the accused expressly consents to proceeding with the trial in the absence of such legally qualified defense counsel. In this connection, see 43.

The power of appointment under Article 11 cannot be delegated.

Chapter IV-Courts-Martial JURISDICTION IN GENERAL-JURISDICTION OF GENERAL, SPECIAL, AND SUMMARY COURTS-MARTIAL

7. JURISDICTION IN GENERAL Source, 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 United States, they have an equally certain constitutional source. They are established under the constitutional power of Congress to make rules for the government and regulation of the land forces of the United States, and they are recognized in the provisions of the fifth amendment expressly exempting "cases arising in the land and naval forces" from the requirement as to presentment and indictment by grand jury.

The jurisdiction of courts-martial is entirely penal or disciplinary. They have no power to adjudge the payment of damages or to collect private debts (116g).

"Courts-martial are lawful tribunals, with authority to determine finally any case over which they have jurisdiction, and their proceedings, when confirmed as provided, are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced." (Grafton v. U. S. 206 U. S. 333, 347-348)

The proceedings, findings, and sentences of courts-martial as approved, reviewed or confirmed pursuant to the Articles of War are final and conclusive, and orders publishing the proceedings of courts-martial and all action taken pursuant to such proceedings are binding upon all departments, courts, and agencies and officers of the United States, subject only to action upon application for a new trial as provided in Article 53 (A. W. 50h). Only a Federal court has jurisdiction on writ of habeas corpus to inquire whether a court-martial has jurisdiction of the person and the subject matter or whether it exceeded its powers. See Chapter XXX.

The jurisdiction of courts-martial does not, in general, depend on where the offense was committed. See, however, Article 92 as to murder and rape and 183c (A. W. 96) as to crimes not capital.

The jurisdiction of a court-martialits power to try and determine a caseand hence the validity of each of its judgments, is conditioned upon these indispensable requisites: That the court was appointed by an official empowered to appoint it; that the membership of the court was in accordance with law with respect to number and competency to sit on the court; and that the court thus constituted was invested by act of Congress with power to try the person and the offense charged.

8. JURISDICTION IN GENERAL Persons. As to persons subject to military law, see Article 2 and the notes thereunder (App. 1). In addition to the persons described in Article 2 the following persons are subject to military law:

While so serving, officers and enlisted men of the Medical Department of the Navy serving with a body of marines detached for service with the Army in accordance with the provisions of section 1621 of the Revised Statutes (Act of August 29, 1916, 39 Stat. 573; 34 U. S. C. 716).

Various other classes of persons described in particular statutes which, being of infrequent application, are merely cited in the notes under Article 2, Appendix 1.

For the jurisdiction of general courtsmartial to try persons who by the law of war are triable by military tribunals, see 12.

9. JURISDICTION IN GENERALContempts. A military tribunal may punish as for contempt any person who uses any menacing words, signs, or gestures in its presence or who disturbs its proceedings by any riot or disorder (A. W. 32). See 109 (Contempts).

10. JURISDICTION IN GENERALTermination-General Rule. The general rule to be followed in the Army is that court-martial jurisdiction over officers, cadets, soldiers, and others in the military service of the United States ceases on discharge or other separation from such service and that jurisdiction as to an offense committed during a period of service thus terminated is not

revived by reentry into the military service.

Exceptions. To this general rule there are, however, some exceptions which include the following:

Jurisdiction as to certain cases of conspiracy, fraud and stealing is not terminated by discharge or dismissal (A. W. 94).

All persons under sentence adjudged by court-martial remain subject to military law while under sentence (A. W. 2).

If a soldier obtains his discharge by fraud, the discharge may be canceled and the soldier arrested and returned to military control. He may also be required to serve out his enlistment and may be tried for his fraud.

A discharge, other than dishonorable or bad conduct, releases only from the particular contract and term of enlistment to which it relates and therefore does not terminate other subsisting enlistments or relieve the soldier from liability to trial by court-martial for an offense committed during any of such enlistments. On the other hand, a dishonorable or bad conduct discharge terminates all subsisting enlistments, and a soldier so discharged can not be tried by court-martial for an offense committed during any enlistment, except as provided in Article 94 and as stated in the next subparagraph.

