orders 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, in a proper case a lay witness who is acquainted with the accused and who has observed his behavior may testify as to his observations and may also give such opinion as to the accused's general mental condition as may be within the bounds of the common experience and means of observation of men.

As in the proof of other matters, evidence should be presented by the testimony of witnesses in open court, depositions (131), stipulated testimony, or documentary evidence.

So much of the original signed report of a board of medical officers, or any other medical record as pertains to entries of facts which are properly admissible under the official record or business entry exceptions to the hearsay rule (130) may be received in evidence. The opinions as to the mental conditions of the accused contained in the report of a board of medical officers (111) may be received in evidence, provided the officers making such report are made available for call as witnesses by the prosecution, defense, or the court for examination. The documentary supporting data not otherwise admissible under 130 (for example, statements as to the history of the accused) are not made admissible by reason of their inclusion in the report. The entire report may, however, be received by stipulation.

For rules of evidence as to expert witnesses, hypothetical questions, and similar matters, see 125b.

113. SENTENCE-As affected by mental impairment or deficiency. In an appropriate case in which the issue of insanity is resolved against the accused, the court may, in arriving at its sentence, consider any evidence with respect to the mental condition of the accused which falls short of creating a reasonable doubt as to his sanity. The fact that the accused is a person of low intelligence, or that by virtue of a curable mental or neurological condition his ability to adhere to the right is diminished, may be a mitigating factor. On the other hand, in determining the severity of a sentence, the court may consider evidence, properly introduced, tending to show that an accused has little regard for the rights of others,

such as evidence showing that he possesses homicidal tendencies.

114. ACTION BY REVIEWING AUTHORITY. Whenever it appears to the reviewing authority, after consideration of the record as a whole, that a reasonable doubt exists as to the sanity of the accused, he should disapprove any findings of guilty of the charges and specifications affected by such doubt and take appropriate action with respect to the sentence. The reviewing authority will take the action prescribed in 111 before taking action on the record whenever it appears from the record of trial or otherwise that further inquiry as to the mental condition of the accused is warranted in the interest of justice regardless of whether any such question was raised at the trial or how it was determined if raised.

Chapter XXVI-Punishments GENERAL LIMITATIONS-MISCELLANEOUS LIMITATIONS AND COMMENTS-MAXIMUM LIMITS OF PUNISHMENTS

115. GENERAL LIMITATIONS. No person subject to military law shall be confined with enemy prisoners or any other foreign nationals outside the continental limits of the United States, nor shall any accused, prior to the order directing execution of the approved sentence, be made subject to any punishment or penalties other than confinement. See Article 16. See 19a concerning the facilities, accommodations, treatment and training to be afforded to prisoners awaiting trial or in confinement pending action by the officer authorized to order execution of the sentence adjudged by the court. An accused of these classes will not be required to observe duty hours and training schedules devised as punitive measures, or required to perform punitive labor, or to wear other than the prescribed uniform during such period of confinement, prior to the order directing execution of the sentence.

Cruel and unusual punishments of every kind, including flogging, branding. marking, or tattooing on the body are prohibited (A. W. 41).

Courts-martial will not impose any punishment not sanctioned by the custom of the service such as carrying a loaded knapsack, wearing irons, shaving the head, placarding, pillory, stocks, and tying up by the thumbs. Military duties such as guard duty, drills and the sounding of calls will not be degraded by imposing them as punishments. Solitary confinement, a bread-and-water diet, loss of good conduct time, and the placing of a prisoner in irons will not be adjudged as punishments by a courtmartial.

For other limitations, see 109 (Contempts), 116 (Miscellaneous limitations), and 117 (Maximum limits).

116. MISCELLANEOUS LIMΙΤΑ TIONS AND COMMENTS-a. General courts-martial. The death penalty is mandatory in the case of spies (A. W. 82); except as noted below, dismissal is mandatory for conduct unbecoming an officer and a gentleman (A. W. 95); it is mandatory that either death or life imprisonment be adjudged for premeditated murder (179a and A. W. 92); except in time of war (A. W. 44) dismissal is the mandatory minimum sentence for false muster (A. W. 56), false returns (A. W. 57), and personal interest in the sale of provisions (A. W. 87). Punishment as adjudged by the court for any such offense must be in conformity with the pertinent article. For instance, except in time of war when reduction to the ranks is authorized (A. W. 44), the sentence of a court upon conviction of a violation of Article 95 must be dismissal, nothing less, and, if convicted of that offense alone, nothing more. Upon conviction of premeditated murder in violation of Article 92, dishonorable discharge and forfeitures may be adjudged with life imprisonment.

