in the Office of The Judge Advocate General and in certain cases may be forwarded to a Board of Review for action set forth in c. See Article 50f.

97. LEGAL

INSUFFICIENCY. A holding of legal insufficiency by a Board of Review becomes legally effective upon concurrence in the holding by The Judge Advocate General. A determination of legal insufficiency by the Judicial Council becomes legally effective upon the concurrence of The Judge Advocate General [A. W. 50d (1)] or the completion of confirming action as prescribed in Article 48.

98. WEIGHING EVIDENCE. In the appellate review of records of trial The Judge Advocate General and all appellate agencies in his office have authority to weigh evidence, judge the credibility of witnesses and determine controverted questions of fact. See Article 50g.

99. BRIEFS, ARGUMENTS, AND RECOMMENDATIONS. Under rules prescribed by The Judge Advocate General briefs, including points and authorities with respect to the legality of the proceedings and matters in mitigation and other pertinent matter, may be presented to the Office of The Judge Advocate General by or in behalf of accused persons. The accused will not be permitted to present oral arguments in person. In forwarding records of trial reviewing authorities may present to The Judge Advocate General any matter not included in the record of trial pertinent to disposition of the case and may submit recommendations. The Judge Advocate General may request additional information or recommendations from reviewing authorities or from other sources within the Army bearing upon the propriety of action to be taken on confirmation, appellate review, exесиtion, or mitigation of a sentence. See Article 88, which forbids the exertion of improper influence on confirming authorities with respect to their judicial actions.

100. MISCELLANEOUS-a. Branch offices. Boards of Review and Judicial Councils established in branch offices of The Judge Advocate General with distant commands and the Assistant Judge Advocates General in charge of such branch offices perform their duties in the manner prescribed for The Judge Advocate General and appellate agencies in his office. They operate under the general supervision of The Judge Advocate

General. Records of trial involving sentences requiring approval or confirmation by the President are forwarded directly to The Judge Advocate General without action in the branch offices. Powers of mitigation and remission are not exercised by the Assistant Judge Advocate General in charge or by other agencies of a branch office, but appropriate recommendations may be submitted to The Judge Advocate General. See Article 50c.

b. Effect of error. The proceedings of a court-martial will not be held invalid nor the findings or sentence disapproved in any case on the ground of improper admission or rejection of evidence or for any error as to any matter of pleading or procedure unless, after an examination of the entire proceedings, it shall affirmatively appear that the error has injuriously affected the substantial rights of the accused (A. W. 37). Error is not presumed to affect injuriously the substantial rights of an accused.

c. Mitigation, remission and suspension by The Judge Advocate General. For powers incident to the power to confirm see Article 49. The Judge Advocate General has the power to mitigate, remit or suspend the whole or any part of a sentence in any case requiring appellate review under Article 50 and not requiring approval or confirmation by the President, but the power to mitigate, remit or suspend is exercised by The Judge Advocate General under the direction of the Secretary of the Army. In the exercise of his powers to mitigate, remit or suspend sentences The Judge Advocate General acts under such general policies and regulations or under such general or specific directives as may be prescribed by the Secretary of the Army.

d. Court-martial orders. General court-martial orders publishing the result of proceedings upon confirmation of sentences under Article 48 are promulgated by the Department of the Army, but The Judge Advocate General may transmit any record of trial in which confirming action has been taken to the reviewing authority for the publication of necessary general or special courtmartial orders or direction of a rehearing.

e. Finality of court-martial judgments. The appellate review of records of trial provided by Article 50, the confirming action taken pursuant to Articles 48 or 49, the proceedings, findings and sentences of courts-martial as approved, reviewed, or confirmed as required by the Articles of War, and all dismissals and discharges carried into execution pursuant to sentences by courts-martial following approval, review, or confirmation as required by the Articles of War are final and conclusive, and orders publishing the proceedings of courts-martial and all action taken pursuant to such proceedings shall be binding upon all departments, courts, agencies and officers of the United States, subject only to action upon application for a new trial as provided in Article 53 and Chapter XXII of this manual.

Chapter XXII-Petition for New Trial BASIS FOR REMEDY FORM OF PETITION

101. PETITION; BASIS FOR REMEDY. Within one year after the final disposition of a case upon initial appellate review of a record of trial by general court-martial or a record of trial by special court-martial which resulted in an approved sentence including a bad conduct discharge, an accused may petition The Judge Advocate General for a new trial, or for vacation of any sentence adjudged and for restoration of rights, privileges, or property affected by the sentence, and in a proper case for substitution for a dismissal, dishonorable discharge or bad conduct discharge previously executed, a form of discharge authorized for administrative issuance: provided, however, that as to cases involving offenses committed during World War II, the application for a new trial may be made within one year after the termination of that war, or within one year after final disposition of the case upon initial appellate review, whichever is later. Completion of review and action required by Article 50 and of any confirming action required by Article 48 constitutes final disposition of a case upon initial appellate review. Only one such petition may be entertained with regard to any one case. See Article 53. The petition should show good cause for the remedy requested. The petition may be submitted either by the accused or by his counsel or representative, regardless of whether he is in the service or has been separated therefrom. A petition may not be submitted after the death of an accused.

Good cause for granting a new trial, for vacation of a sentence, or for other

remedy, shall be deemed to exist only if within the discretion of The Judge Advocate General all the facts and information before him, including the record of trial, the petition and other matter presented by the accused, affirmatively establish that an injustice has resulted from the findings or sentence. In cases in which sentences have been confirmed by the President pursuant to Article 48, matters relating to issues of alleged error or injustice which were before the President at the time of confirmation will not, in the absence of newly discovered evidence bearing upon such issues, establish sufficient cause for relief under Article 53.

102. FORM OF PETITION; PROCEDURE. The petition will be in writing and signed under oath or affirmation by the accused, or by a person possessing the power of attorney of the accused for the purpose or the authorization of a court of law to sign the petition as the representative of the accused, and will be forwarded in triplicate directly to The Judge Advocate General, Department of the Army, Washington, D. C. Insofar as practicable the petition will be typewritten with lines double-spaced, and will contain the following:

(1) The name and serial number of the accused and the date of trial.

(2) The remedy sought.

(3) The sentence or a description thereof as finally approved or confirmed, together with a statement of any subsequent reduction thereof by clemency or otherwise.

(4) A brief description of any findings or sentence believed unjust.

(5) A full statement of the fact, ruling or error which is relied upon as good cause for the remedy sought. No fact, ruling or error other than matters relating to jurisdiction will be deemed to constitute good cause unless it had a substantial contributing effect upon the findings of guilty or upon the sentence imposed. For example, if perjury in the testimony of a witness is relied upon as a basis for a new trial, the petition should show that the particular testimony had a substantial contributing effect upon the findings of guilty or upon the sentence adjudged and that without the perjured testimony there would have been findings of not guilty or the sentence would have been substantially less severe. If newly discovered evidence is relied upon as a basis for a remedy, the petition should similarly show that such evidence, if considered by a court-martial in light of all the other evidence in the record, would result in findings or a sentence substantially different from those as to which complaint is made..

(6) The affidavit of each person whom the accused expects to present as a witness in the event of a new trial. Each such affidavit should set forth briefly the relevant facts within the personal knowledge of the affiant.

Upon written request and within his discretion The Judge Advocate General may allow oral argument upon a petition. Any hearing granted will be conducted under rules prescribed by The Judge Advocate General, and the hearing may be before The Judge Advocate General or before an officer or officers designated by him. The Judge Advocate General may cause such additional investigation to be made and such additional evidence to be secured as he may deem appropriate.

Action in granting or denying a remedy under Article 53 shall be taken by The Judge Advocate General in writing signed in his own hand or by his direction. When appropriate the action granting a remedy will be published in Department of the Army orders.

Any new trial granted pursuant to Article 53 shall be conducted under rules prescribed in 84, before a court-martial appointed by an officer possessing authority to appoint an appropriate courtmartial and designated for the purpose by The Judge Advocate General. The new trial shall be held at such time and place as the appointing authority directs.

Article 53 does not require that the execution of a sentence be delayed to permit a petition for a new trial or related remedy. The presentation of a petition will not operate to stay execution of a sentence.

Chapter XXIII-Oaths

OATHS IN TRIALS BY COURTS-MARTIALAUTHORITY TO ADMINISTER OATHS

103. OATHS IN TRIALS BY COURTS-MARTIAL. In this paragraph the word "oath" includes affirmation. Excepting the oath to test competency, the oath of the escort on inspections by the court, and the oath to charges, forms of oaths and other matters relating to oaths in trials by courts-martial are found in Articles 19 and 114. The form of oath to test competency and the form

of oath to charges are shown in the second subparagraph of this paragraph (103) and Appendix 3, respectively. The oath of the escort is set forth in 75d. In case of affirmation the phrase "So help you God" will be omitted.

The prescribed oaths must be administered in and for each case and to each member, trial judge advocate, assistant trial judge advocate, reporter, and interpreter before he functions in the case as such. The point in the proceedings at which each of the various oaths is usually administered is shown in Appendix 6. In addition to the prescribed oath there may be such additional ceremony or acts as will make the oath binding on the conscience of the person taking it. While the members and the trial judge advocate and his assistants are being sworn, all persons concerned with the trial and any spectators present will stand. When the reporter, interpreter, or a witness is being sworn, he and the trial judge advocate or assistant trial judge advocate administering the oath will stand. If either the trial judge advocate or an assistant trial judge advocate is to testify, the oath will be administered by the other or by the president. The trial judge advocate will administer to a challenged member who is to be examined under oath as to his competency the following oath:

You swear (or afirm) that you will answer truthfully to questions touching your competency as a member of the court in this case. So help you God.

104. AUTHORITY TO ADMINISTER OATHS. Any officer or clerk of any of the departments lawfully detailed to investigate frauds on or attempts to defraud the Government, or any irregularity or misconduct of any officer or agent of the United States, and any officer of the Army, Navy, Marine Corps, or Coast Guard detailed to conduct an investigation, and the recorder, and if there be none the presiding officer, of any military, naval, or Coast Guard board appointed for such purpose, shall have authority to administer an oath to any witness attending to testify or depose in the course of such investigation (R. S. 183, as amended by act of 13 Feb. 1911, 36 Stat. 898; act of 28 Jan. 1915, 38 Stat. 800; 5 U. S. C. 93).

Any officer of any component of the Army of the United States on active duty in Federal service commissioned in or assigned or detailed to duty with the Judge Advocate General's Corps, any staff judge advocate or acting staff judge advocate, the president of a general or special court-martial, any summary court-martial, the trial judge advocate or any as

sistant trial judge advocate of a general or special court-martial, the president or the recorder of a court of inquiry or of a military board, any officer designated to take a deposition, any officer detailed to conduct an investigation, and the adjutant, assistant adjutant, or personnel adjutant of any command shall have power to administer oaths for the purposes of the administration of military justice and for other purposes of military administration; and shall also have the general powers of a notary public in the administration of oaths, the execution and acknowledgment of legal instruments, the attestation of documents and all other forms of notarial acts to be executed by persons subject to military law (A. W. 114).

A warrant officer serving as assistant adjutant of any command has power to administer oaths for all purposes of military administration (sec. 4, act of 21 Aug. 1941, 55 Stat. 653; 10 U. S. C. 593).

Depositions to be read in evidence before military courts, commissions, courts of inquiry, or military boards, or for other use in military administration may be taken before and authenticated by any officer, military or civil, authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths (A. W. 26).

In all cases in which oaths are authorized or required to be administered under the laws of the United States, they may be administered by notaries public duly appointed in any State, district, or Territory of the United States, by clerks and prothonotaries of courts of record of any such State, district, or Territory, by the deputies of such clerks and prothonotaries and by all magistrates authorized by the laws of or pertaining to any such State, district, or Territory to administer oaths (act of 3 Jul 1926, 44 Stat. 830; 5 U. S. C. 92a)

Chapter XXIV—Incidental Matters ATTENDANCE OF WITNESSES-PREPARATION OF INTERROGATORIES AND TAKING OF DEPOSITIONS-EMPLOYMENT OF EXPERTSEXPENSES OF COURTS-MARTIAL-CONTEMPTS

105. ATTENDANCE OF WITNESSES-a. Preliminary, general, and

819355-49-22

miscellaneous. Every trial judge advocate of a general or special court-martial and every summary court-martial shall have the power to issue the like process to compel witnesses to appear and testify which courts of the United States having criminal jurisdiction may lawfully issue, but such process shall run to any part of the United States, its Territories and possessions. Upon request by the defense counsel, witnesses for the defense shall be subpoenaed through process issued by the trial judge advocate in the same manner as for witnesses for the prosecution (A. W. 22). The process to compel witnesses to appear and testify cannot be issued for the purpose of compelling a witness to appear for preliminary examination. See 82b (2) concerning the authority of summary courts-martial to compel the attendance of witnesses.

In this paragraph (105) the term "trial judge advocate" includes a summary court-martial unless the context otherwise indicates.

The trial judge advocate will take timely and appropriate action with a view to the attendance at the trial of the witnesses who are to testify in person. He will not of his own motion take such action with respect to a witness for the prosecution unless satisfied that his testimony is material and necessary and that a deposition will, for any reason, not properly answer the purpose, or will involve equal or greater inconvenience or expense. The trial judge advocate will take similar action with respect to all witnesses requested by the defense, except that where there is reason to believe that the testimony of a witness so requested would be immaterial or unnecessary, or that a deposition would fully answer the purpose and protect the rights of the parties, the matter will be referred for decision to the appointing authority or to the court, according to whether the question arises before or after the trial commences. The trial judge advocate may consent to admit the facts expected from the testimony of a witness requested by the defense if the prosecution does not contest such facts or they are unimportant. An application for the attendance of a witness may sometimes be withdrawn if the trial judge advocate offers to enter into a stipulation as to the testimony of such witness. In connection with the subject of this paragraph, see 105b (Warrant of Attachment).

b. Civilian witnesses-Issue, Service, and Return of Subpoena. A subpoena is

Page 315

prepared, signed, and issued in duplicate, on the forms provided by the Department of the Army. See Appendix 13 for the form of a completed subpoena with certificate of service.

If practicable, a subpoena will be issued at such time as will 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. If a subpoena requires the witness to bring with him a document or documents to be used in evidence, each document will be described in sufficient detail to enable the witness to identify it readily.

Unless he believes that formal service is advisable, the trial judge advocate will mail the subpoena in duplicate, together with a penalty envelope bearing a return address, to the witness with a request that he sign the acceptance of service on the copy and return it in the penalty envelope. The return envelope should be addressed to the trial judge advocate of the court and not to the officer by name. The trial judge advocate 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 a compliance with the request.

If formal service is believed to be necessary, the trial judge advocate will take appropriate action with a view to timely and economical service. For example, if the witness is near the station of the trial judge advocate, he or someone detailed or designated by the commanding officer of the station may serve the subpoena; if the witness is near some other military station the duplicate subpoenas may be inclosed in a suitable letter to the commanding officer of that station; or the duplicate subpoenas may be inclosed in a suitable letter to the commander of an Army or similar command within which the witness resides or may be found. Any such commander will take appropriate action with a view to the prompt service of the subpoena by the most economical available means. Travel orders for the purpose will be issued when necessary. Service will ordinarily be made by a person subject to military law, but may legally be made by others. Service is made by personal delivery of one of the copies to the witness. The other copy, with proof of service made as indicated on the form, will be promptly returned to the trial judge advocate. If

service can not be made, the trial judge advocate will be promptly so informed. When use for it is probable, a return penalty envelope, addressed to the trial judge advocate and not to the officer by name, may be sent to the person who is to serve the subpoena.

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 judge advocate.

Neglect or refusal to appear. See that part of Article 23 preceding the second proviso, and the second subparagraph below (Warrant of Attachment).

In order to maintain a prosecution under the part of Article 23 referred to, a person must not only be duly subpoenaed but be paid or tendered fees, including fee for one day of actual attendance, and mileage both ways, "at the rates allowed to witnesses attending the courts of the United States" (A. W. 23). Whenever such action appears to be advisable, a finance officer under the command of the appointing authority, or the finance officer nearest to the place where the witness is found, will, upon request by the trial judge advocate, at once provide the trial judge advocate, or other officer or person designated for the purpose, the required amount of money to be tendered or paid to the witness for one day of attendance and mileage for the journeys to and from the court. See AR 35-4120. If an officer charged with serving a subpoena pays the necessary fees and mileage to a witness, taking a receipt therefor, he is entitled to reimbursement.

Warrant of attachment. In any case the trial judge advocate may properly consult the court as to the desirability of issuing a warrant of attachment under Article 22. He should consult the court before issuing a warrant of attachment for a witness desired by the defense, if, in his opinion, the evidence desired can be obtained in another manner, or if he is willing to admit that the witness would testify as stated by the defense.

Whenever it becomes necessary to issue a warrant of attachment (D. A., A. G. O. Form No. 119), the trial judge advocate will issue and deliver or send it for execution to an officer designated for the purpose by the commander of the proper army or other command.

As the arrest of a person under a warrant of attachment involves depriving