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or after February 1, 1949: 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 February 1, 1949; and any such investigation, trial, or action so begun may be completed in accordance with the provisions of the Manual for Courts-Martial, 1928: 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: And provided further, that the maximum punishment for an offense committed prior to February 1, 1949, shall not exceed the applicable limit in effect at the time of the commission of such offense.
HARRY S. TRUMAN THE WHITE HOUSE,
December 7, 1948.
MANUAL FOR COURTS-MARTIAL,
U. S. ARMY, 1949
Chapter I. Military jurisdiction:
fense counsel, assistants. Chapter IV. Courts-martial:
Jurisdiction in general.
Arrest of deserters by civilian.
Drafting of specifications,
charges: General. Signing and swearing to charges. Forwarding charges. Action by commander exercising immediate
jurisdiction under A. W. 104.
Action by officer exercising court-martial
jurisdiction. Investigation of charges; reference to staff
judge advocate; suspected Insanity. Chapter VIII. Members of courts-martial:
Trial judge advocate.
Clerks and orderlies.
Certain general matters.
lenges. Continuances. Chapter XI. Procedure:
Introduction of accused and counsel.
Pleas and motions.
Motions predicated upon the evidence.
not charged. Introduction of evidence. Chapter XV. Procedure:
convictions. Sentence. Announcing sentence; matters of clemency;
Special and summary courts.
Rehearing and new trial.
Special and summary courts-martial.
13. Subpoena. 14. Depositions. 15. Punishment under A. W. 104. Index.
Chapter XIX. Action:
Place of confinement. Chapter XX. Action after promulgation: Review of sentences of special and sum
mary courts; filing of records. Correction of general and certain special
court-martial records. Report of officers' cases,
Miscellaneous matters. Chapter XXI. Appellate review-Confirma
tion: Preliminary action. Appellate review-board of review-judicial
Basis for remedy.
Form of petition; procedure. Chapter XXIII. Oaths:
Oaths in trials by courts-martial.
Authority to administer oaths.
Attendance of witnesses.
of depositions. Employment of experts. Expenses of court-martial.
Action by reviewing authority.
Maximum limits of punishment.
Chapter 1 Military Jurisdiction
SOURCES— EXERCISE 1. SOURCES. The sources of military jurisdiction include the Constitution and international law. The specific provisions of the Constitution relating to military jurisdiction are found in the powers granted to Congress, in the authority vested in the President, and in a provision of the fifth amendment.
2. EXERCISE. Military jurisdiction is exercised by a belligerent occupying an enemy's territory (military government); by a government temporarily governing the civil population of a locality through its military forces, without the authority of written law, as necessity may require (martial law); by a government in the execution of that branch of the municipal law which regulates its military establishment (military law); and by a government with respect to offenses against the law of war.
The agencies through which military jurisdiction is exercised include:
Military Commissions and Provost Courts for the trial of offenses within their respective jurisdictions. These tribunals are summary in nature, but so far as not otherwise provided have usually been guided by the applicable rules of procedure and of 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 war are subject to trial by military tribunals.
Commanding Officers exercising disciplinary powers under Article 104.
Courts of inquiry for the examination of transactions of officers or soldiers, or accusations or imputations against them. See AR 600–300.
1. The Articles of War. 2. Forms of orders appointing courts-mar
tial. 3. Charge sheet. 4. Forms for charges and specifications. 5. Procedure for trials before general and
special courts-martial. 6. Form for record of trial by general court
martial. 7. Form for record of trial by special court
martial. 8. Form for record of trial by summary
court-martial. 9. Forms of sentences. 10. Forms for action by reviewing authority. 11. Forms for court-martial orders. 12. Report of investigating officer.
CLASSIFICATION--COMPOSITION 3. CLASSIFICATION. Courts-martial are classified as general, special, and summary courts-martial (A. W. 3).
4. COMPOSITION-a. Who may serve. All officers in the active military service of the United States shall be competent
to serve on courts-martial. All warrant oficers in the active military service shall be competent to serve on general and special courts-martial for the trial of warrant oficers and soldiers. Soldiers in the active military service shall be competent to serve on general and special courtsmartial for the trial of enlisted persons when requested in writing by the accused at any time prior to the convening of the court (A. W. 4). For the competency of Marine Corps personnel to serve courts-martial when detached for service with the Army by order of the President, see Article 4. Members of the Navy and of the Air Force are not competent to serve on Army courts-martial.
No distinction exists between the various classes of officers or of warrant officers and soldiers in the military service of the United States, but the term “military service of the United States” as herein used refers to the Army only.
For notes as to retired, reserve, National Guard, and temporary Army of the United States officers, see the notes under Article 4, Appendix 1.