The death penalty can not be adjudged except for an offense expressly made so punishable in the Articles of War (A. W. 43); see 14 for a statement of the particular articles. Although an offense may expressly be made punishable by death, the death penalty can not be adjudged for that offense if the applicable limit of punishment prescribed by the President under Article 45 (117) is less than death. Nor can the death penalty be adjudged if the appointing authority has directed that a case be treated as not capital (A. W. 13, A. W. 25).

In adjudging the sentence of death a court-martial will not prescribe the method of execution, which will be prescribed by the confirming authority. Usage of the service contemplates execution of the death sentence by hanging or shooting. Hanging is considered more ignominious than shooting and is the usual method, for example, in the case of

a person sentenced to death for spying, for murder in connection with mutiny, or for premeditated murder or rape. Shooting is the usual method in the case of a person sentenced to death for a purely military offense, as desertion in time of war.

A general court-martial possesses the authority to adjudge any punishment authorized by law or the custom of the service, including a bad conduct discharge (A. W. 12).

b. Special and summary courts-martial. Special courts-martial shall not have power to adjudge confinement in excess of six months, nor to adjudge forfeiture of more than two-thirds pay per month for a period not exceeding six months (A. W. 13). Summary courtsmartial shall not have power to adjudge confinement in excess of one month, restriction to limits for more than three months, or forfeiture or detention of more than two-thirds of one month's pay (A. W. 14). Although a special courtmartial may adjudge bad conduct discharge (A. W. 13), neither a special nor summary court-martial can impose dismissal or dishonorable discharge (A. W. 13, A. W. 14, A. W. 108, A. W. 118). However, these courts are not limited to the kinds of punishments stated in Articles 13 and 14. See 17 as to the apportionment that may be required if a summary court-martial wishes to adjudge both confinement and restriction. The table of relative values of punishments for purposes of substitution (117c) will also guide apportionment. Although a special court-martial can not, in adjudging a bad conduct discharge, also adjudge forfeiture of all pay and allowances, it may in such a case properly adjudge a forfeiture of two-thirds pay per month for a period not exceeding six months.

c. Officers and warrant officers. In general, any limitation as to the punishment that may be imposed on an officer by a court-martial is applicable to the case of a warrant officer. Except as noted hereafter, an officer can not be reduced in grade, such as from captain to first lieutenant, or to the grade or status of a warrant or noncommissioned officer, or sentenced to bad conduct discharge, or sentenced to confinement at hard labor unless the sentence includes dismissal, or sentenced to hard labor without confinement in any case. Similar limitations apply in the case of a warrant officer. The separation from the service of a warrant officer by sentence of court-martial is effected by dishonorable discharge.

An officer may be punished by dismissal and a warrant officer may be punished by dishonorable discharge for any offense in violation of an Article of War, but no officer or warrant officer shall be sentenced to confinement or forfeiture of all pay and allowances unless the sentence also includes dismissal or dishonorable discharge. In no case shall a sentence to confinement in the case of an officer or warrant officer exceed the maximum prescribed for soldiers by the Table of Maximum Punishments.

In time of war when compulsory induction laws are in effect an accused officer, if within the age limits for induction and otherwise qualified to serve as a soldier, may be sentenced to be reduced to the lowest enlisted grade in lieu of dismissal. Such reduction should be adjudged only when dismissal, without other punishment, would otherwise be adjudged by the court.

d. Enlisted persons; general prisoners. For the maximum limits of punishment for certain offenses committed by enlisted personnel, see 117. In the case of an enlisted person of other than the lowest grade a sentence which as ordered executed or as suspended includes either dishonorable or bad conduct discharge, whether suspended until release from confinement or not, or hard labor, whether with or without confinement, immediately reduces such enlisted person to the lowest grade. Authorized punishments for enlisted personnel include reduction to the lowest enlisted grade from any higher grade. Reduction to an intermediate grade by sentence of courtmartial is not authorized.