In certain cases, if the person's discharge or other separation does not interrupt his status as a person belonging to the general category of persons subject to military law, court-martial jurisdiction does not terminate. Thus, when

an officer holding an emergency commission was discharged from that commission by reason of his acceptance of a commission in the Regular Army, there being no interval between services under the respective commissions, it was held that there was 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 that court-martial jurisdiction to try him for an offense, (striking enlisted men,) committed prior to the discharge was not terminated by the discharge. So also a dishonorably discharged general prisoner was tried for an offense committed while a soldier and prior to his dishonorable discharge, and it was held that the discharge did not terminate his amenability to trial for the offense.

Effect of escape. The escape of the accused after arraignment and during trial does not terminate the jurisdiction of the court, which may proceed with the trial notwithstanding his absence.

Effect of termination of term of service. Jurisdiction, having attached by commencement of action with a view to trial-as by 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 prior to the normal date of expiration of his period of service, he may be retained in the service for trial to be held after his period of service would otherwise have expired.

11. JURISDICTION IN GENERALExclusive and nonexclusive. Courtsmartial have exclusive jurisdiction of purely military offenses. But a person subject to military law is, as a rule, subject to the law applicable to persons generally, and if by an act or omission he violates an Article of War and the local criminal law, the act or omission may be made the basis of a prosecution before a court-martial or before a proper civil tribunal, and in some cases before both. See 68. The jurisdiction which first attaches in any case is, generally, entitled to proceed. For limitation as to the crimes of murder and rape, see Article 92.

When any person subject to military law, except one who is held by the military authorities to answer for a crime or offense punishable under the Articles of War, or who is awaiting trial, or result of trial, or who is undergoing sentence for a crime or offense punishable by the Articles of War, is accused of a crime or offense committed within the geographical limits of the States of the Union and the District of Columbia and punishable by the laws of the land, the commanding officer is required, except in time of war, upon application duly made, to use his utmost endeavor to deliver over such accused person to the civil authorities, or to aid the officers of justice in apprehending and securing him, in order that he may be brought to trial (A. W. 74). See AR 600-355 for policy with respect to Article 74.

Under international law, jurisdiction over persons in the military service of the United States or other sovereign who commit offenses in the territory of a friendly foreign state in which the visit

ing army is by consent quartered or in passage, remains in the visiting soVereign. This is an incident of sovereignty which may be waived by the visiting sovereign and is not a right of the individual concerned.

The provisions of the Articles of War conferring jurisdiction upon courtsmartial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction over offenders or offenses that by statute or by the law of war are triable by such military commissions, provost courts or other military tribunals (A. W. 15). See Articles 80 to 82, inclusive, for some of the instances of concurrent jurisdiction.

12. JURISDICTION OF GENERAL COURTS-MARTIAL-Persons and Offenses. General courts-martial have power to try any person subject to military law for any crime or offense made punishable by the Articles of War. In addition they have power to try any other person who by the law of war is subject to trial by military tribunals for any crime or offense against the law of war and for any crime or offense against the law of occupied enemy territory whenever the local civil authority is superseded in whole or in part by the military authority of the occupying power. The law of occupied enemy 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.

13. JURISDICTION OF GENERAL COURTS-MARTIAL Punishments. General courts-martial have the power to adjudge any punishment authorized by law or the custom of the service (A. W. 12) within certain limitations. The more important limitations are: certain punishments are mandatory under the law, for example, that prescribed by Article 95; the discretion of courts-martial to adjudge punishments may be limited under Article 45; the death penalty can be imposed only when specifically authorized (A. W. 43); and certain kinds of punishments are prohibited (A. W. 41).

The statutory limitations just mentioned and other limitations are considered in connection with other topics. See in particular 115-117 (Punishments).

14. JURISDICTION OF SPECIAL COURTS-MARTIAL- Persons and offenses. Special courts-martial shall have

power to try any person subject to military law for any crime or offense not capital made punishable by the Articles of War, but the officer competent to appoint a general court-martial for the trial of any particular case may, when in his judgment the interests of the service so require, cause any case to be tried by a special court-martial notwithstanding the limitations upon jurisdiction of special courts-martial as to capital offenses (A. W. 13).

The crimes and offenses denounced in Articles 64, 66, 67, and 92 (except murder not premeditated) are capital at all times; those denounced by Articles 58, 59, 75 to 78, inclusive, 81, 82, and 86 are capital if committed in time of war.

Although capital under one of the articles cited, a crime or offense is not capital within the meaning of Article 13 if the applicable maximum limit of punishment prescribed by the President under Article 45 is less than death; or whenever, in any case in which the death penalty is authorized by law but is not mandatory, the authority competent to appoint a general court-martial shall have directed that the case be treated as not capital (A. W. 25). However, no crime or offense, capital or otherwise, for which a mandatory punishment is prescribed can be tried by a special courtmartial if such punishment is beyond the power of a special court-martial to adjudge. Thus a case of premeditated murder can not properly be referred to a special court-martial for trial because the penalty in the event of conviction must either be death or imprisonment for life.

15. JURISDICTION OF SPECIAL COURTS MARTIAL Punishments. Special courts-martial can not adjudge death, dishonorable discharge or dismissal, confinement in excess of six months, or forfeiture of more than two-thirds pay per month for a period of not exceeding six months (A. W. 13). Subject to approval of the sentence by an officer exercising general court-martial jurisdiction (A. W. 47d), and subject to appellate review by The Judge Advocate General and appellate agencies in his office (A. W. 50e), a special court-martial may adjudge a bad conduct discharge in the case of an enlisted person, but a bad conduct discharge shall not be adjudged by a special court-martial unless a complete record of the proceedings of, and testimony taken by, the court is prepared in the case (A. W. 13). Even when a bad

conduct discharge is adjudged, a special court-martial is limited by Article 13 to the adjudgment of a forfeiture of twothirds pay per month for six months. As to other limitations see 115-117 (Punishments).

16. JURISDICTION OF SUMMARY COURTS-MARTIAL-Persons and offenses. Summary courts-martial have power to try any person subject to military law, except an officer, a warrant officer, or a cadet, for any crime or offense not capital made punishable by the Articles of War; but noncommissioned officers shall not, if they object thereto, be brought to trial before a summary court-martial without the authority of the officer competent to bring them to trial before a special court-martial; and the President may, by regulations, except from the jurisdiction of summary courtsmartial any class or classes of persons subject to military law (A. W. 14).

Under the authority of Article 14, persons of actual, relative or assimilated rank above that of the third enlisted grade are hereby excepted from the jurisdiction of summary courts-martial, but noncommissioned officers of the first two grades may be tried by summary courtsmartial if they specifically consent thereto in writing. See Appendix 8 for the form of consent.

Other noncommissioned officers may be tried by summary courts-martial, either if they do not object, or if they have objected, when such trial if thereafter directed by the officer competent to bring them to trial before a special court-martial.

17. JURISDICTION OF SUMMARY

A

COURTS-MARTIAL-Punishments. summary court-martial can not adjudge dishonorable discharge or bad conduct discharge of a soldier (A. W. 108), confinement in excess of one month, restriction to limits for more than three months, or forfeiture or detention of more than two-thirds of pay for one month (A. W. 14). See also 115-117 (Punishments).

The maximum amounts of confinement and forfeiture (or of confinement and detention) may be imposed together in one sentence. Since confinement and restriction to limits are both forms of deprivation of liberty, only one of those punishments may be imposed in maximum amount in any one sentence. apportionment must be made if it is desired to adjudge both forms of punish

An

ment, confinement 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 might impose confinement at hard labor for 15 days; restriction to limits for 45 days; and forfeiture of two-thirds of one month's pay.

A summary court-martial has the power to adjudge, in addition to or in lieu of other punishments, reprimand or admonition and to adjudge the reduction of soldiers to the lowest enlisted grade.

Chapter V-Arrest and Confinement SCOPE-GENERAL AND MISCELLANEOUSWHO MAY ARREST OR CONFINE-DURATION AND TERMINATION-ARREST OF DESERTERS BY CIVIL OFFICERS-ARREST OF DESERTERS BY CIVILIANS GENERALLY

18. SCOPE.

The paragraphs on this subject deal primarily with the arrest or confinement of persons subject to military law in connection with trial by court-martial, and deal only incidentally or not at all with the arrest and confinement of such persons for other purposes, with the arrest and confinement of persons not subject to military law, and with various other matters touching arrest and confinement such as those discussed in 156, 157 and 161. See in this connection AR 600-355 and 600-375.

19. GENERAL AND MISCELLANEOUS-a. Basic considerations. Any person subject to military law charged with crime or with a serious offense under the Articles of War shall be placed in confinement or in arrest as circumstances may require, but when charged with a minor offense only, he shall not ordinarily be placed in confinement (A. W. 69). The foregoing provision is not mandatory and its exercise rests within the discretion of the person vested with power to arrest or confine. The character and duration of the restraint imposed before and during trial, and pending final action upon a case, will be the minimum necessary under the circumstances. No restraint need be imposed in cases involving minor offenses. A failure to arrest or confine does not affect the jurisdiction of the court.

No person subject to military law shall be confined with enemy prisoners or any foreign nationals outside the continental limits of the United States, nor shall any accused who is confined while awaiting trial be made subject to punishments or

penalties other than confinement for any offense with which he stands charged prior to execution of an approved sentence on charges against him (A. W. 16). Prisoners whose sentences have not been approved and ordered executed will be distinguished from prisoners who are serving sentences. They will be accorded the facilities, accommodations, treatment, and training prescribed for unsentenced prisoners in accordance with Army Regulations, and they will not forfeit pay or allowances during the period of confinement except pursuant to sentences ordered executed. See AR 600375.

b. Arrest defined-Status of persons in arrest. Arrest, as used in this chapter, is moral restraint imposed upon a person by oral or written orders of competent authority limiting his 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. A person placed in arrest shall be restricted to his barracks, quarters or tent, unless such limits shall be enlarged by proper authority (A. W. 69). He is subject to the restrictions incident to arrest prescribed in AR 600-355. A person in the status of arrest can not be required to perform his full military duty, since placing him on duty inconsistent with such status terminates his arrest. This, however, does not prevent his being required to do ordinary cleaning or policing about his quarters, or to take part in routine training not involving the exercise of command or the bearing of arms. If he breaks his arrest by going beyond the limits specified in the order of arrest, he is subject to trial (A. W. 69).

A commanding officer may, within his discretion and without imposing arrest, restrict an accused person administratively to specified areas of a military command with the further provision that he will participate in all military duties and activities of his organization while under such restraint. 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 administratively 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 such administrative restrictions are punishable as are breaches of punitive restriction.

of

c. Confinement defined-Status confinement prior to trial. Confinement is physical restraint imposed by order of competent authority, either oral or written, depriving a person of liberty pending the disposition of charges. Confinement will not be imposed pending trial unless deemed necessary to assure the accused's presence at trial, or because of the seriousness of the offense charged, as for an offense involving moral turpitude.

d. Procedure for arresting or confining-(1) Preliminary inquiry into offense. No authority shall 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 facts should be sufficient to furnish reasonable grounds for believing that the offense has been committed by the person to be restrained.

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

(3) Procedural steps to confine. A person to be confined is placed under guard and taken to the guardhouse or other place of confinement. The authority ordering confinement will deliver to the commander of the guard or to the prison officer a written statement of the name, grade, and organization of the prisoner and of the Articles of War which he has allegedly violated. See AR 600355. Unless such a written statement is delivered with the prisoner, the commander of the guard may refuse to receive the prisoner (A. W. 71).

For reports and other action required in case of confinement or arrest and for action required when a commanding officer places an officer in arrest or confinement without preferring charges, see AR 600-355.

20. WHO MAY ARREST OR CONFINE-a. General. Except as prescribed in c below, persons subject to military law may be placed in arrest or confinement as follows:

(1) Officers and warrant officers. By commanding officers only, in person or through other officers, or by oral or writ