discussion-----_-------------_ 

Proof--------------------------

Specification form ........................... 

Finality of judgments: 

See also New trial. 

Discussion------_-----------------------

213f(6)--- ---------- 28-77 

213f(6)------------- 28-77 

App 6c(163) - - ------ A6-24 

213f (6)--_--- -- - - - -- 28-77 

131b--------------- 26-3 

193a-----__-------- 28-42 

193a-------2------- 28-42 .. App 6c(78) --------- A6-14 

108---------------- 20-7 

Financial inability, Defense to trial ----_----_-__2169---_----------- 29-6 

Findings: 

AcquittalGeneral_----------------------------- 86b(2)-------------- 17-4 

Mental responsibility--_ -_-------- - 120b--------------- 24-1 

Motion for ........................... 57a, 71a ------------ 10-9, 12-11 

Announcement, when -----___--------------749, 79d(4) -------__ 13-8, 14-3 

Basis of .................................. 74a(l)-----_------- 13-4 

Charges, general _-_-__-_------------------74c--------_------- 13-6 

Closed sessions- _ _ --_-____- - ----_--_------ 53d(3) - ------- ----- 10-3

Coercion of court because of acquittal ---____86b(2)----__-------- 17-4 

Conclusive---______---------------------108---------------- 20-7 

Contempt-___-____-_--------------------- 118a, App 8c -------- 23-8, A8-25

Convening authority's action, generally--- --- 87------------- - --- 17-5 

Disapproval of---__-_----_______---..-..--- 89c(2)-------------- 17-12 

Errors before announcement- - - - - _- _- ----- - 74g- ----- - -- ------- 13-8 

Evidence weighed -----_____--------------74a(2) ------------ 13-4 

FormCharge---_------_------------------- 74c---------------- 13-6 

General.............................. 74f ---------------- 13-7 

General courts-martial-- -------------- 74f(l)------------- - 13-7 
Findings-Continued 

Form-Continued 

Special courts-martial -----------------

Specifications........................ 

General_------------------------------

Guiltypar. Page 

74f(2)-------------- 13-7 

74b---------------- 13-5 

74a---------------- 13-4 

Action required --__-_----------------74d(l), 89 ---------- 13-6, 17-11 

Consideration of ...................... 87----------------- 17-5 

Convening authority's actionErrors in proceedings -------------- 87c, 89c --------_--- 17-6,17-12 

Evidence, sufficiency of _---------_-87a(3)------------- 17-6 

Inconsistent charge--------------- 87b---------------- 17-6 

Lesser included offense- - - --------- 87a(4)- - ----------- 17-6 

Specifications, legal sufficiency of--_ 87a(2) ------------- 17-5 

Two or more offenses--- - - - -- - - - - - - - - -- 74b(4)------_ - - - - -:- 13-5 

Inconsistent, convening authority's action ---- 87b----- - ---------- 17-6 

Insanity, effect on ........................ 124---------_------ 24-6 

Instructions onMilitaryjudge's-_-_----_-___-------73----------------- 13-2 

Preliminary ........................ 39b(l), 736 --------- 9-1, 13-3 

Request for additional --------___------ 74e---------------- 13-7

Invalidity----- -- -- -- - - -- ------- - - -------- 89c(2)-------------- 17-12 

Irregularity in proceedings, effect- ----- _ --- - 87c, 100a- -- -- --_--I 17-6, 20-2 

Joint trial ................................ 74b(l)----_--------- 13-5 

Lesser included offense- - - -- _ -- -- - -- ------ 74b(3),87a(4), 158- - -

Matters to be considered ------_----------- 74a(l) -------------

Military judgeActions on form- ---- - - __ - - -- _- __-- ---- - 74f (1)--- --- _-------

Aid in preparation of ------_----_--_---74f(l) --------------

Instructions prior to voting ----_--_----39b(l) --------------

Preliminary instructions ---------_--------39b(l), 73b ---------

13-5, 17-6, 28-6 

13-4 

13-7 

13-7 

9-1 

9-1, 13-3 

13-4 

13-8 

13-6 

Reasonable doubt ....................... 

Reasons for- -- _ - _ --- - - - - - - - ---------- - - - -

ReconsiderationSee also Rehearing revision. 

Courts-martial....................... 

Forbidden, when ...................... 

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

Sanity, doubt as to------_---------------- 

SpecificationsSee also Charges and specifications and 

Charges, this subject. 

Consistency with -------------------

Exceptions-- - - - - ---- - - - - -- - ---- - - - - - - 

Instructions......................... 

74a(3)- - - ----------

745 (3) - - - - - -- - - -- - --

74d(3)-------------

86d--------_------- 17-5 

80------------:----

122a---_-----------

74b(l)--- ----------

74b (2) - - - - - - - - - - - --

73b 

15-1 

24-2 

13-5 

13-5 

13-3 

17-12 

17-6, 20-2 

13-5 

13-5 

13-5 

Invalidity, action by convening authority- 89c(2) --------------

Irregularity in proceedings, effect ------- 87c, 100a -----------

Jointaccused--------------------- 74b(l)---------..---

Lesser included offense- - - - - - - _ ---- - - - - 74b(3)-- - i---- - --- - 

Substitutions---------------..--------- 74b(2)-------------

Statutes of limitationsRight to assert ..................... 

Summary courts-martial- ---- - --_ ----------

Voting on ............................... 

Without vote when permissible- _ - - - - --- ----

Fines: 

See also Forfeitures. 

74h ----_--_-13-8 

79d(4) --- - -1------ - 14-3 

39b(l), 53d, 74d ----- 9-1, 10-1, 13-6 

74d(l)- - - - ---- --- - - 13-6 

Applicability ---_-----~----~--- 126h(3)------------- 25-6 


Civilians---_--_-----..-_------------------ 126h(3)------------ 25-6

Fines-Continued Par. Page 


Confinement as coercion to pay ------------- 126h(3)------------ 25-6 


Contempt............................. 118, 126h(3) -------- 23-8, 25-6 


Effective, when ......................... 126h(5)- - ---------- 25-6 


Prisoners of war ......................... 126h(3)------------ 25-6 


Fingerprints: 

Admissibility as evidence- ----------_------144e--- ------------ 27-41 

Certificates- -- - - - ---- - - - - - - ---- - - - - ---- - - 143a(2)(f)--- - - - - - - - 27-28 

Evidence of-----__-_------------------ 144e--------------- 27-42 

Expert testimony---- _-----__-----------143a(2), 144e ------- 27-28, 27-41 

Fingerprint cards, official records- -- - --- -- - - 144b--- - -- ----- - -- - 27-36 

Self-incrimination -----------_----150b--------------- 27-58 

Firearms: 

Careless discharge (Art. 134), specification App 6c(150) -------- A6-22 

form. 

Willful discharge (Art. 134)) specification App 6c(151) -------- A6-22 

form. 

Fitness reports, military judge, court members, 

counsel. See unlawfully seeking to influence 

court-martial. 

Flag, striking the (Art. 100) or Colors: 

Discussion------------------------------- 179b-------------_- 28-30 

Proof---_---------------------_---------- 179b------..--------28-30 

Specification form ...................... App 6c(52) --------- A6-10 

Flag officer: 

Dismissal- --- -- - - _ _ ---- -- ---- - - --- - ---- - - 98, lOOc(2) -- - -- - --- 20-1,20-4 

Punishment of ............................ 98, 100c(2), 101 ----- 20-1, 2M 

Fleeing the scene of an accident, specification form- App 6c(152) -------- A6-22 

Flight to resist apprehension. See Resisting appre- 174a--_-__---------28-24 

hension. 

Flogging------_---------_---_-------- 125-------_-------- 25-1 

Food, denial of. See Confinement, Punishments, 

Bread and Water. 

Force and violence in robbery -----------_--- 201---------------- 28-52 

Forcing a safeguard (Art. 102)- 

Discussion-------__--------------------- 181--------------_- 28-31 

Proof------------------------------ 181---------------- 28-31 

Specification form ......................... App 6c(55)-- ------- A6-10 

Foreign law: 

Admissibility as evidence ------------_----- 147b--------------- 27-50 

Determination of --------_______-------- 147b-__--------_---27-50

Offenses under general Article 134 ----------- 213e-----_-------__28-73 

Recognition of, by general courts-martial ---- 14a---------------- 4-4 

Foreign nation: 

Military jurisdiction in friendly nation ------ 12--------_-------- 4-3 

Military jurisdiction of belligerant- - - ------- 2------------------ 1-1 

Military jurisdiction during belligerency ---- 2------------------ 1-1 

Foreign nationals, as prisoners ------------------ 18b, 125 -___--------5-1, 25-1 

Foreign records, authentication of ---- - _ - _ _ _ __ _ - _ 143b(2) (e) - - ------ - - 27-34 

Forfeitures: 

See also Fines. 


Allowances---____-_------_-_-------_-----
 126h(2)--------_--- 25-5 

Civilians_----_-_-____----_--------_--..-_-126h(3)------------ 25-6 

Confinement, effect upon -_--_------_-_____ 88d(3), 126j -----___-17-8,25-7

Convening authority's power _------_--___--88d(3), 126h(5) ----_- 17-8, 25-6 

Deferment of service of sentence to confine- 88d(3)------------- 17-8 

ment. 

Effective date ........................ 126h(5)------------ 25-6 

Enlisted personnel in nonjudicial punishment- 131b, c(8) - _ ------ _- 26-3,26-6 
Forfeitures-Continued par. Page 

Equivalent punishment ------------------- 127c--------------- 25-8 

Family allowance ....................... 126h(2)------------- 25-5 

General--------------------------;--- - - 126k(l), (2) --------- 25-5 

Income applicable to ...................... 126h(2)------------- 25-5 


Maximum limitations- 


General------------__----------------- 126h(2)------------ 25-5 


Offenses, specifically ----------------- 127c--------------- 25-8 


Special courts-martial -----__----------126c(l)----- 25-3 


Summary courts-martial --------------- 126c(2)------------- 25-3 


Nonjudicial punishment- - - ------ - -- - ------ 13lb, 131c(8)----- - 26-3, 26-6 


Officers in nonjudicial punishment ---------- 131b, 133 ----------- 26-3, 26-9 


Suspension of sentence ..................... 88d(3) ---1--------- 17-8
 ' 

Warrant officers in nonjudicial punishment--- 131b, 133 ----------- 26-3, 26-9 

Forgery (Art. 123): 

Discussion--------------------------- 202---------------- 28-54 

Proof--------_---_--------------------- 202---------------- 28-55 

Specification form ---------------_---------App 6c(93-94) ------ A6-16 

Evidence forged- - --- _----------------- - 109d(3)------------- 21-2 

False, as usedin------------------------ 202---------------- 28-54 

Legal efficacy of forged writing ------------- 202-_-------------- 28-54 

Signature in connection with claims. See 

Fraud against the United States. 


Testimony of husband and wife ------------- 148e--------------- 27-52 


Uttering nforged instrument -------------- - 202---------------- 28-54 


Former jeopardy: 

Defense of--_---------------------------- 67a, 684 215b------ 12-1, 12-6, 29-2 

Evidence introduced as .................... 68d---------------- 12-6 

Manifest necessity for termination of prior 56c---------------- 10-8 

trial. 


Motions in bar of trial ..................... 684 215b--- --- ----- 12-6, 29-2 


Rehearing of offense after acquittal ---------- 92----------------- 18-1 


Specifications withdrawn ---_----_----------56b---------------- 10-8 


Termination of trial ------------------- 215b--------------- 29-2 


Former punishment, as bar to further trial ------- 689, 215c ,------_--- 12-6, 29-3 

Former testimony. 

Admissibility as evidence - - ------------ - - -- 145b----------- --- - 27-44 

Capital case, admissibility -------- -- -- - --- - 145b-------- -L- ---- 27-44 

Interpreter------------_---_------- 141---------------- 27-20 

Waiver of objection-----_-----------_----- 145b--------------- 27-44 

Former trial. See Former jeopardy. 


Forwarding of charges, records, etc. See the spe- 


cific subtitles. 

Fraud on court as grounds for new trial ---------- 109d(3) ------------ 21-2 

Fraudulent appointment. See Fraudulent enlistment or appointment. 

Fraudulent enlistment, appointment or separation 

(Art. 83): 


Absence without leave, effect on---_-------- 164a--------------- 28-10 


Continuing offense----------_------------- 215d---_----------- 29-3 


Date of offense-..-----------__-______----- 215d-------:------.. 
 29-3


Discussion-----_------------------------ 162-----..---------- 28-9 


Proof----------------------------------- 162------------_--- 28-10 


Specification form ----------- ---- --_------- App 6c(6, 7) -------- 86-4, A6-5 


Fraudulent separation (Art. 83) : 

Discussion--_--------------------------- 162---------------- 28-9 

Jurisdiction--_---_--------------------- lib---------------- 4-2 

Proof................................... 162---------------- 28-10 

Specification form ......................... App 6c(7) - - -------- A6-5 

Fresh complaint, admissibility as evidence ------_- 142~---_-- - -------- 27-24 
Fraud against the United States (Art. 132) : 

Delivering less than amount called for by 

receipt-


Discussion- --- - - - - -- - - -- - -- - - - - - - - - --
 211f - - -- - - - - -- - - --- 28-69 

28-69 

Specification form .................... 


Proof--------------------------------
 211f---------------

False Oath in connection with claims- 


Discussion---------------------------
 211d--------------- 28-69 

Par. Page 

App 6c(120) -------- A6-19 

Proof--------------__---------- 211d--­ ..----------- 28-69 


Specification form ..................... Forgery of signature in connection with 

claims-


Discussion ........................ 
 211e--------------- 28-69 

28-69 

Specification form ------ - -- - --- - - ------


Proof--------------------------------
 211e---------------

Making a false or fraudulent claim- 


Discussion-------------------
 211a--------------- 28-68 

28-68 

Specification form ..................... 


Proof--------------------------------
 211a---------------

Making or delivering receipt without having 

full knowledge that it is true- 


Discussion........................... 
 211g--------------- 28-70 

28-70 

Specification form ..................... 


Proof----------....................... 
 2118---------------

Making or using a false writing or other paper 

in connection with claims- 


Discussion........................... 
 211c-----_--------- 28-69 

28-69 

Specilication form ..................... 


Proof....................... 
 211c---------------

Offense against General Article 134- - - ------
 213e(l)------------- 28-73 

Presenting for approval or payment a false 


or fraudulent claim- 


App 6c(117) - - ------ A6-19 

App 6c(118,119) -- - - _ A6-19 

App 6c(114) -------- A6-18 

App 6c(121) -------- A6-19 

App 6c(116) -------- A6-19 

discussion^--------__---------------- 211b---_----------- 28-68 


Proof------_---_------------------- 211b--------------- 28-69 


Specilkation form ----------- - - - ---- - -- App 6c(115) -- - - -- - - A6-18 


Gambling with subordinates, specXcation form- - - App 6c(153) -- --- - - - A6-23 

General Article 134: 

See also Specific offenses. 

Conduct bringing discredit upon the Armed 

Forces-


Discussion---------__----------- 213c---_----------- 28-72 


Proof--------------__------------- 213d-­ ..------------ 28-73 


Specilication, drawing ---------------
213a--_------------ 28-71 

Crimes and offenses not capital- 


General........................... 
 213e-----_--------- 28-73 

28-74 

28-73 

Local application- --------------------
 213e(2)-----------_-

Unlimited application- ----------------
213e(l) -------------

Disorders and neglects to the prejudice of 

good order and disciplineDiscussion-


Breach of service custom -----------
 213b--------------- 28-72 

Wrongful possession of marihuana 
 213b--------------- 28-72

or a narcotic drug. 


Proof......................... 
 213d--------------- 28-73 

Specification, drawing -----------------
 213a--------------- 28-71

General counsel of Department of Transportation: 


Coast Guard, petition for new trial ----------
 109c--------------- 21-1 

General courts-martial : 

See also Courts-martial. 

Appointing order. See Convening order. 
INDEX 

General courts-martial-Continued Par. Page 

Arrangement of courtroom ----------------- 61b, App 8a--- ------ 11-2, A8-3 

Article 32, investigation, irregularities of ----- 44f(5)-------------- 9-9 

Assembly, when complete -----_------------ 6lj-------_-------- 11-5 

Challenges. See Challenges. 

Conveniilg authority. See Convening 

authority. 

Counsel. See Counsel, trial counsel, defense. 

Deferment, rescission, and suspension of 88f, 97 ------------- 17-10, 19-3 

sentence. 

Errors, correction of subject to review ------- 95-------------..--- 19-2 

Findings, form of ---- _ _ - - - - -- _ --- - ------- 39b(l), 74f (1) ---- -- - 9-1, 13-7 

Instruction to court ....................... 73, 74e ------------- 13-2, 13-7 

Interlocutory questions. See Interlocutory 

questions. 


Jurisdiction-


See also Courts-martial, jurisdiction; of- 


ficer exercising general courts-martial 


jurisdiction. 


Law of war .......................... 2, 14 --------------- 1-1, 44 

Occupied territory, violations of laws ---- 14a-_-------------- 44 

Offense--------------------------- 14a--------_------- 4-4 

Person-----_------------------------- 4-4 

Punishment---------;---------------- 14b----_----------- 4-4 

Military judge. See Military judge. 

Maximum punishments .................... 126b-_------------- 25-3 

MembersChallenge of ------_----__---_---------62----------------- 11-6 

Duties, general-----_----------_---- 41b------2--------- 9-3 

Military judge not member- ----------- 39b(l) ------------- 9-1 

New Member--------_--------------- 41e----_---_------- 9-5 

Number required- --- _ _ -- - ------ -- - --- 4b-- ------!-------- 2-1 

Who may serve-----------_------- 4a------i---------- 2-1 

Orders, convening. See Convening orders. 

President of courts-martial- 


Duties, general ---------__--------40a, b-------------- 9-3 


Vote of----_-----_------__---------- 41b---------------- 9-4 


President of United States as convening 5a--------------- -- 3-1 


authority. 


ProcedureSee also Procedure. 

General-------_--------------------- 53a-..--_..-_-------- 10-1 

Proceedings, order of ...................... 53a App 8 ---------- 10-1, A8-1 


Punishment. See Punishment; Sentence. 


Records of. See Records of courts-martial. 


Reporter. See Reporter. 


Revision proceedings- ---- ------ ----- 80----------------- 15-1 


Seating of participants --------------- 616---------------- 11-2 


Sentence. See Sentence; Punishment. 


Sequence of events ........................ 53a--_---..-..-------10-1 


Trial counsel. See Counsel, Trial. 


Vacation of suspension of sentence ---....----..97b---------------- 19-3 


Voting. See Voting. 

General officer- par. Page 


Dismissal of ........................... 98, lOOc(2) --------- 20-1, 20-4 


Sentence of- 


Appellate procedures ------------------ 98, 100, 101 --------- 20-1, 20-2, 20-4 

Approved by President ---------------- 98, lOOc(2) --------- 20-1, 20-4 

General order : 

Violation or failure to obey- 


Discussion-------------------..-----..- 171a--------------- 28-21 


Proof............................ 171a--------------- 28-21 


Specification form --------- -----_--- --- App 6c(27) -------- - A6-7 


Gestures, reproachful or provoking: 

Discussion------------------------------ 196---------------- 28-43 

Proof----------------------------------- 196------------..--- 28-44 

Specification form ......................... App 6c(85)-- ------- A6-15 

Giving intelligence to the enemy: 

Discussion------------------------------- 183c-----_------_-- 28-33 

Proof----------------------------------_.. 183c--------------- 28-34 

Specification form ------ ------_-_--------- App 6c(61) - _ ---- - - - A6-11 

Giving parole or countersign different from the 

authorized: 


Proof ...................... 180b--------------- 28-31 


Specification form ......................... App 6c(54) --------- A6-10 


Government, fraud against. See Fraud against the 

United States. 

Government officials. See Contempt toward. 

Grade, reduction. See ,,Reduction in grade. 

Grievous bodily harm. See Bodily harm. 

Guard report, official records --------_---------- 144b------- -_------ 27-36 

Guards, detail of, for courts-martial- - _ ----- - - - -- 51------ - -- - - ------ 9-16 

Guilty: 

Burden of proof----_---_---_------------- 73b--_------------- 13-3 

87--------__------- 17-5 

Guilty plea. See Pleas. 

Guilty state of mind: 

See also Intent. 


Defined.................................. 154a--------------- 27-71 


Drunkenness, effect on ----_--__---__---___
 154a(3)------_---_- 27-71 


Ignorance of mistake of fact -----_---__---_-154a(4)------------ 27-72 


Ignorance or mistake of law -----_--___-_--- 154a(5)------------
 27-72


Insanity and mental defects, effect upon -_--_1206-_-----__----_-24-1 


Requirement for certain offenses ---__-_-_-_-154a..-------_------ 27-71 


Habeas corpus: 

Warrant of attachment of civilian witnesses_- 115d(3) -- ---- ..----- 23-4 

Habit or usage, evidence of- ---_---_-_--__-_-_- 138h--------------- 27-13

Handwriting: 

Opinion, evidence of -----_---_--__--_ ---- - - 143b(l)-----___-___- 27-29 

Self-incrimination...................... 150b--__-----------27-58 

Harboring the enemy. See Enemy, harboring or 

protecting. 

Hard labor: 

Confinement atLimitations .......................... 126j, 127b ----_----- 25-7,25-8 

Officers and warrant officers ------------ 126d--------------- 25-4 

Confinement without--_---_--------------- 126j-----..--------.. 25-7 

Without confinementEnlisted persons- -------------- - ----- - 126e, 126k--_ --- - --.. 25-4,25-7 

Limitations uponSpecial courts-martial, Article 19 ---- 15b---------------- 4-5 

Summary courts-martial, Article 20- 16b---------------- 4-7 

Officers and warrant officers ----------_- 126d-------------- - 25-4 
------- 

Harm. See Bodily harm. 

Harmless error .............................. 

Hazarding of vessel, Article 110: 

Discussion.............................. 

Proof.................................. 

Par. age 

87c---------------- 17-6 

189---------------- 28-38 

189---------------- 28-39 

Specificatibn form-- - - - -- - _ -- - - - - -- - - - - - --- App 6c(70-74) ---- - - A6-12, A6-13 

Hazardous duty, absence to avoid. See desertion. 

Hearings: 

Military judge, conducted by -------- -- - ---- 57g(2)-__-_- _ _ - _ _--- 10-12 

Petition for new trial ..................... 109f--------------- 21-2 

Vacation of suspension of sentence, Article 72- 97b ---------------- 19-3 

Hearsay evidence. See Evidence, hearsay. 

Hindering dpprehension, trial, or punishment. 

See Accessory after the fact. 

Homicidal tendencies. See Sentence, presentencing 

procedure. 

Homicide: 

Dying declarations ....................... 142a--------------- 27-22 

Manslaughter, Article 119- 

InvoluntaryDiscussion---_------------------- 198b--------------- 28-46 

Proof---_------------------ 198b--------------- 28-46 

Specification form ------ --- - ---- -- - App 6c(88) --------- A6-15 

Voluntary, Article 119- 

Discussion---------_---_--------- 198a--------------- 28-45 

Proof.......................... 198a--..------------ 28-45 

Specification form--- -- - ------ - - - -- App 6c (87) - - ---- - -- A6- 15 

Assault with intent to commit--- --- 213f(1)(6)-------- - - 28-75 

Murder, Article 118- 

Discussion---------_----------------- 197a--------------- 28-44 

Proof---_--------------------------- 197a--------------- 28-44 

Act inherently dangerous with wanton 

disregard of human lifeDiscussion.. -- - - _- - _--- - -_ ----- --- 197d-----------;--- 28-45 

Proof........................... 197d--------------- 28-45 

Assault with intent to commit -----_---- 213j(l)(a)--------- - 28-74 

Commission of certain offenses- I 

Discussion....................... 197e--------------- 28-45 

Proof............................ 197e--------------- 28-45 

Former jeopardy ...................... 215b--------------- 29-2 

Intent to kill or inflict great bodily harmDiscussion-------_------__--- 197c--------------- 28-44

Proof........................ 

Premeditated----- .................... 

NegligentDiscussion- -- - - -- - - -- - -- - - - -- - --- - - - - 

Proof--.. - - - - - - - - - - - - - --- - --- - - - -- - - --

Specification form ---_---__-- - _-------

Self-defense............................ 

Homosexual. See Sodomy. 

Honorable discharge. See Discharge, honorable. 

Hostility. See Bias. 

Housebreaking, Article 130: 

See also Burglary. 

Discussion........................ 

Proof................................... 

Specification form ----------- ----------

Husband and wife: 

Privileged communications -----------------

Testimony against one another -------------

Hypnotically induced interviews--- ------ -- --- -- 

197e--------------- 28-45 

197b-------:28-44 

213f (12) --------- - - - 28-80 

213f (12) ----- - - - ---- 28-80 

App 6(154) --------- A6-23 

216c--------------- 29-4 , 

209---------..------ 28-66 

209---------------- 28-66 

App 6c(112) ---- ---- A6-18 

151b(2)------------- 27-60 

148e--------------- 27-52 

142e------ -- ---- - - - 27-25 
Identification: 

Accused- par. Page 

Acts preceding or following offense ------ 138g----------_----- 27-10 

Self-incrimination distinguished -----_--- 150b--------------- 27-58 

Fingerprints ---- ----- - -- - ---------- - -- - -- - 143a(2)(f), 150b-- - -- 27-28,27-58 

Inference of- ----- -- ------- - ------- --- - --- 138a(2)-- - ------ - -- 27-5 

Identification cards, false and unauthorized. See 

Passes. 

Ignorance of fact: 

Guilty state of mind, effect on -------------- 154a(4)------------ 27-72 

Defense of------------------------------- 154a(4)------------ 27-72 

Ignorance of law: 

Guilty state of mind, effect on -------------- 154a(5)------------ 27-72 

Extenuating circumstance, as--------------- 154a(5)------------ 27-72 

Immunity: 

Accomplice, testimony for prosecution-- - - -- - 148e--- - ----- - ----- 27-52 

Authority to grant ........................ 68h---------------- 12-6 

Defense in bar of trial ..................... 68h-----------_---_12-6 

Grant or promise ofBar to trial .......................... 68h---------------- 12-6 

Confession, effect upon ---------------- 140a--------------- 27-15 

Witnesses, effect upon competency ------ 148e---------- ----- 27-52 

Self-incrimination, effect upon ----------_--- 150b--- ----_-_--_--27-58 

Impeachment. See Witnesses, impeachment. 

Improper hazarding of vessel: 

See also Haeardi,ng of vessel (Art. 110). 

Discussion------------------------------ 189----------..----- 28-38 

Proof----------------------------------- 189----------_----- 28-39 

Specification>........................... App 6c(70-74) ------ A6-12, A6-13 

Inability, defense to trial ...................... 216g-----_----_--_-29-6 

Inactivation of unit by convening authority: 

Effect on initial review of record of trial ------ 84c- ---------_----- 17-1 

Indecent acts with a child: 

Discussion------------------------------- 2135(3)---------_--- 28-76 

Proof-------------_--------------------- 213f(3)-----_------- 28-76 

Specification form ......................... App 6c(156)-- ------ A6-23 

Indecent assault (Art. 134) : 

Discussion- -- - --- - -- - -- - - - - - - - - ---- - --- - - 213f (2) ---- - -- _ -- - - - 28-76 

Proof ................................... 213f(2)------------- 28-76 

Specification form ......................... App 6c(128) -------- A6-20 

Individual counsel. 

Accused, right to be represented by --------- 48a, 61f ------------ 9-11, 11-3 

Defined------------------------------ 42a-----..---------- 9-6 

Investigation of charges, right to be 34c-------__----_--7-10 

present at. 

Oath--------------_----------------- 112b, c, 114c-____--- 22-1, 22-3 

Individual equipment records, official records ---- 144b-----_-- - --___-27-36 

Induction, fraudulent. See Fraudulent enlistment, 

appointment or separation. 

Inferences : 

See also Presumptions; Evidence, circumstantial. 

Accused testimony ........................ 72b---------------- 13-1 

Defined---------------------------------- 138a(2)------------ 27-5 

Bad checks------------------------------- 202a-_-----_-__---- 28-55 

Bodily harm, intent to inflict --------------- 207c(2)-------_----- 28-64 

Continuing conditions- _------_----------- - 138a(2)- - --___---- - 27-5 

Continuing residence of deponent- ------- - -- 138a(2)- - ---- __ ---- 27-5 

Delivery of letter from mailing ------------- 138a(2)------------ 27-5 

Desertion, from prolonged absence ---------- 164a----------_---- 28-10 

Drugs, wrongful possession-- - - - - - - -- - - -- - -- 213b- _ --- - ---- - - - - - 28-72 
Inferences-Continued par. Page 

Identity of name and person-- - ------------ 138a(2)------------ 27-5 

Marihuana, wrongful possession- ---- - -- ---- 213b-------_------- 28-72 

Military propertyDamage, loss, or destruction ----------- 187b-----_--------- 28-36 

Type or kind ......................... 187c--------------- 28-37 

Natural and probably consequences of act 138a(2)- - - - - - - ---- - 27-5 

intended. 

Official records- - - ........................ 144b--------------- 27-36 

Orders, legality of ......................... 169b--------------- 28-18 

Possession of recently stolen property- ------ 138a (2) - - - - _ ---- _ -- 27-5 

PropertyMilitary-----_-----__---------------- 187c--------------- 28-37 

Value of ............................. 200a(7)--------_--- 28-51 

Public official, legally in office -------------- l38a(2) ------__----27-5 

Rape, consent to intercourse --------------- 199a--------------- 28-47 

Rebuttal of ........................... 138a(2)------------ 27-5 

Steal, intent to .......................... 200a(6)------------ 28-50 

Theft, from failure to account for or deliver 138a(2)------------ 27-5 

property. 

Weight, given to ......................... 138a--------------- 27-5 

Influencing officers of court .................... 38----------------- 8-3 

Informants : 

Privileged communications-- - -- ------------ 151b(l)---- -- -- -- --- 27-59 

Innocence, presumption of ..................... 73b-_-------------- 13-3 

Inquiry, courts of. See Courts of inquiry. 

Insanity of accused: 

Aggravation of sentence- ------- ----------- 123---------------- 24-5 

Bar to trial .............................. 30e, 120d, 121 ------- 7-2,24-2 

Board of Medical OfficersInvestigation by ...................... 121---------------- 24-2 

Referral to ........................... 121---------------- 24-2 

Report of ............................ 121, 122c ----------- 24-2,24-5 

Burden of Proof--------------__---------- 122a--------------- 24-2 

Business entries, admissibility as evidence ---- 122~-------------- _ 24-5 

Charges and specification, action on, when 121, 12% -_--------- 24-2,24-5 

suspected. 

Charges, effect upon -------- - ----- -- - ------ 30e, --- - -- -- ------- 7-2 

Convening authority, action ofGeneral 86e, 124 --------_--- 17-5,24-6 

Disapproval of sentence because of ------ 89c(2)124----------- 17-12,24-6 

Inquiry when suspected ------------__--124---------------- 25-6 

Defined-----------------_----------------- 120-------------_-- 24-1 

Disapproval of sentence because of ---------- 89c(2), 124 ---------- 17-10,24-6 

Evidence of-_----------_----------------- 122c----..------_--- 24-5 

Expert testimony on ...................... 122c--------------- 24-5 

Findings, reasons for- -- - ---- - - - - - - -- - --- _ - 74f (3)-- --- - - ---- - -- 13-8 

Inquiry before trial- ...................... 121---------------- 24-2 

Inquiry by the court 

Duty to raise issue .................... 122a---------- ----- 24-2 

Findings........................... 122b--------------- 24-3 

Interlocutory questions ------__--------57a(l), c, dl 122b ---- 10-10, 10-11, 

10-12, 24-3 

Reconsideration of findings.-- -------- - - 122b(3) ------------ 24-4 

Sentence, mitigation or aggravation- -__-123---------------- 24-5 

Lack of mental capacity at time of trial ----- 120d-----_--------- 24-2 

Medical board, determination -------------- 121---------------- 24-2 

Medical reports, admissibility as evidence-- -- 122~------ - -:- - --- - 24-5 

Mental disease defined ------ - -------------- 120b-_---_---------24-1 

Mental capacity .......................... 120d, 122b(3) ------- 24-2, 24-3 
INDEX 

Insanity of accused-Continued 

Mental responsibility, lack ofGeneral-------------- ---------------

Partial 

Disease distinguished from character 

defect. 

Reasonable doubt ~oncerning------- ----

Mitigation of sentence--- ------------------

Motion concerning ........................ 

Motions for appropriate relief-- ------------

Motions, time for making ------------------

Opinions testimony concerning ------------- Post trial ................................ Presumption of sanity ..................... 

Review, issue raised during-- -------------- Right and wrong, ability to distinguish between. 

Insanity of witnesses .......................... 

Insignia, wearing unauthorized, specification form 

(Art. 134). 

Inspections by the court ....................... Inspector General, report of -------------------

Privileged communication--- --------- - - -- - - Instructions to court: 

Additional for sentencing- ------ -----------

Arguments concerning--------------------- 

ContentsBurden of proof ...................... 

Elements of each offense ---------------

Maximum punishment -----------------

Reasonable doubt ..................... 

Presumption of innocence --------------

Conveningauthority----------------------

Experttestimony-------------------------

pm. Page 

120b--------------- 24-1 

120c--------------- 24-1 

120b--------------- 24-1 

74a(3), 120b, 122a, b- 13-4, 24-1, 24-2. 

24-3 

123---------------- 24-5 

67d---------------- 12-2 

69f- - _- _. -----_-_-_-12-9

57d---------------- 12-2 

122c, 138e ---------- 24-5, 27-7 

124---------------- 24-6 

122aJ 138a(l) ------- 24-2, 27-5 

124---------------- 24-6 

120b--------------- 24-1 

148c--------------- 27-51 

App 6c(187) -- - ----- A6-26 

54e---------------- 10-6 

151b(3)------------- 27-61 

151b(3)-------- - ---- 27-6 1 

760(1)- ----- -------- 13-13 

73d---------------- 13-3 

73b---------------- 13-3 

73a---------------- 13-2 

76a, b -------------- 13-11, 13-13 

73b---------------- 13-3 

73b---------- ------ 13-3 

38----------------- 8-3 

138e--------------- 27-7 

General----,---------------------------

73----------------- 13-2 

Inconsistent statements .................... 

Joint trialStatement of accomplice ---------------

Stipulations in joint or common trial ---- Maximum punishment -----------------_---

Military judge 

Contents-----------------------------

Duties............................... 

Lesser included offense- -- - --- - - - - - - - --

153b(2)(c)- --------- 27-69 

140b--------------- 27-19 

154b(3)------------- 27-73 

76a1 b- ------------- 13-11,13-13 

73------..---------- 13-2 

73----------------- 13-2 

73a- ---- - ------ - - -- 13-2 

Summarize issues and evidence ----- ---- 73c- -------------_- 13-3 

Record of arguments concerning ------------ 73c, d------------ - - 13-3 

Request for additional ..................... 

Rulings on request ........................ 

Sentencing------------------------------

Special courts-martial- --------------------

Witnesses, credibility ...................... 

Insubordination. See Disobydience; Disrespect; 

Contempt toward. 

Insufficient funds. See Checks and making, drawing, etc. 

Intelligence, giving to enemy. See Enemy, giving 

intelligence to. 

Intent: 

See also Guilty state of mind. 

74e 13-7 

73d---------------- 13-3 

76b(l)-------------- 13-13 

78----------------- 14-1 

153a--------------- 27-66 

Allegation in specifications ----------------- 28a(3)-------- ------ 6-3 
Intent-Continued 

Drunkenness, effect upon------------------ 

Element of offense. See specific offenses, 

discussion of. 

Evidence ofActs preceding or following offense ----- Statements of ........................ 

Ignorance ofFact................................ Law................................. 

Interest: ' 

Witnesses, interest of ...................... 

Interlocutory questions: 

par. Page 

154a(3)------------ 27-71 

28a(3) ------------- 6-3 

138g(3) ------------ 27-11 

142d--------------- 27-24 

154a, (4) ---------.-- 27-72 

154~(5)------------ 27-72 

148e--------------- 27-52 

Arg~rnenton---------------------------~- 53g------------..--- 10-5

Excluding members of court ------------ 57g(2)-------------- 10-12 , . Challenges, aris~ng during -------------__---62h(2)--------- 1--- 11-8 

Inquiry on ------- -- ---------- ----------- 57g------------ ---- 10-12 

Military judgeInquiryon---------------------------

Ruling upon------------------------- 

Rules of evidence regarding- ------ --------- Rulings uponForm................................ Military judge ........................ 

Recorded in record of trial -------------

Special courts-martial without a military 

judge, president of 

Voting upon ------------------------------

International conventions, limitations upon punishplent prescribed by. 

International law: 

57g,62h(2)--------- 10-12,ll-9 

57----------------- 10-9 

137------- --------- 27-4 

57e---------------- 10-12 

57,62h(2)---------- 10-9, 11-9 

57g(2)-- ----------- 10-12 

57c, 62h(3) ---- - ----- PO-11, 11-10 

57e,f, $2h(3) -------- 10-12,ll-10 

14b---------------- 4-4 

Courts-martial subject to- ---_------------- 2------------------ 1-1 

Judicial notice of ......................... Jurisdiction, concurrent -------------------- Visiting armed forces, jurisdiction over- -----

Interpreter: 

Accuser barred----------------------- 

Accused's right to ......................... 

Compensation of ......................... 

Counter-interpreter, ,accused's right to--- ---- Cowts of inquiry ......................... . . 

Depositions taken through 

Detail of ................................. 

Duties.................................. 

Former testimony through -----------------

Oath- .................................. -

147a--------------- 27-48 

12----------------- 4-3 

12----..----- - - - - - - 1 '4-3 

7------------------ 3-6 

53i-----.---------- 10-5 

50b---------------- 9-16 

5Oc------- - -------- 9-16 

7---------------- 1- 3-6 

141---------------- 27-20 

7------------------ 3-6 

50b-.-------------- 9-6 

141----------- ---- 27-20 

50b, 61d, 1124 c114e-.. 9-6,ll-2,22-1, 

.22-3 

Statements made through -------_--_-----141---------------- 27-20 

Swearing of ---- ---------- ------ - --- - -- - - 61d, 112~- ------ --- - 11-2,22-1 

Testimony given through ----------_-__---- 82b(l), 141 --------- 16-1,27-20

Use of ................................... 

Interrogatories. See Depositions. 

Investigating officer: 

See also Investigation of chargp. 

Accuser barred from acting as ----_-----_-- -

Defined----............................. - -

Depositions, duties concerning--- - - - - - --- - --

Detail of ............................... 

Eligibility, to be member of court-martial--- 

50b-----_---------- 9-16 

34a-------- -------- 7-9 

64----------------- 11-10 

30f--- - -- - - - ------- 7-2 

34a---------------- 7-9 

4a----------------- 2-1 
INDEX 

Investigating o5cer-Continued par. Page 


General--------------------------------- 34a-------..-------- 7-9 


Ineligible to act as- 


Member of court ----------- - - - - -- - - - - - 62f(5)-- ---- - - - ---- - 11-8 

Member of prosecution-. -------------- 6a----------------- 3-3 

Member of defense-------------------- 6a------..---------- 3-3 

Military judge ---------- - --------- - - - - 62f(5)-------------- 11-8 

Oaths, authority to administer -------------- 113---------------- 22-2 

Required under Article 32- ----- - ------ - -- - 30c, 33e, 34~~- --- - -- 7-2,7-6,7-9 

Report of, formal, informal --------------- 34e, f-------------- 7-11,7-12 

Investigation of charges: 

See also Charges and Specifications, preliminary inquiry. 

AccusedCopy of substance of testimony --------- 33i- --------------- 7-7 

Counsel, right to ---- ------------------ 34b, c -------------- 7-9, 7-10 

Cross-examination, right --------------- 34b---------------- 7-9 

Restraint of during- ------------------ 20c---------------- 5-3 

Right to additional investigation ----- - - - 33e(2)------- - --- - - - 7-6 

Rights, explanation of ----------------- 34b---------------- 7-9 

Alteration of charges ---------------T------ 33e(2)-------------- 7-6 

Charges, dkfect in ......................... 34a---------------- 7-9 

Convening authority, duties of- ------------ 33e- --------------- 7-6 

Courts of inquiry. See Court of inquiry. 

Defects arising out of ...................... 69c---------------- 12-8 

Motions for-appropriate relief for defects in-- 69c-- ----------_--- 12-8 

New investigation, grounds- - - --- - - ------ - - 33e(2)------ - ------- 7-6 

Officer making. See Investigating officer. 

Preliminary to preferring ------------------ 33e(l), 32b ---------- 7-6, 7-3 

Presence, government counsel- ------- - - ---- 34c- --------------- 7-10 

Required under Article 32, UCMJ ---------- 30c, 33c, 34a- ------ 7-2, 7-5, 7-9 

Irons, use prohibited ........................... 125------_--------- 25-1 


Irregularities. See Errors. 


Irresistible impulse. See Insanity. 


Jeopardy, double. See Former jeopardy. 

Joint offenses: 

See also Accomplice; conspiracy; aider. 

General--------------------------------- 26d------------_--- 6-2 

Participant members of different armed 26d----------_----- 6-2 

forces. 

Joint task force, jurisdiction of commander ------- 13----------------- 4-3 

Joint trial: 

See also Common trial. 

Accused, rights ofEnlisted persons requested for court ----- 61g----_----_----_-11-5 

General-------- -- - - --- - - --------- - --- 53c, 69d- -- _---_--- - 10-1,12-8 

Members of different armed forces- -- - - - 13--- - - - - --- - - - - - - - 4-3 

Military judge alone, request for trial by-- 5317--- - -_ - - --- - --- - 10-1 

Rights of each retained ---------------- 53c--- ---_--------- 10-1 

Challenges, peremptory .................... 53c, 62e ------_-_---10-1, 11-7 


EvidenceEvidence of statement of an accused ---- 140b-----_--------- 27-19 

Limitations on use .................... 53c--_---_---_-----10-1 . . Flndlngs-- ----- - - _ -- - - ---- - - - ----- - ------ 74b(l)------- - -- - - - - 13-5 

Severance, motion for-- - _--------_------ - 69d---------------- 12-8 

Stipulations, instructions concerning ------ - - - 154b(3)------------- 27-73 

Joyriding. See Wrongful appropriation. 
INDEX 

Judge. See Military judge. 

Judge advocate or law specialist: 

See also Staff judge advocate or legal officer; 

Judge Advocate General. par. Page 

Defhed.................................. 6b----------------- 3-4 

Detail of, as trial or defense counsel --------- 6b, c --------------- 3-4 

Oaths, authority to administer ----_--------- Art 136(a) (l)_-- _--- A236 

Judge Advocate General: 

See also Judge advocate or law specialist; 

staff judge advocate. 

Advice on charges------------------------- 35b---------------- 7-12 

Advice to convening authority when sentence lOOb(3)- - - - - - - - - - - - 20-2 

set aside by Court of Military Review. 

Appellate review (Art. 60) ----------------- 103---------------- 20-6 

Appellate counsel, detail of ------_---------- 102a--------------- 20-5 

Assistant Judge Advocate General- --------- 104---------------- 20-6 

Branch offices---------------------------- 104_--------------- 20-6 

Powers------------------------------ 104---------------- 20-6 

Certification of counsel at courts-martial ----- 6b, 61f(1) ----------- 3-4, 11-3 

Convening authority for advice ------------- 85c- --------------- 17-3 

Convening authority after action- - - -------- 99----------------- 20-1 

Counsel, suspension of ..................... 43----------------- 9-6 

Court of Military AppealsCourt of Military Review decisions, for- 100b, c ------------- 20-2, 20-3 

warding to. 

Detail of Appellate Counsel ------------ 102a--------------- 20-5 

Notification of reference to ------------- 100b(2), 103- - ------ 20-2, 20-6 

Court of Military Review, procedure pre- 100d-------_------- 20-4 

scribed. 

Courts-martial members from different corn- 4g(3)--------------- 2-4 

mands. 

New trials- - ............................. 109, 110 ----_------- 21-1, 21-3 

Notice to accused and counsel of referral to 100b(2), 103 - - ---- - - 20-2, 20-6 

Court of Military Appeals. 

Petition for new trialCoast Guard------------------------ 109c--------------: 21-1 

Court of Military Appeals- - - --------- - 109c- - ------------ - 21-1 

Powers after final review ----- - - --------_--- llOA---------------, 21-3 

Procedure for Courts of Military Review- - - _ 100d--- - ----------- 20-4 

Record of trial transmittal, general courtsmartial- 99----------------- 20-1 

Sentences, action on by President ----------- 97a, 98, 101, 105b ---- 19-3, 20-1, 20-4 

20-6 

Suspension of counsel----_----------------- 43..-----------..---- 9-6 

Judge Advocate of Air Force -------_----_------ 6b----------------- 3-4 

Judge Advocate of Army-- - ------------------- 6b----------------- 3-4 

Judge Advocate of the Marine Corps ----------_- 6b----------------- 3-4 

Judge Advocate of the Navy ---------------_---6b--_-------------- 3-4 

Judgments of courts-martial: 

See also Findings; Sentence. . . Finality of -_-____---_-_--------------- 108------..-..------- 20-7

Judicial notice: 

Defined.......................... 147a--------------- 27-48 

Evidence of in record ------------------- 147a--------------- 27-48 

Foreign law .............................. 147b--_------------ 27-50 

Formal evidence for basis ------ ---_--- - __-- 147a----.---------..27-48 

Jurisdiction: See also special subjects. 

Appellate Review over members of- -------- 13----------------- 4-3 

Arrest, effect of ........................... 18b(l)-------------- 5-1 

Asserting the lack of- - ---------..---------- 68b----------------
 12-4

Burden of proof - - - ----- - ------ - ------ -- -- 44f(3)-------------- 9-8 

Jurisdiction-Continued Par. Page 


Civil authorities over military personnel- --- - 12----------------- 4-3 


Courts-martial, general- 


See Courts-martial, jurisdiction. 

Courts of inquiry - ........................ 2------------------ 1-1 

Crimes and offenses under general Article 134- 213e ---_---_------- 28-73 

Foreign nation over forces of visiting armed 12-----_----------- 4-3 

force. 


General courts-martial. See General courts- 


martial. 

Joint.command------__--------------- 13----..------------ 4-3 

Joint Task Force, commander -------------- 13----------------- 4-3 

Lack ofAssertion---------------------- 68b---------------- 12-4 

Motion in bar of trial- - - --------_----- 68b(2), 215a- - ----_- 12-4,29-2 

MilitaryAgency for exercise .................... 2------------------ 1-1 

Enemy territory ...................... 2,14--------------- 1-1,4-4 

Persons subject to- - - ----------------- 9_----------------- 4-1 

Sources------------------------------ 1------------------ 1-1 

Military commissions ...................... 2,12,183, 185 ------- 1-1,4-3,28-33, 


28-35 

New Trials ---- -- - - - --- ------------------- 109, 110-.. ------ --- - 21-1,21-3 

Notice to accused and counsel of referral to 100b(2), 103- - ------ 20-2,20-6 

Court of Military Appeals. 

Offenses in foreign nation ----_-----_------- 12-__-----_-__--_-4-3 

Petition for new trialCoast Guard------------------------- 109c--..-_----_-__-- 21-1 

Court of Military Appeals ------------- 109a---_--_----_---21-1 

Plea to charges, not admission of- - - -------- 70a---_--_--_------12-9 

Provost Courts ........................... 2----_--_-----_----1-1 

ReciprocalRegulations of President of United States- 13 ---- - - -_-----_-_-4-3 

When exercised----------------------- 13-----..-------__-- 4-3 


Restraint, effect of-- ------------- - ----- -- - 18b(l)----_--- - ----_ 5-1 


Review of record on acquittal- -----_---_---86b(2)----___--_--__
 17-4 

Termination----------------------------- 11---__------_-..--- 4-2 

Jury. See Courts-martial, members. . . Justification ............................ 216a------_------_2 29-4 


Killing. See Homicide. 

Knowingly and intentionally failing to enforce or 

comply with the provisions of the code, Article 

98: 


Discussion-----__----------------------- 177b----__---___--- 28-27 


Proof................................... 177b-----__----__--28-27 


Specification form ......................... App 6c(42) - - ---- --- A6-9 


Knowledge of an offense, report of, toCommanding officer ....................... 31-_---___-----__-- 7-2 . . Mihtary authorities ....................... 29a-------_-------- 7-1 


Larceny : 

Discussion------------------------------- 200a--------------- 28-48 

Proof................................... 200a--------------- 28-52 

Specification form--.. _ - - - - _ _ - - - - _ - - - -- - -- - - App 6c (90) ---- - _ - - - A6-15 

Checks. See Checks. 

ElementsGeneral.............................. 200a(l) ------------ 28-48 

Intent--------------------_---------- 200a(6)------------ 28-50 

Ownership of property ----------------- 200a(3)-- - - -------- 28-49 
INDEX 

Larceny-Continued 

Elements-Continued Par. Page 

Taking, obtaining, or withholding ------- 200a(2)- - - - -------- 28-48 

Wrongful taking, obtaining, or with- 200a(4r------------ 28-49 

holding. 

Embezzlement........................... 200a(l) ------------ 28-48 

False pretenseDefined.............................. 200a(5)------------ 28-50 

Obtaining property by ---------- .------ 200a(5) - -- --------- 28-50 

Intentrequired-----------__--------------200a(6)------------ 28-50 

Lost property ............................ 200a(8)------------ 28-51 

Ownership of property defined --------_----- 200a(3)--- - -------- 28-49 

Single larceny- ---_-..................... 26b, 200a(8)- ------- 6-2, 28-51 

Stolen propertyPossession of, inference arising from--- -- 138a(2)------------ 27-5 

Sale of ............................... 200a(6)------------ 28-50 

Taking, obtaining, or withholding ---_------- 200a(2)- ----------- 28-48 

Value of stolen property- ---- -------------- 200a(7)------------ 28-51 

Wrongful appropriation as lesser included 200b--------------- 28-52 

offense. 

Wrongful taking, obtaining, or withholding--- 200a(4)-- ---------- 28-49 

Law specialist: 

See also Judge Advocate or law specialist. 

Defined................................ 6b-------..--------- 3-4 

Detail of, as trial or defense counsel --------- 6b, c- -------------- 3-4 

Oaths, authority to administer ---------__---113------------..---22-2 

Law of war: 

General courts-martial, jurisdiction over- ---- 14a------- - -------- 4-4 

Judicial notice of- - - --------------__-----147a---------..----27-48 

JurisdictionConcurrent--------------------------- 12----------------- 4-3 

General courts-martial ----------------- 2,14--------------- 1-1, 4-4 

Military----------------------------- 2------------------ 1-1 

Source of military jurisdiction ---------- 1------_----------- 1-1 

Punishment------------_-----_-_--------- 14b-------..-..------ 4-4 

Lawful order, failure to obey. See Failure to 

obey lawful order. 

Lawful orders: 

Obeying as defense to trial ------------_---- 216d--------------- 29-5 

Leading questions: 

See also Questions. 

General rule --------------- - -- - -- - - - -- - --- 149c(l) (a) --- - -- --/- - 27-56 

Cross-examination, use in ------------------ 149b(l)- ------------ 27-54 

Depositions ..................... 117b(7), 145a -------- 23-6, 27-42 

Exceptions--------- __--_- ---_-------- - --- -- - 149c(l) (b) - --------- 27-56 

Leaving post before being relieved. See Misbehavior of sentinel or lookout. 

Legal documents. See Evidence, documentary. 

Legal officer. See Staff judge advocate or legal 

officer. 

Lesser included offense: 

Acquittal of greater offense- -------- - - - ---- 74b(3)-------------- 13-5 

Approval of finding of guilty when evidence 87a(4) ------------- 17-6 

insufficient to support finding on greater 

offense. 

Convening authorities approval--- ----- - - - - - 87a(4)-- ----------- 17-6 

Findings................................ 74b(3), 158 --------- 13-5, 28-6 

Former jeopardy --------.--- - --- - ------ - - - 215a- - - - -- - .------- 29-2 

General................................. 158---------------- 28-6 

Instructionsto court---------------------- 73a---------------- 13-2 
Lesser included offense-Continued Par. Page 

Plea in capital case ------------------- ----- 700--------_------- 12-9 

Punishment----------__-------------------- 76a--------------..- 13-11 

Rehearing-------------------------------

Special findings ........................... 

Statute of limitations, effect on -------------

Table of ................................ 

Letters: 

See also Evidence, documentary. 

Authentication ............................ 

Letter of reprimand or admonition --------------

92a--..------------- 18-1 

74i- - ----------_--- 13-8 

74h---------------- 13-8 

App 12 ------------- A12-1 

143b-----_---------- 27-29 

126f- - ------------- 25-4 

Letter of t,ransmittal, evidence summarized in ---- 33i---------------- 7-7 

"Lie detector" tests. See Polygraph tests ---------

Life imprisonment: 

See also Punishment. 

General---------------------------------

Murder conviction------------------------ 

Votes number required ----- -- - ------------

Lineal position, sentence to loss of -------------


Logs, as official records ........................ 


Lookout. See Sentinel or lookout. 


Looting 01. pillaging (Art. 103) : 


Discussion--_---------------------------

hoof------------------------------------

Specification fokm ----------- _ ------- -- ----

Losing military property (Art. 108): 

Discussion.............................. 

Proof................................... 

Specification form ----- - - _-- ---- _ ----- -- ---

Loss, notes of trial ............................ 

Trial record .............................. 

Lost property, subject to larceny ----------------

Mail: 

Inference regarding receipt-- -_--- _ ---------

Obscene matter, specification form- - _ -------

Obstructing, destroying, opening, etc., specification form. 

Maiming: 

142e--------------- 27-25 

126a--------------- 25-2 

126a-----..---__---- 25-2 

76b(3)------------_- 13-14 

126i--------------- 25-7 

144b, d ------------- 27-36, 27-39 

182d--------------- 28-32 

182d---------_-_--- 28-33 

App 6c(59) ----- _--- A6-11 

187a, b ---------_--- 28-36 

187a, b ------------- 28-36 

App 6c(66-67) - -- - -- A6-12 

82i---_-----_------16-4 

82h-------__------- 16-4 

200a(8)---------_--- 28-51 

138a(2)------ -----_- 27-5 

App 6c(162) -- - - -- -- A6-24 

App 6c(160-161) - - -- A6-23 

Disoussion--------_--------------------- 203--__--__--------28-58 

Proof-----------------------------------

Specification form ......................... 

Making, drawing, or uttering check, draft, or 

order without sufficient funds: 

Discussion.............................. 

ProofInstrument given for procurement of an 

article or other thing of value. 

Instrument given for payment of past 

due obligations or any other purpose. 

Specification form ......................... 

Makine; or using a false writing or other paper in 

connection with claims. See fraud against the 

United States. 

Malingering : 

Discussion ----__--_A--------------------


Proof................................... 


203--___-__--___--- 28-59 

App 6c(97) ---_---__A6-16 

202A--__--.---___-- 28-55 

202A_-_-____- -_--_-28-58 

202A _-__--_-_---_-- 28-58 

App 6c(95, 96) ----_- A6-16 

194--___---_-_-----28-42 

194--------_------- 28-42 

Specification form --_-__--_-_--_----------- App 6c(82) - - ----__-A6-14 

Maltreatment of person subject to orders: 

Discussion----__--_--------------------- 172_-----_-----..-_- 28-22 

Proof................................... 172----------_-_-_-28-22 

Specification form ------_--_-_--_----------App 6c(31)--- - - ---- A6-8 
Maltreating prisoners: 

Discussion-------------------------..-----

Proof-------------------------------

Specification form ......................... 

Mandatory punishments. See Punishment, mandatory. 

Manifest necessity, as ground for termination of 

trial. 

Manual for courts-martial: 

Supplemental material -------------------

Use during trial- -- - ----- -----------------

Maps, admissibility as evidence -----------------

Marihuana, possession of: 

Inference arising from- -- _ ----------- _--- _-

Specification form ------------ ------- - -- ---

Marriage certificates. See Official records. 

Martial law, defined .......................... 

Mast, bringing before: 

See also Nonjudicial punishment. 

Procedure------------_------------------

Mathematical charts, admissibility as evidence- --

Maximum punishments. See Punishments, maximum. 

Medal, wearing unauthorized, specification form- -

Medical Board. See Insanity, board of medical 

officers. 

Medical certificate, for bread and water or diminished rations. 

Medical examination, right against self-incrimination. 

Medical officers: 

Malingering, opinion on feigned illness -------

Privileged communications-_ ------_---------

Members of courts-martial. See Courts-martial, 

members. 

Memoranda: 

See also Evidence, documentary. 

Par. Page 

184b--------------- 28-34 

184b--------------- 28-35 

App 6c(63)--- ------ A6-11 

56b, 215b- - - -- - -- - - - 10-8, 29-2 

44j(4)-------------- 9-7 

53d----------------- 10-1 

144e--- -L- -- -- ,--- 27-41 

213b--------------- 28-72 

App 6c(144,145,146)- A6-22 

2------------------ 1-1 

133b------..-------- 26-10 

144e-----_--------- 27-41 

. App 6c(187) - - - ---- - A6-26 

125------.--------- 25-1 

150b---- - ---------- 27-58 

194-------_-------- 28-42 

151c(2)----- ------ - - 27-62 

Defined .-------------------------------- 146a------------:--27-47

Admissibility as evidence- --- - - - - - - - ---- - - - 146a, 149c(l) (b) --- -- 27-48, 27-56 

Mental: 

See also Insanity. 

Capacity defined -.--------_----------- 120d-----_--------- 24-2 

ConditionInquiry directed by higher authorityOpinion of ....................... 

Sentencing....................... 

Derangement------------------ - - - - - --

Disease, defined---------------------- 

Impairment, basis for determining sentence. 

Infirmity of witness ----------------

Responsibility, defined ----------------

Midshipmen, jurisdiction over ----------------- Military commission: 

General................................. Concurrent jurisdictions- -- ----------------

Contempts punished by .................... 

Jurisdiction ofGeneral------ - - --_- - --- ----- --- - ---- -

124----------- ----- 24-6 

122c--------------- 24-5 

123---------------- 245 

120b-- - - ------ -1-- - 24-1 

120b--------..------ 24-1 

76a(2), 123- -- - -- - -- 13-1, 24-5 

148c-------_--..---- 27-51 

120b--------------- 24-1 

16a---------------- 4-6 

2, 10, 118a---------- 1-1,4-523-8 

12---------..-------4-3 

10---..------------- 4-2 

2------------------ 1-1 

Aiding the enemy ..................... 183---------------- 28-33 


Spies................................ 185-----.----------
 28-35 
INDEX 

Military duty: par. Page 

Punishment as ............................ 125, 131b(2) -------- 25-1, 26-3 

Military exigencies, absence because of: 

Defense counsel-------------_-------------- 6c--------..-_--_--- 3-4 

Members---------------------.--------- 4c, 37b-----------..- 2-2,8-2 

Military judge------------------------- 15b---------------- 4-5 

Military government in occupied enemy territory- 2------------------ 1-1 

Military judge: 

Absence from trial- ....................... 4f, 39d ------------- 2-4,9-2 

Accused : 

Counsel, right to-- -- - ------ -- --------- 6lf(3)--_ _ - - _ - __ - - _ - 11-4 

Insanity, inquiry into ----------------- 122b, c ------------- 24-3, 24-4 

Pleas, inconsistent or improvident ------- 70b---------------- 12-9 

Statute of limitations, right to plead ----- 74h---------------- 13-7 

Acting as counsel, eligibility ---------------- 6a----------------- 3-3 

Admissibility of evidence, determination by-- 57a---------------- 10-7 

Alone, trial by military judge ------------ - - - 4a, 39b(5), 53d(2) ---- 2-1,9-2,lO-2 

Authentication of trial record --------------- 39f, 82f- ----_------ 9-3, 16-3 

Certification......................... 4e, 36b ------------- 2-3, 8-1 

ChallengesFor causeEligibility, limitations of inquiry ---- 629---------------- 11-8 

General-------------------- 62----------------- 11-6 

Grounds..................... 62f, g--------------- 11-7, 11-8 

Interlocutory questions arising dur- 62h(2) - - - ---------- 11-9 

ing hearing. 

Must be for cause ----------------- 62a, g-- ------------ 11-6, 11-8 

Procedure.................... 62h---------------- 11-9 

Excused, procedure- - - --------- 62c---------------- 11-7 

Peremptory----_---------------- 62e---------------- 11-7 

Contempts, ruling onL-- ------------ -- __- --- - 118b, App 8c--- -- -- - 23-8, A8-25 

Counsel, eligibility to serve as ---------_---- 6a----------------- 3-3 

Deliberation and vote, excluded from- . . Findings- - - -- - ---- - - - ------- - - - --- - - - 74d(l)- - - - - -- - ----- 13-6 

Sentence------__--------------------- 76b(2)------------_- 13-14 

Depositions-------------------- 117b---------..----- 23-5 

Detail ofActive duty status, inference of -------- 62g---------------- 11-8 

Failure to-----_-----__--------------- 4e--,.--------,.-_--- 2-3 

General.............................. 4e--------__-----_-2-3 

Joint command ....................... 4g(l)------------_- 2-4 

New military judge during trial --------- .39e.. -------_------- 9-2 

From same armed force, other command- 4f - - -------- - _ ---- - 2-4 

From other armed force- - _ ---_-_------4g(l)-----_--------- 2-4 

DutiesDetermines admissibility of evidence- - - - 57a--- - -- - ---- -- -- - 10-7 

General------_-_--------------------- 39b-_-___.._----__-_9-1 

Informal inquiry ...................... 61a_-_-_-__-_----_- 11-1 . . .. Ehgb~hty----------- ----------------- - - - - 62a, g-- -____---- --- 11-6, 11-8

Exclusion of members by - - -- - -- ----- - _ ---- 57g(2)----__ _ _ _ -_-_ _ 10-12 

EvidenceComment upon ....................... 73c- ---_-_---------13-3 

Examination by ...................... 57g(2)-------------- 10-12 

Ruling on admissibility --_------------- 57d---------------- 10-12 

Finality of rulings ......................... 57d---------------- 10-12 

Finding of not guilty, motion for ----__--_-__57d, 71a --------_--- 10-12, 12-11 

Findings, proper form- - - ---- - - - ------ - _ --- 74f(l)------- - --- - - - 13-7 

Insanity of accused, inquiry into --------_--- 57d, 122b, c---_----- 10-12,24-3,244 

Instructions to courtAdditional ........................... 74e_--------------- 13-7 

Burden of proof- - - -----------------_- 73b---------------- 13-3 
Military judge-Continued 

Instructions to courtContinued 

Contents---------------------------

Elements of each offense--------------- 

Interlocutory questions ----------------

par. Page 

73----------------- 13-2 

73a---------------- 13-2 

57g(1),(3)- - -------- 10-12, 10-13 

Maximum authorized punishment ---- - - - 76b(l)------ - - ----- - 13-13 

Presumption of innocence ----------_-__ 73b---------------- 13-3 

Reasonable doubt of guilt -------------- 73b---------------- 13-3 

Summarizing issues and evidence- - - --- - 73c---------------- 13-3 

Interference with trial ..................... Interlocutory questionsSee also Interlocutory questions. 

Inquiry-----------------------------

Rulings by ------------------------

39b(2)-------------- 9-1 

579------------..--- 10-12 

574 dl e ------------ 10-10, 10-12 

Investigation of charges by ----------------- 34a----------------- 7-9 

Motions for findings of not guiltyFinality of ruling ---------------------

Procedure for ruling upon --------------

OathAuthority to administer- - - -------- - --- Form--.------__-------------------

Necessity of ....................... 

One-time basis ------------------

Taken by------------------------ 

QualificationsGenerally---------------_----ll------ll574 d -------------- 10-10, 10-12 

71a---------------- 12-11 

113-------- - ------ - 22-2 

112c, 114a_--------- 22-1, 22-2 

112b--------------- 22-1 

112c----------_---- 22-2 

114a------------..-- 22-2 

4e----------------- 2-3 

Convening order, stated in ------------- 4e, 36b, 629 -----_--- 2-3, 8-1, 11-8 

Prior participation in case ------------- - 4e- ---------------- 2-3 

Record of trialAuthentication ..................... 39f, 82f -..---------- 9-3, 16-3

Certificate correcting, signed by-- ------

Disputed entries, ruling on -------------

Former trial, examination of- ----------

Restraint of accused at trial, duty to determine degree of. 

Revision proceedings-- --------------- --- - - 

Seating position ........................... 

Self-degradation, compulsory; determination 

of. 

Self-incriminatory, compulsory; determination of. 

Sentence86c- -------------..-17-4 

49b(l)-------------- 9-15 

81c-----_---------- 15-3 

60 11-1 

80------- -- -------- 15-1 

61b---------------- 11-2 

150~----- - -- - _ -1- - - 27-58 

150b--------------- 27-58 

Ambiguity or illegality of ----_--_-__---76c---------------- 13-15 

Instructions concerning maximum- - - --- 39b(l), 76b(l)- - - --- - 9-1, 13-13 

Special courts-martial ----- --- ------------- 4f --------_--__----2-4 

Special findings .------_------------------- 39b(5), 74i ----_----- 9-2, 13-8

Trial by military judge alone -_--------_-_--4a, 39b(5), 53d(2):_-- 2-1, 9-2, 10-2 

Witnesses, examination by ------__---___--- 54a---__--__--_----10-5

Witness for prosecution, acting as -------_--- 63------__---------11-10 

Military jurisdiction. See Jurisdiction, military. 

Military law: 

Defined.................................. 

Persons subject to ........................ 

lMilitary police: 

See also Police. 

Military property: 

See also Property. 

Damaging, destroying, losingDiscussion........................... 

Proof................................ 

Specification form ..................... 

2--------_------..-- 1-1 

9---..-------------- 4-1 

187b--------------- 28-36 

187b-_------------- 28-37 

App 6c(67) --------- A6-12 
INDEX 

Military property-~onkinued 

Negligence in loss or damage of issued property, inference of. 

Selling or wrongfully disposingDiscussion ........................... 

Proof................................ 

Specification form------- -- - -- i ---- - ---

Suffering to be lost, damaged, etc. 

Discussion........................... 

Proof................................ 

Specification form .................... -

Military records, Authentication of ----- - - - - - - ---

Military tribunals: 

Types of---------------------J----------- 

Minor offenses: 

See also Offenses, minor --------------- - ----

Former punishment- ....................... Minors, competence as witnesses- - - -------------

Par. Page 


187b--------------- 28-36 


187a--------------- 28-36 


187a--------------- 28-36 


App 6c(66) - - -- - ---- A6-12 


187c--------------- 28-37 


187~--,------------ 28-37 


App 6c(68) - - ------- A6-12 


143b(2) (b) ---- ---- - - 27-32 


2------------------ 1-1 


128b--- - - ---------- 26-1 


215~----- ---------- 29-3 


148b-------- - ---- - - 27-51 


Misadventure-------__--------------------- 216b--------------- 29-4 


Misbehavior before the enemy: 

Casting away arms ........................ 

Specification form ..................... 

Causing false alarms- - - -------------------

Specification form- ----- - -- ------------

Cowardly conduct- - - ..................... 

Specification form ..................... 

Endangering safety- - - --------- - ----------

Specification form ..................... 

Not affording relief-- - - ----- - - -- - ------ - - - - 

Specification form ..................... 

Quitting place of duty- -- - --- --- - - - - - ---- - - 

Specification form ..................... 

Running away ............................ 

Specification form ..................... 

Shamefully abandoning .................... 

Specification form---- ---- - --- - -- - - - - - -

Willfully failing to do utmost ---------------

Specification form- --------- -----------

Soliciting or advising --------------- -- ---- -

Misbehavior of sentinel or lookout: 

Discussion------------------------------

Proof-----------------------------------

Specification form ------------ ----- ------- -

Misconduct while enemy prisoner: 

Maltreating fellow prisonersDiscussion---_-----------------------

178d--------------- 28-28 


App 6c(46) - - --,----
 A6-9 


178g--------------- 28-29 


App 6c(49) -- ------- A6-10 


178e--------------- 28-28 


App 6c(47) - - ------- A6-9 


178c-------- ------- 28-28 


App 6c(45) - - ------- A6-9 


17%-- - - --- ------ - - 28-29 


App 6c(51) - - ------- A6-10 


178f -- - ------- - - - -- 28-29 


App 6c(48) - _ ------- A6-9 


178a--------------- 28-27 


App 6c(43) - - ------- A6-9 


17%--------------- 28-28 


App 6c(44) - - - --- - -- A6-9 


178h--------------- 28-29 


App 6c(50) - - - - ----- A6-10 


161---------------_ 28-9 


192------..-------_- 28-41 


192--------------..- 28-41 


App 6c(77) - - - ------ A6-14 


184b--------_------ 28-34 


P~oo~--------___--------------------- 184b----------__--- 28-35 


Specification form ..................... 


Securing favorable treatmentDiscussion---------------------------

Proof................................ 

Specification form ----------__--------

Misnomer in charges and specification -_-------- -

Misprision of a felony: 

Discussion- --------- -- - - - - - _ - _ -- --- --- - _ _ 

Proof --------------------------2--------

Specification form ----- ----------- ---- -- - - -

App 6c(63)--- ----_- A6-11 

184a----_---------- 28-34 


184a--------------_ 28-34 


App 6c(62)- ------_- A6-11 


69b(l)---------_---- 12-7 


213f (6)- - - - - ----- - - - 28-77 


213f(6)------------- 28-77 


App 6c(163) - - -- - - - - A624 


misrepresentation, fraudulent enlistment -----_--- 162___-------------28-9 

- - 

INDEX 

Missing movement: par. Psge 

Discussion--------------------------- 166---------------- 28-15 

Proof------------------------------- 166---------------- 28-16 

Specification form ----- - - --- _ - - ------ - - - - - - App 6c(17) ---- - - --- A6-6 

Mistake of fact, Guilty mind, effect on- - -- ------ 154a(4)- - - _ -------- 27-72 

Mistake of law, Guilty mind, effect on --------_-- 154a(5)- - - --..------27-72 

Mistrial................................ 56e---------------- 10-9 

Mitigation of sentence: 

See also Extenuation and mitigation remission 

of sentence. 

After appellate review ..................... 105--- ------------- 20-6 

Before sentencingEvidence received ..................... 75c-- -------------- 13-9 

Unsworn statement of accused --_------- 75c(2)-------------- 13-9 

Convening authority- -----_--___- -------- 88----------------- 17-7 

Court of Military Review ----------------- 100a---------_----- 20-2 

Former discharge- ---------------------- 75c(4)-------------- 13-10 

General.............................. 75c(4)-------------- 13-10 

Judge Advocate General, power to ---------- llOA--------------- 21-3 

Matters in, discussion of ------__-----_-----75c(4)------------_- 13-10 

Mental condition as basis for -_----_--_-----123---------------- 24-5 

Nonjudicial punishment- - ------_---------- 133, 134 ------------ 26-9, 26-11 

Rebuttal of----------------------------- 75d-----_---------- 13-11 

Sentence, basis for determining- --------- - - 76a(2)- -- - -_------- 13-11 

Morning report, service record, or unit personnel 

diary: 

Absence without leave, entries as proof of--_ - 164a--- ----..-_----- 28-12 

Admissibility as evidence ----_--_----_-----144b, d -----_--L,--27-36,27-39 

Official records ....................... 144b--------------- 27-36 

Motions: 

Appropriate reliefArticle 39(a) ......................... 67b, 69a --_-_------- 12-1, 12-7 

Change of venue---------------------- 69e--_--_---------- 12-8 

Charges and specifications, defects- -- - -- 69b- _---- - -- - --- - -- 12-7 

Charges and specifications, election ----- - 69f ----- - - -----:--- 12-9 

Defenses and objections, before plea ----- 676------_-_------- 12-1 

Defined------_----------------- 69a--_---_--__----- 27-37 

Insanity----------------------------- 69f------------..--- 12-9 

Miscellaneous motions ------_--___----69f- --------__---- 12-9 

Pretrial defects ...................... 69c--_-_----_------12-8 

Procedure after granted ----_--__---__-- 671---------------- 12-3 

Severance........................ 69d---------------- 12-8 

Waiver of------------------------- 67b, 69a------_----- 12-1, 12-7 

Arguments on--------------------_------ 67e--_------------- 12-2 

Article 39(a) session, determination at-_- _ -_- 39b(2), 53d(l) ----_-- 9-1, 10-1 

AssertionFailure to_--_------------------------ 67a, b-------------- 12-1 

Form and content ----_--_--_-------67c, 69a ------_----- 12-2, 12-6 

Notguilty--------------------------- 71a---------------- 12-11 

Procedure---_------------_------------ 67c, 67e------------ 12-2, 12-2 

Time for-----_----------------------- 66b, 67d-__________- 12-1,12-2

Bar of trial-See also Defenses. 

Desertion, constructive condonation of-- 68f- --- - ---------- - 12-6 

Failure to allege an offense-- -- - - -- ----- 68b(3)----- - - - - - ---- 12-4 

Former jeopardy ...................... 684 215b -------_--..12-6, 29-2 

Former punishment --_-----_----------68g, 215c ---_---_--- 12-6, 29-3 

Immunity, grant or promise of-.. ------- 68h---------------- 12-6 

General-----_--____------------------68a, 214_--__-_-__-- 12-4, 29-1 

Jurisdiction, lack of - _ -- _ _ - - _ _ - - _ _ ..-- _ - 68b(2), 215~- - - --- -- 12-4, 29-2 

Offense not alleged-- -- - _ _ -- _ _ - - ----- - - 68b(3)--------- - ---- 12-4 

Pardon-----__--------_-------_--_--- 68e---------------- 12-6 
Motions-Continued 

Bar of trial-Continued 

Speedy trial .......................... 

Statute of Limitations ---------------

Burden of proof in hearings on jurisdiction, 

lack of. 

Contents, general-----_2------------------ 

DefensesAssertion----------------------

Failure to assertWaiver---------------------

Form and content .................... 

DenialBar to other motions ------------------

Plea required ......................... 

DismissSee also Bar of Trial this subject. 

Defined-------------------------

Par. Page 

68i, 215e ----------_ 12-6, 29-4 

68c, 215d ----------- 12-5, 29-3 

44f(3) _------------- 9-8 

67c------__--_--_-- 12-2 

66, 67a, b---..------- 12-1 

67a, b, 69e--..___-__ 12-1, 12-6 

67c, 69a _---_2_---_- 12-2, 12-6 

67f------------_--- 12-3 

67f-- -----_-------- 12-3 

68a---------------- 12-4 

Effect of failure to assert-- ------I----- 67a------------_--- 12-1 

Sustained---------------------------

Elect, motion to .......................... 

Form and content ......................... 

Hearings on .............................. 

Notgugty----_--_-----------------------

67f----------------

69f ----------------

67c, 69a ------------

53d(l), 67e ---------

71a--------_---_---

12-3 

12-9 

12-2, 12-6 

10-1, 12-2 

12-11 

Prior adjudication of same case ------------- 71b--------_------- 12-12 


Procedure for hearings on -__-_---_-__---__-
 53d(l), 67e--- --_--- 10-1, 12-2 


Reconsideration of ........................ 67f ---------_------ 12-3 


Res Judicata--------------_--------------- 71b---------------- 12-12 


Rulings--------------------------------- 67e------..--------.. 12-2 


Severence---_---__---------------------- 69d---..--_-_-..-_..-.. 12-8 


Time of making ...................... 67a, b, dl 69a ------- 12-1,12-2,12-7 


Waiver of right to assert --,--.--_----------
 67a, b ---_------_---12-1 

Motive: 

Evidence of --,-_------------------------- 138g(5)----- -------- 27-11 


Statements as to, admissibility in evidence--_ 142d ---__-__--_-_--
 27-24 

Murder. See Homicide, Murder. 

Mutiny: 

GeneralDiscussion----_---_------------------ 173a_----_--__--_-- 28-23 

Proof--------_----------------------- 173a-_---_--_------ 28-23 

Specification form ---__-_-__---_------- App 6c(32) ---------
 A6-8

Attempted-


Discussion ........................... 173e---------_----- 28-24 


Proof------_------------------------- 173e-----_---___--- 28-24 


Specification form --_---_----_--_------App 6c(35)-.. --___--A6-8 


Failure to report- 


Discussion---_---_---__-__-_-_--_-__- 173d-__-_-_-__-__-.. 
 28-23


Proof------_,-__--_------------------ 173d..---..__---__-- 28-24 


Specification form ..................... App 6c(34)- _---___-A6-8 


Failure to prevent- 


Discussion--_-______--__----_---___-- 173c---___-___-___-
 28-23


Proof----_--_---__------------------- 173c-----_---_----- 28-23 


Specification--- ...................... App 6c(34) -----___-A6-8 


Soliciting--_-_------------------------- 161--------------_- 28-9 


Name, inference of identity from -_--_-________-_ 138a(2)-_--_-_-----27-5 

Narcotics. See Drugs, Marihuana. 

Negligence: 

Culpable................................ 

Reckless................................ 

Simple.................................. 

Wanton ................................. 

198b-_--_---------- 28-46 

190---------------- 28-39 

213f(12)------------ 28-80 

197d--------------- 28-45 

Index-75 
INDEX 

Negligent homicide. See Homicide, negligent. Par. Page 

Neutral powers, citizens of, communicating with 183d------- ------ -- 28-34 

enemy. 

Newly discovered evidence. See New trial, evidence. 

Newspapers, limitations on counsel's statements 42b--_-_--_--------9-6 

to. 

New trial: 

Action upon petition ---- ---- ------- --- --- - 109f-- -------- --- - - 21-2 

Convening authority for ------___------_---llOa(1) ------------ 21-3 

Convening authority's action on --------- - _- 110b--------------- 21-3 

Court, members of, eligibility -------_------- 4a, 110a -__------_--2-1, 21-3 

Deposition, admissibility as evidence- ----- -- 145a----- -- -------- 27-42 

Evidence, newly discovered ---------------- 109d(2)------------ 21-1 

General----------_----------------- lOQa---------_----- 21-1 

Grounds forFraud on the court ----------------- 109d(3)-- ---------- 21-2 

General----_-_--_--__------------------ 109d(l)------------ 21-1 

Newly discovered evidence ------------- 109d(2)------------ 21-1 

Perjury---- - - - - -- - - -- - - - - ----- - - - ---- 109d(3) (a) ----- - ---- 21-2 

Military judge, eligibility ------------------ 110a--------------- 21-3 

Offenses triable on- - - - - _ ----- - - - - --------- 1lOa(2) --- - - - - - - - - - 21-3 

Prior testimony, admissibility as evidence--- 145b--------------- 27-44 

Procedure, in general ...................... 81b-_-------------- 15-2 

Petition for, form- - - ---- _ -_ - - - - - __- -- - - - - --- 109e--- - r- ---- - - :_ - 21-2 

RecordDisposition of --- - _ - - ------- _ - - - -- - --- 110c-- - --- - --- - - - - - 21-3 

Examination of former -----------_---- 81c ----- 15-3 

Request for trial by military judge alone ---_- 110a--------------- 21-3 

SentenceInstruction on maximum ------------___ 81d(l), 110a -------- 15-3, 21-3 

Rules relating to ------------_--------- 81d(l) -- - - --_--_---15-3 

Staying execution of sentence -------_--_-_-- 109a--_------------ 21-1 

Noncommissioned officers: 

See also Enlisted persons. 

Assaulting, Article 91- 

Discussion------_------------- 170b---------..----- 28-20 

Proof................................ 170b--------------- 28-20 

Specification form --------------------- App 6c(24) - -------- A6-7 

Authority ofTo apprehend--------_--------- 19a_--_------------ 5-2 

To quell quarrels, frays and disorder ---- 19b---- _----------- 5-2 

Contemptuous or disrespectful language or 

conduct towardDiscussion--------------------------- 170d-----_--------- 28-20 

Proof ................................ 170d-_--_----------28-20 

Specification form ---- - - --_---- _-- --- - - App 6c(26)- --- - _ --- A6-7 

DisobeyingDiscussion........................... 170c--------------- 28-20 

Proof-------_------------------------ 170~--..---_..-_----- 28-20 

Specification form ------------- _ - - - - --- App 6c(25) --- - -_--.. A6-7 

Noncompliance with procedural rules, Artiole 98- 

Knowingly and intentionally failing to enforce or comply with provisions of the 

Codediscussion------_---^--^----- 177b-------..------- 28-27 

Proof......................... 17721-_-------_-----28-27 

Specification form ..................... App 6c(42)- -------- A6-9 
Noncompliance with procedural rules, 

Article 98-Continued 

Unnecessary delay in disposing of case- Par. Page 

Discussion--------------------------- 177a--------..------ 28-27 

proof ................................ 177a--------------- 28-27 

Specification form ------------ --------- App 6c(41) --------- A6-9 

Nonjudicial punishment: 

See also Punishment; sentence. 

~dmonitionAdministrative ....................... 128c--------------- 26-2 

As punishment ---_-_-----_---_-------131c(l)------------- 26-4 

Appeal of-------------------------------- 135---------------- 26-12 

Apportionment and combination of ---------- 131d--------------- 26-7 

Appropriateness, determination of-- -------- 129b--------------- 26-3 

Arrest in quarters--- ----- - -- - - - -- _- -------- 131b,(l), c(3)--- - - --- 26-3, 26-5 

Authority to impose ....................... 128---------------- 26-1 

Bar to courts-martial ...................... 68g, 215c ----------- 12-6,29-3 

Bread and water, confinement on- ----- - ---- 131b(2), 131c(5) - - --- 26-3,26-5 

Courts of inquiry findings ------------------ 133b--------------- 26-10 

Court-martialEffect of prior non-judicial punishment- - 68g, 215c ------------ 12-6, 29-3 

Right to demand trial by -------------- 132---------------- 26-8 

Commanding officerAction by---------------------------- 32e------_--------- 7-4 

Punishments......................... 131b--------------- 26-3 

Custody, corrective- ----- - ------------- -- - 131b(2), 131c(4) - -- -- 26-3,26-5 

Defenses to .............................. 133---------------- 26-9 

Delegation of power to impose -------------- 128a--------------- 26-1 

Double or increased punishment prohibited--- 128d--- -- - --------- 26-2 

Effect on subsequent nonjudicial pdnishment- 689, 215~- --- - _ - - - - - 12-6,29-3 

Effective date and execution of punishment-- 131e--------------- 26-8 

Election of ............................... 132---------------- 26-8 

Errors, effect of ........................... 130---------------- 26-3 

Equi~alent~punishment, table of --_--------- 131iE----- ---------- 26-7 

Extenuation and mitikation- -_---_--------- 133----- - ------- --- 26-9 

Extra duties- -------------- ----_---- - ---- 131b, 131c(6) - -- - --- 263,266 

Field grade officers, imposed by ------ ------- 131b(2) (b)--- ------- 26-4 

Forfeiture, limitations upon --_------------- 131b---------_----- 26-3 

Former, effect of .......................... 689, 215c---------- 12-6,29-3 

General.................................. 128------------_-_- 26-1 

General and flag officers, imposed by- -------- 131b----- -- - -- ------ 26-3 

Irregularities-- - _ ---- - -- - -- - - - ---- - -- - ---- 130-- - -- - _ - - -:-- - - _ 26-3 

Increased punishment- -------------------- 128d---------_--_--26-2 

Lieu of, t+ial by court-martial --------------- 32e, 339, 35a ----_-_-7-4,7-7,7-12 

LimitationsEnlistedpersons ...................... 131b(2)------_----- 26-3 

Imposed by regulations ---------------- 131a--------------- 26-3 

Minor offenses ---_------- ------- - -- -- - 128b-- - ----- - -- - -_- 26-1 

Noncommissioned and petty officers--- - - 131b(2)------------- 26-3 

Officers and warrant oficers- - _ --- - - -- - - 131b(l)----- - --- _ --- 26-3 

Maximum punishments .................... 131b-----------_--- 26-3 

Minor offenses ---- ----- ---------- ------- - - 128b------- - _ - _---- 26-1 

Mitigation for trial of same act ------------- 75c(4)----------_--- 13-10 

Navi personnel, right to demand courts- 132_---_---_-_---_-26-8 

martial at sea. 

Noncomniissioned officers- --- - -- --_--- ----- 131b(2)------ - - ----- 26-3 

Notification to accused .................... 133---------------- 26-9 

Nonpunitive measures distinguished--- ----- - 128~----- - -- - -_ - - -- 26-2 

Officers.................................. 131b(l)------------ 26-3 

Officer exercising summary courts-martial 33g----_---__--_---7-7 

jurisdiction, action by. 
INDEX 

Nonjudical punishment-Continued Par. Page 

O5cer in charge, authority to administer ----- 2, 128a--- -------- -- 1-1,26-1 

Pay, detention of--- ...................... Policy of--------------------------------- 

ProcedureArmy and Air Force ------------------- Navy, Marines, and Coast Guard ------- RecordContenh----------------------------

Form................................ Written required ...................... Reduction in grade ---------- - ----------- - - Refusal to acceptRecord of ---------------------------- Remission----------,---------------- Reprimands-- -- - -- - ------ - - - - -- - - - - - - - - -- Restoration of rights ...................... Restriction............................. Right to demand trial by court-martial ------ Rights, restoration of .................... Setting aside----------------------------- 

Suspension--- - - --- - --- - - - -- -- -------- - - -- Warrant officer ........................... Nonprivileged communications. See also Privileged communications. 

Nonpunitive measures: 

Nonjudicial punishment distinguished- -- - - - - Not affording all practicable relief and assistance 

(to forces engaged in battle), Article 99- 

Discussion-------------------------------

Proof................................... Specification form -------------------- - - -- - 

Notary public, judicial notice of seals ------------- Nuisance, committing, specification form --------- Numbers, promotion list, sentence to loss of- ------

Oaths: 

Administration of: 

Authorization----------------------

131b 131c(9) -------- 26-3,26-6 

129---------------- 26-2 

133a--------------- 26-9 

133b--------------- 26-10 

133c--------------- 26-11 

133c--------------- 26-11 

133---------------- 26-9 

131b(2), 131c(7) - - - - - 26-3,26-6 

32f(2)----- - -- - - ---- 7-4 

134,135------------ 26-11,26-12 

131c(l),-- --- - - - - --- 26-4 

134,135------------ 26-11, 26-12 

131b, 131c(2) ------- 26-3,26-4 

132---------------- 26-8 

134,135------------ 26-11,26-12 

134,135- ---------- 26-11,26-12 

134,135----- - - ----- 26-11,26-12 

131b(l)------------- 26-3 

151c--------------- 27-62 

128~---- - - ------ --- 26-2 

178i--------------- 28-29 

17%--------------- 28-29 

App 6c(51)-- ------- A6-10 

147a-------- ------- 27-47 

App 6c(164) .------- A6-24 

126i--------------- 25-7 

113---------------- 22-2 

During trial, procedure ----------__------61d1 i, 112d --------- 11-2, 11-5, 22-1 

Establishment of prior swearing- -------

Presence of accused not required-.. ------

Secretarial regulations- ------------- - --

Affirmation, included in-- ---- - - - - -- - -- - ----

Certified legal personnel, one-time oath- -----

Challenged court members, examination 

under. 

Charges, signed under oath -------- --- - -----

Civilian or individual counsel ------- --------

61i, 112~- ---------- 11-5, 22-1 

112~----- ---------- 22-1 

112c--- - -- - - ------ - 22-1 

112a, 11 4-- ---- - ---- 22-1, 22-2 

112c-------- ------- 22-1 

62h(2), 114g- ----- - - 11-9, 22-3 

29e, 114i- -- - -..----- 7-1, 22-3 

112b, c, 114c- ------- 22-1, 22-3 

Courts-martial personnel required to be sworn- 112b---- - ------ -- -- 22-1 

Depositions: 

Form------------------------------

When administered- -------- - - - - --- - --

Who may administer- --- - - -- - -------- - Escort................................. 

Examination of challenged member under-- --

False, in connection with claims. See Fraud 

against the United States. 

114k---..----------- 22-4 

117b(7)----------- - - 23-6 

113, 117b(7) -------- 22-2, 23-6 

114h--------------- 22-3 

62h(2), 114g- -- - - - -- 11-9, 22-3 
Oaths-Continued 

Forms : Par. Pege 

Challenged member------------------- 114g--------------- 22-3 

Counsel------------------------------ 114c-----------..--- 22-3 

Depositions-------------------------- 114k--------------- 22-4 

Escort.......................... 114h--------------- 22-3 

General--------------------------- 112c, 114----------- 22-1, 22-2 

Interpreter---------__------------------ 50b, 114e----------- 9-16, 22-3 

Members of courts-martial- .---------- 114b-------------- 22-2

Military judge------------------------ 114a--------------- 22-2 

Oath to charges ....................... 114i--------------- 22-3 

Reporter---------------------$ ------- 49b(3), 114d- - ------ 9-16, 22-3 

Secretarial regulations ---------'i ,------ 112c--------------- 22-1 

Witnesses---------------..------------ 114j --------------- 22-3

Witnesses at Article 32 investigation- - - - 114j-- ---- ----- ---- 22-4 

Interpreter............................. 50b, 61d, 112b, c, 9-16, 11-2, 22-1, 

114e. 22-3 

Investigation, statement of witnesses at ------ 344 114j ----------- 7-10, 22-4 

Perjury--------------------------------- 210---------------- 28-66 

Reporter................................ 49b(3), 61d, 112b, c, 9-16, 11-2, 22-1, 

114d. 22-3 

Secretarial regulations required ------------- 40b(l)(b), 49b(3), 50b, 9-3, 9-16, 11-2, 

61d, i, 112~)dl 114. 11-5, 22.1, 

22-2 

Witness................................. 112b, 114j, j-------- 22-1, 22-3, 22-4 

Witnessrecalled-------------------------- 149a---..----------- 27-53 

Objections: 

See also Motions, objections. 

To trial by summary court-martial ---------- 16a---------------- 4-6 

Waiver of, admissibility of evidence --------- 154d--------------- 27-73 

Occupied territory: 

Military jurisdiction, exercise in- ---- --- ---- 2------------------ 1-1 

Violations of laws of ....................... 14a---------------- 4-4 

Off duty, defined------------------------------ 191---------------- 28-40 

Offenses: 

See also specific offense by name. 

Action on information of, by proper authority- 30h, i--- ----- - --- - - 7-2 

Arising out of same act or transactionFindings of guilty -------------- 74b(4)-----------_-- 13-5 

Multiplication of charges-- - - - --------- 26b ---------------- 6-2 

Punishment of separate offenses- - - ----- 76a--_--------_--_- 13-11 

Attempt. See Attempts. 

Basic considerations -------------- --------- 30----------------- 7-1 

CapitalSee also Capital offenses. 

Chargeable before both military and civil 12----------------- 4-3 

court. 

Commanding another to commit ----------- - 156---------------- 28-4 

Common trial ............................ 33d---------------- 7-6 

Foreign nations, committed in ------------_- 12---------- -__----4-3 

Joint offenses, defined ..................... 26d--------------_- 6-2 

Jurisdiction over. See Courts-martial, jurisdiction; Jurisdiction. 

Knowledge of suspected, report toCommanding officer _------------------ 31----------------- 7-2 

Military authorities _------------------ 29a---------------- 7-1 

MinorSee also Nonjudicial punishment. 

Commanding officer, action by- --2- - - - - 32----- ------------ 7-3 
INDEX 

Offenses-Continued 

Minor-Continued par. Page 

Disposition of charges by trial ---------- 33h---------------- 7-7 

Defined.............................. 128b--------------- 26-1 

Former punishment for ---------------- 215~--------------- 29-3 

Joined with serious .................... 26~--------------- 6-2 

Nonjudicial punishment for--- --------- 128a, b ------------- 26-1 

Not capital under General Article 134-

Fedoral law--_----------------------- 213e--------------- 28-73 

General............................. 213e --------------- 28-73 

Local application --------- - ----------- 213e(2)------------- 28-74 

Unlimited application--- ---- ---------- 213e(l)-------- -- --- 28-73 

State and foreign law, based on --------- 213e---- - ---------- 28-73 

Previous, basis for determining sentence- ---- 75b(2)------ - - - ---- 13-9 

Proof. See specific offenses by name. 

Punishment. See Punishment. 

Punishment, maximum .................... 127---------------- 25-7 

Separate, test of .......................... 76a(5)------------- 13-12 

SeriousAccuser, action by .................... 32----------------- 7-3 

Charges and specifications- ---- - - - - ---- 32f (4) ---- - --------- 7-4 

Disposition of charges ------------_----33h---------------- 7-7 

Inclosures forwarded with charges ------- 32f(4)-------------- 7-4 

Joinedwithminor----------------__-- 26c---------------- 6-2 

SuspectedAction by person with knowledge of ----- 31----------------- 7-2 

Release of information concerning ------- 53e- --------------- 10-4 

Offer of proof: \ 

Included in record of courts-martial --_--__--154~-------------- 27-73 

Military judge, heard by--- ---- - - - - - - - - - - -- 57g(2)-------- - - - -- - 10-32 

Offering violence against superior officer. See 

Oficer, superior. 

Officer: 

Accused, composition of courts-martial-- 4c---..-------------2-2

Apprehension of- t . Authorltyto------------------------- lQa_-----------..--- 5-2 

Reportconcerning-----------__--------- 19a---------------- 5-2 

Arrest of ................................ 21a(l)------------- 5-4 

AssaultingDiscussion.......................... 169a--------------- 28-18 

Proof.................................. 169a--------------.. 28-18 

Specification form ..................... App 6c(20)--------- A6-6 

Authority to quell quarrels, frays, and dis- 19b-------..-_------ 5-2 

orders. 

Conduct unbecoming (Art. 133)-

Discussion............................. 212-------..-------- 28-70 

Proof ................................ 212------------_--- 28-70 

Specification form -------__------------ App 6c(122-125) - - -- A6-20 

Cadets and midshipmen -----------__--212---------------- 28-70 

Debts, failure to pay -----------_------ 212, 213f(7) -------- 28-70, 28-77 

Confinement ofLimitations-------------------------- 126d--------------- 25-4 

Who may confine--------------------- 21a(l)------------- 5-4 

Dismissal. See Dismissal. 

Dismissed by President, rigHt to trial ------ -- Ill---, - - -,-------- 21-5 

Dismissed, reappointment by President ------ 110d----..---------- 21-4 

Eligibility for courts-martial duty. See Courtsmartial, members. 

Enlisted persons, authority to arrest or 21a(2)------------- 5-4 

confine. 
Officer-Continued Par. Page 


Execution of sentence, action by higher 98, lOOe(1) -- - - -- - -- 20-1, 20-3 


authority. 


Nonjudicial punishment of --------- - ----- - - 131 b(1) ----- - --- - - - - 26-3 


Punishment of. See Punishment. 


Resignation, quitting before notification of. 


See Desertion. 

Sentence of- 


See also Sentences. 


Affirmation and approval of ______------ 98----------------- 20-1


Confinement------------------------ 126d--------------- 25-4 

Confinement at hard labor ------------- 126d------ ---_----- 25-4 

Hard labor without confinement- ----- - - 126d---- ----------- 25-4 

Report of convening authority ---------- 96---------_------- 19-3 

Summary courts-martial, trial by _---------- 16a-_---__--_------4-6 


Superior-


Assaulting, striking (Art. 90)- 


Discussion---------__-_---_--__---- 169a--------------- 28-18


Proof------------------_---------- 169a--------------- 28-18 

Specification form ---_---------- - - - App 6c(20-22) - - ---_ A6-6, A6-7 

Disrespect towards (Art. 39)- 

Discussion....................... 168---------------- 28-17 

Proof--------------__-------------- 168---------------- 28-17 

Specification form ---------- - - ----- App 6c(19) -------- - A6-6 

Offering violence against ---------_----- 169a--__--___------ 28-18 

Willful disobedience of (Art. 90)- 

Discussion----------------------- 169b--------------- 28-18 

Froof---------------------------- 169b--------------- 28-19 

Specification form -------- ------ --- App 6c(23)- -- ------ A6-7 

Supervisory powers, havingDefined------------------------------ 94a(l)..------------ 19-1 

Action by .......................... 94a, 97a --_----_---- 19-1, 19-3 

Trial of- 


Rank of court members ------_--------- 4c--------_-------- 2-2 


Summary courts-martial --------------- 16a---------------- 4r6 


Termination of jurisdiction ------------- 11--_____-_-_------
 4-2 

Officer exercising general court-martial jurisdiction. See also Convening authority. 

Officer having supervisory powers: 

Action byBad-conduct discharge by special courts- 84d, 94a(3) --- - - _ --- 17-2, 19-2, 

martial. 

Charges and specifications- ------------ 35----------- - ---- - 7-12 

Charges, receipt of .................... 35a_-------_---_---7-12 

Deferment, remission, or suspension of 88f,94, 97a-_ -.-_ - -- 17-10, 19-1, 19-3 

sentence. 

Record of trial ....................... 91b, 94b ------------ 17-16, 19-2 

Rescission of deferment of confinement, 88g---------------- 17-11 

when authorized. 

Vacation of suspension of sentence- ----- 97b-__--_---_--_--- 19-3 

When sentence affirmed ------- --------- 100c(l) (a) --- - -- _ _ - - 20-3 

Appointment of counsel .................... 34c-------------__-7-10 


Hearing to vacate suspension ---.----------- 97b----------------
 19-3


Nonjudicial punishment of officers-- ------ - - 131b---- - - --------- 26-3 


Record of trial, initial review ------ --- --- --- 84------ ---- ------- 17-1 


Reports in certain cases- - - - --- - _ - - ----- - - - - 96------ - ---- - ---- - 19-3 


Review of special and summary courts-martial- 94a- - _ --- ---------- 19-1 


Successor to .............................. 84b--------__---_--17-1 


Supervisory powers over courts-martial- - - --- 94a- ---- -- -- ----- - - 19-1 

Officer exercising summary court-martial jurisdiction: 

See Convening authority. 

Charges and specifications- Par. Page 

Action on-------------------------- 33----------------- 7-5 

Alteration........................... 33d---------------- 7-6 

Dismissal of ........................ 33f ---------------- 7-6 

Disposition of charges ------------__---33h---------------- 7-7 

Forwarding charges ----_----------- 33i----------------- 7-7 

Preliminary inquiry--- ---------__-----33a-- ------ -------- 7-5 

Reference to courts-martial for trial ---- 33j---------------- 7-8 

Nonjudicial punishment, action by --_------- 339------- --------- 7-7 

Officer having supervisory powers: 

Defined--------------------------------- 94a(l)-----..------- 19-1 

Action by------------------------------- 94a---------------- 19-1 

Convening authority, reference to-- --- - ----- 94a---------- -- - --- 19-1 

Review byBad-conduct discharge ----------------- 94a(3) -- - ---------- 19-2 

Special courts-martial- ---------------- 94a(2)-------------- 19-1 

Summary courts-martial -------------- 94a(2)------------- 19-1 

Officer in charge: 

Agency of military jurisdiction ----------..--2-------..---------- - 1-1

Navy and Coast GuardConvening authority of summary courts- 5c- -- - -- ---------- - 3-3 

martial. 

Nonjudicial punishment imposed by ----- 128a----- -- - -- ----- 26-1 

Nonpunitive measures-- - - - -- -- - -- -- - - ----- 128~--- -- - --------- 26-2 

Officer qualification records, official records ------ 144b--- ------------ 27-36 

Officers quitting post or duties prior to notifica- 164a--------------- 28-10 

tion of acceptance of resignation as desertion. 

Official directives, alleging violations of- --- - -- - --- 28c- -- - - - - ----- - - -- 6-4 

Official communications. See also When privileged- 151b(l)-------- ----- 27-59 

Official documents: 

See also Evidence 

False official documents (Art. 107). 

Discussion--------------------------- 186---------------- 28-36 

Proof-------------------_--__-_--_-- 186---------------- 28-36

Specification form ..................... App 6c(65) --------- A6-12 

Officials, governmental, contempt toward: 

See Contempt toward. 

Official records: 

See also Evidence, documentary. 

Absence of, evidence- --- -- - ------- - -- -- --- 143a(2) (g)-- -------- 27-28 

Admissibility as evidenceGeneral rule ....................... 144b---..-----------27-36 

Limitations............................ 144d--------------- 27-39 

Attesting certificates- - - _ --- - ----- - ---- - -- - 143b(2)(a) - - ---- - - - - 27-3 1 

Authenticating certificates- - - ---------- - --- 143b(2) (a) ----.----- 27-31 

Authentication ................................ 143b(2)-------..----- 27-31 

Extract copies-- - - - -- -- - _ -- __- - - ---- - -- - -- - - 143a(2)-- - -- --- -i-- 27-26 

Inferences or presumptions--_ __ _ ---- - --- - - - 144b- _-_ ----------- 27-36 

Insanityinissue---------_---_------------ 122c--------------- 24-5 

Logs------------------------------------ 144b, d------------- 27-36,27-39 

Military records-- ........................ 144b, ----------..--- 27-36 

Morning report ----------------- ----- - ---- 144b, d ------------- 27-36, 27-39 

Notes or memoranda, composed from -------- 144b--------------- 27-36 

Official publication of- ----------- - _ --- __- - - - - 143 a(2) (c)-- ------- 27-27 

Service record- - _--_-----_------------- - - - 144b, d ---- ---- ----- 27-36, 27-39 

Summaries of official records- _ - - - - -- ..-- - --- 143a(2)(b)---- ----- - 27-27 

Unit personnel diary ...................... 144b, d ------------- 27-36, 27-39 

Waiver of objection ------------------ 143b(2)------------- 27-31 
Official statement: 

False- Par. Page 

Discussion--------------------------- 186---------------- 28-36 

Proof..................... ----------- 186---------------- 28-36 

Specification form -------- -- - ---------- App 6c(65) ---- ----- A6-12 

Omissions. See errors. 

Open court: 

See also Courts-martial. 

Accused, rights explained, in --------------- 53h---------------- 10-5 

Rulings on interlocutory questions in -------- 39c, 57c ------------ 9-2, 10-11 

Spectators, publicity ...................... 53e----___---------10-4 

Opening statement to court: 

Trial counsel- ----- - ------ - - - ---- - -- - -- - -- 44g(2)------- - -- - - - - 9-9 

Defense counsel .......................... - 48h_---_----------- 9-14 

Operation of vehicle. See Drunkenness. 


Opinion evidence. See Evidence, opinion. 


Orderlies, detail of for trial-- -- - - - -- - -- - - - - - - --- 51--- - ---- --- ----- - 9-16 


Orders : 


Detailing court ........................... 36----------------- 8-1 

General orders, disobedience of. See General 

order. 

Lawful, obedience to, defense to trial -------- 216d----_---------- 29-5 

Failure to obey (Art. 92)- 

General order or regulationDiscussion- --- - - --- - --- - - - - - - ---- 17 la- - - - - - -- - ---- - - 28-21 

Proof---------------------------- 171a--------------- 28-21 

Specification form --------- -------- App 6c(27) -- ---- - -- A6-7 

Other lawful order (Art. 92)- 

Discussion- ------ - -- - -- - - - - - -- - -- 17 16- - - --- - -- - - - - - - 28-21 

Proof............................ 171b--------------- 28-22 

Specification form -------- - ---- - - -- App 6c(28) ---_ _ -- _ - A6-7 

Lawful, obedience to as defense to trial ------ 216d---__----__---_29-5 

Making, drawing, or uttering without sufficient funds. See Checks. 

Result of trial- --------- _ _---------------- 91a------ _ -_ ------ - 17-15 

Other trials: 

Defined---------------------------------- 81d(2)------------- 15-4 . -

Author~tyto order ..................... 1.-- 92b------ -_---_--_-18-3 

Military judge---------------------------- 92b_---_--------..-- 18-3 

Request for trial by military judge alone ----- 92b----___---------18-3 

Sentence---............................... 8ld (2) __----- ----- 15-4 

Outline-figure and fingerprint cards, official 144b---_---------_-27-36 

records. 

Overt acts: 

Attempts, element of ...................... 159---------------- 28-6 

Conspiracy, element of .................... 160--__---_--__--_- 28-7 

Pandering, Specification form- - - ------ ---- - - - - - App 6c(166-167) ---- A6-24 

Pardon : 

Bar to trial .............................. 68e_-_____---_----- 12-6 

Defined.................................. 68e---__----------- 12-6 

Parole : 

Disclosing the parole or countersign to one 

not entitled to receive itDiscussion--------------------------- 180a-_-_-__--_-----28-30 

Proof ................................ 180a-__---_-_------28-31 

Specification form ---_----__--__ _------ App 6c(53) --___----A6-10

Giving parole or countersign different from 

that authorizedProof................................ 180b-_---___-_----- 28-31 

Specification form -----_-_--__----- - - - App 6c(54) -- - - ----- A6-10 
INDEX 

Password. See Countersign. 


Passes, false and unauthorized passes, permits, 


discharge certificates and identification cards: Par. Page 


Discussion............................ 213f(ll) ------------ 28-79 


Proof-


Falsely making or altering- --- - - -- - ---- 213f (11)--- --- - -- - -- 28-80 

Wrongful sale or disposition of ---------- 213f(ll)-------- - --- 28-80 

Wrongful use or possession of- --------- 213f(ll)--------- --- 28-79 

Specification form--- -- _ --- - - - -- - - --------- App 6c(147) -------- A6-22 

Patients, Doctor-patient privilege-- ------------- 151c(2)------------- 27-62 

Pay and allowances : 

See also Punishment. 

Allowances, forfeiture of ---_--------------- 126h(2) - -- --------- 25-5 

Detention............................... 126h(4)------------ 25-6 

General.......................... 126h--------------- 25-5 

Detention of, nonjudicial punishment---- 131b, 131c(9)---- - - -- 26-3, 26-6 

Maximum limits-- -_----_------------ 126h(4)------------ 25-6 

Effective date ......................... 126h(5) -------1----
25-6


Element of fraudulent enlistment or----- 162---------------- 28-9 

appointment. 

Equivalent punishments- - - ----- - ---- - - ---- 127c(2)------ - - - ---- 25-9 

FinesSee also Fines. 


General------------------------------ 126h(3)------------ 25-6 


ForfeitureSee also Forfeiture. 

General--- - - -- - -- - - _- - - - - - - - - - -------- 126h(2)----------- - 25-5 

Forfeiture, execution of sentence ------------ 88d(3), 126h(5) ------ 17-8, 25-6 

Stoppage------------------------- 126h(l)------------ 25-5 

Payment of debts. See Debts. 

Peace: 

Breach ofDiscussion........................ 195b--------------- 28-43 

Proof......................... 195b--------------- 28-43 

Specification form- -------_----------- App 6c(84) --------- A6-14 

Judicial notice of--- ..................... 147a--------------- 27-48 

Penal code of U.S. See United States Code. 

Penal institutions, as place of confinement ------- 93----------------- 18-3 

Penalties : 

See also Punishment. 

Accused awaiting trial ------------------ 18b(3)-------------- 5-1 

Prior to sentencing ------------------- 125---------------- 25-1 

Perjury: 

See also False swearing. 

Discussion.......................... 210---------------- 28-66 

Proof........................... 210-------------..-- 28-66 

Specification form--- - - _ --- - -- - _ - - - -- - - - - - - App 6c(113) ---- - - - - A6-18 

Corroboration of single witness- -- -_-------- 210---------- ------ 28-66 

False swearing distinguished-- ------------- - 213f (4) ---- ----- - -- - 28-76 

New trial, grounds for ..................... 109d(3)------------ 21-2 

Permits, False and unauthorized. See Passes. 

Personnel adjutant, Authority to administer oaths- (Art. 136), App 2---- A2-36 

Personnel records, custodian, fingerp~int com- 143a(2) (fl-- - - - - --- 27-28 

parison of. 

Petition for review: 


See also Appellate review. 


Accused, assistance to and advice to --------- 102b--------------- 20-5 


Appellate Defense Counsel, aid to accused- -- 102b----- - ---- ----- 20-5 


Court of Military Appeals, time for action- -- 100c(l) (a) - --- -- - - - - 20-3 


Procedure--- - - -- - --------- - - - - - --- - - - - - - - 100c(l)(a)- - - - - - - - - - 20-3 

INDEX 

Petition for review-Continued par. Page 

Right to................................. 100c(l)(a), 101------ 20-3, 20-4 

Time limit-------- ------------------ --- _ - 100c(l)(a) ----- _ - - _ - 20-3 

Petition for new trial. See New trial. 

Petty o5cer: 

AssaultingDiscussion........................... 170b--------------- 28-20 

Proof................................ 170b--------------- 28-20 

Specification form------------------ - - - App 6c(24)---- ---- - A6-7 

Authority to apprehend-------------------- 19a---------------- 5-2 

Authority to quell quarrels, frays, and dis- 1Yb _______-_------- 5-2 

orders. 

Contemptuous or disrespectful language or 

conduct towardDiscussion--------------------------- 170d------..-------- 28-20 

Proof................................ 170d--------------- 28-20 

Specification form..................... App 6c(26)--------- A6-7 

DisobeyingDiscussion--------------------------- 170c-------------..- 28-20 

Proof................................ 170~--------------- 28-20 

Specification form_-------------------- App 6c(25)--------- A6-7 

Punishment ofNonjudicial-------------------------- 131b--------------- 26-3 

Summary courts-martial, limits on ------ 16b, 126c(2)--------- 4-7, 25-3 

Photographs: 

Admissibility as evidence------------------ 144e-------------_- 27-41 

Court-martial proceedings-------- ---------- 53e- -----_-------_-10-4 

Physical conditions or military exigencies: 

Defense counsel- ......................... 6c----------------- 3-4 

Members-------------------------------- 4c, 37b-_--..-------- 2-2, 8-2 

Militaryjudge--------------------------- 15b--_---..-----__-- 4-5 

Physical examination, Compulsory, not self-in- 150b--------------- 27-58 

crimination. 

Physical inability, Defense to trial- -_----------- 2169-------_-_-_--_29-6 

Physicians, privileged communications ----------- 151c(2)---- - _--- - _ -- 27-62 

Pillage: 

See also Looting or pillaging. 

Quitting place of duty to plunder orDiscussion ........................... 178f ----_---------_28-29 

Proof................................ 178j---------_----- 2&29 

Specification form------------ --------- App 6c(48)------ -_- A6-9 

Plan or design of accused, evidence-------------- 138g(2)----_-_----_-27-11 

Pleading, See Charges and specifications; motions. 

Pleas: 

See also Motions. 

Arraignment,notpartof----------------_- 65a--..-----_-.._---- 11-11 

Article 39(a) session- - - - - - ---------------- 39b(2), 53d(l)------- 9-1, 10-1 

Capital case_------------_---------------- 70a-_-__----__-----12-9 

Change or modification of--- - --------- -- _ -- 70b-- _ -- _ - _ _ -- _ - _ _ - 12-10 

Defenses and objections before plea entered-- 67----_---_--_--_-_12-1 

Failure to plead .......................... 70a ------------_- 12-9 

General--------------------------------- 70---_.._--------_- 12-9 

GuiltyCapital offenses....................... 70a------___-__--_- 12-9 

Effect of- --- --- ---------------------- 70b, 79d(2) _ - - __ _ --- 12-10, 14-2 

Evidence taken after, extenuation or 70a, 75b(3) - _ -_----- 12-9, 13-10 

aggravation. 

Finding without vote --- -------------- 70b, 74d(l) - -------- 12-10, 13-6 

General............................. 70a---------------- 12-9 
Guilty-Continued 

General-Continued Par. P~ge 

Improvidently entered ------------_----70, 79d(2)-- -------- 12-9, 14-2 

Inconsistent matter after findings ------- 75a------_--------- 13-9 

Inconsistent statements after plea--- -- - - 70b- - -- - --- - ---- - -- 12-10 

ProcedureConsultation with counsel- -- - ----- 70b(l) ------------- 12-10 

Explanation to accused of effect- --- Record of explanation and reply ---- Several charges and specifications ----- - -

Statute of limitationsEffect--------..------------------

Waiver of ....................... 

Summary courts-martial ---------------

Vote, necessity of ..................... Irregular................................ 

Kinds---------------------------------

Refusal toplead-----------------_--------- 

70b(2), 79d(2)-- ---- - 12-10, 14-2 

70b(4)-------------- 12-10 

65a- ---- ----------- 11-10 

68c---------------- 12-5 

74h---------------- 13-8 

79d(2)----------..--14-2 

70b --------------..-12-10 

70a---------------- 12-9 

66a---------------- 12-1 

70a---------------- 12-9 

Single plea to all charges and specifications-- 65a ---------------- 11-11 

Summary courts-martial, explanation to accused. 

Time-----------------------------------

Waiver of defenses and objections by plea ---- Plunder. See Pillage. 

Police: 

Assault onProof................................ 

Specification form ------------------

Authority to apprehend and secure custody-- 

Entrapment by ........................... 

Informants, privileged communications ------

Polygamy, testimony of spouse against other -----

Prejudice of witness, ground for impeachment ----

70b, 79d(2) -,------- 12-10, 14-2 

12-1 

67b, 70a ------------ 12-1, 12-9 

207b(2)_------------ 28-63 

App 6c(105) -------- A6-17 

19a, d ---.---------- 5-2 

216e--------------- 29-5 

151b(1)------------- 27-59 

148e--------------- 27-52 

153b(2)(d)---------_ 27-71 

Prejudicial error, defined- - - - ----_-_-----------87c---------------- 17-6 

Preliminary court-martial orders. See Courtmartial orders. 

Preliminary inquiry into charges and specifica- 32L--------------- 7-3 

tions investigation of charges; and Charges and 

specification. 

Premeditation, drunkenness, effect of ---_-----_-154a(3)---- ------_- 27-71 

Preparation of charges. See Charges and specifications, drafting. 

Preparation of record of trial. See Record of 

courts-martial. 

Preponderance of evidence .................... 


Presentencing procedure. See Sentence, presentencing. 

Presenting for approval or payment a false or 

fraudulent claim. See Fraud against the U.S. 

President of courts-martial. See also General 

courts-martial, Special courts-martial. 

Announces: 

Findings-----------------------------

Sentence-----------------------------

Defined----------------------------------

Duties, general .................... 

Oaths, administration of -------------------

579 ------ ---------- 10-12 

75----------------- 13-8 

40b--------..---..--- 9-3 

40b, 76c------------ 9-3, 13-15 

40a----------..----- 9-3 

40b ---------------- 9-3 

113-..-----..-------- 22-2 

Seniority of rank determines -------------..-40a------..---------9-3 
INDEX 

President of courts-martial-Continued 

Special court-martial without a military 

judge: 

Accused: Par. Psge 

Counsel, right to ------------------ 61f(3)----------_--- 11-4 

Insanity, inquiry into -- --------- - - 122b, c- --- - - - --- - - - 24-3, 24-5 

Pleas, inconsistent or improvident-- 70b ------ ------_--- 12-10 

Statute of limitations, right to plead- 74h ---------------- 13-8 

Admissibility of evidence, determination 57a(2), c -- - --- - ---- 10-10, 10-1 1 

by.

Announces result of challenge- --------- 62h(3) - - - ---------- 11-10 

Authentication of record by -----,------ 40c, 83b-- ---------- 9-4, 16-4 

Challenges: 

General-------------------------- 62----------------- 11-6 

Instructs prior to voting ----------- 62h(3) - - - ---------- 11-10 

Interlocutory questions arising dur- 62h(2) -- - --- ------- 11-9 

ing hearing. 

Procedure........................ 62h---------------- 11-9 

Contempts, ruling on-- ---- ------------ 118b--------------- 23-8 

Depositions-------------------------- 117b--------------- 23-5 

Duties, general- -------------------- -- 40b(2), 57c ---------- 9-3,lO-11 

Evidence, ruling on admissibility ---- ---- 57a(2), 57c - -- ---- -- 10-10, 10-11 

Explanation to accused concerning pleas- 70b-- -- -- - --------- 12-10 

Finality of rulings--- - - ------------- - -- 57c- --- - - - -- - -- _ -- - 10-11 

Finding of not guilty, motion for--- ----- 57c, 71a-- -- - - ----- - 10-11, 12-11 

Findings, proper form- ---------------- 74f(l)-------------- 13-7 

Informalinquiry---------------------- 61a--------_--_--..- 11-1 

Inquiry by, before ruling --------------- 57g(l)----------_--- 10-12 

Insanity of accused, inquiry into -------- 57c, 122b, c ------_-- 10-11, 24-3, 

24-5 

Reasonable doubt of guilt ---------- 73c- -----_- --_----- 13-3 

Interlocutory questions: 

See also Interlocutory questions. 

Inquiry------------------------------ 579---------------- 10-12 

Rulings by-- - - -------- - - ---- - --- - --- - 57c, el g(3)-- ------ _ - 10-1 1, 10-12, 

10-13 

Legal material, use of at trial ----------- 5343) - - - ------__--10-3 

Medical board report, examination of-- -- 122~--_--- - ---- _ --- 24-5 

Motion for finding of not guilty-Pro- 71a_-----------_---12-11 

cedure for ruling on. 

Record of trial: 

Authentication- ------------------ 40c, 83b-- ----- -- -- - 9-4, 16-4 

Certificate correcting, signed by --- - 86c- --------------- 17-4 

Disputed entries, ruling on- ----- --- 49b(l)-. ---- ---- --_- 9-15 

Former trial, examination of ------- 81c---------- ------ 15-3 

Restraint of accused at trial, duty to 60---------------_- 11-1 

determine degree of. 

Revision proceedings-- - - ----- - ------ - - 80-- -------- - _ ---_- 15-1 

Rulings by- - - _ -------- - - - --- - ------- - 57g(3)--- - -- - - - - -- _ - 10-13 

Form of ......................... 57e--------------_- 10-13 

Seating position-- - ------------------- 61b ---------------_ 11-2 

Self-degradation, compulsory; determi- 150~----- - --------- 27-57 

nation of. 

Self-incriminatory, compulsory; deter- 150b--------------- 27-58 

mination of. 

Sentence: 

Ambiguity or illegality of --- _ _ -- - - - 76c- -_--- - ---- - - --- 13-15 

Instructions concerning maximum.-- 40b(2), 76b(l)- ----- - 9-3, 13-13 

vote of .............................. 416 ---------------- 9-4 

Voting, order determined by ..._ -- _ ---- _ - 74d(2) - ---- - ------- 13-6 
INDEX 

President of U.S.: Par. Psge 

Capital offenses, order of maximum punish- 15a(3), 126a- -- - --- - 4-5, 25-3 

ment. 

Contempt towardDiscussion--------------------------- 167---------------- 28-16 

Proof------------------------------- 167---------------- 28-17 

Specification form -------------------- App 6c(18) --------- A6-6 

Court of Military Review, approval required- 100c(2), ----------- 20-4 

Flag officer, sentence of, approval required--- 98, lOOc(2) --------- 20-1, 20-4 

General courts-martial, power to convene ---- 5a----------------.. 3-1 

General officer, sentence of, approval required- 98, lOOc(2) --------- 20-1, 20-4 

Maximum punishments, order of- ---------- 126a-------..- ------ 25-3 

Officer dismissed by - - - --- _ - - ---- - - - - ---- - - 111---------------- 21-5 

reappointment of- - -- -- - _ ---------- - -- 110d, 111-- - - - - ---- 21-4, 21-5 

right to trial ......................... 111---------------- 21-5 

Punishment, power to commute ------------ 105a--------------- 20-6 

Reciprocal jurisdiction, regulations of-- ----- 13--..-------------- 4-3 

Sentences, approva!, when required- -------- 98, lOOc(2)-- ------- 20-1, 20-4 

Presumptions : 

See also Evidence, circumstantial; and 

Inferences. 

Generally------------------------------- 138a--------------- 27-5 . . Defin~tion............................... 138a--------------- 27-5 

Innocence----- .......................... 138a, 73b ----------- 27-5, 13-3 

Sanity................................. 122a, 138a ---------- 24-3, 27-5 

Witnesses, competency- ----- - - - -- - - - ------ 148a------ - -------- 27-51 

Pretrial investigation. See Investigation of charges. 

Preventing apprehension, trial, punishment of 

offender. See Accessory after the fact. 

Previous convictions: 

See also Sentence. 

Additional punishment, authorizing- -- - ----- 127c--------------- 25-17 

Admissibility as evidence- ----------------- 75b(2), 138g- ------- 13-9,27-10 

Basis for determining sentence -------------- 76a(2) _ ----------- - 13-11 

Court-martial orders, proven by ----- ------- 75b(2), 153b(2) (b) --- 134427-67 

Evidence of ---- - - - ---- - --------- - -- - ---- - 75b (2), 153b (2) (b)- - - 13-9,27-67 

Impeachment ofAccused- --- - - ---- - ------- -- ----- -- -- 138g, 153b(2) (b)--- -- 27-10,27-67 

Witnesses--- -- - --- - -- - -- - - --- - ------- 153b (2) (b)----- - ---- 27-67 

List of, forwarded with charges of serious- 32j(4) -------------- 7-4 

offenses. 

Proof of- --------- --------------- -- ----- - 75b(2), 153b(2) (b) --- 13-9,27-67 

Summary courts-martial, consideration of ---- 79d(4)------------- 14-3 

Principals: 

Defined.................................. 156---------------- 28-4 

Jointly charged in joint offenses- --- -------- 26d---------------- 6-2 

Prior adjudication (res judicata) : 

Assertion as defense -------- ------------ 67a..--------------- 12-1 . . Definition---_------------------------ 71b-_--_----------- 12-11 

Prior misconduct, Admissibility as evidence- ----- 1389--------------- 27-10 

Prior statements. Admissibility as evidence for 153a--..------------ 27-65 

corroboration. 

Prior testimony. See Former testimony. 

Prison, as authorized place of confinement-- ----- 93----- - - ------- --- 18-3 

Prisoners: 

See also Accused; arrest; confinement. 

Absence without leave after discharge ------- 165---------------- 28-14 

ConfinementBefore sentence adjudged ------------ -- 18b(3), 125-- ------- 5-1,25-1 

Enemy or foreign nationals together 18b(2), 125- - - ------ 5-1, 25-1 

with. 
INDEX 

Prisoners-C0ntinue.d 

Confinement-Continued 

Escape: See Escape, this subject. Par. Page 

In civilian institutions ----------------- 93------------- ---- 18-3 

Pretrial----- - ----- ------- ------------ 18b(3), 125- - - ---,- 5-1,25-1 

Release from, authority to ------------- 22----------------- 5-5 

Release from, without proper authorityDiscussion----- -- ----- -- - ------ -- 175a--- - ---------- - 28-25 

Proof---------------- ------------ 175a--------------- 28-26 

Specification form ----------------- App 6c(39) --------- A6-9 

Custody and security of at trial ------------- 21c, 60 ------------- 5-5, 11-1 

Discharged or dismissed from the Armed 

ForcesAbsence without leave----------------- 165-----------..--..- 28-14 

Assault upon officer and noncommis- 169a, 170a--- - - - - --- 28-18, 28-19 

sioned officer. 

Desertion-.------------------------------- 164a-------..-..----- 28-10 

Drinking. See Drunkenness. 

EscapeSuffering a prisoner to escape through 175c--------------- 28-26 

design. 

Discussion----------------------- 175c--------------- 28-26 

Proof---------------- ------------ 175c--------------- 28-26 

Specification form ----------------- App 6c(39) --------- A6-9 

Suffering a prisoner to escape through 

neglectDiscussion----------------------- 175b--------------- 28-26 

Proof--------------- ----- -------- 175b--------------- 28-26 

Specification form ------------ ----- App 6c(39)- -------- A6-9 

Jurisdiction overAfter discharge-- -_ --_--- - --- -- ------- llb- _---_--- _- -- _-- 4-2 

Serving sentence--- ---- -- ------------- 1 lb- ----- - - _ - -- ---- 4-2 

Misconduct asMaltreatment of fellow prisonersDiscussion----------------------- 184b--------------, 28-34 

Proof------------ A --------------- 184b--------------- 28-35 

Specification form ----------------- App 6c(63) --------- A6-11 

Securing favorable treatment 

Discussion----------------------- 184a--..------------ 28-34 

Proof ............................ 184a--------------- 28-34 

Specification form ----------------- App 6c(62)- -------- A6-11 

Punishment of-See also Punishment. 

General.............................. 126e--------------- 25-4 

Infractions of discipline ----- ----------- 18b(3)-------------- 5-1 

Prisoners of war: 

Confinement with members of the armed forces- 18b(2), 125- --- - - --- 5-1, 25-1 

PunishmentFine by court-martial- ----- ------ -- - -- 126h (3) - - ------ - --- 25-6 . . Llmits on ............................ 127a--------------- 25-7 

Private property. See Property. 

Privileged communications: 

Client and attorney ....................... 151b(2)------------- 27-60 

Confidential evidence ------- - - -- - - - ---- - - - - 151b(3)------- - ---- - 27-61 

Court deliberations ........................ 151b(l)------------- 27-59 

Defined.................................. 151a--------------- 27-59 

Doctor and patient ........................ 151c(2)------------- 27-62 

Husband and wife- - - ..................... 151b(2)------------- 27-60 

Informants-- -- - - - - - -------- - ---- - - - - ----- 151b(l)----- - - - --- _ - 27-59 

Inspectors General, report of -- - - ---- - - - - - - - 151b(3)------------- 27-61 

Medical officers, communications to --------- 151c(2)------------ - 27-62 
INDEX 

Privileged communications-Continued Par. Page 

Penitent and clergy - ------- - - - ------- - - -- - 151b(2)-------- - - - - - 27-60 

Physicians.............................. 151c(2)------------- 27-62 

Police secrets ............................ - 151b(l)------------- 27-59 

Secret evidence ........................... 151b(3)------------- 27-61 

State secret,_- - .......................... 151b(l)------------- 27-59 

Waiver of objections to use --------_-----_-151a, b-------__-_--27-59 

Wire or radio, transmitted by- - ----7------- 151c(l)---__--_-_-_-27-62 

Probable cause: 

Apprehension, arrest or confinement --_------ 19a, 20d ------------ 5-2, 5-3 

Search------_--------------------------- 152..-------------- 27-62 

Probationer, counsel at proceeding to vacate 97b-----------_---- 19-3 

suspension. 

Procedure: 

Guide for Courts-Martial ------------------ App 8 ----------_--- A8-1 

Newtrials---------------------_--------- 81---------------_- 15-2 

Noncompliance with procedural rules -------- 177-- -- --- -- ---- -- -,28-27 

Nonjudicial punishmentArmy and Air Force------------------- 133a--..-----------.. 26-9 


Navy and Coast Guard ------_---_----- 133b_-------------'- 26-10 


Rehearings----___----------------------- 81----------------- 15-2 

Procuring another to commit an offense ---------- 156--------------_- 28-4 

Professional lists, Admissibility as evidence ------ - 144f- - ----------- - - 27-42 

Promotion, sentence to loss of-- - --------------- 126i-- ------------- 25-7 

Promulgating orders. See Court-martial orders. 

Proof beyond reasonable doubt. See Reasonable 

doubt. 

Proof, offer of ................................. 57g(2), 154c --------- 10-12, 27-73 

Property: 

See also Military property. 


Captured or abandoned. See Captured or 


abandoned property. 


Larceny of. See Larceny. 


Receiving stolen- 


Discussion- ------ - - -- - -- - - - --------- - 213f(14)------- - - --- 28-81 

Proof------- _ - _ _ -- - ---- -- -- - - -- - --- - - 213f(14)--- -_ -_ __ __ - 28-81 

Specification form ..................... App 6c(179) - - ------ A6-26 

Robbery of. See Robbery. 

Value of, inferences ....................... 200a(7)------------ 28-51 

Wasting or spoiling ofDiscussion----_------___------------- 188a---_-___--_-..-- 28-38 

Proof................................ 188a__--------_--_-28-38 

Specification form ..................... App 6c(69) ---- ----- A6-12 

Willfully and wrongfully destroying or 

damagingDiscussion--------------------------- 188b-----..--------- 28-38 

Proof-------------------------------- 188b--------------- 28-38 

Specification form.. - - - - - - - _ - - - -- - ------ App 6c(69) ---- _ - - - _ - A6-12 

Wrongful appropriation ofSee also Larceny. 


General.......................... 200b---------_----- 28-52 


Prosecution: 

See also Counsel, trial counsel. 

Member of, disqualificationPrior participation .................... 6a----------------- 3-3 


Procedure---------------------------- 61e---------------- 11-2 

Prosecutor. See Counsel, trial counsel. 

Prostitution. See Pandering. 

Protecting or harboring the enemy. See Enemy, 

harboring or protecting. 
Provoking speeches or gestures: 

Discussion------------------------------

Proof-----------------------------------

Specification form-- - - -- - - - - - - ---- - - - -- - ---

Provost courts: 

Contempts, punished by ------- ----- -------

General----------------------------------

Jurisdiction, concurrent .................... 

Public health services, personnel, members of 

courts-martial. 

Publicity: 

Broadcasts of courts-martial ----------------

Newspapers------------------------------

Pending case, by counsel -------------------

Photographs of courts-martial-- ------------

Par. Page 

196------------_--- 28-43 

196---------------- 28-44 

App 6c(85)- - - - - -- - - A6-15 

10, 118a ----------- 4-2, 23-8 

2-----..---..----__-- 1-1 

12---_-----_-------4-3 

4a-----------_---_-2-1 

53e----------------- 10-4 

42b---------------- 9-6 

42b--_-----------_-9-6 

53e- ----_------_--- 10-4 

Suspected offenses- ------- - --- - -- - --- - - - -- 53e- --- - -- - - ---- - -- 10-4 

Public officers, inference of legality of office 

Public records. See Evidence, documentary; 

Official records. 

Public records, concealing, destroying, etc.: 

Specification form, Article 134-------------

Punishment: 

See also Nonjudicial punishment; Sentence. 

Accused in restraint, minor punishment ------

AdditionalCourt advised of ...................... 


Previous convictions authorizing-- ------

Administrative, discharges, not adjudged -----

Article 15. See Nonjudicial punishment. 

138a(2)------------- 27-5 

App 6c(172) -------- A6-25 

18b(3)------_------- 5-1 

76b(l) ------------- 13-13 

127c, Sec. B --------- 25-17 

126a-------------- - 25-2 

Civilians, amenability to ---------_----_---_127a_-------------- 25-7 

Clemency, recommendation for- -------- _ --- 77- - - - -- - -- - -- - - - - - 13-15 

Contempts---- - - - --- ---- - ------------- - -- 118a, App 8c -------- 23-8, A8-25 

Deferment of service of confinment -------- 88f -------------- 17-10 

Disciplinary. See Nonjudicial punishment. 

Discretionary, discussed ---------_--------- 76a(l)----------_--- 13-11 

Drunkenness, effect of-.. -- - _ - - - - --- - -- _ --- -

Enlisted persons ......................... -

Extenuation. See Extenuation and mitigation. 

Former, as bar to trial ------ ----------- - --- KindsAdmonition. See Admonition. 

Bad-conduct discharge. See Discharge, 

bad-conduct. 

Bread and water. See Bread and water. 

Confinement. See Confinement. 

Death. See Death sentence. 

Detention of pay. See Pay and Allowances. 

Dishonorable discharge. See Discharge, 

dishonorable. 

Dismissal. See Dismissal. 

Fines. See Fines. 

Forfeitures. See Forfeitures. 

Hard labor. See Hard labor. 

Life imprisonment. See Life imprisonment. 

Loss of rank, numbers, promotion, seniority. 

Reduction in grade. See Reduction in 

grade. 

154a(3)- - - - - _ --- - -- 27-71 

126e, 127 ---------_- 25-4, 25-7 

68g, 215~- -- _ - _ ----- 12-6, 29-3 

126i--------------- 25-7 
INDEX 

Punishment-Continued 

Kinds-Continued 

Reduction of officer. See Reduction in 

rank. .. 
 Reprimand. See Reprimand. 


Restriction to limits. See Restriction. 


Limitations- Par. Page 

Accused awaiting trial ---------------- - 18b(3), 125 ---------- 5-1, 25-1 

District of Columbia Code ------- ----- - 127c (1)- --------- -- 25-8 

General------------------------------ 15b, 127c, 125------- 4-5, 25-8, 25-1 

General courts-martial -----__- ----------- 126b--------------- 25-3 

Nonjudicial punishment- -----------..- - 131--------------- .. 26-3 

Summary courts-martial ---..--------..--16b, 126c(2)- ------- 4-7, 25-3 

Suspension of ......................... 127c(5)------------- 25-10 

United States Code ------------------ - 127c(l) 25-8 

Mandatory-


General-------_---------------------- 126a,-------------- 25-2 


Limitations on special courts-martial--- 15a(3)------------- 4-5 


Reconsideration of record of trial involv- 86d---- 2-- --------- 17-5 


ing. 

MaximumSee also the particular offense. 

Additional punishment-- - -_----------- 127c, Sec B--------_ 25-17 

Appropriate, when- ----- _ --- -- -------- 76a(2)- - --- - - - _ ---- 13-11 

Confinement of officer or warrant officer- - 126d--------------- 25-4 

Explanation of to court ---------_----_-76b(l)-------------- 13-13 

After guilty plea-- -- - ------ _ ------ 70b(2)----- --- - - ---- 12-10 


Military judge to court ---_---__--_76b(l) -------------- 13-13 


Rehearing----------------------- 81d---------------- 15-3 


Summary court-martial ----_--_-__-79d(l)--- ---------- 14-2 


General.............................. 76a, 127b, c --------- 13-11, 25-8 

General courts-martial- --- - --- _ - - ----- 126b-- - - -- -- - -- - --- 25-3 

Instructions by president of special 40b(2)-------------- 9-3 

courts-martial without a military 

judge. 

Nonjudicial----_------------ 131------_--------- 26-3 

President, power to prescribe ----------- 125-------_ 25-1 

Separate offenses from one act or trans- 76a(5)------------- 13-12 

action. 

Special courts-martial ------------ 1571, 126c ----------- 4-5, 25-3 

Summary courts-martial ---------_----- 126c.. -------------- 25-3 

Table of ........................... 127c, Sec. A-- ------ 25-10 

Wartime............................. 127c(5)------------- 25-10 

Mental capacity of accused, effect of -------- 123---------------- 24-5 

Minor, while accused in restraint ----------- 18b(3), 125-- ------- 5-1, 25-1 

Mitigation of. See Mitigation; Remission of 

sentence. 

Number of votes required-- _ - - - _ _ _ - - - - - - --- 76b(3)---- _ - - -- - - - - - 13-14 

Officers and warrant officers ---------------- 126d,i-------------- 25-4, 25-7 

President, power to commute -----------_--- 105a--------------- 20-6 

Previous convictions, weighed in fixing- - - - -- 75b(2)----_--- - ----- 13-8 

Prisoners of war, limits on- ---------------- 127a--------------- 25-7 

Prisoner subject to punitive discharge- - _- -_- 126e-- - _ -----_----- 25-4 

ProhibitedSee also Limitations this subject. 

Contribution of pay or deposits -----_--- 126h-- ------------- 25-5 

Cruel and unusual------------___------- 125-_-------------- 25-1 

Custom of the Service, effect on ------ _ - 125-----....--.._-----25-1 

General.............................. 125---------------- 25-1 

Stoppage of pay to settle liability ------- 126h(l)------------ 25-5 
Punishment-Continued 

Rehearing- Par. Page 


Credit for executed portion of sentence- - 89c(7)----------_--_ 17-13 


Restoration of rights- ---------- - ------ 89c(7)------------- - 17-13 


Remission of nonjudicial------------------- 134---------------- 26-11 

Restriction............................. 1269, 127b ---------- 25-5, 26-8 

Suspension of nonjudicial------------------ 134---------------- 26-11 

Table of Equivalent Punishments-- --- - - ---- 127c(2)------ -- - - --- 25-9 

Table of Maximum Punishment ------------ 127c--------------- 25-10 

Voting on. See Voting. 

Wartime, certain limitations suspended-- --- - 127c(5)----------- - - 25-10 

Punitive articles. See specific offense. 

Punitive discharge. See Discharge. 

Quarrels, frays, disorders, authority to quell ------- 19b------------_--- 5-2 

Quarters allowance, forfeiture of- --------------- 126h(2)- -- - -------- 25-5 

Questions: 

See also Witness, examination; Testimony. 

Ambiguous and misleading ---------__--------149c(2)------------- 27-57 

Degrading----------__--------------------- 150a--------------- 27-57 

Hypothetical-------_---_-_-------_---------- 138e--------------- 27-7 

Improper, insulting ....................... 54a, 14921 ----------- 10-5, 27-54 

Incriminating. See also Self-incrimination- --- - 150b--- - - - - -- - ..-- _ - 27-58 

Interlocutory. See Interlocutory questions. 

Interpreter, asked through ----------------- 50b---------------- 9-16 

Leading. See also Leading questions --------- 149c(l)------------, 27-56 

Objectionable, suggesting inadmissible ma6 149c(3)--- - --- - -- - -- 27-57 

ter. 

Refusal to answer, a military offense -------- 149a--------------- 27-53 

Quitting guard. See Absence without leave; 

Sentinel. 

Quitting place of duty to plunder or pillage 

(Art. 99): 


Discussion------------------------------- 178f--------------- 28-29 


Proof.................................... 178f--------------- 28-29 


Specification form ......................... App 6c(48) _ ----_--- A6-9 


Quorum: 

Challenges reducing court below ------------ 62c, 62h(4) ---_----- 11-7,ll-10 

Enlisted personnel- ------------ - -- _ - - - - - - - 619, 62h(4) ----- _ _-- 11-5,ll-10 

Lack of, effect----_---_------------------- 41d------..------..-- 9-5 

Radio: 

Broadcast of courts-martial- ---- __-_ - - ----- - - - 53e------- - _ -- - _ _ - - 10-4 

Use by counsel for publicity of pending case- - - 42b--------_---__--9-6 

Rank: 

Convening authority not dependent upon ---- 5a(5), b(2), c-------- 3-2, 3-3 

Courts-martialMembers------------__-------------- 4c-------__--_-_--- 2-2 

Seating of members by --_-----__------61b--_-----_-----_-11-2 

Loss of, sentence to ....................... 126i---.---__------ 25-7 


President of courts-martial ---------------__ 40a----_-----__----9-3 


Reduction in. See Reduction in rank. 


Rape (Art. 120): 

Assault with intent to_ ----- - - -- ..--- - --- - -- 213f(l) (c) - - - ------ - 28-75 

Character of victim as evidence of consent-__ 153b(2) (b) -_------__ 27-67 

Chastity, evidence of-- --__-_----__--------153b(2) (b) --------_- 27-67 

Discussion----_------------------------- 199a---..----_-_-.._- 28-47 

Fresh complaint by victim as evidence ------ 142c-----_--_------27-24 

Inference, consent to intercourse ------------ 199a------ ----_---- 28-47 

Killing in connection with ----------------_- 197e------_----_--- 28-45 

Proof--.-----__--_-----------_---------- 199a--------------- 28-47 

Specification form ......................... App 6c(89) --------- A6-15 

Index-93 
Real evidence: 

See also Evidence. par. Page 

General................................ 138c--------------- 27-6 

Reasonable belief, necessary for apprehension----- 19a---------------- 5-2 

Reasonable doubt: 

Defined------------------------------- 74a(3) -----......-----13-4 

Conviction, established by evidence beyond- - 87a(3)- - - ---------- 17-6 

Findings-----------------------------..--- 74a(3)..------------ 13-4 

Military judge, advises court concerning------ 39b(l), 73b------ ---- 9-1, 13-3 

Resolved in favor of accused, instructions---- 73b---------------- 13-3 

Review, considered on..................... 86b(l)-------------- 17-4 

Sanity-------_-----_-------------------- 124---------------- 24-6 

Reasons : 

Disapproval of sentence by convening au- 92----------------- 18-1 

thority. 

For findings.......................... 745(3)-------------- 13-8 

Rebuttal after evidence of aggravation, mitiga- 5e----------------/-13-11 

tion or extenuation. 

Receipt: 

Delivering less than amount called for by. 

See Fraud against United States (Art. 132). 

Discussion-------------_------------- 211j--------------.. 28-69 

Proof............................ 211j- - ------------- 28-69 

Specification form-------- _ ------------ App 6c(120)-- -,--- - A6-19 

Making or delivering without having full 

knowledge that it is true. See Fraud against 

United States (Art. 132). 

Discussion ........................... 2119--------------- 28-70 

Proof................................ 2119--------------- 28-70 

Specification form..................... App 6c(121)- - ------ A6-19 

Receiving stolen property (Art. 134): 

Discussion .............................. 2135(14)------------ 28-81 

Proof----------------------------------- 213f(14)------------ 28-81 

Specification form--- ---- _ ----------------- App 6c(179)- - ------ A6-26 

Evidence of other acts to show guilt_-------- 138g(3)------------- 27-11 

Inference concerning- - ------ --------- ----- 138a(2)- - - - -------- 27-5 

Recess: 

Power of military judge--------,----------- 39b(l)--------_----- 9-1 

Power of president of court without a military 40b(2)-------------- 9-3 

judge. 

Reconvening after- - ..--------------------- 61c- ---- ----------- 11-2 

Reciprocal jurisdiction. See Jurisdiction, reciprocal. 

Reckless driving (Art. 111): 

Discussion............................... 190---------------- 28-39 

Proof................................... 190---------------- 28-40 

Specification form------------------- ------ App 6c(75)------ -- - A6-13 

Recollection, refreshed------- _ -_ ----- - -- - ------ 146a, 149c(l)(b)----- 27-47, 27-56 

Record of court-martial convictions, official 14421--------------- 27-36 

records. 

Record of court of inquiry.. .................... 145c------------..--27-46 

Record of former trial, admissibility as evidence-- 145b--------------- 27-44 

Record of trial. See Records of courts-martial. 

Records, official. See Official records. 

Records of courts-martial: 

See also Convening authority. 

Accused's copyClassified matter--- - -- - - -- - - --- --- - -- - 82g(l)----- ---- - - --- 16-3 

Delivery impossible-__---__-----------91a, b---------_---- 17-15, 17-16 

Right to............................. 82g(l)-------------- 16-3 
--- ---- 

INDEX 

Records of courts-martial-Continued 

Authentication- Par. Page 

General------------------------------ 82f---------------- 16-3 

Military judge ------------------_,- 39f --------,------- 9-3 

President of a special court-martial without a military judge. 

Certificate of correction .................... 

Clemency petitions ........................ Completeness, requirement of- ------------- Contempts......................... 

Convening authorityAction on revision--- ----------------- Decision, form -------- - -- ------------- CopiesAccused, right to ..................... Forwarded,when---------------_------

40c- -------- --- - -- -

86c---------------- 77a---------------- 53b---------------- 118bl App 8c ---------

86d---------------- 89- ----------------

82g(l)-------------- 91-----------------

General-------------- ----------------- 49b(2)--,----

9-4 

17-4 

13-15 

10-1 

23-8, A8-25 

17-5 

17-11 

16-3 

17-15 

9-15 

Reporter, preparation by -------------- 49b(2),------------- 9-15 

Copies, additional--- - - -- - - __- -- - - - - - _- ----- - - 49b (2) ----- - - - - ----- 9-15 

Corrections, subject to review -------------- 95----------------- 19-2 

~ocumentar~ evidence, marking of ---------- 54d---------------- 10-6

E~rors, correction of ...................... - 86c- --------------- 17-4 

Evidence in subsequent trial-- ------------- 145b--------------- 27-44 

Findings, preparation of in closed session- --- 53d---------------- 10-1 

Foreign laws, included as exhibit ------------ 147b------,,------- 27-50 

Former record, examination at rehearing--- - - 81c---------------- 15-3 

ForwardingAppellate review ...................... 99----------------- 20-1 

Copies,when------------------------- 91--..-------------- 17-15 

General courts-martialSee also General courts-martiall. 

Accused's copy ....................... 82g(l)-----_-------- 16-3 

Acquittal----------------------- 85b--------_------- 17-2 

Appellate review. See Appellate review. 

Arguments and statements of counsel ---- 82b(4)-------------- 16-2 

Attachments ......................... S2b(5)-------------- 16-2 

AuthenticationMilitary judge ------------,-_------ 39f, 82f, App 9 ------ 9-3, 16-3, A9-1 

Trial counsel's corrections -------- - - 82e- -- -- -------- - - 16-2 

Court of Military Review. See Court of 

Military Review. 

CerttEcate of medical officer ------------

, Classzed matter ...................... 

-	 Clemency petitions ---- ------------ ----

ContentsAcquittal........................ 

Appendages ...................... 

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

General----------_-----+---------

Revision proceedings --------------

125---------------- 25-1 

82g(l)-------------- 16-3 

77a---------------- 13-15 

82b(l)------_------- 16-1 

82b(5)-------------- 16-2 

82b(4)---- - - _ ----- - - 16-2 

39c, 82b ------------ 9-1, 16-1 

82b(3)-------------- 16-1 

Stricken matter ---_--------------- 82b(2)-------------- 16-1 

Summarized.................... .-82b(l), 83b ---------- 16-1, 16-4 

Convening authority action, attached, - 91a---------------- 17-15 

Copies............................... 82c---------------- 16-2 

Correction----.---------------------- 82e----_----------- 16-2 

Defense counsel's examination-- --- ----- 82e- -------- ------- 16-2 

Delivery to accused -_----------------- 82g(1)-------------- 16-3 . .. Dlsposltlon ........................... 82g---------------- 16-3 

Errors, correction of subject to appellate 95----------------- 19-2 

review. 
------- 

INDEX 

Records of courts-martial-Continued 

General courts-martial-Continued par. Page 

Excluded matter ----------------------- 82b(5)-------------- 16-2 

Exhibits----------------------------- 54d---------------- 10-6 

Expurgated matter .................... 82g(l)-------------- 16-3 . . Fling------------------------------- 94b---------------- 19-2 

General------------------------------ 82---,------------

16-1 

Instructions, arguments on--- --------- - 73d, 82b(4)--- --- - - -- 13-3,16-2 

Interpreters, testimony through --------- 82b(1)-------------- 16-1 

Jurisdictional facts .................... 82b(l)-------------- 16-1 

Loss of notes or recording devices ------- 82i---------------- 16-4 

Loss of record------------------------ 82h---------------- 16-4 

Military judge, newly appointed -----.-- 39e---------------- 9-2 

New record, preparation of ------------- 82h, i-------------- 16-4 

Preliminary questions, arguments on- --- 57g(2), 82b(3)- ------ 10-9,16-1 

Preparation, responsibility for ---------- 82a---------------- 16-1 

Proceedings recorded ------------------ 39c, 82b ------------ 9-2,16-1 

Revision proceedings- -- - - - - - -- - ------- 82b (3) ----- _ -- _ --:_ _ 16-1 

Security classification ------------------ 82d---------------- 16-2 

Stricken material ..................... 82b(2)-------------- 16-1 

Trial counsel'sCorrections...................... 82e---------------- 16-2 

Disposition----------------------- 82g---------------- 16-3 

Initial reviewConvening authority-- ---------------- 84a1b-------- ------ 17-1 

Officer exercising general court-martial 84c---------------- 17-1 

jurisdiction. 

Staff Judge Advocate or legal officer-- --- - 85a--- - - - - - - -- - - - 17-2 

New trial 

Disposition.------ - - - --- - - - - - - - - ----- - 110c---- - -- - - -;-- - - 21-3 

Examination of former record ---------- 81c---------------- 15-3 

Offer of proof, included .................... 57g, 154c ----------- 10-9,27-73 

Preparation by reporter ------------------- 49b - -------------- 9-15 

Rehearing, examination of former record _---- 81c-- - ------------- 15-3 

Reporter, duties-------------------------- 49b---------------- 9-15 

Review---------------------------------- 94---------, 19-1 

Revision. See Revision. 

Special courts-martialSee also Special courts-martial. 

Acquittal--------------------.------- 83b---------------- 16-4 

Bad-conduct discharge ---------------- 15bl 83a ------------ 4-5, 164 

Disposition .......................... 83a1 b -------------- 164 

General------------------------------ 83a1b-------------- 16-4 

Non-bad-conduct discharge- ----------- 83b---------------- 16-4 

Qualifications of counsel --------------- 6c- ---------------- 3-4 

Staff Judge Advocate or legal officer, action 85a---------------- 17-2 

by. 

Summary courts-martialSee also Summary courts-martial. 

Authentication .................... 79e---------------- 14-3 

Copies, distribution ----_-------------- 91c---------------- 17-16 

Disposition........................... 83c, 91c, 94b -------- 16-5,174, 19-2 

General--_--_-_-_-------------------- 79c, 83c------------ 14-1, 16-5 

Review-------------_------------- 94---------------..- 19-1 

Written instructions in closed session -------- 73d- -_------------- 13-3 

Records, official. See Official records. 

Records, public, destruction of: 

Specification form ------ - - -- - -- - - - - - - - ---- - App 6c (172) - - - - ---- A6-25 

Recruiting officers, authority to administer oaths- 113,,-------------

22-2 
INDEX 

Reduction in grade: 

See also Punishment. par. Page 

Above fourth pay grade, limits on summary 1621---------------- 4-7 

courts-martial. 

Additional punishment ..................... 127c, Sec B--------- 25-17 

Enlisted persons, administration.. ----------- 126e--- - ---- - -- - --- 25-4 

onj judicial punishment of non-comniissioned 131b-- - - - --- - - -- - - - 26-3 

or petty officer. 

Summary courts-martial, limits ------------- 16b---------------- 4-7 

Reduction or" officers: 

See also Punishment. 

Commutation by Secretary concerned- ---- - - 100c(l)(b)------- - -- 20-3 

Dismissal commuted to .................... 100c(l) (b), 126d ----- 20-3,25-4 

Sentence to ------__-------------------- 126d, 126i ---------- 25-4,25-7 

Refreshing recollection.. - - - ---- __-_ ---- - - - -- - ---- - 146a, 149c(l) (b)-.. --- 27-47, 27-56 

Regulation or general order, violation of (Art. 92) : 

Discussion--------------_------------- 17la--------------- 28-21 

Proof------------_-__------------------- 171a--------------- 28-21 

Specification form ......................... App 6c(27) ---- ----- A6-7 

Rehabilitation, of accused ------------------- 88b---------------- 17-7 

Rehearing: 

See alsoRevision; New trial. 

Authority to orderCombinedrehearing------------------- 92a--------..------- 18-1 

Full rehearing------------------------ 92a---------------- 18-1 

General......................... 92a---------------- 18-1 

Sentence only------------------------ 92a---------------- 18-1 

Cases to be referred for .................... 92a---------------- 18-1 

Convening authorityAction on .......................... 89c(7)-------------- 17-13 

Ordering----------------------------- 92..---------------- 18-1 

Reasons for disapproval of sentence 92----------------- 18-1 

stated. 

Court of Military Appeals, ordering --------- 92, 101 -----_------- 18-1, 20-4 

Court of Military Review, ordering ----_-_--92, 100b ---_------_- 18-1, 20-2 

Court-martial members, different ----------- 92----------------- 18-1 

Dismissal of charges in lieu ofConvening authority ------------------ 92, 100b, 101 -------- 18-1,20-2,20-4 

Court of Pdilitary Appeals ------------- 101---------------- 20-4 

Court of Military Review ------------------ lOOb(1)---.-.-__---_ 20-2

Evidence, lack of sufficient to support findings- 92-------- - -- - --- _ - 18-1 

Examination of record of former proceedings- 81c---------------- 15-3 

Former jeopardy, effect of -----__ - - ---- - _ - - - 215b-- - - - - - _ -- - - - - - 29-2 

Former testimony, use of --__-_----____---- 145b--------------- 27-44 

Grounds for------------------------------ 92-----_----------- 18-1 

Insanity as ground for----------_---------- 124_-----------..--- 24-6 

Military judge alone, right to request trial by- 92a--.. ---------,--- 18-1 


Military judge of- ---_-----_-----_--------92a---_------._---_ 18-1 


Officer with supervisory authority with re- 94a(2)- - - ---------- 19-1 


spect to summary and special courts-


martial, action by. 


Ordered by Court of Military Appeals ------- 101---------------- 20-4 


Procedure-


Combined rehearings- ---- - - - - - - - ----- - 81b(3)------------ - - 15-3 


Full rehearings- - - _ - - - - - --- - - - ---- - - -- 81b(l)--------- - - --- 15-2 


New or other trials ---_-- - -- _- -- -- - ---- 81b(l)-------------- 15-2 


Sentence only- -- _ _ ----------- -- --- -- - 81b(2)------_------- 15-2 


Reasons for disapproval of sentence stated--- 92----------------- 18-1 

INDEX 

Rehearing-Continued 

Sentence- Par. Page 

Approval of, prohibits rehearing -------- 92------,-----_-_-- 18-1

Credit for executed sentence ------------ 81d, 89c(7) 94a(2) --- 15-3, 17-13, 19-1 

General------------------------ - - ---- 81d---------------- 15-3 

Instructions on maximum ----------i --- 81d---------------- 15-3 

Original, court not advised of ----------- 81d---------------- 15-3 

Rehearing on sentence, procedure ------- 81b(2)-------------- 15-2 

Rules relating to ...................... 81d---------------- 15-3 

Releasing a prisoner without proper authority 

(Art. 96): 


Discussion------------------------------ 175a--------------- 28-25 


Proof................................... 175a--------------- 28-26 


Specification form ......................... App 6c(39)--- ------ A6-9 


Relief, not affording all practicable relief and 

assistance (Art. 99) : 


Discussion------------------------------ 178i--------------- 28-29 


Proof----------------------------------- 178i--------------- 28-29 


SpecScation form ......................... App 6c(51) --------- A6-10 


Remission of nonjudicial punishment ------------ 134-------=-------- 26-11 

Remission of sentence: 

See also Commutation of sentence; Convening authority; Sentence. 


Generally-------------------------------- 97a, 105b-.,-..------- 19-3, 20-6 


After appellate review ..................... 105b--------------- 20-6 


Authority------------------------------- 97a, 105b---..------- 19-3, 20-6 


Judge Advocate General, action by --------- 97a, 105b ----------- 19-3, 203.6 


Regulations of Department ----------------- 97a---------------- 19-3 


Termination of suspended sentence by ------- 88e(3)-------------- 17-10 


Reporter: 

Accuser barred--------------------------- 7------------------ 3-6 

Compensation and expenses ---------------- 49b(3)--3----------- 9-16 

Detail of ................................. 7------------------ 3-6 

Forms for preparation of record ------------- 49b(l), App 9--- ---- 9-15, A9-1 

Oath 49b(3), 61d, 1124 c, 9-5, 11-2, 22-1, 

d, 114d. 22-3. 


Preparation of record---------------------- 9-15 


Recording proceedings--- - -- - - ------------- 49b(l)-..- ------ - ---- 9-15 


Records of trial, copies- -- - ------- -- - - --- - - 49b(2)..,-- --------_- 9-15 


Special courts-martial- 


Detail, when------------------------- 33k--..------------- 7-8 

Record, verbatim in certain cases ------- 15b---------------- 4-5 


Summary courts-martial ------------------- 7------------------ 3-6 


Sworn, when- ---------------------------- 61d, 112~-- - .------- 11-2, 22-1 


Voucher of payments not with record -------- 82b(5)-------------- 16-2 


Reports: 

Accused left without qualified counsel ------- 61f(3)-------------- 11-4 

Apprehension of warrant or commissioned 19a---_------__----5-2 

officer by enlisted person. 


Change in temporary custody of accused ----- 96----------------- 19-3 


Confinement-----------2----------------- 20d(5)----..-..------ 5-4 


Courts-martial-


Defense counsel not legally qualified ----- 61f(3)-------------- 11-4 

Lack of quorum- ---------- - -- -------- 62h(4)- - --- - - ------ 11-4 


Delay because of motion to sever ----------- 69d---------------- 12-8 


Investigating Officer- 


See also Investigating officer. 


Admissibility as evidence- ------------- 144d--------------- 27-39 


Formal.............................. 34e- --------------- 7-11 


Informal 34j---------------- 7-12 


Officer, sentence of ........................ 96----------------- 19-3 


98-Index 
Reports-Continued 

Official. See Evidence, documentary; Official 

records. 

Trial counselSee also Trial counsel. 

Absence of member of court- ---- - - - - -- - Disqualification of .................... Result of trial ........................ Reprimand: 

Administrative ........................... As nonjudicial punishment -----------------

Convening authority- ..................... Court-martial, directed by- ---------------- Court-martial, does not establish terms ------

Reproachful or provoking speeches or gestures 

(Art. 117): 

Discussion------------------------------

Proof ................................... 

Specification form ......................... 

Reputation. See Evidence, character. 


Res gestae. See Evidence, hearsay. 


Rescission of deferred sentence to confinement 


Forms for actions and orders ------- -------- General---------------------------------

Reserve personnel, eligibility for courts-martial-- --

Residence, inference of continuity ----- ---------- Resignation, quitting post or duties prior to 

notification of acceptance of (Art. 85) as 

desertion: 

Proof-----------------------------------

Specification form ......................... 

Resisting apprehension (Art. 95) : 

Discussion------------------------------

Proof ................................... 

Specification form -------------- ---- -------

Res judicata. See Prior adjudication. 

Restoration of rights: 

Nonjudicial punishment -------------------

Sentences of courts-martial -----------------

Par. Peg0 

41c, 41d- ------- - -- - 9-4, 9-5 

44b---------------- 9-7 

44e---------------- 9-7 

128c--------------- 26-2 

131b--------------- 26-3 

89c(8)-------------- 17-13 

1261-- -----------_-25-4 

126f- - - ------------ 25-4 

196---------------- 28-43 

196---------------- 28-44 

App 6c(85) - - - ------ A6-15 

App 14, App 15f, g-- A14-1, A15-5 

88g---------------- 17-11 

4a- ----- - - - -------- 2-1 

138a--------------- 27-5 

164q----.---------- 28-12 

App 6c(ll) - - ------- A6-5 

174a--------------- 28-24 

174a--------------- 28-24 

App 6c(36) - - .------ Af5-8 

134,135------------ 26-11,2612 

106--------- ------_ 20-7 

Restoration to duty, condonation of desertion ---- 68f- - -------------- 12-6 

Restraint: 

See also Apprehension; Arrest; Confinement. 

Failure to, effect on jurisdiction ------------- Prior to trial ............................. Unlawful restraint or detention (Art. 97)- 

Discussion............................ 
 Proof................................ 
 Specification form--- --- - ----- - -- - - -- - -

Restriction: 

Apportionment-- - ---- - .----- 1------- - - --- Breach, specification form ----------- --- ---- In lieu of arrest ........................... 

Nonjudicial punishment- - - ---------------- Sentence to, or punishment of --------------

Retired personnel, eligibility for courts-martial 

duty. 

Review of trial by convening authority: See 

Convening Authority. 

Acquittal, jurisdiction review--- --------- ---

General---------------------------------

18b(l)--,----------- 5-1 

30h---------------- 7-2 

176---------------- 28-26 

176---------------- 28-27 

App 6c(40) -- - -- - -- - A6-9 

127c(2)------,- - ---- 25-9 

App 6c(175)-- ------ A6-25 

20b---------------- 5-3 

131b--------------- 26-3 

126g--------------- 25-5 

4a----------------- 2-1 

86b(2)----- ----- ---- 17-4 

84a---------..------ 17-1 
INDEX 

Review of trial by convening authority-Continued Par. Page 

Matters to be considered on review --------- 86b---------------- 17-4 

Sentence............................. 88----------------- 17-7 

Review, departmental, in reciprocal jurisdiction. -- 13, 99-- -- - - - - - - - - - - 4-3, 20-1 

Review by staff judge advocate or legal officer, 

disposition. See Staff Judge Advocate. . ..,. 

Review of courts-martial. See Court of Military 

Review; Convening authority; Court of ':Military Appeals. 

Revision: 

See also Rehearing; Convening authority. 

General---------------------------------

85d--~,------------ 17-3 

80a---------------- 15-1 -

Copy of record to accused ------------__---- 82g(l)-------------- 16-3 , 

Inconsistent findings and specifications- ----- 87b-- - - ------------ 17-6 

Limitations upon--- -------------------- 86d---------------- 17-5 

Officer having supervisory powers, recom- 94a---------------- 19-1 

mendation of. 

Personnel of court-------l----------------80b---------------- 15-1 

Procedure............................... ReconsiderationMotions-----------------------------

Prohibited, when ---------------------- Record of ................................ Summary courts-martial, applicability of 

rules. 

Riot, (Art. 116) : 

Discussion-----------------------_-------

Proof .................................. Specification form ......................... Killing in connection with ----- ------------- Robbery (Art. 122) : 

Discussion-----------------------------

80c---------------- 15-1 

67f---------------- 12-3 

80, 86d ------------- 15-1, 17-5 

80d---------------- 15-2 

80e---------------- 15-2 

195a--------------- 28-43 

195a--------------- 28-43 

App 6c(83) - - - ------ A6-14 

198b--------------- 28-46 

201---------------- 28-52 

Proof -------------------_----------------201---------------- 28-54 

SpecScation-- -........................ Assault, with intent to commit (Art. 134) ----

Specification form ......................... Killing in connection with ------- -----------

Rosters of prisoners, official records- ------------

Running away before the enemy (Art. 99) : 

Discussion--------------------

Proof .......................... Specification form ......................... 

Safeguard, forcing a: 

Discussion............................... 

App 6c(92) - - ------- A6-15 

213f(l)(d) ---------- 28-75 

App 6c(129) - - ------ A6-20 

197e---------- ----- 28-45 

144b~------------- 27-36 

178a--------------- 28-27 

178a--------------- 28-28 

App 6c(43) - - ------- 86-9 

181---------------- 28-31 

Proof ---,--------------------- 181---------------- 28-31 

Specification form ......................... Safety of command, unit, place, or military property, endangering: 

Discussion-------------------------------

Proof ................................... 

Specification form ........................ - Sale, unlawful, military property: 

Discussion.............................. 

Proof ................................... Specification form--- ---- - - - -- - - - -- - - - - - - --

Same act or transaction, offenses arising out of: 

App 6c(551- - ------- A6-10 

178c-----..--------- 28-28 

178c--------------- 28-28 

App 6c(45)- -------- A6-9 

187a--------------- 28-36 

187a--------------- 28-36 

App 6c(66) - - -- - -- - - A6-12 

Charging separately, policy against --------- 26b---------------- 6-2 


Guilty findings ........................... 74b(4)-------------- 13-5 


Punishmelit of separate offenses- - ---- ------ 76a(5) - - - ---------- 13-12 

INDEX 

Sanity: 

See also Insanity. Par. Page 

Acquittal------------------------------ 122a--------------- 24-2 

Presumption of ........................... 122a, 138a ---------- 262, 27-5 

Seals: 

Judicial notice of- - - ...................... 147a--------------- 27-48 

Search and seizure: 

Accused, objection by- .................... 152---------------- 27-62 

Administrative inspections or inventories 152---------------- 27-62 

distinguished. 

Authorization forCommanding officer's power to order--- 152---------------- 27-62 

Delegation of power to order -..--------- 152---------------- 27-62 

Communications Act, Section 605, applica- 152__-------------- 27-62 

bility. 

Consent toAdmissibility, effect upon -------------- 152_---_----------- 27-62 

Burden of proof---------------------- 152---------------- 27-62 

LawfulAdmissibility of items seized ----------- 152---------------- 27-62 

Circumstances giving rise to- --- - ------ 152---------------- 27-62 

Objects seizable ...................... 152---------------- 27-62 

Probable cause as condition precedent to- 152---------------- 27-62 

Persons authorizedto conduct-------------- 152---------------- 27-62 

Probable cause for- ,---------------------- 152------------ ---- 27-62 


Property or places subject to --------------- 152---------------- 27-62 


Unlawful-


Defined---------------------,------- 152,--------------- 27-62 


Admissibility, effect upon ,-------------
 152--------------_- 27-62 

Return or suppression of property seized, 152---------------- 27-62 

motion for. 

Wiretap, evidence obtained by ------------- 152---------------- 27-62 

Secondary evidence. See Evidence, documentary 

and evidence, best. 

Secretary concerned: 

Action on receipt of charges--- - - ---------- 35b- --------------- 7-12 

Defined------------_-------------- 5a(l)-------------- 3-1 

Capital case, authorizing trial by special 15a---------------- 4-5 

courts-martial. 

Civil authorities, delivery to and return of 23----------------- 5-5 

offenders from. 

Contempt toward. See Contempt toward. 

General courts-martial, detail of ------------ 5a----------------- 3-1 

New trial, restoration of rights ------------- 110d--------------- 21-3 

Nonjudicial punishment, power to limit,- 

Commanders authorized to impose ------ 128a------ ----- ---- 26-1 

Kind and amount-------------------- 131a--------------- 26-3 

Regulations concerning arraignment and 39b(l), 53d(1) ----- - - 9-1, 10-1 

pleas at Article 39 (a). 

Regulations concerning compensation and 50b---------------- 9-16 

expenses. 

Regulations concerning detail of reporters 7------------------ 3-6 

and interpreters. 

Regulations concerning findings without vote- 70b- --- - ------ - - - - - 12-10 

Regulations concerning oaths --------------- 40b(l)(b), 49b(3), 9-3,9-16,ll-2, 

5Ob, 61d, i, 112c, 11-5,22-1, 

dl 114. 22-2 

SentenceAdministrative for punitive discharge, 97a---------------- 19-3 

authority to substitute. 

Approval of .......................... 98, 100c(l) (b), 101--- 20-1, 20-3,204 
- --- 

INDEX 

Secretary concerned-Continued 

Sentence-Continued 

Commuting, authority to -------------- Confinement, place of 

Remitting and suspending unexecuted 

portions, authority to 

par. Page 

105a--------------- 20-6 

93----------------- 18-3 

97a, 105b ----------- 19-3, 20-6 

Vacation of suspension ---------__----- 97b---------------- 19-3

Transmission of case to, for presidential action- 101- --------------- 20-4 

Secretary of a department: 

See also Secretary concerned. 

Courts-martial, expenses of ---------------- 119---------------- 23-9 

Courts-martial ordersDistribution------------------ 90d---------------- 17-15 

Promulgation---------- - ----- --;, 90a---------------- 17-14

Minor punishment --- - - - ----- - -- _- ------ - - - 18b(3)---------- - - -- 5-1 

Suspected offenses, release of information 53e---------------- 10-4 

concerning. 

Secretary of Defense: 

Authorization of court-martial jurisdiction 13----------------- 4-3 

over members of other armed forces. 

Contempt toward. See Corntempt toward. 

Security matters: 

Court-martial orders, classified material in- --- 90c-------- - -- -- - - - 17-15 

Disposition of charges, affected by ---------- 33f ---------------- 7-6 

Records of trialClassification---------- -----

Convening authority, action by --------- Spectators, excluded from trial- -------- - ---

Sedition : 

Discussion,------------------------------

Proof-----------------------------------

Specification form ------------------ ----

Failure to prevent or suppressDiscussion---------------------------

Proof--------------------------------

Specification form ..................... 

Failure to reportDiscussion------------------

Proof ....................... 

Specification form ..................... 

Self-defense: 

Assertion as a defense ..................... 

Assault................................. . . Maiming................................. 


Test for ................................. 

Self-degradation......................... 

Self-incrimination: 

AccusedRights explained ...................... 

Waiver of right ....................... 

Acquittal, effect of ........................ 

Assertion of right, against ------------------

Evidence of testimonial or communicative 

nature. 

Exhibition of body .................... 

Fingerprints............................ 

General................................. 

Medical examination ------------------- ---

82d------------:---16-2 

82g(l)-,--..---------16-3 

53e---------:--10-4 

173b---..----------- 28-23 

173b--------------- 28-23 

App 6c(34) --------- A6-8 

173c--------------- 28-23 

173c-----..--------- 28-23 

App 6c(34) - - ------- A6-8 

173d--------------- 28-23 

173d--------------- 28-24 

App 6c(34) --------- A6-8 

216c--------------- 29-4 

207a--------------- 28-61 

203---------------- 28-58 

216~--------------- 29-4 

150a--------------- 27-57 

344 53h, 150b ------- 7-9, 10-3, 27-58 

149b(l), 150b ------- 27-54, 27-58 

150b--------------- 27-58 

15021--------------- 27-58 

150b--------------- 27-58 

150b--------------- 27-58 

150b--------------- 27-58 

150b--------------- 27-58 

150b--------------- 27-58 

Military judge's ruling on ---------_-------- 150b-----------,--- 27-58 

Physical characteristics .................... 150b--------------- 27-58 

Physical examination, compulsory ----------- 150b------- -------- 27-58 
--- - 

Self-incrimination-Continued 

President of a special court-martial without 

a Military judge, ruling on. 

Statute of limitations, effect of ------------- Stomach pump ........................... Unfavorable inferences from assertion- ------ Waiver of right against .................... Self-inflicted injury. See Ma!ingering. 

Selling military property. See Military property. 

Sentence : 

See also Nonjudicial punishment; Punishment. 

Adequacy--------------------------------

AffirmationBy whom---------------------------- 

Requirements for ..................... Announcement of, in open court ------------ Appellate reviewCourt of Military Appeals ------------- Court of Military Review --------------

Par. Page 

150b--------------- 27-58 

150b--------------- 27-58 

150b--------------- 27-58 

150b--------------- 27-58 

150b--------------- 27-58 

76a---------------- 13-11 

lOOa--------------- 20-2 

98----------------- 20-1 

76c---------------- 13-15 

101---------------- 20-4 

100---------------- 20-2 

Judge Advocate General ------------_--103---------------- 20-6 

Apportionment by summary courts-martial--- 16b, 127c- ---------- 4-7, 25-8 

Approval ofConvening authority ----------------- 86a1b, 88, 89c(3) ---- 17-3, 17-4, 17-7, 

17-12 

Discharge, bad-conduct -------------- 90b(1)-------------- 17-14 

General------------ ----------- ------ 76a, 88a ------------ 13-11, 17-7 

Portion of sentence .................... 88c---------------- 17-7 

President of U.S ...................... 98, 100c(2), 104 ----- 20-1, 20-4, 20-6 

Secretary concerned ------------------- 98, 100c(l) (b), 101-- 20-1,20-3, 20-4 

Bases for determiningBad-conduct discharge ---..-------------76a(4)- ---------,-- 13-12

Dishonorable discharge-- ----- - - - - ----- 76ai3) -- - ------- - -- 13-12 

General------------------------------

Maximum---------------------------

Offenses ariskg out of same act or transaction. 

Separate offenses ...................... Upon review ......................... Clemency, recommendation for- ------ ------ Coercion of court ......................... 

CommutationConvening authority- -----------------

President----------------------------

Secretary concerned -------- -----------

Convening authority, action of76a----------..----- 13-11 

76~(2)------------- 13-11 

76a(5)-- - ---------- 13-12 

76a(5)-- ----------- 13-12 

88b---------------- 17-7 

77---------------- - 13-15 

5a, 38, 86b ---------- 3-1, 8-3, 17-4 

88c, 89c(4) ---------- 17-7, 17-12 

105a--------------- 20-6 

105a--------------- 20-6 

Approval in part ---------------------- 8%- ---..------,17-7 

Basis for approval- ------------------- 88b---------------- 17-7 

Disapproval.......................... 88a, 89c(2)- -------- 17-7, 17-12 

Execution............................ 88d---------------- 17-8 

Officers accused, report in cases of ---- - - 96-- - - ---- - - - --- - -- 19-3 

Court of Military Review, setting aside ------ 100b--------------- 20-2 

Court-martial orders, promulgation of ------- 90a, 107 --.--------- 17-14, 20-7 

Death sentence. See Death sentence. 

Deferment of confinement ------------------ 88f ---------------- 17-10 

Deferment of forfeitures --------_--------88d---------------- 17-8 

DeliberationClosed session ........................ 53d---------------- 10-1 

Procedure---------------------------- 76b(2)-------------- 13-14 

Determination of ......................... 76a---------------- 13-11 
INDEX 

Sentence-Continued 

Disapproval- par. Page 

Convening authority ------------------ 86a, 88a, 89c(2), 92-- 17-3,17-7, 

17-12, 18-1 

President ............................ 100c--------------- 20-3 


Discharge. See Discharge. 


Discretion of courts-martial to adjudge- ----- 76a(l)------------- 13-11 


Dismissal, restoration of rights--- ---------- 100b--------------- 20-2 


Errors in trial- 


See also Errors. 


Correction of ......................... 76c---------------- 13-15 


Effect of----------------------------- lOOa---------..----- 20-2 


Execution of- 


Authority to ......................... 88d(l)------------- 17-8 


Convening authority's approval .--------86a, 89c(4) -----,- 17-3, 17-12


General----------------------------- 884 98------------- 17-8, 20-1 

Interruption of 97c---------------- 19-4 

Period for appeal- -- - -- - -- - --- - -- _- -- - - 100c(l) (a) ------ - --- 20-3 

Petition for new trial-- ---------------- 109a--------------- 21-1 

PrerequisitesConvening authority ------ - --- __- - - - 86a, 89c(4) -- - ---- 2 - 17-3,17-12 

Court of Military Appeals --------- 98,101--------,---- 20-1,204 

Court of Military Review ---------- 98, 100a ------------ 20-1, 20-2 

President-: ---------------------- 98, lOOc(2) --- - ----- 20-1,20-4 

Secretary concerned ----------__---98, 100c(l) --------- 20-1,20-3 

To confinement--- --------- _- --- - - - 88d(2)----- - -1----- 17-8 

To forfeiture of pay or allowances--- 88d(3)-- ----------- 17-8 

Factors in determining--- -----__----------76a---------------- 13-11 


Finality of ............................... 108---------------- 20-7 


Form.................................... 76b(4)-------------- 13-15 


General------------__------------------- 88----------------- 17-7 


Hard labor ............................. 126j--------------- 25-7 


Illegal. See Punishment, prohibited. 


Increasing on approval or review, prohibited- 88a ---------------- 17-7 


Instructions on ........................... 76b(l)-------------- 13-13 


Maximum punishment, court advised of-- 39b(l), 76b(l) ------- 9-1,13-13 


Mental condition, effect on --------- - - ---- - - 123-- - - ---- - -- - ---- 24-5 


Military judge- 


Action on ambiguous or illegal-- ------- 76c----------------- 13-15 


Advise court of maximum punishment- 39b(l), 76b(l) ----- - - 9-1,13-13 


Misbehavior during war, limitations on 127c(5)------------- 25-10 


punishment suspended. 


Misconduct, effect on ------- - - - - - - - ----- - - - 76a(2)- - --- - - - - - - - 13-11 


Mitigation. See Mitigation of sentences. 


New trial- 

-
 Advising of original- - - --- - -- - ---- - -- - - 81d-- - - - ----.-- - - -- - 15-3 


Basis for ordering ..................... 109d--------------- 21-1 


Credit for prior sentence-- - - - - -- - ---- - - llOa(3)------------- 21-3 


Limitations on -------------- - ----- - --- 81d---- - --- - -- - ---- 15-3 


Of officer, report of convening authority ----- 96----------------- '19-3 


Offenses arising out of same act or transac- 76a(5)------------- 13-12 


tion. 


Presentencing procedure- 


Defense, matter presented by ---.------- 75c--------------- 13-10


General.............................. 75---..-------------13-9 

Mental condition, effect of ------------- 123---------------.- 24-5 

Optional matters ...................... 754 App 8b---'------ 13-11, A8-23 

Prosecution, matters presented by- - - --- 74b---------------- 13-9 

Rebuttal evidence ---- --_------------- 75d---------------- 13-11 

Procedure-


Announcement- ------- -- -- - ---------- 76c- ------- -------- 13-15 

INDEX 

sentence-Continued 

Procedure-Continued par. Page 

Deliberation ....................... 76b(2)-------------- 13-14 

Instructions on maximum punishment--- 76b(l) -------------- 13-13 

Reconsideration----_--------------- 76d---------------- 13-15 

Voting---- s .......................... 76b(2)------,------- 13-14 

Reconsideration of ........................ 76d, 80a ------------ 13-13, 15-1 

Rehearing. See Rehearing, sentence. 

Remission of. See Remission of sentence. 

Rescission of deferment of confinement ------ 889---------------- 17-11 

Rescission of deferment of forfeitures -------- 88d(3)- - - ---------- 17-8 

Review by convening authority ------------ 86b(l), 88b --------- 17-4, 17-7 

Revision. See Revision. 

Separate offenses .......................... 76a(5)- ------------ 13-12 

Suspension. See Suspension of sentence. 

Vacation of suspended ..................... 97b---------------- 19-3 

Voting onClosed session _----------------------- 53d(3)------------- 10-3 

General------ - - - ------ - --------- - - - - - 76b(2), (3) ---- - ------ 13-14 

Military judge not voting -------------- 39b(l)-------------- 9-1 

Number of votes required -------------- 76b(3)-------------- 13-14 

Procedure............................ 76b(2)-------------- 13-14 

Sentinel or lookout: 

Drunk or sleeping on post- 


Discussion------------------------- 192---------------- 2841 


Proof-------------------------------- 192---------------- 28-41 


Specification form ..................... App 6c(77) ---------- A6-14 


Leaving post before being regularly relieved- 


Discussion--------------------------- 192---------------- 28-41 


Proof-------------------------------- 192---------------- 2841 


Specification form ...................... App 6c(77) --------- A6-14 


Separate offenses. See Offenses, separate. 


Separate unit, defined. See also Unit------------- 5b(3)--------------- 3-2 


Separation: 


See Discharge; Dismissal. 


Effecting unlawful. See Enlistments, unlawful 


Fraudulent. See Fraudulent enlistment etc. 


Service: 

Charges. See Charges and specifications; 

Accused. 

Subpoena. See Subpoena and witnesses. 

Service number, allegation in specification ----- --- 28a(l) ------------- 6-3 

Service record: 

Evidence-


Desertion............................ 164a--------------- 28-10 


Prior discharge---------_------------- 162----..----------- 28-9 


Proof by- 


Absence without leave----------------- 164a--------------- 28-12 


Previous convictions --------_----------758(2)-------------- 13-9 


Official record-------------------__--------- 144b--------------- 27-36 

Severence, motion for ------ ------------------- 69d---------------- 12-8 

Sexual offenses: 

Complaint of victim. admissibility as 142c--------------- 27-24 

evidence. 


Corroboration of complaint- --------------- 142~--------------- 27-24 


Testimony of victim ...................... 153a--------------- 27-65 


Shore patrol. See Police. 

Signature: 

Charges- - --........................... 29e---------------- 7-1 

Court-martial records. See Records of courts: 

martial, authentication. 
INDEX 

Signature--Continued par. Page 

Depositions- --,- - ----- - ------ - -- - --- - - - - - 117c(4)---- - - -- - --- - 23-7 

Forgery of, in connection with claimsDiscussion--------------------------- 211e--------------- 28-69 

Proof------------------------------- 211e--------------- 28-69 

Specification form ------------ -- - -- - --- App 6c(118) -- - ----- A6-19 

Investigation of charges, witnesses ---------- 34d---------------- 7-10 

Judicial notice of signature of officials, et al--- 147a- -------------- 27-48 

Proof of waiver -----------------------.- --- 143b(l)------------- 27-29 

Staff judge advocate or legal officer, pretrial 35c---------.---..-..-7-13 

advice. 


Subpoena-------------------------------- 115d(l~------------ 23-2 


Witnesses, investigation of charges ---------- 34d---------------- 7-10 


Signing false official documents or statements: 

Discussion---------_-------------------- 186---------------- 28-36 

Proof------------------------------------ 186 28-36 

Specification form -------------- ------ - ---- App 6c(65) - - ------- A6-12 

Signing receipt without knowledge of facts: 

Discussion.............................. 211g--------------- 28-70 

Proof ----------------------------------- 211g-------: ------- 28-70 

Specification form ......................... App 6c(121) -------- A6-19 

Simple arson: 

See also Arson. 

Defined.................................. 205b--------------- 28-60 

Sketches, admissibility as evidence-------------- 144e--------------- 27-41 

Sleeping on Post. See Misbehavior of sentinel or 

lookout. 

Sodomy: 

Assault withintent to--------------------- 213f(l) (e) ---------- 28-75 

Discussion---------__------------------- 204---------------- 28-59 

Evidence of, complaint of victim ------------ 142c--------------- 27-24 

Killing in connection with ------------------ 197e--------------- 28-45 

Proof----------------------------------- 204----------:----- 28-59 

Specification form ......................... App 6c(98)-- ------- A6-17 

Soldiers. See enlisted persons. 

Solicitation: 

Discussion-------------------------- 161----------..-----28-9 

Proof................................. 161 --------------- 28-9 

Specification form--- -- - - - - - - - - - -- - -------- App 6c(4), (5) ------ - A6-4 

Solitary confinement. See also punishment ------- 125---------------- 25-1 

Special courts-martial: 

See also Courts-martial. 

Appellate review ...................... 98----------------- 20-1 

Arrangement of court room- - - -- - - - - - ---- - - 61b---- - --- - ------- 11-2 

Challenges. See Challenges. 

Charges, reference for trial- -- - - ---- - -- - - - -- 33j(l), (2) ---- - - - --- 7-8 

CounselSee also Counsel. 


Announcement of qualifications by Pres- 61 f (2) --- - - - - - - -- - - .. 11-3 


ident. 

Assistant trial counsel ----------------- 6d, 45b ------------- 3-5, 9-10 

Qualifications......................... 6c, d --------------- 3-4, 3-5 

Defense counselSee also Counsel. 

Qualifications----- - - - ------ - ---- - --- - - 6c, dl 47, 611 (1) (2) --- 34, 3-5,9-11, 

11-3 

Deferment, rescission, and suspension of 88f, 97a- - - - - ----- - - 17-10, 19-3 

sentence. 

Discharge, bad-conductSee also Discharge, bad-conduct. 

Appellate review of ------------------- 98, 100a ------------ 20-1, 20-2 
INDEX 

Special courts-martial-Continued 

Discharge, bad-conduct-Continued 

Adjudge, authority to -----------------

Execution of sentence to ---------------

Forfeitures adjudged with --------------

Record of trial ....................... 

par. Page 

15b, 126c(l) --------- 4-5, 25-3 

84d, 98 -,----------- 17-2, 20-1 

15b ---------------- 4-5 

15b, 83a ------------ 4-5, 16-4 

Findings, form- --- - - ------- - ------- - - - - -- 74f(2) -------------- 13-7 

Forfeiture, limitations- -- - - - - - ---- - --- - - - --

Interlocutory questionsSee also Interlocutory questions. 

Ruling by military judge ---------------

Ruling by the president of a special courtmartial without a military judge. 

JurisdictionSee also Courts-martial, jurisdiction. 

Offenses-----------------------------

Persons subject to--- -----------------

Punishments......................... 

Limitations on punishment -----------------

Maximum punishmentGeneral- - - - --- ------ - - - - - - - -- - - -- - - - 

Instructions .......................... 

Member- . 

See also Courts-martial, members. 

Challenges of------------------------- 

Detail of----------------------------- 

Duties, general----------------------- 

New, after heginning of trial-- --------- Number required--------------------- 

Power to punish---------------------- 

Military judge: 

Punishment without ------------------

Required, when---------------------- 

Oaths................................... 


Officer with supervisory powers, review by--- 

President of: 

Duties : 

General-----------------------

Special court-martial without a military 

judge. See also President of courtmartial, special court-martial without 

a military judge. 

Authentication of record -----------

Contempts, ruling on --------------

Counsel, announcement of qualifications by. 

Duties : 

Before trial ------------------

General------------------

15b, 126c(l) ------- - - 4-5, 25-3 

57a, b, dl el g, (2) ---- 10-9, 10-10, 

10-12 

57a1b, c, e, g(3) - - -- - 10-9, 10-10, 

10-12,lO-13 

15a---------------- 4-5 

15a---------------- 4-5 

15b, 126c(l) --------- 4-5, 25-3 

15b, 126c(l)--- .-----4-5, 25-3 

15b, 126c(l) ------ - - - 4-5,25-3 

76b(l)------------- 13-13 

62a,f--------------

4a-----------------

41b----------------

41f-- --------------

4b---:-------------

41b----------------

15b----------------

15b----------------

40b(l), 61h, i, 112b, 

C, d, 113, 114. 

94a----------------

11-6, 11-7 

2-1 

9-4 

9-5 

2-1 

9-4 

4-5 

4-5 

9-3,ll-5, 22-1, 

22-2 

19-1 

40b-__------------- 9-3 

40c---------------- 94 

118b-----_-_-------23-8 

61g----------------

61a----------------

40b(2)-------------

Instructions to court ----___---40b(2), 73b ---------

Interlocutory questions -_------ 40b(2), 57a, c, e -----

Legal material, use of at trial--- 53d(3) -- - ----------

Maximum punishment, instruc- 40b(2), 76b(l) -_-- - - - 

tions on. 

Medical board report, examina- 122~--- - - -- - - -- - ---

tion of. 

11-5 

11-1 

9-3 

9-3,13-3 

9-3, 10-9, 10-11, 

10-12 

10-3 

9-3, 13-13 

24-5 
INDEX 

Special courts-martial-Continued 

President of-Continued 

Special court-martial without a military 

judge-Continued 

Duties-Continued 

Record, determining what will 

be recorded. 

Self-degradation, determination 

of. 

Self-incrimination, determination of. 

Vote of------------------------------ 

Procedure............................... Punishment. See Punishment. 

Record of trialSee also Records of court-martial. 

Par, 

49b(l) --------------

150b-- -- - ----------

150b---------------

41b----------------

53, 78 --------------

Copy, accused entitled to -------------- 83a, b ------------- Discharge, bad-conduct, required for- --- 15b, 83a ------------ DispositionConvening authority ------------ 91b, 94 ------------- General----------------------------- 83a, b-------------- 

Review of ............................ 94a---------------- Verbatim, required when --------------- 15b, 83a, b ---------- Rehearing----------------------------- 94a(2)-------------

Reporter, detail of, when required- ------~--7, 15b, 33k ----------

Page 

9-15 

27-58 

27-58 

94 

10-1, 14-1 

16-4 

4-5, 164 

17-14, 19-1 

16-4 

19-1 

4-5, 16-4 

19-1 

3-6, 4-5, 7-8 

19-1 

15-1 

29-1 

10-4 

10-4 

28-43 

Review by officer with supervisory powers--- 

Revision proceedings ...................... Trial counsel. See Trial counsel. 

Special defenses: 

See also Defenses, special. 

General---------------------------------

Specifications. See Charges and specifications. 

Spectators: 

Courts-martial ......................... Witnesses as.............................. Speech: 

Provoking or reproachful epeeches or gestures: 

Discussion---------------------------

Proof ................................ Specification form ..................... Speed of motor car, opinion of ------------------ Speedy trial, unreasonable delay as bar to trial- -- Spies: 

Discussion------------------------------

Proof ..................................... Specification form- -- - - - -- - ------- - --- - - --- Spoils. See Waste or spoilage, committing. 

Spontaneous exclamations: 

See also Evidence. 

Admissibility as evidence ------------------ Squadron, as separate unit ..................... Staff judge advocate or legal officer: 

See also Judge advocate or law specialist. 

94a---------------- 80-----------------

214----------------

53e---------------- 53f ----------------

196----------------

196-----:---------- 28-44 

App 6c(85) --------- 138e--------------- 68i, 215e - - ------- - -

185----------------

185---------------- App 6c(64) - - - - - - - - -

142b--- ------------ 5b-----------------

A6-15 

27-7 

12-6, 294 

28-35 

28-35 

A6-11 

27-23 

3-2 

17-2 

7-2, 7-12 

7-12 

17-3 

Advice to convening authority ----------__--85a---------------- ChargesConsideration and advice on ----------- Convening authority, relations with-- --- Convening authority's disagreement with- ---

Oaths, authority to administer -------------- Reference to future proceedings -------------

30d, 35b ----------- 35b--- - ------------ 85c--- - -----1-- - - - - 

113---------,------ 22-2 

52----------------- 10-1 
INDEX 

Staff judge advocate or legal officer-Continued 

Review and advice by- Par. Psge 

Disagreement with convening authority-- 85c- - - -- - - --------- 17-3 

Disposition of review ------------------ 85d---------------- 17-3 

Formand.contents--------------------

General------------------------------

Recommendation..................... Trial, questions with respect to future 

proceedings referred to. 

Staff officer, loss of numbers ----------------

State of mind: 

See also Guilty state of mind. 

Admissibility as evidence- -------- --------- Statements: 

See also Admissions; Confessions. 

Accused85b---------------- 17-2 

85----------------- 17-2 

85b---------------- 17-2 

52----------------- 10-1 

126i--------------- 25-7 

142d------- -------- 27-24 

Inconsistent with guilty plea- ---------- 70b(5)-------------- 12-10 

Informed of rights not to make before 

trial. 

Investigation of chargesInformed of right to make- --------

Form of ......................... Not required ......................... 
 UnswornExtenuation or mitigation ----------

Right to make, informed of -------- Coercion of .............................. Disloyal statements undermining discipline 

and loyalty: 

30a---------------- 7-1 

34b---------------- 7-9 

34d---------------- 7-10 

133---------------- 26-8 

75c(2)-------------- 13-10 

53h---------------- 10-5 

140a(2), 140a(6) ----- 27-15, 27-19 

Discussion--------- - - - - - ---- - - - - - ---- 213f (5) --- - - - ------- 28-77 

Proof................................ 
 Specification form ..................... 

False representations of official- ------------

Inconsistent, impeachment of witnesses- ----- Motive, intent, state of mind or body- ------ Statement to court, opening: 

Defense counsel--------------------------- 

Trial counsel ............................. State records, authentication of--- - - --------- - --

States: 

Civil authorities. See Civil authorities. 

Courts. See Civil courts. 

LawsJudicial notice of- --------------------

Relation to general article, Art. 134 ----- Statute of limitations: 

See also Former jeopardy. 

Arraignment, advising at--- ---------------

Bar to trial-- ............................ 

Burden of proof-------------------------- 

Continuing offenses, affected by--- ---------

213f(5) ------------- 28-77 

App 6c(139) -- ------ A6-21 

186---------------- 28-36 

153b(2) (c) - - -------- 27-69 

142d--------------- 27-24 

48h---------------- 9-14 

44g(2)-------------- 9-9 

143b(2) (d) - - - - - - ---- 27-33 

147a--------------- 2748 

213e --------------- 28-73 

68c---------------- 12-5 

68c, 215d ----------- 12-5, 29-3 

68c--------------..- 12-5 

68c--------- ------- 12-5 

Date of receipt of charges, affect on ---_-_---33b---------------- 7-5 

Explanation to accused of rights respecting- -

General----------------------------------

LengthDate statute stops running ----------- - -

General--- ------------- -- ------ - ---- - 

Lesser included offense53h, 68c 74h- ------ - 10-5, 12-5, 13-8 

68c---------------- 12-5 

68c, 215d ----------- 12-5, 29-3 

68c, 215d--- ------ - - 12-5, 29-3 

General-----,------------------------ 74h---------------- 13-8 

Waiver by plea of guilty --------------- 68c, 74h ------------ 12-5, 13-8 

Self-incrimination, right against ceases with 150b--------------- 27-58 

running of statute. 

Index-1 09 
Statute of limitations-Continued 

Waiver of- Par. Page 

By plea of guilty ...................... 68c---------------- 12-5 

General............................ 74h,, 13-8 

Statutes: 

District of Columbia. See District of Columbia. 

Judicial notice of- - -- ..................... 147a--------------- 27-48 

State, relation with general article, Art. 134-- 213e --------------- 28-73 

United States Code. See United States Code. 

Statutory offenses, when punishable ----------- 213e--------------- 28-73 


Statutory rape. See Carnal knowledge. 


Stealing. See Larceny. 


Stenographer. See Reporter. 


Stipulations: 


Contents of writing ....................... 154b(l)------------- 27-72 

Facts.................................. 154b(l)------------- 27-72 

general------^-----_-------------------- 154b--------------- 27-72 

Joint or common trial, instructions concerning- 154b(3)1---- ---- - - - - 27-73 

Testimony and documentary evidence ------- Unimportant or uncontested matters, duty 

of counsel. 

Witnesses, expected testimony of -----------

Striking or assaulting superior officers: 

Discussion-------------------------------

Proof................................... Specification form -------------------------

Stolen goods, receiving. See Receiving stolen 

property. 

Stoppage of pay. See Pay and allowances. 

Striking the colors or flag: 

Discussion-------------------------------

Proof--------------__---------------------

Specification form -------- -- ------ - ------- -

Subordinate commanders, imposition of nonjudicial punishment by. 

Subordinate compelling surrender: 

Discussion------------------------------

Proof................................... 

Specification form ------------- - -- - - - -- - - -- Subpoena: 

See also Witnesses; Warrant of attachment. 

Article 39(a) session ...................... 

Charges, attachment to--- ---- - -- _ -- - - - - - - - 

Civilian witnesses ......................... Court-martial orders, attachment to ---------

Defined................................ 

Documentary evidence of ------------------

Force, use of -- - - -------- - - ---- _- - - - - - - - - - - 

Form of-----------------__-------------- 

General---------------------------------

Issue, service, and return- ----------------- Refusal to heed ------------------- - -- ----- Trial counsel, affidavit of -- - --- - - - - - - - - - - - - Substantial rights: 

Harmless error ........................ 

Nonjudicial punishment, effect of errors 

affecting. 

Successor in command: See also Convening 

authority. 

Nonjudicial punishment, power to affect -----

154b(2)------------- 27-73 

44g(1), 48d- -- - ---- - 9-9,9-13 

115a--------------- 23-1 

169a--------------- 28-18 

169a--------------- 28-18 

App 6c(2Ol21) ----- - - A6-6 

179b---------..----- 28-30 

179b--------------- 28-30 

App 6c(52) - - - -- - - -- A6-10 

129a, b------------- 26-2,26-3 

179a--------------- 28-30 

179a----1---------- 28-30 

App 6c(5!2) - - --- - - - - A6-10 

53d(l)-------_----- 10-1 

115d(3)----- - - - - - -- 23-4 

115d--------------- 23-2 

115d(3)------------- 23-4 

115a--------------- 23-1 

115d(l)------------ 23-2 

115d(3)--- - --- - - - - - 23-4 

115d--------------- 23-2 

115d----..---------- 23-2 

115d(l)-- ---------- 23-2 

115d(2)----- _------ 23-3 

115d(3)-- - - - - -- - - -- 23-4 

87c, 130 ------------ 17-6,264 

130---------------- 26-3 

135---------------- 26-12 
Suffering: 

Loss, damage, destruction, sale, or wrongful 

disposition of military property- Par. Page 

Discussion--------------------------- 187c--------------- 28-37 

Proof-----------__-__--------- 187c--------------- 28-37 

Specification form..................... App 6c(68) --------- A6-12 

Prisoner to escape through designDiscussion--------------------------- 175c--------------- 28-26 

Proof-------------------------------- 175c--------------- 28-26 

Specification form ..................... App 6c(39) - - ------- A6-9 

Prisoner to ssrape through neglectDiscussion---------_------------------ 175b--------------- 28-26 

Proof ............................ 175b-------_------- 28-26 

Specification form .................... App 6c(39) --------- A6-9 

Vessel to be hazardedDiscussion-------------_-------------- 189---------------- 28-38 

Proof .................................. 189--------------_- 28-39 

Specification form--- ----- - --- ---- ----- App 6c(70-74) -- - --- A6-12, A6-13 

Summary courts-martial: 

See also Courts-martial. 

AccusedImprovident pleas, explanation of-..- -- - - 79d(2)-- - ----- - -- -- 14-2 

Inconsistent pleas, explanation of ---- - - _ 79d(2)------------- - 14-2 

Objection to trial by --------_--------- 79d(l) ------------- 14-2 

Rights explainedto------------------- 79d---------------- 14-2 

Accuser, as convening authority ------------ 5c----------------- 3-3 

Apportionment of sentence ----__---------16b, 127c ------------ 4-6,25-8 

Arraignment, procedure ------_--------- 65a, 79d(2) -----_--- 11-9,14-2 

Challenges. See Challenges. 

Charges, examination of ------------------- 79c---------------- 14-1 

Civilian witnesses, attendance of ---- -------- 79b--- ------------- 14-1 

Convening authorityAs accuser--------------------------- 5a-------_-..------- 3-1 

General---------__---------- 5a-------------..--- 3-1 

Courts-martial orders ....................... 90e- --------------- 17-15 

Depositions, use of ........................ 79b, 117a ---_------- 14-1,23-4 

Discharge, bad-conduct--_---------_-_--- 16b---------------- 4-7 

Enlisted persons, limits on punishment ------ 16b------_-------_-4-7 

Errors in charges ...................... 79c---------------- 14-1 

EvidenceGeneral--------____------------------ 137---------------- 27-4 

Power to obtain-------------__------ 79b--------------_- 14-1 

Presentation of--- ----- --------------- 79d(3)-----_------- 14-3 

Examination of charges _-----___-----------79c----------_----- 14-1 

Findings-- - -- _ - - --------------- - ---- -- - - - 79d(4)- - - --- ----- -- 14-3 

Forfeitures, limitations upon power to judge.- 16b, 126c(2) - - - - ---- 4-7, 25-3 

Function of-----------_---_------------- 79a--------------_.. 14-1 

Guilty pleas ------_-_---__ --___----____--- 79d(2) - - - -__---_---142

Jurisdiction-


See also Courts-martial, jurisdiction; 


Jurisdiction. 


Capital offenses--- - _ _ _ --- _ ------- ---- - 16a-_ _ - _ _ - _ _ _ - - -- _ - 4-6 

Offenses-_-_-_----_------------------ 16a_....-..--__-_-----4-6 

Officers--------___------------------ 16a_-_---_---------4-6 

Punishment.......................... 16b, 126c(2), (3) ----- 4-7, 25-3 

Persons-_--_ _ ---- ---- -- --- ---- -- - - -- - 16a, 79d(l) - --- - - --- 4-6, 14-2 

Limitations upon punishment- - - -----_----- 16b, 126c(2) - -- ..- - -- 4-7, 25-3 

OathsSee also Oaths. '' 

Authority to administrater ---_--------- 113-- - - --__------ 22-2 

Form--------___---------_-----___-_- 114----___-___---- 22-2
--- 

INDEX 

Summary courts-martial-Continued par. Page 

Objection to trial by -------..--------------79d(l) -------_----- 14-2 

Officer with supervisory power, review by- ----

Orders promulgating result of- -- ----------- Pleas----------------------------------- Procedure 

hraignment-------------------------

Evidence, presentation of -------------- Explanation to accusedGuilty pleas ...................... Inconsistent or improvident pleas--- 

Rights........................... Findings............................. 

General------------------------------

94a---------------- 19-1 

90e- --------------- 17-15 

79d(2)------------- 14-2 

79d(2)------------- 14-2 

79d(3) --- ---------- 14-3 

79d(2)- ------------ 14-2 

79d(2)------------- 14-2 

79d(l) ---------,,-- 14-2 

79d(4)------------- 14-3 

79d---------------- 14-2 

Jurisdiction, determination of- - - ------- 79d(l) - -- ---------- 14-2 

Pleas-- - - --- - - -- - - - --- - - - -- - --- - ----- 70, 79d(2)- ------ -- - 12-9, 14-2 

Sentence............................. 

Punishment 

See also Punishment. 

Apportionment of confinement and restriction ........................ 

Limitations- ------- __- ---- - ------ - - - ---

Maximum---------------- -------- --- Rank of court---------------------------- 

Record of trialSee also Records of courts-marital. 

Generally............................ Convening authority, action of- --------

Disposition......................... 

79d(4) ---,---------- 14-3 

16b, 126~(2),(3) ----- 4-7, 25-3 

16b, 126~(2),(3) - - - -- 4-7, 25-3 

16b, 126c(2) --------- 4-7, 25-3 

4c----------------- 2-2 

79e, 83c- ----------- 14-3, .16-5 

90e----- -- ----:--17-15 

91c---------------- 17-16 

Preparation and authentication of ------- 79e- -------------- - 14-3 

Review------------------_----------- 94a---------------- 19-1 

Triplicate-- ------ -- -- - -- -- ----------- 79e, 91c- ---- -- -- - -- 14-3, 17-16 

Reference for trial by--- ------------------ 33j(3)------------- 7-8 

Refusal to accept ---------_---------__--16a, 794 132 -------- 4-6,14-2,268 

Rehearing, recommendation by officer with 94a(2) ------------- 19-1 

supervisory powers. 

Remission and suspension of sentence- - ----- 97a---------------- 19-3 

Reporter................................ 7------------------ 3-6 

Revision proceedings.. ---------- -- - ----- - -- 80e- -------------- - 15-2 

Sentencing procedure ...................... 

Subpoenapower--------------------------

Summary court officer, rank of -------------

Witnesses, attendance ..................... 

Witnesses, civilian attendance- --- - ---------

Superior authority, nonjudicial punishment, action onAppeals to ............................... , , Imposition by ............................ 

Suspension or remission by ---------------- Superior officer: 

AssaultingDiscussion........................... 

Proof-------------------------------

Specification form- --- -- ----_---- --- - -

Disrespect towardDiscussion........................... 

Proof-------------------------------

Specification form .................... 

Willfully disobeyingDiscussion------------------,---------

Proof------------------------

7944) - - - ---------- 14-3 

79b------------..--- 14-1 

4c----------------- 2-2 

79b, 115 ------------ 14-1,23-1 

79b, 115 ------------ 14-1,23-1 

134_--------------- 26-11 

129---------------- 26-2 

134---------------- 26-11 

169a-------------,- 28-18 

169a--------------- 28-18 

App 6c(20)- -------- A6-6 

168---------------- 28-17 

168--------..--..---- 28-17 

App 6c(19) --------- A6-6 

169b--------------- 28-18 

169b---------..----- 28-19 
INDEX 

Superior officer-Continued 

Willfully disobeying-Continued Par. Page 

Specification form- ------- - -- - - -- - -- - - App 6c(23) -- - - - - - - - A-6-7 

Surrender: 

Proper authority to ....................... 179b--------------- 28-30 

Shamefully abandoning, surrendering, or delivering upDiscussion--------------------------- 178b--------------- 28-28 

Proof------------------------------- 178b--------------- 28-28 

Specification form-- ------------------ App 6c(44)- -------- A6-9 

Subordinate compelling or attempting to 

compelDiscussion--------------------------- 179a--..------------ 28-30 

Proof------------------------------- 179a--------------- 28-30 

Specification form ----------- - -----,--- - App 6c(52) -- - - - -- - - A6-10 

Suspected offense, action by person with knowl- 31----------------- 7-2 

edge of. 

Suspension from rank, not authorized----------- 126i--------------- 25-7 

Suspension of counsel,------------------------ 43----------------- 9-6 

Suspension of nonjudicial punishment- ---------- 134---------------- 26-11 

Suspension of sentence: 

See also Sentence, deferment of; Sentence, 

remission of. 

Appellate review of- -..................... 105b--------------- 20-6 

Authority toConvening authority- ----------------- 88e-------- - ------- 17-9 

.Judge Advocate General-- - -- - - -- - ---- - 105b--------------- 20-6 

Persons designated in departmental regu- 97a----- - - - -- - - ---- 19-3 

lations. 

Secretary concerned-- ---------------- 97a---------------- 19-3 

Discharge, punitive, including confinement- -- 88e(2) (b) -------- - - - 17-9 

Forfeiture of pay and allowances ----------- 88d(3)------------- 17-8 

General................................. 88e, 97a ------------ 17-9,19-3 

Indefinite................................ 88e(2)(a)----------- 17-9 

Purposes behind ....................... 88e(l)------------- 17-9 

Termination by remission ------ ------------ 88e(2)------------- 17-9 

TypesGeneral-- -----...................... 88e(2)--- ---------- 17-9 

Dishonorable or bad-conduct discharge- - 88e(2) (b) --- - - - -- - -- 17-9 

Vacation of -----------,------------------ 97b----------------- 19-3 

Swearing, false: 

Discussion---------'...................... 213f(4)------------ 28-76 

Proof ................................... 213f(4)------------ 28-76 

Specification form- - - ---- - ----------- -- - -- App 6c(149) ---- -- - - A6-22 

Tables : 

Equivalent punishments- ------ ----- -- - -- -- 127c(2)----- - - - --- - - 25-9 

Lesser included offenses ---..---..---_--------- App 12 ------------- A12-1 

Maximum punishment ...................... 127c, Sec A ---_----- 25-10 

Tattoos, punishment by, prohibited ------------- 125---------------- 25-1 

Telegrams: 

See also Evidence, documentary. 

Genuineness----- - - - __- - _-_ --- _-_ --------------- 143b (1) ------ - - - - - -- 27-29 

Inference of delivery .......................... 138a(2)------------ 27-5 

Nonprivileged communications- ------ - - - - -- 151c(l)---- - - - - --- - - 27-62 

Television: 

Counsel's use to publicize case -------------- 42b---------- ------ 9-6 

Telecasts of courts-martial- --------------- 53e------ ---------- 10-4 

Temporary custody, change in- --------- -- - - -- - - 96-- -- - - ------ - - --- 19-3 

Term of service: 

Effect of termination on jurisdiction --------- lld---------------- 4-3 
INDEX 

Par. page 

Testimonial knowledge defined- - - -------------- 138d--------------- 27-6 

Testimony : 

See also Witnesses; Prior testimony. 

Accused, failure to testify; effect of ---------- 72b, 150b ----------- 13-1, 27-58 

Additional, reopening case to receive- ------- 149a 27-53 

Admissions. See Admissions. 

Civil courts, testimony in; admissibility as 145b--------------- 27-44 

evidence in courts-martial. 

Confessions. See confessions. 

Expert---------------------------------- 138e--------------- 27-7 

Husband against wife ..................... 148e--------------- 27-52 

Improper, duty of court concerning --------- 54c---------------- 10-6 

Interpreter, given through- -----------__---141---------------- 27-20 

Offer ofproof----------------------------- 154c--------------- 27-73 

Prior. See Prior testimony. 

Privileged communications. See Privileged 

communications. 

Self-contradictory as basis for conviction ----- 153a--------------- 27-65 

Stipulations concerning .................... 154b(2)------------- 27-73 

Testimonial knowledge-------------------- 138d--------------- 27-6 

Uncorroborated, as basis for conviction-- ---- 153a--- ----- -- --- - - 27-65 

Wife against husband- -- ------------------ 148e--------------- 27-52 

witnesses, weight of; see also Witnesses-- -- - - 74a(2)--- - ----- - -- - 13-4 

Threat, communicating, Article 134: 

Discussion- ---- - - --- - - - - -- - --- - -- - - -- - - - - 213f(10)----- - -- - - - - 28-79 

Proof---------------- - ------------------- 213f(.10)----- -- -- --- 28-79 

Specification form ......................... App 6c(181) -------- A6-26 

Threat, Extortion, Article 127 ----------------- 206---------------- 28-60 

Time : 

computation of AWOL time --------------- 127c(3)------------- 25-10 . . Judicial notice of- --...................... 147a--------------- 27-48 

Title 18 United States Code: 

See also United States Code. 

Treaties, judicial notice of- - - ----------------- 147a--------------- 27-48 

Trial: 

Civil courts as bar to court-martial ------__--215b---------------- 29-2 

Confinement prior to --------_-----_-_-----20c---------------- 5-3 

Duration of------------------------------ 59----------------.. 11-1 

Failure to expedite. See Failure to expedite 

trial. 

Insanity at time of ........................ 120d--------------- 24-2 

Military judges, interference with ----- _ --- - - 39b(2)------------ - - 9-1 

Place of, motion for change of venue- -- ----- 69e- --------------- 12-9 

Preparation time, denial of right to --------- 58d----_--.-------- 10-13 

Publicity of--------_--------------------- 53e----------..----- 10-4 

Result reported .......................... 44e----_----------- 9-7 

Speedy, unreasonable delay ----_----_------68i, 215e _----------- 12-6, 29-4 

Time of- ----- - -- - - -- - - - - - -- - _ -- - - - _ - _ - _ _ - 40b (1) (a) ,59- - - - - - --- 9-3, 11-1 

Trial counsel : 

Defined--------------------------------- 42a-----_---------- 9-6 

Absence of------------------------------- 44c---------------.. 9-7 

Accused, relationship withCharge sheet, service upon ------------- 44h_--------------- 9-10 

Examination of papers by defense ------- 44h---------------- 9-10 

General.............................. 44h---------------- 9-10 

Witnesses, accused advised of prosecu- 44h_--------------- 9-10 

tion. 

Witnesses, securing for defense- - - - - - - _ - 115a--- - -- - - - ---- - - 23-1 

Announcements to court 

Accused, name of ------- - - ------------ 61c- --------- -- ---- 11-2 
Trial counsel-Continued 

Announcements to courtContinued 

Convening order ...................... Personnel of court, names of --- - - - - - --- Qualifications of prosecution ------------ Requests for enlisted members ---------- Arguments. See Arguments. 

Assistants, clerks and orderlies, when provided. 

Assistant trial counselDetail of----------------------------- 

Duties of------:--------------------- 

General............................ General courts-martial; duties --------- Individual counsel, bar to subsequent 

participation as. 

Oaths, authority to administer ---------- Qualifications of ---------------------- Special courts-martial ----------------- "Trial counsel," when included in term-- 

Authentication--------------------------

Authority to restrain person to be tried ------ Challenges. See Challenges. 

Charges and specificationsFailure of service, effect ---------------- Service on accused .................... Withdrawal--------------------------

Conduct, general rules --------------------- Convening authority, report toPar. Page 

61c---------------- 11-2 

61c- --- - ---- - - - - - - - 11-2 

61e------ ---------- 11-2 

61g------ ---------- 11-5 

51----------------- 9-16 

6a----------------- 3-3 

45----------------- 9-10 

45----------------- 9-10 

45a---------------- 4-10 

48b---------------- 9-12 

113---------------- 22-2 

6d----------------- 3-5 

45b-- -------------- 9-10 

42a---------------- 9-6 

82f---------------- 16-3 

21b---------------- 5-5 

58c---------------- 10-13 

44h---------------- 9-10 

56d---------------- 10-8 

42b- --------------- 9-6 

Delay because of motion to sever _------ 69d---------------- 12-8 

Disqualification of trial counsel --------- 44b---------------- 9-7 

Inadvisability of trial --------------_-__44f(5) -------------- 9-9 

Irregularities in orders, charges, etc- ---- 44f (1)--- -- - - - -- - --- 9-7 

Witnesses, attendence of defense, disgreement on requirement for. 

Correction of record by, at general courtsmartial. 

Defense counsel, relationship with--- -------- Depositions-See also Depositions. 

DisquaKcationGrounds for .......................... Report on---------------------------- 

Duties before trialCharges and accompanying papers, examination of. 

Convening order, examination of-- ----- - 

44f (2) -------------- 9-8 

82e---------------- 16-2 

44h--- ----- - - ------ 9-10 

6a, 44b, 61e --------- 3-3,9-7,ll-2 

44b---------------- 9-7 

44f(l) -------------- 9-7 

44f (1) - - ----- - - -- - - - 9-7 

Correction of errors in charges-- - - - ----- 44f (1)-- --------- - - - 9-7 

General.............................. Inadvisability of trial--- --------- ------ Notice of place and time of trial-- ------ Preparation of prosecution's case --------

Procurement of court facilities-- ------- - 

Report to convening authority of inadvisibility of trial. 

Duties during trialGenerally-----..----------------------

Absence of members, report and verification. 

Announcement. See Announcements this 

subject. 

Closing argument ..................... 

44f ---------------- 9-7 

445 (5)-- ------------ 9-9 

44f(2) ------ -------- 9-8 

44f(3), (4) ---------- 9-8 

44f (3) -- - - ----- - ---- 9-8 

44f(5)-------------- 9-9 

44g---------------- 9-9 

41c, d - ------------- 9-4,9-5 

72----------------- 13-1 
INDEX 

Trial counsel-Continued 

Duties during trial-Continued par. Page 

Disclosure, grounds for challenge of per- 62b--- - - - -- - - - - --- - 11-6 

sonnel. 

Examination of witnesses-- ------------ 44g(2)-------------- 4-9 

Extenuation and mitigation, rebuttal of-- 75d 13-11 

Opening statement .................... 44g(2)-------------- 9-9 

Personal beliefs of guilt or innocence ---- 44g-(1)----------,,-- 9-9 


Prosecution of case .................... 44d---------------- 9-7 


Duty to bring cases to trial ---------------- 44d---------------- 9-7 


Errors, informing court of ------------------ 44g---------------- 9-9 


Evidence, order of introduction. See Evidence. 


Expert witnesses, request for --------------- 116---------------- 23-4 


Excused from trial- --..................... 44~--------------- 9-7 


Included in term "trial counsel1'-- 


Assistant trial counsel, when ----------- 42a---------------- 9-6 


Individual counsel, bar to subsequent partic- 48b--------------- L 9-12 


ipation as. 


Instructions to court, proposing ------------- 73d---------------- 13-3 


Interview of witnesses- -------------------- .42c-- ---L- --------- 9-6 
 . . Irregularities-------------------------- 87c---------..------ 17-6 


Legal research by- ----------- ------------- 44f (4)- .------------ 9-8 


Oath-


Authority to administer --------------- 113---------------- 22-2 


Form for ---------------------- ------ - 114~--------- ------ 22-3 


Qualifications, generally ------- - - - ---------- 6--------- -- --- - --1 3-3 


General courts-martial ----------------- 6b 3-4 


Special courts-martial-- ,-------------- 6c-----------------
3-4


Records of courts-martial- 


Copy furnished accused L--------------- 44h---------------- 9-10 


Correction of ......................... 82e1---------------- 16-2 


Disposition of ........................ 829----_------------ 16-3 


Loss or destruction of, duties when ------ 82h---------------- 16-4 


Preparation of, responsibility for -------- 82a---------------- 16-1 


Result of trial ......................... -- 44e----------------- 9-7 


Revision proceedings, duties ---------------- 80c---------------- 15-1 


Stipulation. See Stipulation. 


Witnesses-


Examination of-- ------- --- -- --------- 44g(2)--------:----- 9-9 


Interview of .......................... 42c---------------- 9-6 


Necessity, determination of --- - - - ------ 445 (2) ---- - ----- - --- 9-8 


Witnesses, securing- 


General.............................. 115---------------- 23-1 
 . .. Civilian------------------------------ 115d---------- --- - - 23-2 

Military----------------------------- 115b--------------- 23-2 

Subpoena of-------------------------- 115d(l)------------ 23-2 

Warrant of attachment ---------------- 115d(3)------------ 23-4 

Unauthorized pass (Art. 134) : 


Discussion- --- - - - - - -- - - ------- - - - ------ - - 213f (1 1)--- - - - -- - --- 28-79 


Proof................................... 213f(ll) ------------ 28-79 


Specification form ......................... App 6c(147) -------- A6-22 


Under-Secretary's powers- ------ -- - - ------ -- - -- 97a-- --------- ----- 19-3 


Uniform: 


Improper, specification form--- ------------ - App (6c(184) ----- -- - A6-26 


Court-martial members, president prescribes- 40b(l) ------------- 9-3 


Unsentenced prisoners .................... - 125--------- ------- 25-1 


Uniform Code of Military Justice: 


Compliance with. See Failing to comply 


with provisions of the code. 


Enforcement of. See Failing to enforce the 


provisions of the code. 


1 1 blndex 
INDEX 

Unit: par. Peg0 

Air Forbe, defined--- - - - - - - - - - - - - - - -- - ---- - 4a- ------ - --------- 2-1 

Army, defined---------------------------- 4a----------------- 2-1 

Coast Guard, defined--- ----- - -- - --- - ----- - 4a--- - - - - -------- - - 2-1 

Detached-------------------------------- 5b----------------- 3-2 

Enlisted personnel of same, defined ---------- 4a----------------- 2-1 

Mhrine Corps, defined-- ------------ - ------ 4a---- - - - --- - - - ---- 2-1 

Navy, defined---------------------------- 4a----------------- 2-1 

Secretary concerned, defined by-- --- - -- - ---- 4a-- - - - ----------- - 2-1 

Unit personnel diary: 

Official record- .......................... - 144b, d------------ - 27-36, 27-39 

Absence without leave, proof of ------ ------- 164a--------------- 28-10 

United States Code: 

Crimes and offenses under the general puni- 213e--------------- 28-73 

tive Article 134. 

Limitations on punishment by courts- 127c--------------- 25-8 

martial. 

Offenses under general Article 134 ----------- 213a--------------- 28-71 

Punishments, limited by ------------------- 127c--------------- 25-8 

United States Court of Military Appeals. See 

Court of Military Appeals. 

United States courts. See Federal courts. 

United States records, authentication of- --- - --- - 143b(2) (c) --- - - - - - - - 27-32 

Unlawful apprehension (Art. 97) :. 

Discussion------------------------------- 176---------------- 28-26 

Proof------------------------------------ 176---------------- 28-27 

Specification form ------ - ------- -------- --- App 6c(40) --------- A6-9 

Unlawful cohabitation, spouse's testimony- ------ 148e--------------- 27-52 

Specification form- ---- - ------------------ App 6c(188) - - ----- - 66-26 

Unlawful detention (Art. 97) : 

Discussion---------------------.--------- 176---------------- 28-26 

Proof------------------------------------ 176---------------- 28-27 

Specification form ------ - - - - - ----- J ----- - -- App 6c(40) --------- A6-9 

Unlawful enlistment, appointment or separation : 

Discussion.............................. 163---------------- 28-10 

163--..------------- 2&10 

Specification form-- ---------------------- App 6c(8) ---------- A6-5 

Unlawful entry, specification form- - - -- - ----- --- App 6c(185) -- - --- - - A6-26 

Unlawfully seeking to influence court-martial ----- - 38-- - - - - --- - ----- - - 8-3 

Unnecessary delay in disposing of case (Art. 98) : 

piscussion:----------------------------- 177a--------------- 28-27 

Proof................................... 177a--------------- 28-27 

.Specification form ------------- ------------ App 6~(41) ---- - - - - - A6-9 

" Unsworn charges, objection to ------------------ 29e---------------- 7-1 


Uttering bad checks. See Checks. 


Uttering forged instrument. See Forgery. 


' Vacation of suspended sentence: 

Effective da.te---------------------------- 97b---------------- 19-3 

Limitation& on--------------------------- 97b------------..--- 19-3 

Proceedipgs; form ......................... App 16 A16-1 

Violation of probation ..................... 97b---------------- 19-3 

Valuation, proof of 


-Vehicle, operation of. See drunken or reckless 


drivihg. 


Venuei 
 . Military jurisdiction ....................... 8------------------ 4-1 


Motion for change of ...................... 69c- --------------- 12-8 

Veracity impeachment of witnesses for lack of ---- 153b--------------- 27-66 

Verdict. See Findings. 

Vessel, hazarding of. See Hazarding of vessel. 
---- - 

INDEX 

Par. Page 

Vessel, persons on, confinement on bread and 131b(2)------------- 26-3 

water. 

Views and inspections by court - - --- - ---- -- - -- - - 54e------- -- ------- 10-6 

Escort.................................. 54e---------------- 10-6 

Record of statement during ---------------- 54e---------------- 10-6 

Violation of parole, specification form -,---------- App 6c(168) -------- A6-25

Violation or failure to obey a lawful general order 

or regulation : 

Discussion------------------------------- 171&--------------- 28-21 

Proof,---------------------------------- 171a--------------- 28-21 

Specification form ------------------ ------- Violence : 

Assault. See Asaault. 

Offering to superior o5cerDiscussion,--------------------------

Proof............................... Specification form --------------------- Voting: 

Challenges------------------------------ Charges and specification, order- ----------- Closed sessions required,, ,,------ - ----- +- -

App 6e(27) -- - ------ A6-7 

169a--------------- 28-18 

169a--------------- 28-18 

App 6c(22) - - - - ----- A6-7 

41d(l), 62h(2), (3),,, 9-5,ll-9,ll-10 

74d(2) ------------- 13-6 

5343),,,,--------- 10-3 

Contempts-,,---------------------------- 118d, App 8c -------- 23-8, AS-25 , 

FindingsClosed sessions required -----------__-- - 53d(3)------------ - 10-3

Generd----------------------------

Military judge, excluded --------------- Interlocutory questionsClosed sessions required- ------- ------- General------------------------------

Sentence, procedureClosed sessions required- - - - -------- ---

General-----------------------------

Military judge, excluded --------------- Waiver : 

Charges and specifications, reading at arraignment. 

74d---------:------ 13-6 

39b(l)-------------- 9-1 

53d(3;- ------------ 10-3 

57b, c, d,e,f--------- 10-10, 10-11,10-

12. 

53d(3)------- ------- 10-1 

76b(2)-------------- 13-14 

39b(l)-------------- 9-1 

65a---------------- 11-11 

Consent, distinguished --,------------------- 154d--------------- 27-73 

Courte-martial waived by acceptance of nonjudicial punishment. 

Depositions; procedure- - ------ ---------- - Expert witness, qualifications --------------

Evidence, admissibility; general ------------ Official records- - - ....................... Plea,as waiver-----------------_--------- 

Prior testimony, failure to object- - - ------- Privileged communications ----------------

Reading of service data ------------------- Self-incriminationAccused----------------------------

Witness............................. 

133---------------- 2f5-9 

145a--------------- 27-42 

138e--------------- 27-7 

154d--------------- 27-73 

143b(2)------------- 27-31 

70a---------------- 12-9 

145b--------------- 27-44 

151a, b -------,27-59 

75b(l)-------------- 13-9 

149b(l), 150b------- 27-54, 27-57 

150b--------------- 27-57 

Silence,not constmed as-----------------70a---------------- 12-9

War: 

Capital offenses in time of- - - ..------------15a(2)..- - ---------- P5 

Judicial notice of - - - ..................... 

Jurisdiction of courts-martial extending to 

persons subject to law of war. 

Law of. See Law of War. 

Limitations on punishment, suspended ------

Warrant of attachment form -------------------

147a--------------- 27-48 

14a---------------- 4-4 

127c(5)-------,- - --- 25-10 

115d(3)- - - --------- 23-4 
INDEX 

Warrant officer: par. Page 

Apprehension of, authority to-- ----------- 19a---------------- 5-2 

Arrest of, authority to .................... 21a(l)- - ----------- 5-4 

Assaulting, Article 91- 

Discussion .......................... 170b--------------- 28-20 


Proof ............................... 170b--------------- 28-20 


Specification form .................... App 6c(24) --------- A6-7 


Authority to quell quarrels, frays, and dis- 


orders-------------------------------- 19b---------------- 5-2 


Codnement-


General............................. 21a(l) --- ---------- 5-4 


Sentence to------------------------- 126d, -------------- 25-4 


Court-martial member, eligibility ---------- 4a----------------- 2-1 


Discharge,dishonorable------------------- 126d--------------- 25-4 


Disobedience of, Article 91 : 


Discussion------------------------- 170c--------------- 28-20 


Proof ------------------------------- 170c--------------- 28-20 


Specification form --------- -- ----- -- - - App 6c(25) --------- A6-7 


Disrespect toward- 


Discussion------------------------- l?Od--------------- 28-20 


Proof ------------------------------- 170d--------------- 28-20 


Specification form -------------------- App 6c(26) -- - - - -- - - A6-7 


Hard labor without confinement ----------- 126d, -------------- 25-4 


Nonjudicial punishment of- ---- - - ----- - --- 131b--------- - - - --- 26-3 


Oaths to charges ---------------- -------- 29e---------------- 7-1 


Quelling frays and disorders, authority to- -- 19b------ ---------- 5-2 


Summary courts-martial, jurisdiction over- - 16a---------------- 4-6 


Treating with contempt or being disrespect- 


ful in language or deportment toward. See 


Disrespect toward, this subject. 


Waste or spoilage, committing, Article 109: 

Discussion------------------------------ 188a--------------- 28-38 

Proof -----,---------------------------

188a--------------- 28-38 

Specification form--. - - - - --- - - - - - - - - - -- - - - App 6c(69) -- - - - - - - - A612 

Weapon, assault with dangerous, See Assault. 

Wearing unauthorized decoration or insignia: 

Specification form ------------ -- ---------- App 6c(187) - - - ----- A6-26 

Wife. See Husband and wife. 

Willful disobedience: 

. Superior commissioned officer, Article 90- 


Discussion---------_----------------- 169b--------------- 28-18 


Proof ............................... 169b--------------- 28-19 


Specification form ..................... App 6c(23)- -------- A6-7 


Warrant, noncommissioned or petty officer, 

Article 91- 


Discussion--------------------------- 170c--------------- 28-20 


Proof................................ 170c--------------- 28-20 


Specification form ------------------- App 6c(25)- -------- A6-7 


Willfully failing to do utmost to encounter, engage, 

capture, or destroy enemy, Article 99: 


Proof ................................... 178h--------------- 28-29 


Specification form ......................... App. 6c(50) --------- A6-10 


Wiretapping, admissibility as evidence- - - - - - - -- - - 152--- - - - - - - --- - --- 27-62 

Withdrawal of specifications ---- -1- - -- - - - - ----- - 56--- - - - --------- - - 10-7 

Witnesses: 

See also Evidence; Testimony. 

Absence 


Depositions of ........................ 145a--------------- 27-42 


Ground for continuance--- -------- ---- 58c, f--------------- 10-13, 10-14 


Stipulations of testimony -------------- 154b(2)------------- 27-73 

----- 

INDEX 

Witnesses-Continued 

Accomplice- Par. Peee 

Acta and statements of one used against 140b--------------- 27-19 

other. 

Competency--------- __- - - - - - - - - - - - - - - - - Privilege--- --- - -- - - --- - - -- - - --------- Uncorroborated testimony of, effect- ---- AccusedCredibility-- - ------ __- -- - - - - - - - - - - --- - - Failure to testify ---------------------- Limited purpose ----------------------

Rules governing- ------------------ ---

Additional, called by court ----------------- 54b---------------- 10-6 

Adverse, impeachment of, ----------------- 153b--------------- 27-66 

Attachment of ---,------------------------ 115d(3)------------ 23-4 


Attendance 


Article 39(a) sessions ------------------ 53d(l)------------- 10-1
 .. Civlian.............................. 115d,--------------
 23-2 


General------------------------------ 115---------------- 23-1
 . . Mlitary----------------------------- 115b--------------- 23-2 


Pretrial investigation ------ ,----------- 34d---------- ------ 7-10 


Refusal of civilian to appear, action sub- 115d(2)-- - --------- 23-3 


sequent to. 


Stipulations of testimony,- ,--------- 115a--------------- 23-1


Summary courts-martial --------------- 794 115a -----:14-1, 23-1 

Testifying-,--------_----------------- 53f, --.------,------ 10-4 

Availability---------------------------- 30f---------------- 7-2 

Character--

See also Ekidence, and Credibility, this 

subject. 

Truth and veraoity of ----------------- 153b(2)------------- 27-67 

Compensation. See Fees and mileage, this 

title. 

CompetencyBias--,------------------------------ 148e--------------- 27-52 


Children----------------------------- 148b--------------- 27-51 


Conviction of a crime, effect ------------ 148d--------------- 27-51 


General------------------------------ 148a--------------- 27-51 


Husband and wife--, ----------------- 148e,-------------- 27-52


Interest in outcome of case, effect--- - - - - 148e-- -------- - - - -- 27-52 

Mental infirmity ...................... 148c--------------- 27-51 

Objection to ........................ 148a--------------- 27-51 

Presumption of ....................... 148a--------------- 27-51 

Promised immunity--- ---------------- 148e--------------- 27-52 

Conspirator-----------,------------------ 148e--------------- 27-52 


Contempts. See Contempts 


Corroboration. See Corroboration. 


Counsel's interview with -------..----------- 42c---------------- 9-6


CredibilitySee also Impeachment, this subject. 

Definition---------------------------- 153a--------------- 27-65 

Generally.......................... 153a--,------------ 27-66 


Corroboration of statements ------------ 153a--------------- 27-65 


Court of Military Review -------------- 100a--------------- 20-2 ' 


Court's conclusion& concerning ---------- 153a--- ----- -- - ---- 27-65 


Identification of accused --------------- 153a--------------- 27-65 


Impeachment. See Impeachment, this 


subject. 


Inconsistent prior statements--- ------ - - 153b(2) (0) -- - --- - --- 27-69 

Witnesses-Continued 

Credibility-Continued 

Previous convictions, affecting--- --- - - - - Sexual offenses- - - --- - --- - -- - - - ------- Statements repeated -------------------

par. Peg0 

153b(2) (b) ----- - - --- 27-67 

153b(2) (b) ---- - - - -- 27-67 

153a--------------- 27-65 

Weight of testimony -_--------__------ 74a(2)---,--------- 13-4

Defense---------------------------------- 48d, 115a ----------- 9-13, 23-1 

Depositions of. See Depositions. 

ExaminationSee also Questions. 

Ambiguous and misleading questions--- -- 149c(2)----------- - - 27-57 

Cross-examination-------------------- 149b(l)------------- 27-54 

Court members, by ---,--------------- 149b(3)------------- 27-55 


Defense counsel, duties with respect to--- 48h---------------- 9-14 


Degrading questions- -- - -- - ----------- 150a--------------- 27-57 


General------------------------------ 149a--------------- 27-53 


Harsh and insulting questions -,-------- 54a---------------- 10-5


Hostile witnesses- -------- - -- --- - - - - - - 149c(1) (b) ----- - - -- 27-56 

Hypothetical questions- --------------- 138e-------- - ------ 27-7 

Incriminating questions. See Selfincrimination. 

Interpreter used -,-------------------- 50b---------------- 9-16 

Leading questions. See Leading questions. 

Military judge ........................ 54a, b-------------- 10-5, 10-6 

Misleading questions- ----------------- 149c(2)------------- 27-57 

Objectional questions ------------------ 149a, c ------------- 27-53, 27-56 

Redirect and recross- ----------------- 1493(2)------------- 27-55 

Refusal to answer --------------------- 149a--------------- 27-53 

Trial counsel, duties ------------------- 44g(2)-------------- 9-9 

Expert 

Compensation----------------------- 116---------------- 23-4 

Employment of, procedure ------------- 116---------------- 23-4 

Fingerprints------- -- - -- - - ---- -- - - - - - - General.............................. Insanity ............................. Value of property --------------------- Fees and mileageCivilian------------------------------ Depositions-.................... -----

143a(2)(f), 144e---- 27-28, 27-41 

138e--------------- 27-7 

122b, c ------------- 24-3, 24-5 

200a(7)-- - --------- 28-51 

115d--------------- 23-2 

117, b(9)-- --------- 23-6 

Expert witnesses -------,-------------- 116---------------- 23-4 

Military personnel not on active duty --- 115b-- - - -- - - - -- - -- - 23-2 

Hostile. See Adverse. 

Examination of-- - - - - -- - - ---- - ----- - - - 149c(l) (b) ---- - - - - -- 27-56 

Husband against wife --------------------- 148e--------------- 27-51 

Immunity, promise of; effect --------------- 68h, 148e ----------- 12-6, 27-51 

Impeachment 

Bias---,--------------------------- 153b(2)(d)---------- 27-71 


Defined----------------------------- 153b(l)------------- 27-66 


Effect of-- ------ - ---------- - -- -- -- - - - General.............................. 

Hostile witness 

Inconsistent statements -------- - ------- Own witness------------------------- Prejudice-- -- -- - -- - ------ -- - -- - ------ Previous convictions involving moral 

turpitude. 

Surprise as grounds for ---------------- Veracity, general lack of- --------------

153b(3)----------- -- 27-71 

153b--------------- 27-66 

153b(1)------------- 27-66 

153b(2) (c) -- - ---- - - - 27-69 

153b(l)------------- 27-66 

153b(2)(4-- - -- - ---- 27-71 

153b(2) (b) ---- - -- - -- 27-67 

153b(l)------------- 27-66 

153b(2) (a) - - --- - ---- 27-67 

Interest in outcome of case ----------------- 148e--------------- 27-51 

Interview by counsel ...................... 42c---------------- 9-6 

Insanity of ............................... 148c--------------- 27-51 
INDEX 

Witnesses-Continued par. Page 

Investigation of charges-, ----------------- 34d---------------- 7-10 

Leading questions. See Leading questions. 

Military judgeAs witness --------------------------- 62f(4), 63 ----------- 11-8, 11-10 

Examination by---------------------- 54a---------------- 10-5 


Necessity, determination of ---------------- 44f(2), 115a -------- 9-8, 23-1 


Number of ............................... 137---------------- 27-4 


Oath 


Form................................ 114f---------,,----
 22-3 


On recall ............................. 149a--------------- 27-53 


Required---------------------------- 112b--------------- 22-1 


Perjury, Article 131----------------------- 210---------------- 28-66 


Prejudice, ground for impeachment- - - ---- - - 153b(2)(4- - -- --- - - - 27-71 


Pretrial interview with counsel 42c---------------- 9-6 


Prior testimony, admissibility as evidence ---- 145b--------------- 27-44 


Privileged communications. See Privileged 


communications. 

Prosecution-


Dehed------------------------------ 63----------------- 11-10, 


Attendance-------------------------- 115a--------------- 23-1 


Defense advised of before trial ---------- 44h ---------------- 4-10 


Member of courts-martial, acting as----- 63----------------- 11-10 


Military judge, acting as-------------- 63----------------- 11-10 


Recall................................... 544 149a ----------- 10-6, 27-53 


Recollection refreshed- -------- - - - - -- - -- - - - 146a, 149c(l) (b) --- - - 27-47, 27-56 


Refusal to answer questions, Article 134- 


Discussed............................ 149a--------------- 27-53 


Specification form ---------------- ----- App 6c(174)- - - ----- A6-25 


Self-incrimination. See Self-incrimination. 


Service of process upon .................... 115d(l), 117b(5) ----- 23-2, 23-6 


Stipulations of testimony when witness 115a, 154b(2) ------ - 23-1, 27-73 


absent. 


Testimony. See also Testimony. 


General----------------------------- 53f---------------- 10-4 


.Prior, admissibity as evidence- - - - - ---- 145b----- - -- - - ---- - 27-44 

Stipulations-- - ---------- - ---- - -- - - - -- 115a, 154b(2) .. --- - - - 23-1, 27-73 

Weight of---------------------------- 74a(2)------------- 13-4 

Warrant of attachment .................... 115d(3)-- ---------- 23-4 


Weight of testimony ---------------------- 74a(2)------------- 134 


Wife against husband--------------------- 148e--------------- 27-51 
 ' World War I1 offenses. See Executive order, savings clause. 


Worthless checks. See Checks. 


Writings:' 


Dehed------,-----------------A -------- 143d--------------- 27-36 


Authentication of ......................... 143b------- -------- 27-29 


Wrongful appropriation, Article 121: 


Discussion------------------------------ 200b-----------:--- 28-52 


Proof---------------------------------- 200b--------------- 28-52 


Specification form--- ------- - --- - - - -- - ----- App 6c(91) -- - ---- - - A6-15 


Wrongful cohabitation, Article 134: 

, Specification form ----- -- - -- - - -- - -L- ------- App 6c(188) ----- - - - A6-26 

Spouse's testimony ........................ 148e--------------- 27-52 

* U.S. GOVERNMENT PRINTING OFFICE : lO6S 0-349-626