No person shall be eligible to sit as a member of a general or special courtmartial when he is the accuser or a witness for the prosecution (59; 60; A. W. 4) or, in case of a rehearing, if he was a member of the court which first heard the case (A. W. 52). No soldier may sit as a member of a court-martial for the trial of another soldier who is assigned to the same company or corresponding military unit (see 58e; A. W. 16). Suspension from rank renders an officer ineligible to sit as a member of a courtmartial. For other cases in which a person should not sit as a member of a general or special court-martial and for grounds of challenge, see 58e.
The availability of certain persons for detail may be restricted by regulations. See, for example, AR 60-5 (Chaplains).
b. Number of members. General courts-martial may consist of any number of members not less than five (A. W. 5); ecial courts-martial may consist of any number of members not less than three (A. W. 6); and a summary courtmartial shall consist of one
officer (A. W. 7).
C. Rank of members. An oficer may be tried only by a court-martial composed of officers. When it can be avoided a person in the military service will not be tried by persons inferior to him in
grade or relative rank (A. W. 16) nor, in the case of an officer, by those below him on the same promotion list. Relative rank is determined as indicated in AR 600–15. A soldier who has requested in writing that soldiers serve on the general or special court-martial which will try his case, shall not, without his consent, be tried by a court the membership of which does not include soldiers to the number of at least one third of the total membership of the court (380; A. W. 4).
d. Qualifications of members. When appointing courts-martial the appointing authority shall detail as members those officers of the command and, when eligible, those warrant officers and soldiers of the command who in his opinion are best qualified for the duty by reason of age, training, experience, and judicial temperament. Officers, warrant officers and soldiers having less than two years of service shall not, if it can be avoided without manifest injury to the service, be appointed as members of courts-martial in excess of a minority membership (A. W. 4). A summary court-martial should be selected from field officers whenever practicable.
e. Law member for general court-martial. The authority appointing a general court-martial shall detail as one of the members a law member who shall be an officer of the Judge Advocate General's Corps or an officer who is a member of the bar of a Federal court or of the highest court of a State of the United States and certified by The Judge Advocate General to be qualified for such detail (A. W. 8).
Officers are qualified for detail as law members only if they are Regular Army officers appointed in the Judge Advocate General's Corps, or non-regular officers of any component of the Army of the United States on active Federal duty assigned to the Judge Advocate General's Corps by competent orders, or officers who have been certified by The Judge Advocate General as qualified to act as law members.
The order appointing a general courtmartial will expressly state the qualification of the law member as prescribed by Article 8. See Appendix 2 for the form of statement of qualification,
Failure to appoint a law member of a general court-martial who is qualified as prescribed in Article 8 renders any proceeding of such a court void.
Chapter II—Courts-Martial APPOINTING AUTHORITIES—APPOINTMENT
OF TRIAL JUDGE ADVOCATE, DEFENSE
5. APPOINTING AUTHORITIES A. General courts-martial. The President of the United States, the Superintendent of the Military Academy and the commanding officers of commands of the Army designated in Article 8 may appoint general courts-martial. The mere assignment of an officer of the Judge Advocate General's Corps to a command does not alone empower the commander thereof to appoint general courts-martial. While an officer of the Judge Advocate General's orps is assigned as staff judge advocate of a command as prescribed by The Judge Advocate General in accordance with Article 47, jurisdiction to appoint general courts-martial is vested in the commanding officer of that command.
When any commander authorized to appoint general courts-martial is the accuser or the prosecutor in a case the court shall be appointed by competent superior authority. He may appoint the court to try any case in a subordinate command if he so desires. Thus if the exigencies of the service interfere with the prompt disposition of cases, a superior competent to appoint general courts-martial properly may appoint courts for the trial of cases arising in a subordinate command.
Whether the commander who convened the court is the accuser or the prosecutor is mainly to be determined by his personal feeling or interest in the matter. An accuser either originates the charge or adopts and becomes responsible for it; a prosecutor proposes or undertakes to have it tried and proved. See 60 in this connection. Action by a commander which is merely oficial and in the strict line of his duty can not be regarded as sufficient to disqualify him. For example, a division commander may, without becoming the accuser or prosecutor in the case, direct a subordinate to investigate an alleged offense with a view to formulating and preferring such charges as the facts may warrant, and may refer such charges for trial as in other cases.
As Article 8 expressly designates those who have authority to appoint general courts-martial, it follows that no one else has such authority and that anyone
having such authority can not delegate or transfer it to another. The authority of a commanding oficer to appoint 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 commander are stated in army regulations.
An officer who has power to appoint a general court-martial may determine the cases to be referred to it for trial and may dissolve it, but he can not control the exercise by the court of the powers vested in it by law. In this connection see Article 88. He may withdraw any specification or charge at any time unless the court has reached a finding thereon.
b. Special courts-martial. The commanding officer of a command of the Army designated in Article 9 may appoint special courts-martial.
The principles of the last four subparagraphs of 5a apply to special courts-martial. See Article 9 as to accusers or prosecutors.
A battalion or other unit is "detached" when isolated or removed from the immediate disciplinary control of a superior in such a manner as to make its commander primarily the one to be looked to by superior authority as the officer responsible for the administration of the discipline of the soldiers composing the unit. Whenever there is doubt whether a unit is detached in the sense of Article 9, the matter will be referred to the officer exercising general court-martial jurisdiction over the command, and his determination shall be final. The term “detached” is used in a disciplinary sense and is not necessarily limited to what constitutes detachment in a physical or tactical sense. For instance, the commanding officer of a field artillery battalion which is part of a division, if responsible directly to the division commander for the discipline of the battalion, may appoint special courts-martial even though there is a division artillery commander who controls the battalion in other matters. The power of the battalion commander to appoint such courts is subject to the power of the division commander to reserve to himself the right to appoint special courts-martial for any or all subordinate units and detachments in his command. However, a subordinate commander may exercise his power to appoint special courts-martial unless a competent superior commander reserves that power to himself and so notifies the subordinate.
C. Summary courts-martial. The commanding officers of commands of the Army designated in Article 10 may appoint summary courts-martial, but such summary courts-martial may in any case be appointed by superior authority when by the latter deemed desirable. When but one officer is present with a command he shall be the summary court-martial of that command and shall hear and determine cases brought before him (A. W. 10), and no order appointing the court need be issued. When more than one officer is present, a subordinate officer will be appointed summary court-martial.
If the appointing authority of a summary court or the summary court officer is the accuser or the prosecutor of the person or persons to be tried, it is discretionary with the appointing authority whether he will forward the charges to superior authority with a recommendation that the summary court be appointed by the latter; but the fact that the appointing authority or the summary court officer is the accuser or prosecutor in a particular case does not invalidate the trial.
The principles of the fourth and fifth subparagraphs of 5a and the third subparagraph of 5b apply to summary courts-martial.
6. APPOINTMENT OF TRIAL JUDGE ADVOCATE, DEFENSE COUNSEL, ASSISTANTS. For each general or special court-martial the authority appointing the court shall appoint a trial judge advocate and a defense counsel, and one or more assistant trial judge advocates and one or more assistant defense counsel when necessary. The trial judge advocate and defense counsel of each general court-martial shall, if available, be menibers of the Judge Advocate General's Corps or officers who are members of the bar of a Federal court or of the highest court of a State of the United States. In all cases in which the offi. cer appointed as trial judge advocate shall be a member of the Judge Advocate General's Corps or an officer who is a member of the bar of a Federal court or of the highest court of a State, the officer appointed as defense counsel shall be either a member of the Judge Advocate General's Corps or an officer who is a member of the bar of a Fed
eral court or of the highest court of a State of the United States (43; A. W. 11).
The term "member of the Judge Advocate General's Corps" as used in the foregoing subparagraph includes all Regular Army officers appointed in the Judge Advocate General's Corps, and all non-regular officers of any component of the Army of the United States on active Federal duty assigned to the Judge Advocate General's Corps by competent orders.
In any case in which a trial judge advocate of a court-martial is a member of the Judge Advocate General's Corps or a member of the bar of a Federal court or of the highest court of a State, the order appointing the court will expressly state the qualifications of both the trial judge advocate and the defense counsel as prescribed by Article 11. See Appendix 2 for the form of statements of qualification.
No person who has acted as a member, trial judge advocate, assistant trial judge advocate, or investigating officer in any case shall subsequently act in the same case as defense counsel or assistant defense counsel unless expressly requested by the accused (56; App. 5 and 6; A. W. 11). No person who has acted as a member, defense counsel, assistant defense counsel, or investigating officer in any case shall subsequently act in the same case as a member of the prosecution (A. W. 11).
In general, it is desirable that as many assistant defense counsel as assistant trial judge advocates be appointed, and that officers be appointed as assistant defense counsel and assistant trial judge advocates who have comparable military experience and legal qualifications. When the conduct of the prosecution in any case before a court-martial devolves upon an assistant trial judge advocate who is a member of the Judge Advocate General's Corps or is a member of the bar of a Federal court or the highest court of a State, and neither the defense counsel nor any of his assistants or individual counsel present is a member of the Judge Advocate General's Corps or a member of the bar of a Federal court or the highest court of a State, the proceedings will be adjourned pending procurement for the conduct of the defense of a defense counsel who is a member of the Judge Advocate General's Corps or a member of the bar of a Federal court or of the highest court of a State, unless