If a general prisoner, already under a suspended sentence to dishonorable or bad conduct discharge, is tried by courtmartial, dishonorable or bad conduct discharge and other penalties appropriate in the case of a soldier may be adjudged. However, if a general prisoner has been separated from the service by dishonorable or bad conduct discharge the imposition of any form of punishment other than confinement at hard labor would in general be futile.

e. Reprimand; admonition. There is no restriction either as to the court which may adjudge these punishments or as to the persons subject to military law on whom they may be imposed, but

the court will not fix the terms or wording of a reprimand or admonition.

f. Restriction to limits. This form of punishment is a deprivation of privileges. There is no restriction either as to the court which may adjudge this punishment or as to the persons subject to military law on whom it may be imposed, but it will not be adjudged in excess of three months and will not in any event operate to exempt the person on whom it is imposed from any military duty.

g. Forfeiture; fines; detention of pay. To be effective any forfeiture, fine, or detention must be adjudged in express terms. In determining the amount of a forfeiture or fine, particularly a large fine, the court should consider the ability of the accused to pay.

Fines and forfeitures accrue to the United States and can not be adjudged by a court-martial for the benefit of any individual. A court-martial has no authority to provide by stoppage, assignment, or otherwise, for the settlement of any pecuniary liability whatever, including any liability to a government agency, such as a company fund. A sentence directing an accused to make a deposit or a contribution of pay or of other funds is illegal.

A forfeiture is an appropriate 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 number of months or days expressly stated. Allowances are forfeited only when the sentence includes the forfeiture of all pay and allowances. Such a penalty will be adjudged only when the accused is also sentenced to dishonorable or bad conduct discharge, or to dismissal. Forfeiture of a soldier's deposit or of the interest thereon can not be adjudged by sentence of courtmartial. A general court-martial is not limited as to the amount of forfeiture it may adjudge, but in the case of an enlisted person it may not adjudge a forfeiture of more than two-thirds pay per month for twelve months unless it also sentences the accused to dishonorable or bad conduct discharge. For the limit of jurisdiction of a special or a summary court-martial to adjudge forfeitures, see 116b. See, generally, as to forfeitures, army regulations relating to the Finance Department, particularly AR 35-2460 (Court-martial forfeitures enlisted men). As to pay subject to forfeiture, see 117c.

Ordinarily a fine, rather than a forfeiture, is the proper monetary penalty to be adjudged against a civilian subject to military law. A forfeiture may not be applied to money to be paid by an employer other than the Government.

Whereas a forfeiture deprives the accused of all or part of his pay, a fine, which is in the nature of a judgment, makes him peculiarly liable in general to the United States for the amount of money specified in the sentence. All courts-martial have the power to adjudge fines instead of forfeitures, not only in those instances wherein fines are expressly authorized (A. W. 80 and A. W. 94), but, subject to the limitations prescribed in the Table of Maximum Punishments, in all cases in which the applicable Article of War authorizes punishment as a court-martial may direct. If a punishment is prescribed for an offense in the Table of Maximum Punishments, there is no authority for the imposition of a fine, either in addition to, or in lieu of, the prescribed punishment unless the case falls within the provisions of "Permissible additional punishments." In general, a courtmartial has the same power to fine a prisoner of war that it has to fine a member of the Army. In order to enforce collection, a fine is usually accompanied in the sentence by a provision that the person fined shall be imprisoned until the fine is paid or until a fixed portion of time considered as an equivalent punishment has expired. See Appendix 9, examples 18 and 19.

Detention of pay is a less severe form of punishment than a forfeiture in that the amount detained is ultimately returned to the accused when he is separated from the service. Detention of pay will not be adjudged by a courtmartial except against an enlisted person of the Army.

A forfeiture, fine or detention becomes legally effective on the date the sentence adjudging it is promulgated.

h. Suspension from rank, command, or duty. Suspension from rank includes suspension from command. It does not affect the right of an officer to promotion nor his right to rise in files, but renders him ineligible to sit as a member of a court-martial, court of inquiry, or mili

tary board, and deprives him of privileges depending on rank, such as any priority dependent on rank in the selection of quarters.

Suspension from command merely deprives the officer of authority to exercise military command and, consequently, his authority to give orders to his juniors and to perform any duty involving the exercise of command. It does not affect his right to promotion. Suspension from duty is analogous to suspension from command and is particularly appropriate in the case of an officer assigned to a purely administrative duty not involving the exercise of military command.

Sentences to loss of rank or promotion are not authorized.

i. Confinement at hard labor; hard labor. Any person subject to trial by court-martial may be sentenced to confinement at hard labor. Such a sentence can not be adjudged in the case of a commissioned officer unless the officer is also sentenced to dismissal, nor in the case of a warrant officer unless the warrant officer is also sentenced to dishonorable discharge. Only under unusual circumstances should confinement at hard labor be adjudged against a soldier without a sentence to forfeiture or fine. A sentence to confinement does not of itself automatically result in any fine or forfeiture of pay or allowances.

Confinement "without hard labor" will not be adjudged. See Article 37 as to the effect of a failure to couple hard labor with confinement. The place of confinement will not be designated by the court.

Hard labor without confinement will not be adjudged in excess of three months. It may be adjudged only in the cases of soldiers.

Hard labor without confinement, adjudged as a punishment by courts-martial, shall be performed in addition to other duties which fall to the soldier; and no soldier shall be excused or relieved from any military duty for the purpose of performing such hard labor. A sentence imposing hard labor shall be considered satisfied when the soldier 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. 117. ΜΑΧΙMUM LIMITS OF PUNISHMENTS-a. Persons and offenses. The limits prescribed herein (117) will be applied by courts-martial in cases of soldiers and general prisoners. The mentioned limitations, though not binding upon courts sentencing officers, warrant officers and civilians subject to military law, except as stated in 116c and section B of 117c, may be used as a guide subject to such exceptions as may be deemed warranted for determining the appropriate punishment for such persons. The maximum authorized penalties will also be applied insofar as applicable in the cases of enlisted prisoners of war.

b. General limitations. The limitations herein (117) do not exclude any other applicable limitations; for example, those set forth in 115 and 116-in particular, it should be remembered that special courts-martial can not adjudge confinement in excess of six months nor forfeiture of pay in excess of two-thirds pay per month for six months (1166).

A court shall not, by a single sentence which does not include dishonorable or bad conduct discharge, adjudge against the accused:

Forfeiture of pay at a rate greater than two-thirds of his pay per month.

Forfeiture of pay in an amount greater than two-thirds of his pay for twelve months.

Confinement at hard labor for a period greater than twelve months.

A court shall not, by a single sentence, adjudge against an accused:

Detention of pay at a rate greater than two-thirds of his pay per month.

Detention of pay in an amount greater than two-thirds of his pay for three months.

In the execution of a single sentence not including dishonorable or bad conduct discharge, and in the execution of two or more sentences against the same accused, none of which includes dishonorable or bad conduct discharge, any forfeiture or forfeitures of pay included in the sentence or sentences shall be ap

plied, together with other authorized stoppages or deductions, if any, excepting such as are made at the request of the accused, so as not to deprive the accused of more than two-thirds of his pay for any month. As to pay which is subject to forfeiture, see 117c.

с. Махітиm punishments. The punishment stated opposite each offense listed in the table below 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. The maximum punishment so prescribed for the offense should be restricted to those cases in which, due to aggravating circumstances, the greatest permissible punishment should in the discretion of the court be imposed. If an offense not listed in the table is included in an offense which is listed and is also closely related to some other listed offense, the lesser punishment prescribed for either the included or closely related offense will prevail as the maximum limit of punishment.

Offenses not listed in the table, and not included within an offense listed or not closely related to either, remain punishable as authorized by Title 18, United States Code, or by the Code of the District of Columbia, whichever prescribed punishment is the lesser, or as authorized by the custom of the service. With respect to other matters proper for consideration in fixing punishment, see 80а, 113, 140a and 157a.

The description of each offense listed in the table must be construed in connection with the Article of War under which such offense is listed. The table, which lists the maximum punishment in terms of confinement or forfeiture, or both, contains no reference to lesser forms of punishment, such as hard labor without confinement, restriction to limits, or detention of pay, which are appropriate for many minor offenses. Unless dishonorable or bad conduct discharge is adjudged, the court in its discretion may substitute at the following rates other punishments for those listed in the table: