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PROCEEDINGS AND REPORT 
 
 OF 
 
 SPECIAL WAR DEPARTMENT BOARD 
 
 ON 
 
 COURTS-MARTIAL AND THEIR 
 PROCEDURE 
 
 July 17, 1919 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 1915 
 

 
 
PROCEEDINGS AND REPORT 
 
 OF 
 
 SPECIAL WAR DEPARTMENT BOARD 
 
 ON 
 
 COURTS-MARTIAL AND THEIR 
 PROCEDURE 
 
 July 17, 1919 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 1919 
 

PROCEEDINGS AND REPORT OF SPECIAL WAR DEPARTMENT BOARD ON 
 COURTS-MARTIAL AND THEIR PROCEDURE. 
 
 WASHINGTON, D. C., 
 
 July 17, W19. 
 
 PROCEEDINGS AND REPORT OF A BOARD OF OFFICERS CONVENED PURSUANT 
 TO THE FOLLOWING LETTER I 
 
 Wk/lms/368 
 
 A. G. 250.03. 
 
 MAY 14, 1919. 
 
 From: The Adjutant General of the Army. 
 To: Ma.j. (Jen. Francis J. Kernan, United States Army, Office of the Chief 
 
 of Staff, Washington D. C. 
 Subject : Board of Officers. 
 
 1. A hoard of officers to consist of Maj. Gen. Francis J. Kernan, United States 
 Army, Maj. Gen. John F. O'Kyan, New York National Guard, Lieut. Col. Hugh 
 W. Ogden, judge advocate, is appointed to meet in this city at the call of the 
 senior member. 
 
 2. The board will consider all recommendations looking to the improvement 
 of the present system of military justice, and recommend to the War Depart- 
 ment any changes which they believe to be necessary in the Articles of War, 
 and in the methods of procedure which now obtain in the administration of 
 military justice in the Army so far as such justice is administered through 
 the agency of the authorized courts-martial. The board is authorized to call 
 for any and all records in the War Department bearing upon this subject. 
 
 3. You will submit to this office the name of an officer with a view to his 
 detail as recorder of the board. The recorder will not vote. 
 
 4. It is desired that the board expedite its proceedings so that they might 
 be available for the consideration of the Secretary of War at the earliest 
 possible date. 
 
 5. The travel directed is necessary in the military service. 
 By order of the Secretary of War : 
 
 WILLIAM KELLY, Jr., 
 
 Adjutant General. 
 
 Pursuant to paragraph 3 of the foregoing letter, Lieut. Col. F. M. 
 Barrows, F. A., was detailed as recorder of the board. 
 
 Coincident with the appointment of this board the Chief of Staff 
 caused cablegrams to be sent to the headquarters of the Philippine 
 and Hawaiian Departments, and to headquarters, A. E. F., France, 
 to the following effect : 
 
 The War Department has convened at Washington a board to investigate 
 the law and procedure of military justice and to make recommendations 
 thereon. Advise all officers of your command who are exercising general 
 court-martial jurisdiction, or who have heretofore exercised it, and all judge 
 advocates, that specific recommendations looking to the improvement of the 
 system are invited. These propositions should be concrete and in precise form 
 for incorporation in law or regulation, and accompanied by concise statements 
 of the reasons upon which the recommendations are grounded. They should 
 be forwarded by mail with the least possible delay, addressed to Maj. Gen. 
 F. J. Kernan, President, Special War Department Board, Washington, D. C. 
 
 (3) 
 
the proposed revision of the Articles of War, as set out in the Cham- 
 berlain bill (66th Cong., 1st sess.. S. Gi), rests. And if courts-martial 
 have, as the chief purpose of their existence, the nice exemplification 
 of technical rules of law, this basic change is logical. But if the real 
 purpose of the court-martial is to enable commanders to insure 
 discipline in their forces, it may be questioned if this end will be 
 better served by taking the working of this agency out of the hands 
 of those who, as soldiers, know much of discipline and something 
 of military law, and putting it into the hands of those who as 
 lawyers know much of law but little of soldiering, or of the discipline 
 indispensable to successful soldiering. 
 
 It may be useful at this point to consider the real nature of com- 
 mand with special reference to the fundamental doctrine that the 
 constitutional authority of the President as Commander in Chief 
 can not be abridged by Congress in the exercise of its power to make 
 rules for the government of our armies. Does the authority or right to 
 command presuppose the existence of the organized Army machine fit 
 and ready to carry out the word of command but brought into being, 
 trained and maintained in fit condition for its work by agencies inde- 
 pendent of him in whom command is vested ? Does command imply 
 only that the commander may express his will for the use of the force 
 to that force, and that the latter thereupon legally bound to carry 
 out the order? Or, does command embrace and imply, and has it 
 always embraced and implied, not merely the right to direct the use 
 of the force, but the duty and authority to make and maintain the 
 force fit and suitable to its purpose by instruction, by training, and 
 by discipline? 
 
 Is it practicable, if good results are to be expected, to divorce the 
 command of armies from their training and discipline, to repose 
 command in one set of men while placing in other and independent 
 hands the creation and maintenance of that spirit of discipline which 
 must prevail if command is to be lifted from the domain of futility 
 to that of effectiveness ? 
 
 The rules governing armies had their beginnings, not in legisla- 
 tive bodies, but in commanders whether called kings or chiefs or 
 generals, and in early times those who formulated the rules carried 
 them out. With the evolution of governments the right of prescrib- 
 ing the most important or fundamental rules has lodged in legisla- 
 tive bodies, but the execution of those rules, their practical adminis- 
 tration, has heretofore been left to commanders and their assistants 
 down through the hierarchy of command to the very bottom. 
 Courts-martial have always been agencies for creating and main- 
 taining the discipline of armies, and in earlier times, and certainly 
 until the adoption of our Constitution, were provided and adminis- 
 tered by commanders as of inherent right. The King of England 
 had and exercised this inherent right. The Continental Congress 
 took over some of the duties of government in the rebellious colo- 
 nies, but Washington as Commander in Chief appointed courts- 
 martial as of right inherent in that office without the express au- 
 thority of that Congress. So that when our Constitution was adopted 
 and the powers of the Federal Government were distributed among 
 three great departments, and the President was made by the organic 
 law Commander in Chief, the power to appoint courts-martial, by 
 
virtue of that office, was well understood. The power to make rules 
 for the government of the land forces was at the same time confided 
 to Congress. The earlier Articles of War continued or created under 
 that grant of power did not expressly confer upon the President the 
 right or authority to appoint courts-martial, but actually he exer- 
 cised the power, and the validity of that action is well established. 
 It appears, therefore, that before our Constitution was established 
 a Commander in Chief was inherently competent to appoint courts- 
 martial as incident to his office; that under the Constitution this 
 right has been exercised and upheld, and further, that the rules made 
 for the Army by Congress have extended to subordinate commanders 
 (who are in fact assistants to the President in his special capacity 
 as Commander in Chief) the right to appoint and to make use of this 
 agency. 
 
 The pending Chamberlain bill proposes to take out of the hands of 
 those to whom command is confided, from the President down, the 
 effective use of courts-martial as instruments to enforce discipline. 
 It does this by providing a civilian court of military appeals and by 
 injecting into the principal courts-martial a new functionary with 
 powers so extensive and of such a kind as to constitute him the ad- 
 ministrator of discipline, though he is not himself of the heirarchy 
 of command. The net result in the more important cases would be 
 to transfer the power to discipline our armies from the Commander 
 in Chief, the President, and from his assistant commanders, to 
 civilian hands pure and simple, i. e., the court of military appeals, 
 or to the quasi civilian legal hands of the judge advocates provided 
 for general and special courts-martial. In view of the history of 
 the court-martial as an adjunct of armies and as an instrument the 
 use of which inheres in the office of the Commander in Chief under 
 our system of government is it not possible that the proposition to 
 take from the President, in large measure, the effective use of this 
 instrument, as well as to take away from his proper assistants in the 
 task of command a like use of the same instrument, may be uncon- 
 stitutional? Is it not in effect an attempt to withdraw from com- 
 mand an essential part of that which belongs to it historically and in 
 sound reason ? Is it not open to be questioned as an attempt by law 
 to emasculate the legitimate and heretofore undisputed authority of 
 the President as Commander in Chief? 
 
 If in England, whence we drew our Articles of War, the execu- 
 tive, independent of legislative enactment, could appoint courts- 
 martial and execute their sentences; if Washington, as Commander 
 in Chief of the Continental Armies, could and did exercise the like 
 power without express authority of law, does it not seem reasonable 
 that the new Commander in Chief under our Constitution was simi- 
 larly empowered ? For not only did our military system come essen- 
 tially from England but the language in which that system is ex- 
 Eressed is our own, so that words or phrases imbedded in our organic 
 iw may be taken to connote the same thing and to carry the same im- 
 plications as in the mother tongue. Therefore, Commander in Chief 
 in the Constitution would seem broadly to mean what Commander in 
 Chief meant in the Continental Army and, in the absence of express 
 limitations, to carry with it the same general scope of- authority. If 
 this be the fact, can the President by law be subjected in his action 
 
8 
 
 upon court-martial cases to review and absolute reversal by a civilian 
 tribunal such as the Chamberlain bill proposes to set up? And 
 similarly can the President's assistants in his functions of Commander 
 in Chief, his commanding officers, have this means of enforcing com- 
 mand wrested from them and handed over to a junior staff officer 
 himself normally exercising no command and concerned with dis- 
 cipline only as an abstraction? Would it not in effect be saying to 
 all commanders from the President down, " You can issue commands, 
 but we deny you the power to enforce them " ? 
 
 If the fifty-second article of war. as proposed in the Chamberlain 
 bill, had been law and the St. Mihiel offensive had been a complete 
 failure of American arms instead of a brilliant success, the com- 
 mander in chief in France, or the President, might have had occasion 
 to court-martial a high commander as responsible, through miscon- 
 duct, for the disaster. A finding of guilty and the sentence adjudged 
 on the spot by a court-martial composed of fellow officers, duly 
 equipped by special knowledge and antecedent training to judge justly 
 and sanely, could be set aside upon a legal technicality construed by 
 three civilians sitting in Washington to be an error of law injuriously 
 affecting the substantial rights of the accused, although the immedi- 
 ate commander and the President had approved the whole proceed- 
 ings as legally sufficient and intrinsically important in the highest 
 degree for the Army's welfare. The power to discipline effectively, 
 inseparably bound up with the power of effective command, would 
 be in this 'particular case paralyzed. The requirements of effective 
 command as determined by the Commander in Chief, be it observed, 
 are thus halted by an independent agency outside the Army. 
 
 It has always been held that, as between the State and Federal 
 Governments, a distinct power granted to the latter carries with it a 
 right to the usual and necessary means to make the express grant 
 effective, and that those means were beyond the power of the State to 
 impede or destroy. This upon the principle that it was futile and 
 absurd to confer on one authority the right to build up a particular 
 agency if there existed in another authority the right to tear down 
 that same agency. So between the different departments of the Fed- 
 eral Government it would be equally absurd to confer upon the Ex- 
 ecutive the right to command the armies and at the same time to con- 
 fer upon the judiciary the right to render the exercise of that com- 
 mand futile through a power to weaken or destroy the discipline of 
 the armies by reversing and setting aside the President's disciplinary 
 action upon grounds which might appear material to a civilian court 
 without military experience and far removed from the atmosphere 
 in which armies must necessarily operate, but which, in relation to 
 the disciplinary importance of the case and of the proved facts and 
 circumstances, might be relatively inconsequential. If it may be said 
 that such action by a court of review is not to be anticipated, the an- 
 swer is that heretofore given by our Federal courts to a like conten- 
 tion, namely, that it is not alone the exercise of the power to nullify 
 or destroy which must be guarded against, but its very existence. 
 
 If, however, these doubts as to the legality of the more radical 
 innovations be set aside, there remains the duty of examining them 
 from the standpoint of expediency, and of considering the question 
 of providing some further agency of appellate jurisdiction and of de- 
 termining whether that agency, if provided, should not, in law and 
 
in the interest of discipline and as a logical part of a system of mili- 
 tary courts, be established within the Army itself. 
 
 >It is the common practice of intelligent men, founded on experi- 
 ence, to yoke up responsibility and a definite task with the authority 
 and the means designed to make the accomplishment of the task 
 reasonably certainy The chief task for which armies exist is of su- 
 preme importance to the State. The responsibility upon those exer- 
 cising command, and especially high command while war lasts, is 
 second to no other responsibility under the Government. It involves 
 the question of life and death for many individuals and it may in- 
 volve the very existence of the State itself. From this it results that 
 great authority, great latitude of judgment, great power over the 
 personnel of armies, have always been vested in those to whom com- 
 mand is confided. To achieve the purpose of their existence armies 
 must be clothed and fed and instructed and disciplined in prepara- 
 tion for the test of combat. All governments provide for these 
 things. Upon what basis of reasonableness can a general be endowed 
 with power to give orders to his command which may mean, and 
 often must and do mean, the certain death and mutilation of thou- 
 sands, while withholding from him the antecedent authority to 
 achieve such discipline as shall minimize death and multiply the 
 chances of victory? Yet here is a proposition by which one of the 
 most effective and powerful sanctions of good discipline the court- 
 martial is to be taken substantially from the general who must fight 
 the command, and whose success or failure may hinge absolutely 
 upon its discipline, and to put it into the hands of one whose special 
 qualification is law and whose knowledge of disciplinary require- 
 ments may be of the slightest. The highest qualification for making 
 a court-martial achieve the object of its existence is a thorough 
 knowledge of men and discipline in the profession of arms, not mere 
 expertness in law. That is why the judgment of those responsible 
 for discipline, and whose whole business is bed-rocked on discipline, 
 is of higher value to the service and is entitled to greater public con- 
 fidence in its essential justice than a judgment or opinion upon the 
 same subject matter from any source not cognizant of the problems 
 and circumstances affecting military service in the field. 
 
 In the opinion of this board the unwisdom of this new departure, 
 assuming it to be legally competent, is startlingly apparent. 
 
 From this point it is convenient to pass to a consideration of the 
 phenomena through which the public seems to manifest a belief that 
 courts-martial are apt to be instruments of injustice and that their 
 sentences often (if not habitually) are transparently excessive to 
 the point of cruelty. 
 
 Through the daily press, magazines, lectures, and other media the 
 public is told that courts-martial give sentences grotesquely severe, 
 that Army officers, from some innate quality in the profession, be- 
 come arbitrary and develop a callous attitude toward soldiers and 
 are peculiarly ignorant of the laws governing the Army. These 
 general charges of injustice are upheld by specifications consisting 
 of a statement of offenses followed by a statement of the punishments 
 imposed. Thus, for example, a soldier is ordered to peel potatoes 
 and refuses to obey. He is tried for this offense, is convicted, and 
 sentenced to years of confinement. Or, let us say, the soldier smokes 
 130626 19- 2 
 
10 
 
 a cigarette in disobedience of orders, and is given years of confine- 
 ment for this trifling indulgence in a habit to which the youngster 
 had become addicted. The public does not stop to analyze the pos- 
 sible effects of these apparently trifling misdeeds. Peeling potatoes 
 is an unpleasant task, and why wonder if some people balk at it, 
 and why give so harsh a punishment for so simple a dereliction? 
 Nobody would suffer much if there were no potatoes for dinner, 
 anyhow. Similarly, smoking a cigarette is a bad habit, perhaps; 
 but millions do it. What, then, could a court be thinking of to pun- 
 ish it by years of imprisonment? A young soldier whose command 
 is about to embark for France is seized suddenly by a strong desire 
 to say good-by once more to his mother or his sweetheart. What 
 more human impulse can be imagined? There is general sympathy 
 with the young man when he yields to this temptation and goes off 
 without permission and the ship and his comrades sail without him. 
 But a court, a singularly heartless court, awards years of confine- 
 ment for this act an act which seems at first glance (and this is as 
 far as most people go) almost a virtue instead of a fault. The 
 answer to the faulty public judgments upon acts of this sort, and 
 upon military offenses generally, is that the just measure of punish- 
 ment can never be inferred from a consideration of the offense as an 
 abstraction, as if it had been committed by Kobinson Crusoe in the 
 days of his solitude. A small discoloration on a man's foot may 
 seem to the layman a trifling matter calling, perhaps, for a mild 
 lotion. If it signifies gangrene to the surgeon, the leg may be ampu- 
 tated. Insubordination is as fatal to armies as gangrene is to the 
 physical man, and as the surgeon is the better judge of what remedy 
 is needful in the one case, so in the other a court-martial is more apt 
 than the general public to reach a just conclusion. And a lighted 
 cigarette in a city park presents a proposition altogether different 
 from the same thing in a powder plant. Let us pause a moment on 
 the absent-without-leave man, a most common offender, and one 
 highly effective for appealing to the public mind and misleading it. 
 If the man himself does not set up in extenuation the overpowering 
 effect of some deep and natural human emotion, the imagination of 
 nearly everybody will do so, especially if guided by slight sugges- 
 tion. But how about the absentee's comrades in the trenches? It 
 may always happen, and it does often happen, that the absentee's 
 dereliction puts a double burden of duty upon a wearied comrade 
 and doubles the chance of death to the faithful soldier who, though 
 he has a heart, too, and mothers and sweethearts as well, has also a 
 sense of duty. In judging the absentee, then, no court, if it does its 
 duty, can treat the man or his offense as an abstract proposition. It 
 is obliged to do justice as between this man who failed in his duty 
 and the comrades who fully performed theirs and stuck by the colors. 
 It is obliged to do justice as between the offender and his Govern- 
 ment. For if one man may do this thing and escape serious conse- 
 quences, why should not others be tempted to follow? And if one 
 man can be excused for this act by pleading homesickness, or similar 
 causes in which we all sympathize, why can not the same plea be 
 set up by others whose real animating motive may be cowardice, or 
 a desire to shirk, or other like reason ? 
 
 The simple fact is that there is no absolute standard by which one 
 can say this sentence represents justice and that one is excessive and 
 
11 
 
 therefore unjust. It all becomes a matter of opinion and opinion 
 is valuable in proportion to the fullness of the knowledge upon which 
 the opinion is based. Let it be acknowledged that in any system 
 of discipline or justice administered by fallible mortals mistakes 
 will occur; not always, however, in the direction of severity; often 
 the other way. So much being admitted, it can safely be affirmed 
 that whenever an outcry is raised that a particular sentence is ex- 
 cessive to the point of injustice, we have presented a case of dif- 
 fering judgments. The court and the reviewing authority thought 
 one thing, the distant critic thinks another. Which is right? It is 
 extraordinary, but it seems to be the fact, that in all these cases 
 the public places its confidence as of course in the critic's judgment 
 and condemns as of course that of the court. Yet the latter has 
 the fullest light, the most complete knowledge, of all the facts and 
 circumstances upon which a sound and just measure of punishment 
 can be based. There is no comparison upon this point. No written 
 court-martial record is anything more than a partial reproduction of 
 the case in its fullness. A multiplicity of side lights beats upon every 
 case not capable of reproduction in the record and therefore com- 
 pletely excluded from the knowledge of those at a distance who 
 assume to form and to promulgate a different judgment, and which 
 they unhesitatingly claim is juster and wiser than the one reached 
 by the court. It is safe to assert, and this board believes, that in the 
 majority of the relatively few cases criticized as unjust the sentence 
 as given by the court and approved locally is made with fuller rel- 
 evant knowledge of the whole case and of the requirements of disci- 
 pline, and represents justice as a whole better than does the later 
 opinion of the distant reviewer limited to a reading of the written 
 record in a Washington office. 
 
 The public has apparently assumed that even the War Department 
 itself holds that the judgment of a board of review, or a clemency 
 board, sitting in Washington and passing upon the proper quantum 
 of punishment is sounder and represents justice better than the judg- 
 ment of the reviewing authority and the court originally imposing 
 the sentence. This board, for reasons just indicated, is unable to join 
 in that view. The general rule, it believes, is the other way. The 
 board holds that present remission or mitigation is justified, not on 
 the ground that the original sentence at the time and place of its 
 imposition was unjustly severe, but on the ground that the war is 
 over and the sentence, having accomplished with just severity its dis- 
 ciplinary purpose, may now, without detriment to discipline, have its 
 justice tempered by mercy. If this distinction is grasped and under- 
 stood much of the public misconception as to the supposed unjust 
 severity and as to supposed dissimilarity of sentence upon like cases 
 will disappear. 
 
 The belief that irregularity of punishment for precisely the same 
 offense is a common fault in our practice is largely though not wholly 
 erroneous, and that error, like the one of indefensibly severe sen- 
 tences in particular cases, appears to this board to be due in part 
 to a failure to appreciate that sentences are not imposed as abstract 
 punishments for stated offenses, but are properly and necessarily 
 determined by the conditions which existed at the time in the par- 
 ticular command of which the accused was a member, as well as 
 
12 
 
 by the many circumstances which clearly appeared to the court during 
 the trial, such as the^ intelligence, responsibility, and demeanor of the 
 accused, and the witnesses none of which appear in the written 
 record. Cases absolutely alike, and hence calling for absolutely 
 identical punishments, are rare. Cases apparently just alike, as 
 exhibited l>y the written records, are exceedingly common. 
 
 Let us suppose two divisions side by side in the fiunt line and a 
 bloody collision with the enemy is known by everyone to be impend- 
 ing. If one of these divisions lias been seasoned and tested by bat- 
 tle, has in a measure weeded out its weaklings, and has achieved a 
 high divisional pride and morale then, when the clash comes, few 
 absentees and few unjustified stragglers to the rear will mar its rec- 
 ord or threaten its efficiency. If the adjacent division possesses a 
 greener personnel, a lower standard of discipline and morale, and 
 other conditions adverse to efficiency in greater degree than the first 
 division, absentees may be numerous and straggling a menace of the 
 utmost gravity. A court in the better division may take a lighter view 
 of the proper measure of punishment for its offenders since they are 
 rare and their particular kind of dereliction offers no threat to the 
 continued high efficiency of that division. It is different with the 
 other. Its absentees and its shirkers are threatening vitally the 
 efficiency of the organization. This particular kind of misconduct, 
 if continued, spells disaster to the division as an efficient unit; per- 
 haps the operations of a corps or an army may be defeated because of 
 its failure at some critical juncture. Will not its commander and its 
 courts, gravely considering the magnitude of the evil, be apt to punish 
 with great severity those who are convicted, and will not these heavy 
 sentences be necessary and just? Will not the resultant difference 
 of severity as exemplified in these two divisions toward apparently 
 like offenses be, in fact, not an evidence of unsound judgment upon 
 the part of one court or the other, but rather a proof that both 
 courts were right and each knew T what punishment was called for 
 then and there in the interest of discipline in their respective situa- 
 tions? It can not be too strongly emphasized that punishment by 
 military courts is not at all for the sake of vengeance, nor, except in 
 a very subordinate way, is it for the amendment or reformation of 
 the offender; its great purpose, the one to which all other purposes 
 are secondary, is to secure an efficient fighting unit by making it a 
 disciplined one. The just measure of severity of every sentence is 
 to be sought, then, not in a flat uniformity when charges and speci- 
 fications happen to read alike, but in its sound adjustment to the 
 needs of discipline as those needs existed at the time and place of 
 its imposition. The fundamental principle being this: That the 
 punishment should be proportioned to the evil it seeks to cure: being 
 light when, all the relevant circumstances duly weighed, the of- 
 feuse is found to be comparatively innocuous to discipline, and dras- 
 tic when efficiency is imperiled. And this furnishes the conclusive 
 argument for keeping the administration of military justice through 
 the court-martial agency in the hands of those officers who, being as- 
 signed to command troops, are thereby vested with the chief respon- 
 sibility for the discipline and fighting efficiency of those troops. 
 Per contra, it disposes of the theory that the lawyer rather than the 
 soldier is the one to whom, by virtue of his expert legal knowledge, 
 
13 
 
 courts-martial, as an adjunct of armies, should be delivered for ad- 
 ministration. 
 
 The fact that courts-martial may impose sentences which are for 
 one reason or another void ab initio is pointed out and made the sub- 
 ject of much severe condemnation. In other words, there is no 
 regular machinery or court of appeals provided by which cases so 
 void can be reversed and the accused restored as far as is humanly 
 possible to the status he would have had save for the illegal sentence. 
 The pardoning power does not remove the moral stigma of convic- 
 tion nor otherwise make completely good the judicial wrong. In 
 theory this is true, and in practice a remedy may be necessary. 
 Where should this power to revise, reverse, and set aside be vested? 
 Some are contending that the Judge Advocate General should have 
 this power. The Chamberlain bill puts it in a court of military 
 appeals, all of the judges thereof normally being civilians. This 
 board believes that military punishments mainly exist as aids to the 
 creation and maintenance of military discipline ; that military disci- 
 pline is inherently a part of military command and inseparable there- 
 from; that under pur Constitution the command of our Army and 
 every part thereof is vested in the President ; that other military com- 
 manders are his subordinates and assistants, and are so indicated in 
 the Constitution, and as such share in lesser degree the rights and 
 duties incident to command. For it is to be noted that the Presi- 
 dent is commander in chief, whereby it is clearly recognized and 
 implied that there are other " commanders " subordinate and assist- 
 ant to him. And it is to be noted also that this system was in exist- 
 ence in the Continental Army, and was undoubtedly intended in its 
 general outlines to be continued under the new Federal system. 
 Therefore appeals in the matter of military punishments from the 
 actions of the lesser commanders can only be constitutionally made 
 to their higher commanders, up to and including the Commander in 
 Chief ; and in cases in which the President himself has convened the 
 court and approved the sentence appeal therefrom can only be to his 
 own conscience and judgment upon a deliberate reconsideration of 
 the case. If this indicated course of appeal as a legal necessity is 
 denied, then upon the highest grounds of military expediency it is 
 our belief that the appeal should be in the sequence of the hierarchy 
 of command never outside of it. 
 
 From the foregoing discussion it will be apparent that, in the 
 opinion of this board, the existing court-martial system is funda- 
 mentally sound and well calculated to serve successfully the ends 
 for which it was created. It is an evolution representing constant 
 change and growth. No claim is made that it is a perfect system; 
 rather it is distinctly admitted that in the light of experience changes 
 may be made now in the direction of improvement. Under it errors 
 in the proceedings, the findings, and in the measure of punishment 
 occur from time to time. This has always been so and will always 
 be so in some measure. But this is not peculiar to the court-martial; 
 it is true of all agencies created and administered by men. Military 
 justice is carried out at times under great urgency and stress, where 
 the nice deliberation and finish of the civil procedure is utterly im- 
 possible. For reasons already set out we believe it unwise to take 
 too seriouslv the criticisms of those who form conclusions at a dis- 
 
14 
 
 tance and in the half light of the written record, shut out from much 
 that would give vividness and understanding if they but had it to 
 guide them, as those who actually tried the case did have. 
 
 Writing long after the Civil War, an author who had probably 
 examined with greater thoroughness than any other man the detailed 
 history of military justice in that war gave this deliberate opinion 
 in speaking of orders issued by military commanders : 
 
 In the orders in which they act upon the proceedings and sentences of 
 courts-martial they exercise an authority expressly conferred upon them by 
 statute, though here, too, they act practically as substitutes for the Commander 
 in Chief. The very numerous orders, especially of the latter character, issued 
 during the late war, are a monument to the fidelity to duty and scrupulous 
 regard for justice which have in general characterized our high commanders 
 in war as well as in peace. In the thousands of thes-e orders published during 
 that period from the headquarters of the various departments, divisions, dis- 
 tricts, brigades, armies, and army corps the errors of law dis-covered have 
 been strikingly few, and the cases in which justice has not clearly been duly 
 administered most rare. 
 
 This board entertains no doubt that after the present hostile criti- 
 cism, hasty and sweeping and based upon carefully selected excep- 
 tions, has cooled off, the future and final judgment, resting upon fuller 
 knowledge and formed under the benign influence of a just perspec- 
 tive, will be much like the one just quoted. 
 
 The board recommends and attaches hereto its proposed modifica- 
 tions of the existing Articles of War. With the adoption of these 
 by Congress necessary changes in the procedure as detailed in the 
 Manual would follow. 
 
 The board has arranged in parallel columns the existing Articles of 
 War opposite to the proposed new articles, and the changes are ex- 
 plained by comments immediately following. In this comment ap- 
 pears such discussion of the corresponding provisions of the Cham- 
 berlain bill as seemed necessary. 
 
 In arriving at the conclusions concretely set forth in the amend- 
 ments recommended by the board, the personal knowledge and experi- 
 ence of its members have, of course, been factors ; but the board finds 
 it is well supported in its conclusions by the matured thought of ex- 
 perienced officers of the service, including a great many of those who 
 joined the Army for the emergency of war only. Expressions of 
 opinion were received by the board from 225 different officers, and 
 classifying these in a general way the result is that the present court- 
 martial system in all of its essential outlines is supported by 115 of 
 these. On the other extreme, the system is rather severely condemned 
 by 43 officers. Between these pronounced attitudes every shade of 
 approval or disapproval may be found, and the number of officers so 
 classified as intermediate is 67. From this classification, not only 
 upon a numerical basis but upon a basis of experience and thorough 
 knowledge of the subject matter, this board feels justified in averring 
 that our system stands vindicated. By this is not meant that every 
 detail of it is regarded as perfect ; quite the contrary ; and the effort 
 of the board has been to accept modifications and to write them into 
 the proposed revision of the articles so as to cure the more obvious 
 defects and to make such substantial modifications as with our pres- 
 ent light seem called for. But change for change sake alone has been 
 
15 
 
 avoided. The net result is that should our recommendations be 
 adopted the court-martial system would remain in its broad outlines 
 as now, but minor defects would be eliminated and important reforms 
 will have been inaugurated. 
 
 F. J. KERNAN, 
 Major General, U. S. Army. 
 
 JOHN F. O'RYAN, 
 Major General, National Guard (N. Y.). 
 
 HUGH W. OGDEN, 
 Lieutenant Colonel, J. A., U. 8. A. 
 
 F. M. BARROWS, 
 Lieutenant Colonel, F. A., Recorder. 
 
APPENDIX 
 
 TO 
 
 PROCEEDINGS OF SPECIAL WAR DEPARTMENT BOARD ON COURTS-MAR TLAI. AM> 
 
 THEIR PROCEDURE. 
 
 MEMBERS. 
 
 F. J. KERNAN, Major General, U. S. Army, President. 
 
 J. F. O'RYAN, Major General, N. G., N. Y. 
 
 H. W. OGDEN, Lieutenant Colonel, J. A. G. D., V. S. A. 
 
 F. M. BARROWS, Lieutenant Colonel, F. A., U. S. A., Recorder. 
 
 CONTENTS. 
 
 Changes proposed in the Articles of War. 
 
 EXPLANATION. 
 
 Proposed articles are shown on left side of page. 
 Existing articles are shown on right side of page. 
 
 Under proposed articles the portions in italic are new. while those shown in 
 heavy brackets are the omitted portions of the existing articles. 
 
 COMMENT ON SECTION 1342, REVISED STATUTES, BEING THE ENACTING CLAUSE OF 
 
 THE ARTICLES OF WAR. 
 
 The board suggests no change. It does not concur in the change suggested in 
 the Chamberlain bill. The term "Articles of War " has existed for so long a 
 period that all understand what is meant. It is no more an anachronistic mis- 
 nomer than is the term " Lieutenant General " in relation to " Major General," 
 or the title " Quartermaster General," or " rations." "Articles of War " is in 
 reality a short name for "Articles of War for the Government of the Armies of 
 the United States." The change proposed in the Chamberlain bill would embar- 
 rass the paper work of several hundred thousand persons for some time to come 
 and until new custom and usage had established it. 
 
 ARTICLE 1. No change. 
 
 PROPOSED LAW. EXISTING LAW. 
 
 "ART. 2. No change except the "ART. 2. PERSONS SUBJECT TO MILI- 
 omitting of paragraph (f)." TARY LAW. The following persons are 
 
 subject to these articles and shall be 
 understood as included in the term 
 ' any person subject to military law,' 
 or 'persons subject to military law,' 
 whenever used in these articles : Pro- 
 vided, That nothing contained in this 
 act, except as specifically provided in 
 article 2, subparagraph (c), shall be 
 construed to apply to any person un- 
 der the United States naval jurisdic- 
 tion unless otherwise specifically pro- 
 vided by law. 
 
 "(a) All officers and soldiers be- 
 longing to the Regular Army of the 
 United States; all volunteers, from 
 the dates of their muster or accept- 
 
 16 
 
17 
 
 ance into the military service of the 
 United States; and all other persons 
 lawfully called, drafted, or ordered 
 into or to duty or for training in the 
 said service from the dates they are 
 required by the terms of the call, 
 draft, or order to obey the same; 
 
 "(b) Cadets; 
 
 "(c) Officers and soldiers of the 
 Marine Corps when detached for serv- 
 ice with the armies of the United 
 States by order of the President : Pro- 
 vided, That an officer or soldier of the 
 Marine Corps when so detached may 
 be tried by military court-martial for 
 an offense committed against the laws 
 for the government of the naval serv- 
 ice prior to his detachment, and for 
 an offense committed against these 
 articles he may be tried by a naval 
 court-martial after such detachment 
 ceases ; 
 
 "(d) All retainers to the camp and 
 all persons accompanying or serving 
 with the armies of the United States 
 without the territorial jurisdiction of 
 the United States, and in time of war 
 all such retainers and persons accom- 
 panying or serving with the armies 
 of the United States in the field, both 
 within and without the territorial ju- 
 risdiction of the United States, though 
 not otherwise subject to these ar- 
 ticles ; 
 
 "(e) All persons under sentence ad- 
 judged by courts-martial; 
 
 "(f) All persons admitted into the 
 Regular Army Soldiers' Home at 
 Washington, District of Columbia." 
 
 COMMENT. The only change proposed in the existing article is the elimina- 
 tion of subparagraph (f). It is understood that the Articles of War are not, 
 in fact, made use of at the Army Soldiers' Home at Washington in the enforce- 
 ment of discipline. In the changes proposed in the Chamberlain bill it will be 
 noted that in subparagraph (a) "soldiers of the Marine Corps" are omitted 
 from the application of the Articles of War when they are detached for service 
 with the Army. Under the existing articles both officers and enlisted men of 
 the Marine Corps, when so detached, may be tried under the Articles of War. 
 
 ART. 3. No change. 
 
 COMMENT. The Chamberlain bill proposes to change the term " court- 
 martial " to " court," in order to accentuate the judicial character sought to 
 be established for such court. Court-martial is an old term, well understood, 
 and indicates by its name that it is a military or martial court. If, as the com- 
 ment made under this article in the comparative print of the Chamberlain bill 
 states, there are abuses to be corrected, such abuses will not be minimized or 
 affected by a mere change of the name of the tribunal, a change which will 
 only serve as an embarrassment for some time to come in relation to paper 
 work among many thousands of officers and men. 
 
 PROPOSED LAW. EXISTING LAW. 
 
 "ART. 4. WHO MAY SERVE ON COURTS- "ART. 4. WHO MAY SERVE ON COURTS- 
 MARTIAL. All officers in the military MARTIAL. All officers in the military 
 service of the United States, and offi- service of the United States, and offi- 
 cers of the Marine Corps when de- cers of the Marine Corps when de- 
 tached for service with the Army by tached for service with the Army by 
 
 13062619 3 
 
18 
 
 order of the President, shall be com- order of the President, shall be com- 
 petent to serve on courts-martial for petent to serve on courts-martial for 
 the trial of any persons who may law- the trial of any person who may law- 
 fully be brought before such courts for fully be brought before such courts for 
 trial : Provided, however, that officers trial." 
 having less than a total of two years' 
 fierr ice, commissioned or enlisted, in 
 either the Regular Army, National 
 Guard, National Army, or other na- 
 tional armed forces, shall not, in time 
 of peace, be appointed as members of 
 general or special courts-martial in ex- 
 cess of a minority membership there- 
 of; nor in time of war, if it can be 
 avoided. In the selection of officers for 
 appointment as members of courts- 
 martial care will be taken to select 
 those officers of the command who are 
 best qualified for such duty by train- 
 ing and experience" 
 
 COMMENT. The proposed change speaks for itself. It offers a remedy to 
 cure a defect in the existing system which has been pointed out very generally 
 in the suggestions received and considered by this board. 
 
 The Chamberlain bill under the proposed article makes soldiers legally com- 
 petent to serve on general and special courts. The board does not concur in 
 this proposal. The individual experiences and results of investigation and 
 inquiry made by the board indicate that officers who have composed courts- 
 martial are alert in relation to the rights and interests of enlisted men. The 
 board is of the opinion that the proposed change is out of harmony with the 
 American conception of democracy and of our confidence in our institutions. 
 The change would seem to be more in harmony with that form of discipline 
 which in Europe recently resulted in the establishment of soldiers' and work- 
 men's councils. Court membership necessitates not only the intention to be 
 fair and impartial, but the capacity to discern the truth, the ability to weigh 
 evidence, and the experience to fix punishments commensurate with the offense 
 and with the need to deter others. These qualities usually imply education and 
 experience on the part of court members. In our armies under our democratic 
 institutions the class of men who possess these qualities in the fullest measure 
 are the officers for the reason that under the democratic tests made and ap- 
 plied for the creation of officers, the enlisted men who possess such qualities in 
 the fullest measure become officers. The enlisted men of our armies have full 
 confidence in the fairness and ability of officers to do justice as members of 
 courts. 
 
 There are other objections to the proposed change. Enlisted men in close 
 comradeship, as they are, with the enlisted personnel of their units, would at 
 times disclose the details of trial^ how one or another officer voted or viewed 
 a particular case, with obvious embarrassment to discipline. Service by en- 
 listed men on courts-martial would interfere with their other work. Their 
 inclusion would amount to a proclamation that the officers are unqualified to 
 do justice to the enlisted men. Military courts constitute an agency for the 
 maintenance of discipline, an agency which is one of command. The proposed 
 change is away from this sound and necessary conception of discipline. 
 
 ART. 5. No change. 
 
 COMMENT. The Chamberlain bill proposes that general courts shall consist of 
 eight members, three of whom in the case of the trial of a private soldier shall be 
 privates, and in the case of noncommissioned officers shall be noncommissioned 
 officers. In the comment under the previous article the board has recorded its 
 views concerning the eligibility of enlisted men to serve as members of courts. 
 In relation to the requirement that the court shall be composed of eight mem- 
 bers, the board is of the opinion that it is unwise to have an even number 
 constitute a court, and furthermore, that the requirement of a precise number, 
 as eight, is unnecessary and oftentimes impracticable. The present article in 
 prescribing that five officers may compose the court will continue as it has in 
 the past, to meet service requirements. .In this war membership of courts was 
 constantly and necessarily changing, due'to the fact that officers were killed, 
 became ill, were ordered to school, or were transferred. The present practice 
 
19 
 
 of appointing nine or eleven officers to compose a general court, and proceeding 
 with trial so long as five members were available constantly enabled cases to be 
 satisfactorily disposed of. Under the proposed change this would not be pos- 
 sible. \There are frequent instances where members of a general court were 
 killed, wounded, and evacuated, or transferred between the time the order for 
 the court was issued and the day when the court-martial was to sit. i/ 
 
 ART. 6. No change. 
 
 COMMENT. See comment under articles 4 and 5. 
 
 PEOPOSED LAW. EXISTING LAW. 
 
 " ART. 7. SUMMARY COURTS-MAR- " AET. 7. SUMMARY COURTS-MAR- 
 TIAL. A summary court-martial shall TIAL. A summary court-martial shall 
 consist of one officer, who shall be the consist of one officer." 
 officer of the command deemed by the 
 appointing authority best qualified 
 therefor, by reason of rank, experience, 
 and judicial temperament." 
 
 COMMENT. The board has adopted in this article the substance of the change 
 proposed in the Chamberlain bill. It conforms the statute to the practice which 
 has obtained in the Army. 
 
 ART. 8. No change. 
 
 COMMENT. The Chamberlain bill, in its proposed article 8, curtails the 
 authority of the President to empower officers to appoint general courts-martial, 
 justifying the change with the comment that " to increase the number of ap- 
 pointing authorities is to increase the number of courts an undesirable result." 
 The board does not concur in the change on the ground that the authorization 
 of additional commanders who may appoint general courts is at times essential, 
 due to the circumstances of distance, numbers of troops, and a particular form 
 of organization made necessary to meet the demands of the service. The board 
 believes that the right to empower additional convening authorities may with 
 safety be left to the President. The proposed change denies to an army com- 
 mander authority to convene a general court-martial. In other words, the com- 
 mander of an army could not convene a court for the -trial of a division or other 
 commander. 
 
 The change leaves out the existing provision that when the convening authority 
 is the accuser or the prosecutor the court shall be appointed by superior compe- 
 tent authority, and also the provision that no officer shall be eligible to sit as a 
 member of a court when he is the accuser or a witness for the prosecution. 
 
 ART. 9. No change. 
 
 COMMENT. It is to be noted that in the comparative print of the Chamberlains 
 bill the printer has, on page 7, on which page this article appears, reversed the 
 captions heading the left column by "Existing law" and the right column by 
 " Proposed law," when the converse is intended. The board, in relation to this 
 article, reiterates the comment made under the preceding article. 
 
 The proposed change denies to the commanding officer of any garrison, fort, 
 camp, or other place the power to appoint special courts-martial. This power, 
 particularly in times of peace, is of great importance and should not be taken 
 away. 
 
 ART. 10. No change. 
 
 COMMENT. The Chamberlain bill presents its article 10 as a new article, 
 providing for a panel of officers, believed by the appointing authority to be 
 " fair and impartial and competent," the court to be constituted from such panel. 
 The board regards the change as both unnecessary and undesirable. If in each 
 court-martial jurisdiction the panel is to consist of the officers possessing the 
 qualities named, obviously officers of a division not on the panel would be 
 regarded as either unfair, partial, or incompetent. In other words, the panels 
 would be composed of all the officers in each jurisdiction except such as are 
 ineligible for one or more of the reasons stated. But in a much less cumbersome 
 manner this is exactly the practice at the present time. Looking at this prac- 
 tically it is obviously impossible for the appointing officer to know with sufficient 
 intimacy the junior officers of his command. Frequently it would happen that a 
 question of procedure or competency could not, and would not, arise until the 
 court of which the officer concerned was a member, was actually convened. 
 And an officer frequently would be wholly acceptable to one accused and un- 
 acceptable to another for the reason that the latter might believe the officer to 
 
20 
 
 be prejudiced or disqualified to try the particular accused. Hence it was that the 
 board pointed out that the Chamberlain bill, in its proposed article 8, had omitted 
 an important provision now existing, looking to the rights and interests of the 
 .accused. Obviously there seldom would be time during a state of war for the 
 convening authority, particularly a division commander, to examine into all the 
 facts and circumstances affecting the fairness, impartiality, and competency of 
 each and every officer of his division in regard to each and every case that is to 
 be tried by courts appointed by him, when such investigation would have to be 
 made in advance of the time and occasion when the question of such fairness, 
 impartiality, or competency would normally be raised. 
 
 EXISTING LAW. 
 
 "ART. 11. APPOINTMENT OF JUDGE AD- 
 VOCATES. For each general or special 
 court-martial the authority appointing 
 the court shall appoint a judge advo- 
 cate, and for each general court- 
 martial one or more assistant judge 
 advocates when necessary." 
 
 PROPOSED LAW. 
 
 " ART. 11. APPOINTMENT or JUDGE 
 ADVOCATES and counsel. For each gen- 
 eral or special court-martial the au- 
 thority appointing the court shall ap- 
 point a judge advocate and a defense 
 counsel, and for each general court- 
 martial one or more assistant judge 
 advocates when necessary: Provided, 
 however, that no officer who has acted 
 as member, judge advocate, assistant 
 judge advocate, or defense counsel in 
 any case shall subsequently act as staff 
 judge advocate to the reviewing or con- 
 firming authority upon the same case." 
 
 COMMENT. It is proposed in article 12 of the Chamberlain bill to amend the 
 provisions of old article 11. The changes proposed are based on an analogy to 
 civil courts, it being stated that such courts possess (1) "triers of fact" and 
 (2) "a judge of the law." 
 
 The records of military tribunals will show a very small percentage of cases 
 wherein material errors of law occur. The proposed change would mean a great 
 and unwarranted expense in the appointment of a large number of additional 
 judge advocates. The power proposed for the judge advocate to pronounce 
 sentence without approval either antecedent or subsequent by the convening 
 authority and likewise to suspend sentence in whole or in part, would vest in 
 this staff officer, not chargeable in any way with the responsibilities of com- 
 mand, some of the most important functions of the commanding officer. 
 
 The board proposes as an amendment to article 11 the above provisions which, 
 as will be noted, provide by law for a defense counsel and prohibit a judge 
 advocate, member or counsel, who has taken a partisan part in the trial from 
 later serving as a staff judge advocate in reviewing cases with which he has 
 been connected in another capacity. 
 
 PROPOSED LAW. 
 
 " ART. 12. GENERAL COURTS - MAR- 
 TIAL. General courts-martial shall 
 have power to try any person subject 
 to military law for any crime or 
 offense made punishable by these ar- 
 ticles, and any other person who by 
 the law of war is subject to trial by 
 military tribunals: Provided, That no 
 officer shall be brought to trial before 
 a general court-martial appointed by 
 the Superintendent of the Military 
 Academy: Provided further, That the 
 officer competent to appoint a general 
 court-martial for the trial of the par- 
 ticular case may, when in his judg- 
 ment the interest of the service shall 
 so require, cause any case to be tried 
 by a special or summary court-martial 
 
 EXISTING LAW. 
 
 "ART. 12. GENERAL COURTS - MAR- 
 TIAL. General courts-martial shall 
 have power to try any person subject 
 to military law for any crime or 
 offense made punishable by these ar- 
 ticles, and any other person who by 
 the law of war is subject to trial by 
 military tribunals: Provided, That no 
 officer shall be brought to trial before 
 a general court-martial appointed by 
 the Superintendent of the Military 
 Academy." 
 
21 
 
 notwithstanding the limitations upon 
 the jurisdiction of such inferior courts 
 as to offenses set out in articles 13 and 
 14; but the limitations upon jurisdic- 
 tion as to persons and upon punishing 
 power set out in said articles shall be 
 observed." 
 
 COMMENT. The modification of article 12 proposed by the board enlarges 
 the jurisdiction of the special and summary court to embrace all offenses com- 
 mitted by persons other than officers and cadets. It does not enlarge the pun- 
 ishing powers of these courts. The fundamental idea is that many of our 
 articles denounce offenses as capital, which, when committed under certain cir- 
 cumstances, are really of no vital import to the service. The amendment pro- 
 poses to confide to the officer exercising general court-martial jurisdiction a dis- 
 cretion whereby he may either send cases before a general court or have them 
 disposed of by one of the inferior courts. The effect of this modification ought 
 to be a very considerable reduction in the number of cases tried by general 
 courts-martial. 
 
 ABT. 13. No change. 
 
 COMMENT. The Chamberlain bill by its proposed article 14 provides for the 
 trial of officers by special court. The board believes that the object sought, 
 namely : The trial of officers for minor offenses by other than general courts, can 
 better be attained, because in more summary manner, by the amendment of 
 existing article 104 proposed by the board and explained under that heading. 
 
 PROPOSED LAW. 
 
 "ART. 14. SUMMARY COURTS - MAR- 
 TIAL. Summary courts-martial shall 
 have power to try any person subject 
 to military law, except an officer, a 
 cadet, or a soldier holding the privi- 
 leges of a certificate of eligibility to 
 promotion, for any crime or offense not 
 capital made punishable by these arti- 
 cles: [Provided, That noncommis- 
 sioned 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 general 
 court-martial.J Summary courts shall 
 [not] have power to adjudge one or 
 more of the following punishments: 
 Confinement for [in excess of three 
 months] not more than one month, re- 
 striction to limits for not more than 
 three months, [nor to adjudge the for- 
 feiture of more than three months' 
 pay] forfeiture or detention of pay 
 for not more than three months, and 
 reduction in grade of noncommissioned 
 officers and privates of the line of the 
 Army: [Provided, That when the sum- 
 mary court officer is also the command- 
 ing officer no sentence of such sum- 
 mary court-martial adjudging confine- 
 ment at hard labor or forfeiture of 
 pay, or both, for a period in excess of 
 one month shall be carried into execu- 
 tion until the same shall have been ap- 
 proved by superior authority :] Pro- 
 vided, [further] That the President 
 
 EXISTING LAW. 
 
 "ART. 14. SUMMARY COURTS - MAR- 
 TIAL. Summary courts-martial shall 
 have power to try any person subject 
 to military law, except an officer, a 
 cadet, or a soldier holding the privi- 
 leges of a certificate of eligibility to 
 promotion, for any crime or offense not 
 capital made punishable by these arti- 
 cles : Provided, That 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 general court-martial : 
 Provided further, That the President 
 may, by regulations which he may 
 modify from time to time, except from 
 the jurisdiction of summary courts- 
 martial any class or classes of persons 
 subject to military law. 
 
 " Summary courts-martial shall not 
 have power to adjudge confinement in 
 excess of three months, nor to adjudge 
 the forfeiture of more than three 
 months' pay : Provided, That when the 
 summary court officer is also the com- 
 manding officer no sentence of such 
 summary court-martial adjudging con- 
 finement at hard labor or forfeiture of 
 pay, or both, for a period in excess of 
 one month shall be carried into execu- 
 tion until the same shall have been ap- 
 proved by superior authority." 
 
22 
 
 may, by regulations which he may 
 modify from time to time, except from 
 the jurisdiction of summary courts- 
 martial any class or classes of persons 
 subject to military law." 
 
 COMMENT. The board has adopted the ends sought to be obtained in article 15 
 of the Chamberlain bill, but has modified the phraseology so that the power of 
 summary courts-martial to punish is stated affirmatively, and not impliedly, by 
 prescribing what authority the court shall not have. 
 
 PROPOSED LAW. 
 
 "ART. 15. Jurisdiction NOT EXCLU- 
 SIVE. The provisions of these articles 
 conferring jurisdiction upon courts- 
 martial shall not be construed as de- 
 priving military commissions, provost 
 courts, or other military tribunals of 
 concurrent jurisdiction in respect of 
 offenders or offenses that by statute or 
 
 EXISTING LAW. 
 
 "ART. 15. NOT EXCLUSIVE. The pro- 
 visions of these articles conferring 
 jurisdiction upon courts-martial shall 
 not be construed as depriving military 
 commissions, provost courts, or other 
 military tribunals of concurrent juris- 
 diction in respect of offenders or of- 
 fenses that by the law of war may be 
 
 by the law of war may be [lawfully! lawfully triable by such military corn- 
 triable by such military [commissions, missions, provost courts, or other mili- 
 provost courts, or other military] tri- tary tribunals." 
 bunals." 
 
 COMMENT. The board has adopted in its proposed new article 15 the amend- 
 ment proposed in article 16 of the Chamberlain bill. 
 
 ART. 16. No change. 
 
 PROPOSED LAW. 
 
 'ART. 17. JUDGE ADVOCATE TO PROSE- 
 CUTE; Counsel to Defend. The judge 
 advocate of a general or special court- 
 
 EXISTING LAW. 
 
 "ART. 17. JUDGE ADVOCATE TO PROSE- 
 CUTE. The judge advocate of a gen- 
 eral or special court-martial shall 
 
 martial shall prosecute in the name of prosecute in the name of the United 
 
 States, and shall, under the direction 
 of the court, prepare the record of its 
 proceedings. The accused shall have 
 the right to be represented before the 
 court by counsel of his own selection 
 for his defense, if such counsel be 
 reasonably available, but should he, 
 for any reason, be unrepresented by 
 counsel, the judge advocate shall, from 
 time to time, throughout the pro- 
 ceedings advise the accused of his 
 legal rights." 
 
 the United States, and shall, under the 
 direction of the court, prepare the 
 record of its proceedings. The accused 
 shall have the right to be represented 
 in his defense before the court by 
 counsel of his own selection [for his 
 defense], civil counsel if he so pro- 
 vides, or military if such counsel be 
 reasonably available, [but should he, 
 for any reason, be unrepresented by 
 counsel, the judge advocate shall, from 
 time to time, throughout the proceed- 
 ings advise the accused of his legal 
 rights], otherwise by the defense 
 counsel duly appointed for the court 
 pursuant to article 11. Should the 
 accused have counsel of his own selec- 
 tion, the defense counsel of the court 
 shall, if the accused so desires, act as 
 his assistant counsel. The Secretary 
 of War is authorized to increase the 
 number of acting judge advocates pro- 
 vided by existing law to be detailed 
 from the line of the Army to such 
 number as may, in his opinion, be 
 necessary to furnish competent trial 
 judge advocates and defense counsel in 
 difficult or important cases, and to 
 perform such other legal or quasi 
 legal duties incident to military ad- 
 ministration as the interest of the 
 service shall require" 
 
 CoMMENTX^This board is convinced that the most serious defect in our court- 
 martial system arises from the lack of competent trial judge advocates and 
 
23 
 
 counsel. In the mass of suggestions received from experienced officers there 
 is almost universal agreement upon this question. To cure this evil the board 
 has already recommended, in a preliminary report, that defense counsel be ap- 
 pointed for each general and special court-martial, precisely as the trial judge 
 advocate is appointed, and from the same field of selection. It is recognized, 
 moreover, that all encouragement should be held out to young officers to study 
 law and to otherwise equip themselves for these and similar duties.' The act- 
 ing judge advocate has been authorized for the Army since 1884, and under 
 that law many of our officers became students of law and prepared themselves t 
 for expert service in that line through fTryir whole military careers.. An exten- 
 sion of this tried system will certainly result in producing a very considerable , 
 number of officers qualified not only for this particular duty, but for many other / 
 duties arising in the military service and which require for intelligent discharge ' 
 more or less knowledge of law.\ Coming from the line and serving for a period 
 of four years, more or less, tlielte officers would not become legal experts ex- 
 clusively, but should retain their knowledge of the service, of matters of dis- 
 cipline, and of all the intimate details which can only be kept fresh by a 
 recurrence to duty with the troops. The usefulness of this system is not 
 limited to the improvement of the prosecution and defense of cases, but these 
 specially qualified officers would, as they rose to higher rank, afford a body of ' 
 valuable officers for special tasks through their entire military career. 'The / / 
 board regards this as one of the most important suggestions it has to offer the 
 department. 
 
 The necessity of this proposed legislation has been accentuated during the 
 last year by the experience of the Army of Occupation. Upon taking posses- 
 sion of the Rhine Province the necessity arose immediately to create between 
 two and three hundred provost courts, which had jurisdiction over the German 
 inhabitants of that Province, involving the settlement of nice questions of law 
 and fact. The desirability of having a class of young officers trained in the 
 study and administration of law thus enabling them easily, confidently, ancf 
 justly to discharge the duty of judge of a provost court is too obvious for 
 argument, x; 
 
 Articles 18,' 19, and 20 of the Chamberlain bill have all been covered by this 
 board in its preliminary report in which recommendations were made to amend 
 the Manual of Courts-Martial so as to improve the procedure incident to the 
 preferring of charges and the action thereon before reference for trial. The 
 board does not regard these new articles either necessary or desirable legis- 
 lation, y^ 
 
 What has just been said in reference to the board's new article 17 expresses 
 the board's adverse view r in relation to the proposed articles 21 and 22. 
 
 PROPOSED LAW. EXISTING LAW. 
 
 "ART. 18. CHALLENGES. Members of "ABT. 18. CHALLENGES. Members of 
 a general or special court-martial may a general or special court-martial may 
 be challenged by the accused >or judge be challenged by the accused, but only 
 advocate [but only] for cause stated for cause stated to the court. The 
 to the court. The court shall deter- court shall determine the relevancy 
 mine the relevancy and validity there- and validity thereof, and shall not 
 of, and shall not receive a challenge to receive a challenge to more than one 
 more than one member at a time, member at a time." 
 Challenges by the judge advocate shall 
 ordinarily be presented and decided 
 before those by the accused are offered. 
 Each side shall be entitled to one 
 peremptory challenge." 
 
 COMMENT. The board proposes one peremptory challenge for each side. The 
 proposed practice follows the practice in civil courts where each side is allowed 
 to challenge for cause, and at the same time is limited in its peremptory 
 challenges. 
 
 Gen. Kernan dissents from the proposition to introduce peremptory chal- 
 lenges into court-martial practice. Of the large number of officers making 
 suggestions for the improvement of the existing system, very few recommended 
 this change ; and those who did so recommend were mostly lawyers from civil 
 life commissioned for the emergency and whose experience upon courts-martial 
 was either slight or none at all. The innovation, it is believed, springs from 
 
24 
 
 analogy to the civil practice and is based upon the erroneous assumption that 
 what is necessary or useful in that practice must, as a matter of course be 
 desirable in the military practice. 
 
 PROPOSED LAW. 
 
 "ART. 19. OATHS. The judge advo- 
 cate of a general or special court- 
 martial shall administer to the mem- 
 bers of the court, before they proceed 
 upon any trial, the following oath or 
 affirmation: 'You, A. B., do swear (or 
 affirm) that you will w r ell and truly 
 try and determine, according to the 
 evidence, the matter now before you, 
 between the United .States of America 
 and the person to be tried, and that 
 you will duly administer justice, with- 
 out partiality, favor, or affection, ac- t 
 cording to the provisions of the rules' 
 and articles for the government of the 
 armies of the United States, and if 
 any doubt should arise, not explained 
 by said articles, then according to 
 your conscience, the best of your un- 
 derstanding, and the custom of war in 
 like cases; and you do further swear 
 (or affirm) that you will not divulge 
 the findings or sentence of the court 
 until they shall be published by the 
 proper authority, except to the judge 
 advocate and assistant judge advo- 
 cate ; neither will you disclose or dis- 
 cover the vote or opinion of any par- 
 ticular member of the t!ourt-martial 
 upon a challenge or upon the findings 
 or sentence unless required to give 
 evidence thereof as a witness by a 
 court of justice in due course of law. 
 So help you God.' 
 
 " When the oath or affirmation has 
 been administered to the members of a 
 general or special court-martial, the 
 president of the court shall administer 
 to the judge advocate and to each as- 
 sistant judge advocate, if any, an oath 
 or affirmation in the following form: 
 ' You, A. B., do swear (or affirm) that 
 you will not divulge the findings or 
 sentence of the court to any but the 
 proper authority until they shall be 
 duly disclosed by the same. So help 
 you God.' 
 
 "All persons who give evidence be- 
 fore a court-martial shall be examined 
 on oath or affirmation in the following 
 form: '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.' 
 
 " Every reporter of the proceedings 
 of a court-martial shall, before enter- 
 ing upon his duties, make oath or 
 affirmation in the following form : 
 'Yon swear (or affirm) that you will 
 
 EXISTING LAW. 
 
 "ART. 19. OATHS. The judge advo- 
 cate of a general or special court- 
 martial shall administer to the mem- 
 bers of the court, before they proceed 
 upon any trial, the following oath or 
 affirmation: 'You, A. B., do swear (or 
 affirm) that you will well and truly 
 try and determine, according to the 
 evidence, the matter now before you, 
 between the United States of America 
 and the person to be tried, and that 
 you will duly administer justice, with- 
 out partiality, favor, or affection, ac- 
 cording to the provisions of the rules 
 and articles for the government of the 
 armies of the United States, and if 
 any doubt should arise, not explained 
 by said articles, then according to 
 your conscience, the best of your un- 
 derstanding, and the custom of war in 
 like cases; and you do further swear 
 (or affirm) that you will not divulge 
 the findings or sentence of the court 
 until they shall be published by the 
 proper authority, except to the judge 
 advocate and assistant judge advo- 
 cate ; neither will you disclose or dis- 
 cover the vote or opinion of any par- 
 ticular member of the court-martial, 
 unless required to give evidence there- 
 of as a witness by a court of justice 
 in due course of law. So help you 
 God.' 
 
 "When the oath or affirmation has 
 been administered to the members of a 
 general or special court-martial, the 
 president of the court shall administer 
 to the judge advocate and to each as- 
 sistant judge advocate, if any, an oath 
 or affirmation in the following form: 
 ' You, A. B., do swear (or affirm) that 
 you will not divulge the findings or 
 sentence of the court to any but the 
 proper authority until they shall be 
 duly disclosed by the same. So help 
 you God.' 
 
 "All persons who give evidence be- 
 fore a court-martial shall be examined 
 on oath or affirmation in the following 
 form: '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.' 
 
 " Every reporter of the proceedings 
 of a court-martial shall, before enter- 
 ing upon his duties, make oath or 
 affirmation in the following form : 
 'You swear (or affirm) that you will 
 
25 
 
 faithfully perform the duties of re- 
 porter to this court. So help you God.' 
 
 " Every interpreter in the trial of 
 any case before a court-martial shall, 
 before entering upon his duties, make 
 oath or affirmation in the following 
 form: 'You swear (or affirm) that 
 you will truly interpret in the case 
 now in hearing. So help you God.' 
 
 " In case of affirmation the closing 
 sentence of adjuration w r ill be omitted." 
 
 faithfully perform the duties of re- 
 porter to this court. So help you God.' 
 
 " Every interpreter in the trial of 
 any case before a court-martial shall, 
 before entering upon his duties, make 
 oath or affirmation in the following 
 form : ' You swear (or affirm) that you 
 will truly interpret in the case now in 
 hearing. So help you God.' 
 
 " In case of affirmation the closing 
 sentence of adjuration will be omitted." 
 
 COMMENT. The only change proposed in article 19 is intended to limit the 
 obligation of secrecy to the voting upon challenges, findings, and the sentence. 
 The object of this change is to enable the court to decide in open court any other 
 questions which may arise in the course of their proceedings and to enable the 
 members in arriving at such decision in open court to indicate their opinions or 
 the opinions of their fellow members freely. 
 
 ART. 20. No change. 
 
 COMMENT. For reasons heretofore stated under article 11 the board is not 
 in accord with the proposal to modify this article, which is contained in article 
 25 of the Chamberlain bill. 
 
 EXISTING LAW. 
 
 "ABT. 21. REFUSAL TO PLEAD. When 
 the accused, arraigned before a court- 
 martial, from obstinacy and deliberate 
 design stands mute or answers foreign 
 to the purpose, the court may proceed 
 to trial and judgment as if he had 
 pleaded not guilty." 
 
 PROPOSED LAW. 
 
 "ART. 21. REFUSAL or Failure TO 
 PLEAD. When an accused arraigned 
 before a court-martial [from obstinacy 
 and deliberate design stands mute! 
 fails or refuses to plead, or answers 
 foreign to the purpose, or after a plea 
 of guilty makes a statement incon- 
 sistent ivith the plea, or makes a plea 
 of guilty improvidently or through 
 lack of understanding of its meaning 
 and effect, the court shall enter a plea 
 of not guilty and shall thereupon pro- 
 ceed accordingly [may proceed to trial 
 and judgment as if he had pleaded not 
 guilty.!" 
 
 COMMENT. The board has adopted in its proposed article 21 the substance 
 of article 26 of the Chamberlain bill. This accords with the existing practice. 
 
 ART. 22. No change. 
 
 COMMENT. The changes proposed by the Chamberlain bill are set forth in 
 article 27 of that bill. These changes actually constitute the practice at the 
 present time under existing rules of procedure. The board has carefully con- 
 sidered the proposal to constitute these or similar rules of procedure organic law 
 by including them as part of article 22, but believes that details of this char- 
 acter do not properly belong in the statute. The existing article 22 adequately 
 furnishes the basis for rules which conform in practice to what is prescribed in 
 article 27 of the Chamberlain bill. 
 
 ART. 23. No change. 
 
 No comment. 
 
 PROPOSED LAW. 
 
 "ART. 24. COMPULSORY SELF-!NCRIMI- 
 NATIOX PROHIBITED. No witness before 
 a military court, commission, court of 
 inquiry, or board, or before any officer 
 conduct hn/ an investigation, or before 
 any officer, military or civil, designated 
 to take a deposition to be read in evi- 
 dence before a military court, commis- 
 sion, court of inquiry, or board, or he- 
 
 EXISTING LAW. 
 
 "ART. 24. COMPULSORY SELF-INCRIMI- 
 NATION PROHIBITED. No witness before 
 a military court, commission, court of 
 inquiry, or board, or before any officer, 
 military or civil, designated to take a 
 deposition to be read in evidence before 
 a military court, commission, court of 
 inquiry, or board, shall be compelled to 
 incriminate himself or to answer any 
 
26 
 
 fore an officer conducting an investiga- questions which may tend to incrimi- 
 
 tion, shall be compelled to incriminate nate or degrade him." 
 
 himself or to answer any question 
 
 [questions] the answer to which may 
 
 tend to incriminate [or degrade] him, 
 
 or to answer any question not material 
 
 to the issue when such answer might 
 
 tend to degrade him." 
 
 COMMENT. The board has adopted the changes proposed in article 29 of the 
 Chamberlain bill with slight changes in the language. 
 
 ARTS. 25, 26, and 27. No change. 
 
 COMMENT. The board does not concur in article 30 of the Chamberlain bill, 
 believing that the existing articles 25, 26, and 27 upon the same subject are 
 more reasonable and better adapted to serve the ends of justice. 
 
 ART. 28. No change. 
 
 ART. 29. No change. (See Comment under article 54.) 
 
 ART. 30. No change. 
 
 PROPOSED LAW. EXISTING LAW. 
 
 "ART. 31. Method [ORDER] OF VOT- "ART. 31. ORDER OF VOTING. Mem- 
 ING. [Members of a general or special bers of a general or special court-mar- 
 court-martial, in giving their votes, tial, in giving their votes, shall begin 
 shall begin with the junior in rank.] with the junior in rank." 
 Voting by members of a general or 
 special court-martial upon questions of 
 challenge, on the findings, and on the 
 sentence shall be by secret written bal- 
 lot. The junior member of the court 
 xhall in each case count the votes, 
 ivhich count shall be checked by the 
 president, who will forthwith announce 
 the result of the ballot to the members 
 of the court. In the absence of objec- 
 tions by members of the court the 
 president may rule in open court upon 
 interlocutory questions, other than 
 challenges, arising during the proceed- 
 ings, provided that if any member 
 object to such ruling the court shall be 
 cleared and closed and the question de- 
 cided by a majority vote, viva voce, be- 
 ginning with the junior in rank." 
 
 COMMENT. The object of the change proposed in article 31 is chiefly to 
 remove all danger of junior members being influenced in their vote upon mate- 
 rial questions by the presence of their superior officers or by the opinion held 
 by their seniors, who may have indicated opposite views. This suggestion has 
 been made by a number of officers as tending to secure the untrammeled vote 
 of every member according to his conscience and without any undue influence 
 which might arise under the open ballot heretofore existing. The other change 
 providing for rulings in open court has as its object the saving of time. It 
 is perfectly well known that many questions often quite unimportant and 
 easily determined by common consent in open court are under present usage 
 decided in closed court, with much loss of time and no possible good gained. 
 The endeavor has been to so word the article as to save the right of every indi- 
 vidual to his own opinion in every case, and he can, if he dissents from the 
 proposed ruling of the president of the court, secure full discussion and a 
 vote in closed court by simply requesting it. 
 
 PROPOSED LAW. EXISTING LAW. 
 
 "ART. 32. CONTEMPTS. A military "ART. 32. CONTEMPTS. A court-mar- 
 
 tribunal [court-martial] may punish tial may punish at discretion, subject 
 
 [at discretion, subject to the limita- to the limitations contained in article 
 
 tions contained in article fourteen,] fourteen, any person who uses any 
 
 as for contempt any person who uses menacing words, signs, or gestures in 
 
27 
 
 smy menacing words, signs, or gestures its presence, or who disturbs its pro- 
 in its presence, or who disturbs its pro- ceedings by any riot or disorder." 
 ceedings by any riot or disorder : Pro- 
 I'ided, Thnt such punishment shall in 
 no case exceed one month's confine- 
 ment, or a flue of $100, or both." 
 
 COMMENT. The board has endeavored to make the punishment for contempt 
 more definite and certain than in the existing article 32. 
 
 The term military tribunal was adopted in order to include in the power to 
 punish for contempt military commissions and provost courts. 
 
 PEOPOSED LAW. EXISTING LAW. 
 
 "ART. 33. RECORDS GENERAL COURTS- "ART. 33. RECORDS GENERAL COURTS- 
 MARTIAL. Each general court-martial MARTIAL. Each general court-martial 
 shall keep a separate record of its shall keep a separate record of its pro- 
 proceedings in the trial of each case ceedings in the trial of each case 
 brought before it, and such record brought before it, and such record 
 shallbe authenticated by the signature shall be authenticated by the signature 
 of the president and the judge advo- of the president and the judge advo- 
 cate ; but in case the record can not cate ; but in case the record can not be 
 be authenticated by the president and authenticated by the judge advocate, 
 judge advocate, by reason of the [his] by reason of his death, disability, or 
 death, disability, or absence of either absence, it shall be signed by the presi- 
 or both of them, it shall be signed T>y dent and an assistant judge advocate, 
 a member in lieu of the president and if any ; and if there be no assistant 
 by an assistant judge advocate, if judge advocate, or in case of his death, 
 there be one, in lieu of the judge advo- disability, or absence, then by the 
 cate; othcnrise by another member of president and one other member of 
 the court, [by the president and an the court." 
 assistant judge advocate, if any; and 
 if there be no assistant judge advocate, 
 or in case of his death, disability, or 
 absence, then by the president and one 
 other member of the court.]" 
 
 COMMENT. The purpose of this change is obvious. It provides for any case 
 which can arise in the service. 
 
 ART. 34. No change. 
 
 ART. 35. No change. 
 
 COMMENT. The change recommended in the Chamberlain bill is incident to 
 the radical proposition set out in article 12 of that bill. This board has already 
 recorded its total dissent from that proposition, and that same dissent extends 
 to the new article 38 as proposed. 
 
 ART. 36. No change. 
 
 COMMENT. See comment for article 35. 
 
 ART. 37. No change. 
 
 COMMENT. The board believes the retention of the two provisos in the exist- 
 ing article to be manifestly desirable. These are dropped from article 40 of the 
 Chamberlain bill, one for alleged bad working in practice, the other for incor- 
 poration elsewhere in the articles. 
 
 ART. 38. No change. 
 
 COMMENT. The proposed amendment contained in the Chamberlain bill 
 under its article 41 reads into the military system of courts the rules of evi- 
 dence of a civil court. The adoption of this change would require continued 
 study on the part of officers not only of the rules of such civil courts, but also 
 of decisions of Federal district courts and of appellate Federal courts constru- 
 ing such rules. This proposition illustrates vividly the impracticability of sug- 
 gestions made by officers and others who have had little or no experience with 
 troops in the field, men whose military experience has been largely limited to 
 permanent offices elaborately equipped with libraries and with abundant leisure 
 to pursue the niceties of legal subtleties. The actual administration of military 
 justice often takes place under conditions precluding reference to extensive 
 libraries and a suggestion of that kind voices inexperience and a half-knowledge 
 of the service. 
 
 ART. 39. No change. 
 
28 
 
 PROPOSED LAW. 
 
 EXISTING LAW. 
 
 "ART. 40. As TO NUMBER. No person 
 shall be tried a second time for the 
 same offense." 
 
 "ART. 40. As TO NUMBER. No person 
 shall be tried a second time for the 
 same offense: Provided, That no pro- 
 cedure in which a conviction has been 
 reached by a court-martial upon an if 
 charge or specification shall lie h eld- 
 to be a trial in the sense of this arti- 
 cle until the reviewing authority, and, 
 if there be one, the confirming author- 
 ity, shall have taken final action upon 
 the case" 
 
 COMMENT. The purpose of this addition to the old article 40 is to permit a 
 rehearing only in cases where a conviction was had in the first instance but 
 which for some material error could not be approved. It impliedly forbids any 
 retrial when the first procedure resulted in a total acquittal. 
 
 PROPOSED LAW. 
 
 'ART. 41. CRUEL AND UNUSUAL PUN- 
 
 EXISTING LAW. 
 
 "ART. 41. CERTAIN KINDS PROHIB- 
 
 ISHMENTS [CERTAIN KINDS] PROHIB- ITED. Punishment by flogging, or by 
 
 ITED. Cruel and unusual punishments branding, marking, or tattooing on the 
 
 of every kind, including [by] flogging, body is prohibited." 
 [or by] branding, marking, or tattoo- 
 ing on the body, arc [is] prohibited." 
 
 COMMENT. The board has adopted for the new article 41 the language of 
 article 44 of the Chamberlain bill. 
 
 PROPOSED LAW. 
 
 "ART. 42. PLACES OF CONFINEMENT 
 WHEN LAWFUL. Except for desertion 
 in time of war, repeated desertion in 
 time of peace, and mutiny, no person 
 shall under the sentence of a court- 
 martial be punished by confinement in 
 a penitentiary unless an act or omis- 
 sion of which he is convicted is rec- 
 ognized as an offense of a civil nature 
 and so punishable by penitentiary con- 
 finement for more than one year by 
 some statute of the United States, or 
 by the'^sit the common] law of [as 
 the same exists in] the District of 
 Columbia, or by way of commutation 
 of a death sentence, and unless, also, 
 the period of confinement authorized 
 and adjudged by such court-martial 
 is more than one year [or more] : 
 Provided, That when a sentence of 
 confinement is adjudged by a court- 
 martial upon conviction of two or 
 more acts or omissions any one of 
 which is punishable under these ar- 
 ticles by confinement in a peniten- 
 tiary, the entire sentence of confine- 
 ment may be executed in a peniten- 
 tiary : Provided further, That peni- 
 tentiary confinement hereby author- 
 ized may be served in any penitentiary 
 directly or indirectly under the juris- 
 diction of the United States: Pro- 
 vided further. That persons sentenced 
 to dishonorable discharge and to con- 
 finement not in n penitentiary shall be 
 
 EXISTING LAW. 
 
 "ART. 42. PLACES OF CONFINEMENT 
 WHKX LAWFUL. Except for desertion 
 in time of war, repeated desertion in 
 time of peace, and mutiny, no person 
 shall under the sentence of a court- 
 martial be punished by confinement in 
 a penitentiary unless an act or omis- 
 sion of which he is convicted is recog- 
 nized as an offense of a civil nature 
 by some statute of the United States, 
 or at the common law as the same 
 exists in the District of Columbia, or 
 by way of commutation of a death sen- 
 tence, and unless, also, the period of 
 confinement authorized and adjudged 
 by such court-martial is one year or 
 more: Provided, That when a sen- 
 tence of confinement is adjudged by a 
 court-martial upon conviction of two 
 or more acts or omissions any one of 
 which is punishable under these ar- 
 ticles by confinement in a peniten- 
 tiary, the entire sentence of confine- 
 ment may be executed in a peniten- 
 tiary : Provided further, That peni- 
 tentiary confinement hereby author- 
 ized may be served in any penitentiary 
 directly or indirectly under the juris- 
 diction of the United States : Provided 
 further, That persons sentenced to 
 dishonorable discharge and to confine- 
 ment not in a penitentiary shall be 
 confined in the United States disci- 
 plinary barracks or elsewhere as the 
 Secretary of War or the reviewing 
 
29 
 
 confined in the United States disci- authority may direct, but not in a 
 
 plinary barracks or elsewhere as the penitentiary." 
 
 Secretary of War or the reviewing 
 
 authority may direct, but not in a 
 
 penitentiary." 
 
 COMMENT. The draft herein submitted differs from the present article by 
 making it read " more than one year " in lieu of " a year or more " and by 
 inserting after the words " of a civil nature " the words " and so punishable 
 by penitentiary confinement for more than one year." The word " common " 
 has been dropped as a qualifying word for District of Columbia law. 
 
 PROPOSED LAW. EXISTING LAW. 
 
 "ART. 43. DEATH SENTENCE WHEN "ART. 43. DEATH SENTENCE WHEN 
 LAWFUL. No person shall, by general LAWFUL. No person shall, by general 
 court-martial, be convicted of an of- court-martial, be convicted of an of- 
 fense for which the death penalty is fense for which the death penalty is 
 made mandatory by law, nor sentenced made mandatory by law, nor sentenced 
 to suffer death, except by the concur- to suffer death, except by the concur- 
 rence of three-fourths [two-thirds] of rence of two-thirds of the members 
 the members of said court-martial, of said court-martial, and for an of- 
 and for an offense in these articles fense in these articles expressly made 
 expressly made punishable by death, punishable by death. All other con- 
 All other convictions and sentences, victions and sentences, whether by 
 whether by general or special court- general or special court-martial, may 
 martial, may be determined by a two- be determined by a majority of the 
 thirds vote [majority] of the mem- members present." 
 bers present. .477 other questions shall 
 be determined !>}/ <i majority vote" 
 
 COMMENT. Those best informed through long experience in court-martial 
 trials believe almost universally that very few innocent men are found guilty 
 by military courts and sentenced to punishment. On the other hand, they 
 believe that guilty men often, through one cause or another, succeed in escap- 
 ing conviction and punishment. The board believes that it would be unwise 
 materially to extend the opportunity of guilty men to escape conviction and 
 punishment by reason of a desire to add precautions seemingly unnecessary to 
 insure the rights of the innocent, as proposed in article 46 of the Chamberlain 
 bill. In cases involving the death penalty, a requirement that three- fourths 
 instead of two-thirds to convict and sentence is recommended. All other con- 
 victions and sentences by general and special court-martial shall be determined 
 by a two-thirds vote. 
 
 NOTE. Gen. Kernan dissents from the recommendation that all convictions 
 and sentences, save those involving death, shall be reached only with the con- 
 currence of two-thirds of the membership. The present system is old ; in his 
 observation it makes for justice in the very great majority of cases. Under 
 it few innocent people are ever convicted, as testified by many of the experi- 
 enced officers who have given this board their views. The change seems to him 
 to lose sight of the fundamental distinction between court-martial trials, whose 
 primary object is the paramount necessity of safeguarding the whole force, and 
 the civil trial, where the reform of the individual is perhaps the controlling 
 consideration and where failures of justice, through the escape of the guilty, are 
 not fraught with such great possibilities of evil. Society at large can perhaps 
 afford to have many of its criminals at large; the presence of such in a mili- 
 tary force is relatively a much greater menace. 
 
 ART. 44. No change. 
 
 COMMENT. The board recommends the retention of this article without 
 change. In relation to the emotion of fear, pride is the greatest agency for 
 its control. Physical fear may frequently be controlled by the greater fear of 
 loss of reputation in home locality. The present article is an old one, and 
 while seldom resorted to undoubtedly has served its purpose. 
 
 PROPOSED LAW. EXISTING LAW. 
 
 "ART. 4.1. MAXIMUM LIMITS. When- "ART. 45. MAXIMUM LIMITS. When- 
 ever the punishment for a crime or of- ever the punishment for a crime or of- 
 fense made punishable by these articles fense made punishable by these articles 
 is left to the discretion of the court- is left to the discretion of the court- 
 
30 
 
 martial, the punishment shall not, in martial, the punishment shall not, in 
 time of peace, exceed such limit or time of peace, exceed such limit or 
 limits as the President may from time limits as the President may from time 
 to time prescribe : Provided, That in to time prescribe." 
 time of peace the period of confine- 
 ment in a penitentiary shall in no 
 case exceed the maximum period pre- 
 scribed by the Federal civil law in 
 like cases unless, in addition to the 
 offenses so punishable under such laiv, 
 the accused shall have been convicted 
 at the same time of one or more 
 purely military offenses" 
 
 COMMENT. The purpose of the change is obvious. Its justification is to be 
 found in the principle that for like offenses like limitations of punishment 
 should prevail. 
 
 AKT. 46. No change. 
 
 ART. 47. NO change. 
 
 ART. 48. No change. 
 
 ART. 49. No change. 
 
 ART. 50. No change. 
 
 PROPOSED LAW. EXISTING LAW 
 
 "Art. 5Q\. Appeal and Retrial. 
 When the proceedings of a court-mar- 
 tial are held invalid or the findings or 
 sentence are disapproved on the 
 ground of improper admission or re- 
 jection of evidence or for any error 
 as to any matter of pleading or proce- 
 dure which, in the opinion of the re- 
 viewing or confirming authority, has 
 injuriously affected the substantial 
 rights of the accused, that authority 
 may direct the retrial of the accused 
 before a court composed of officers 
 who were not members of the original 
 court, on those charges and specifi- 
 cations only of which the accused was 
 found guilty: Provided, That upon 
 such retrial no sentence shall be im- 
 posed in excess of, or more severe 
 than, the original sentence. 
 
 " The record and proceedings of all 
 general courts-martial, courts of in- 
 quiry, and military commissions shall 
 without delay be forwarded to the 
 Judge Advocate General of the Army, 
 who shall receive, cause to be re- 
 corded, examine and revise such rec- 
 ords and proceedings. When such ex- 
 amination or revision discloses er- 
 ror or other cause requiring action by 
 the President under the provisions of 
 these articles the Judge Advocate Gen- ^ 
 eral shall prepare a memorandum of 
 his mews and recommendations in re- 
 lation thereto and submit it with the 
 record of the case to the Secretary of 
 War for the action of the President. 
 
 " The President, as Commander in 
 Chief, in any case tried by a general 
 court-martial or military commission, 
 may set aside, disapprove, or vacate 
 any finding of guilty in whole or in 
 part, or modify, vacate, or set aside 
 any sentence in whole or in part, and 
 
31 
 
 direct the execution of the sentence as 
 modified, and of such part thereof 
 as has not been vacated or set aside. 
 The President as Commander in Chief 
 may set aside the entire proceedings in 
 any case and, subject to the provision 
 of this article, grant a new trial be- 
 fore such general court, military com- 
 mission or special court as he may des- 
 ignate; or he may restore the accused 
 to all rights as if no such trial had 
 ever been held^ and his necessary 
 orders to this end shall be binding 
 upon all departments and officers of 
 the Government. 
 
 COMMENT. This is a proposed new article. It provides the reviewing and 
 confirming authorities with power to order a retrial in the event of material 
 error, but prohibits any greater sentence than was imposed upon the original 
 trial. In the opinion of the board, to direct a new trial in the interest of the 
 accused is not double jeopardy within the constitutional prohibition, especially 
 in view of the proposed amendment to article 40 defining a court-martial trial. 
 
 Next, the article provides for automatic appeal in all general court-martial 
 cases and prescribes the duties of the Judge Advocate General of the Army 
 in relation to such appeals. The board felt that in a matter so important the 
 process of appeal should not be left to be fixed by order or rules of procedure 
 subject to change from time to time without reference to Congress, but should 
 be made mandatory in the article. Next, the President is vested with absolute 
 authority to take any action which the record or the facts indicate to be neces- 
 sary in order to render justice, including the vacating and setting aside of an 
 order of dismissal or of dishonorable discharge. This latter is provided for in 
 language which permits of no doubt as to the intention, for the President is 
 authorized to restore the accused to all rights "as if no such trial had ever 
 been held," and, further, " his necessary orders to this end shall be binding 
 upon all departments and officers of the Government." 
 
 The proposed article gives the President more than his existing powers to 
 exercise clemency and to vacate for material error of law. It is believed that 
 the system herein provided for meets all reasonable suggestions of amendment 
 and at the same time preserves unimpaired the disciplinary power of the Com- 
 mander in Chief. 
 
 ART. 51. No change. 
 
 ART. 52. No change. 
 
 ART. 53. No change. 
 
 NOTE. In the Chamberlain bill by its articles 51 and 52 provision is made 
 for a civilian court of military appeals. The board has carefully considered 
 this proposal and recommends against it for the reasons stated in the general 
 report. 
 
 ART. 54. No change. 
 
 COMMENT. The change proposed by article 53 of the Chamberlain bill would 
 enable a soldier in time of war, who sought to avoid battle, to desert his organi- 
 zation in the face of the enemy and protect himself from the consequences of 
 such desertion by fraudulently enlisting in an organization not serving at the 
 front. 
 
 ART. 55. No change. 
 
 COMMENT. See comment for article 54. 
 
 ARTS. 56 and 57. No change. 
 
 COMMENT. The board recommends no change in articles 56 and 57. The 
 language thereof not only provides for punishment of officers who violate the 
 provisions of these articles, but emphasizes the character and importance of 
 returns and muster rolls. As the Articles of War are required to be read once 
 in every six months the detailed language is justified and serves a purpose. 
 
 ART. 58. No change. 
 
 COMMENT. The board believes it wise to continue the existing article with- 
 out change, in order to allow courts sufficient latitude to meet conditions and 
 circumstances as they occur. For example: According to the proposed change 
 contained in article 55 of the Chamberlain bill a soldier who deserts the Army 
 two days before a declaration of war and in order to avoid military service in 
 war could be sentenced for not more than two years' confinement, while his 
 
32 
 
 comrade who deferred desertion for a few days, until after the declaration of 
 war, could be sentenced to be punished by death or confinement for life, or for 
 a fixed period. Furthermore, the board is of the opinion that the period of con- 
 finement for desertion bears a relation to the prescribed period of enlistment, 
 which may change from time to time. For example: If the period of enlist- 
 ment is for five years, every man who is dissatisfied with his lot may shortly 
 after his enlistment desert, and after trial be sentenced to not more than two 
 years' confinement, after which he is discharged, thereby terminating his con- 
 nection with the military service three years in advance of the time fixed in 
 his contract of enlistment. This may happen while other men, equally dissatis- 
 fied, but who do not desert, serve on throughout the full five-year period. The 
 same comment would be applicable to a period of enlistment which consisted of 
 three years of active service and three or more years in reserve. 
 
 ART. 59. No change. 
 
 ART. 60. No change. 
 
 ART. 61. No change. 
 
 COMMENT. The proposed change in this article contained in article 58 of the 
 Chamberlain bill is quite extraordinary. There exists already, in the limi- 
 tations set out in Executive orders pursuant to article 45, ample protection 
 for this class of offenders in times of peace. In war times it becomes, or may 
 become, a deadly menace and this proposed article 58 speaks a total lack of 
 appreciation of war conditions. The suggestion can not have the approval of 
 officers who have had any extended experience in battle, or who are familiar with 
 the past experience of armies in relation to this subject. The shirker who, know- 
 ing his company is to go into battle on the following day, absents himself there- 
 from without leave, and then makes a dishonest and of course fruitless effort 
 to rejoin his company (which has in the meantime gone forward) is of the 
 class which menaces not only the discipline of his command, but the success 
 of the Army. No military offense in war is so contagious as the one of ab- 
 sence without leave. It calls for drastic action by the military authority at the 
 very inception of military service, else it soon gets out of hand with results 
 to others later on which would have been avoided had the subject been handled 
 with sternness in the beginning. If the board were to recommend any change 
 in this article, it would recommend the inclusion of the death sentence. 
 
 ART. 62. No change. 
 
 ART. 63. No change. 
 
 ART. 64. No change. 
 
 COMMENT. The mind of an experienced officer \vill conceive many possibili- 
 ties in relation to the changes in this article proposed by article 61 of the Cham- 
 berlain bill. These changes are believed to be radical in the extreme. Cer- 
 tainly they would place a premium on the avoidance of hazardous service and 
 point out to sokliers who sought to avoid such service a happy and convenient 
 method of avoiding death in action by committing an assault upon a superior 
 officer and receiving a punishment of confinement for one year. The changes 
 proposed place all assaults, whether committed against second lieutenant or the 
 commander of the Army in the field, in the same class by limiting the punish- 
 ment for all such cases to confinement of not more than one year. 
 
 ART. 65. No change. 
 
 COMMENT. The changes proposed in article 63 of the Chamberlain bill elim- 
 inate threats of assault, attempts to assault, and disrespect to noncommissioned 
 officers as military offenses under the article. The noncommissioned officer class 
 is the backbone of the company, and if discipline is to exist their dignity and 
 responsibility should be safeguarded against the strong arm methods of the 
 unruly. 
 
 ART. 66. No change. 
 
 ART. 67. No change. 
 
 ART. 68. No change. 
 
 PROPOSED LAW. EXISTING LAW. 
 
 "ART. 69. ARREST OR CONFINEMENT OF "ART. 69. ARREST OR CONFINEMENT OF 
 
 ACCUSED PERSONS. Any person [an ACCUSED PERSONS. An officer charged 
 
 officer! subject to military lair charged with prime or with a serious offense 
 
 with crime or with a serious offense under these articles shall be placed in 
 
 under these articles shall be placed in arrest by the commanding officer, and 
 
 confinement or in arrest [by the com- in exceptional cases an officer so 
 
 manding ollicer, and in exceptional charged may be placed in confinement 
 
 cases an officer so charged may be by the same authority. A soldier 
 
 placed in confinement by the same charged with crime or with a serious 
 
33 
 
 authority. A soldier charged with 
 crime or with a serious offense under 
 these articles shall be placed in con- 
 tinement, and when charged with a 
 minor offense may be placed in ar- 
 ivst.]. as circumstances may require; 
 but icli en charged irith a minor of- 
 fense only such person shall not or- 
 dinarilu be placed in confinement. 
 [Any other person subject to mili- 
 tary law charged with crime or with 
 a serious offense under these articles 
 shall be placed in confinement or in 
 arrest, as circumstances may require; 
 and when charged with a minor of- 
 fense such person may be placed in 
 arrest.J Any person placed in arrest 
 under the provisions of this article 
 shall thereby be restricted to his bar- 
 racks, quarters, or tent, unless such 
 limits shall be enlarged by proper au- 
 thority. Any officer or cadet who 
 breaks his arrest or who escapes from 
 confinement, whether before or after 
 trial and before he is set at liberty by 
 proper authority, shall be dismissed 
 from the service or suffer such other 
 punishment as a court-martial may 
 direct; and any other person subject 
 to military law who escapes from con- 
 finement or who breaks his arrest, 
 whether before or after trial and be- 
 fore he is set at liberty by proper au- 
 thority, shall be punished as a court- 
 martial may direct." 
 
 COMMENT. The chief object of the changes proposed in article 69 is to lessen 
 resort to confinement in cases where restraint is not a necessity either to pre- 
 vent the escape of the accused or to restrain him from further violence or for 
 other like reasons. Further modification is intended to clear up any possible 
 doubt as to whether the fact of trial having taken place makes any substantial 
 difference in the offense of breach of arrest or escape from confinement. 
 
 offense under these articles shall be- 
 placed in confinement, and when 
 charged with a minor offense he may 
 be placed in arrest. Any other person 
 subject to military law charged with 
 crime or with a serious offense under 
 these articles shall be placed in con- 
 finement or in arrest, as circumstances 
 may require ; and when charged with 
 a minor offense such person may be 
 placed in arrest. Any person placed in 
 arrest under the provisions of this arti- 
 cle shall thereby be restricted to his 
 barracks, quarters or tent, unless such 
 limits shall be enlarged by proper au- 
 thority. Any officer who breaks his- 
 arrest or who escapes from confine- 
 ment before he is set at liberty by 
 proper authority shall be dismissed 
 from the service or suffer such other 
 punishment as a court-martial may 
 direct ; and any other person subject 
 to military law who escapes from 
 confinement or who breaks his arrest 
 before he is set at liberty by proper 
 authority shall be punished as a 
 court-martial may direct." 
 
 PROPOSED LAW. 
 
 ART. 70. Arrest and confinement 
 jH'itt/iiif/ trial by court-martial. [!N- 
 
 YKSTTGAT10X OF AND ACTION UPON 
 
 CHARGES. No person put in arrest 
 shall be continued in confinement more 
 than eight days, or until such time as 
 a court-martial can be assembled.] 
 When any person subject to military 
 law is arrested or confined [put in ar- 
 rest] for the purpose of trial [except 
 at remote military posts or stations] 
 the officer by whose order this is done 
 [he is arrested] shall see that a copy 
 of the charges on which the arrest or 
 confinement is based [he is to be tried] 
 i^s served upon the accused party 
 [him] within eight days after his ar- 
 rest or confinement, and it is the duty 
 of the officer ordering such arrest or 
 confinement to expedite, in so far as in 
 him lies, the speedy trial of the case. 
 [and that he is brought to trial within 
 10 days thereafter, unless the neces- 
 
 EXISTING LAW. 
 
 " ART. 70. INVESTIGATION OF AND AC- 
 TION UPON CHARGES. No person put in 
 arrest shall be continued in confine- 
 ment more than eight days, or until 
 such time as a court-martial can be 
 assembled. When any person is put in 
 arrest for the purpose of trial, except 
 at remote military posts or stations, 
 the officer by whose order he is ar- 
 rested shall see that a copy of the 
 charges on which he is to be tried is 
 served upon him within eight days 
 after his arrest, and that he is brought 
 to trial within 10 days thereafter, un- 
 less the necessities of the service pre- 
 vent such trial ; and then he shall be 
 brought to trial within 30 days after 
 the expiration of said 10 days, ir a 
 copy of the charges be not served, or 
 the arrested person be not brought to 
 trial, as herein required, the arrest 
 shall cease. But persons released from 
 arrest, under the provisions of this 
 
34 
 
 article, may be tried, whenever the 
 exigencies of the service shall permit, 
 within 12 months after such release 
 from arrest : Provided, That in time of 
 peace no person shall, against his ob- 
 jection, be brought to trial before a 
 general court-martial within a period 
 of five days subsequent to the service 
 of charges upon him." 
 
 si tics of the service prevent such 
 trial ;] It is the like duty of all other 
 officers having to do with the trial of 
 the case to expedite it in every prac- 
 ticable way. [and then he shall be 
 brought to trial within 30 days after 
 the expiration of said 10 days. If a 
 copy of the charges be not served, or 
 the arrested person be not brought to 
 trial, as herein required, the arrest 
 shall cease.] If the trial can not, for 
 good and sufficient reasons, be begun 
 within a period of 30 days from the 
 date of arrest or confinement the im- 
 mediate commanding officer, unless 
 otherwise ordered by superior author- 
 it)/, shall release the accused from ar- 
 rest or confinement. But persons re- 
 leased from arrest or confinement un- 
 der the provision of this article may 
 be tried, whenever the exigencies of 
 the service shall permit, within 12 
 months after such release from arrest : 
 Provided, That in time of peace no per- 
 son shall, against his objection, be 
 brought to trial before a general court- 
 martial within a period of five days 
 subsequent to the service of charges 
 upon him : Provided further, That me 
 trial judge advocate shall serve or 
 cause to be served upon the accused a 
 copy of the charges upon which trial 
 is to be had and a statement of such 
 service shall be entered upon the rec- 
 ord of the case showing the date 
 thereof." 
 
 COMMENT. The present article 70 calls upon local commanders to do the 
 impossible. The changes proposed are intended to make the law conform to 
 good practice which has never been possible under old article 70. 
 
 ART. 71. No change. 
 
 ABT. 72. No change. 
 
 ART. 73. No change. 
 
 ART. 74. No change. 
 
 COMMENT. In the Chamberlain bill article 73, which corresponds to existing 
 article 74, changes the punishment from dismissal or other punishment to dis- 
 missal and other punishment, thus making dismissal mandatory for this offense. 
 
 PROPOSED LAW. 
 
 "ART. 75. MISBEHAVIOR BEFORE THE 
 ENEMY. Any officer or soldier who 
 misbehaves himself before the enemy, 
 runs away, or shamefully abandons 
 or delivers up or by any misconduct, 
 disobedience or neglect endangers the 
 safety of any fort, post, camp, guard, 
 or other command which it is his duty 
 to defend, or speaks words inducing 
 others to do the like, or casts away 
 his arms or ammunition, or quits his 
 post or colors to plunder or pillage, or 
 by any means whatsoever occasions 
 false alarms in camp, garrison, or 
 quarters, shall suffer death or such 
 other punishment as a court-martial 
 may direct." 
 
 COMMENT. The change is merely to cover conduct not now included but 
 evidently necessary if this subject matter is to be comprehensively treated. 
 
 EXISTING LAW. 
 
 "ART. 75. MISBEHAVIOR BEFORE THE 
 ENEMY. Any officer or soldier who 
 misbehaves himself before the enemy, 
 runs away, or shamefully abandons 
 or delivers up any fort, post, camp, 
 guard, or other command which it is 
 his duty to defend, or speaks words 
 inducing others to do the like, or casts 
 away his arms or ammunition, or quits 
 his post or colors to plunder or pillage, 
 or by any means whatsoever occasions 
 false alarms in camp, garrison, or 
 quarters, shall suffer death or such 
 other punishment as a court-martial 
 may direct." 
 
35 
 
 PROPOSED LAW. 
 
 EXISTING LAW. 
 
 "ART. 76. SUBORDINATES COMPELLING "ART. 76. SUBORDINATES COMPELLING 
 
 COMMANDER TO SURRENDER. Any per- COMMANDER TO SURRENDER. If any 
 
 son subject to military law who com- commander of any garrison, fort, post, 
 
 pels or attempts to compel any com- camp, guard, or other command is com- 
 
 iuauflcr of any garrison, fort, post, pelled, by the officers or soldiers under 
 
 camp, guard, or other command, to his command, to give it up to the 
 
 give it up to the enemy or to abandon enemy or to abandon it, the officers or 
 
 it shall be punishable with death or soldiers so offending shall suffer death 
 
 or such other punishment as a court- 
 martial may direct." 
 
 such other punishment as a court- 
 martial may direct. [If any com- 
 mander of any garrison, fort, camp, 
 guard, or other command is compelled, 
 by the officers or soldiers under his 
 command, to give it up to the enemy 
 or to abandon it, the officers or sol- 
 diers so offending shall suffer death or 
 such other punishment as a court- 
 martial may direct.] " 
 
 COMMENT. The change recommended includes an attempt as well as a suc- 
 cessful effort to commit this grave military crime and extends the punishment 
 to all persons subject to military law. 
 
 ART. 77. No change. 
 
 ART. 78. No change. 
 
 ART. 79. No change. 
 
 ART. 80. No change. 
 
 PROPOSED LAW. 
 
 "ART. 81. RELIEVING, CORRESPONDING 
 WITH, OR AIDING THE ENEMY. Whoso- 
 
 EXISTING LAW. 
 
 "ART. 81. RELIEVING, CORRESPONDING 
 WITH, OR AIDING THE ENEMY. Whoso- 
 
 ever relieves or attempts to relieve the ever relieves the enemy with arms, 
 enemy with arms, ammunition, sup- ammunition, supplies, money, or other 
 plies/ money, or other thing, or know- thing, or knowingly harbors or protects 
 ingly harbors or protects or holds cor- or holds correspondence with or gives 
 respondence with or gives intelligence intelligence to the enemy, either di- 
 to the enemy, either directly or indi- rectly or indirectly, shall suffer death 
 rectly, shall suffer death or such other or such other punishment as a court- 
 puni.shment as a court-martial or mili- martial or military commission may 
 tary commission may direct." direct." 
 
 COMMENT. The change recommended incorporates an attempt as well as a 
 successful effort and makes it punishable. 
 
 ART. 82. No change. 
 
 ART. 83. No change. 
 
 ART. 84. No change. 
 
 ART. 85. No change. 
 
 ART. 86. No change. 
 
 ART. 87. No change. 
 
 ART. 88. No change. 
 
 ART. 89. No change. 
 
 ART. 90. No change. 
 
 ART. 91. No change. 
 
 ART. 92. No change. 
 
 ART. 93. No change. 
 
 ART. 94. No change. 
 
 PROPOSED LAW. 
 
 EXISTING LAW. 
 
 "Airr. 95. CONDUCT UNBECOMING AN 
 OFFICER AND GENTLEMAN. Any officer 
 or cadet who is convicted of conduct 
 unbecoming an officer and a gentleman 
 shall be dismissed from the service." 
 
 "ART. 95. CONDUCT UNBECOMING AN 
 OFFICER AND GENTLEMAN. Any offi- 
 cer or cadet who is convicted of con- 
 duct unbecoming an officer and a gen- 
 tleman shall be dismissed from the 
 service and shall suffer such additional 
 punishment as a court-martial may di- 
 rect." 
 
 COMMENT. Obviously the conduct unbecoming an officer and gentleman may 
 be of a character to demand not merely expulsion from the service but grave 
 penalties over and above that. 
 
36 
 
 ART. 96. No change. 
 ART. 97. No change. 
 ART. 98. No change. 
 ART. 99. No change. 
 ART. 100. No change. 
 ART. 101. No change. 
 ART. 102. No change. 
 ART. 103. No change. 
 
 PROPOSED LAW. 
 
 " ART. 104. DISCIPLINARY POWERS OF 
 COMMANDING OFFICERS. Under such 
 regulations as the Pre ident may pre- 
 scribe, and which he may from time 
 to time revoke, alter, or add to, the 
 commanding officer of any detach- 
 ment, company, or higher command 
 may, for minor offenses [not denied 
 by the accused] impose disciplinary 
 punishments upon persons of his com- 
 mand without the intervention of a 
 court-martial, unless the accu ed de- 
 mands trial by court-martial. 
 
 " The disciplinary punishments au- 
 thorized by this article may include 
 admonition, reprimand, withholding 
 of privileges, extra fatigue, and re- 
 striction to certain specified limits, but 
 shall not include forfeiture of pay or 
 confinement under guard ; except that 
 in time of war or grave public emer- 
 gency a commanding officer of the 
 grade of brigadier general or of higher 
 grade may, under the provisions of this 
 article, also impose upon an officer of 
 his command below the grade of major 
 a forfeiture of not more than one-half 
 of such officer's monthly pay for one 
 man tli. A person punished under 
 authority of this article, who deems 
 his punishment unjust or dispropor- 
 tionate to the offense, may, through the 
 proper channel, appeal to the next su- 
 perior authority, but may in the mean- 
 time be required to undergo the pun- 
 ishment adjudged. The commanding 
 officer who imposes the punishment, 
 his successor in command, and supe- 
 rior authority shall have power to miti- 
 gate or remit any unexecuted portion 
 of the punishment The imposition 
 and enforcement of disciplinary pun- 
 ishment under authority of this article 
 for any act or ornis.- ion shall not be a 
 bar to trial by court-martial for a 
 crime or offense growing out of the 
 same act or omission ; but the fact that 
 a disciplinary punishment has been en- 
 forced may be shown by the accused 
 upon trial, and \vhen so shown shall 
 be considered in determining the 
 measure of punishment to be adjudged 
 in the event of a finding of guilty." 
 
 COMMENT. The existing system lacks any summary and effective method 
 of punishing officers for delinquencies and minor offenses. In war the vast 
 majority of company officers will always be composed of men from civil life 
 
 EXISTING LAW. 
 
 "ART. 104. DISCIPLINARY POWERS 01 
 COMMANDING OFFICERS. Under such 
 regulations as the President may pre- 
 scribe, and which lie may from time to 
 time revoke, alter, or add to, the com- 
 manding officer of any detachment, 
 company, or higher command may, for 
 minor offenses not denied by the ac- 
 cused, impose disciplinary punishments 
 upon persons of hi-; command with jut 
 the intervention of a court-martial, 
 unless the accused demands trial by 
 court-martial. 
 
 " The disciplinary punishments au- 
 thorized by this article may include 
 admonition, reprimand, withholding 
 of privileges, extra fatigue, and re- 
 striction to certain specified limits, but 
 ; hall not include forfeiture of pay or 
 confinement under guard. A person 
 punished under authority of mis 
 article who deems his punishment un- 
 just or disproportionate to the offense 
 may. through the proper channel, ap- 
 peal to the next superior authority, 
 but may in the meantime be required 
 to undergo the punishment adjudged. 
 The commanding officer who imposes 
 the punishment, his successor in com- 
 mand, and superior authority shall 
 have power to mitigate or remit any 
 unexecuted portion of the punishment. 
 The imposition and enforcement of 
 disciplinary punishment under author- 
 ity of this article for any act or omis- 
 sion shall not be a bar to trial by 
 court-martial for a crime or offense 
 growing out of the same act or omis- 
 sion : 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 punish- 
 ment to be adjudged in the event of a 
 finding of guilty." 
 
37 
 
 with industrial conceptions of discipline. They are in the active army for the 
 war only. The summary method of stimulating attention to duty and thorough- 
 ness of work is by fine. It is also proposed to eliminate the existing clause 
 restricting the operation of this section to offenses " not denied by the accused." 
 No reason is perceived why this summary discipline should be restricted as in 
 the existing article, particularly as the right of appeal is preserved. 
 
 PROPOSED LAW. 
 
 " ART. 105. INJURIES TO PERSON or 
 [OF] PROPERTY REDRESS OF. When- 
 ever complaint is made to any com- 
 manding officer that damage has been 
 done to the property or person of any- 
 body [of any person] or that his prop- 
 erty has been wrongfully taken by per- 
 sons subject to military law, the com- 
 manding officer may convene [such 
 complaint shall be investigated by] a 
 board consisting of any number of offi- 
 cers from one to three ichich shall in- 
 vestigate the complaint and which, 
 [which board shall be convened by the 
 commanding officer and shall have] 
 for the purpose of such investigation, 
 shall hare power to summon witnesses 
 and examine them upon oath or affir- 
 mation, to receive depositions or other 
 documentary evidence, and to assess 
 the damages sustained against the re- 
 sponsible parties. The assessment of 
 damages made by such board shall be 
 subject to the approval of the com- 
 manding officer, and in the amount ap- 
 proved by him shall be stopped against 
 the pay of the offenders. And the or- 
 der of such commanding officer direct- 
 ing stoppages herein authorized shall 
 be conclusive on any disbursing officer 
 for the payment by him to the injured 
 parties of the stoppages so ordered. 
 
 " Where the offenders can not be as- 
 certained, but the organization or de- 
 tachment to which they belong is 
 known, stoppages to the amount of 
 damages inflicted may be made and 
 assessed in such proportion as may be 
 deemed just upon the individual mem- 
 bers thereof who are shown to have 
 been present with such organization or 
 detachment at the time the damages 
 complained of were inflicted as deter- 
 mined by the approved findings of the 
 board." 
 
 EXISTING LAW. 
 
 "ART. 105. INJURIES TO PERSON OF 
 PROPERTY REDRESS OF. Whenever 
 complaint is made to any commanding 
 officer that damage has been done to 
 the property of any person, or that his 
 property has been wrongfully taken by 
 persons subject to military law, such 
 complaint shall be investigated by a 
 board consisting of any number of offi- 
 cers from one to three, which board 
 shall be convened by the commanding 
 officer and shall have, for the purpose 
 of such investigation, power to sum- 
 mon witnesses and examine them upon 
 oath or affirmation, to receive deposi- 
 tions or other documentary evidence, 
 and to assess the damages sustained 
 agairst the responsible parties. The 
 assessment of damages made by such 
 board shall be subject to the approval 
 of the commanding officer, and in the 
 amount approved by him shall be 
 stopped against the pay of the offend- 
 c rs. And the order of such command- 
 ing officer directing stoppages herein 
 authorized shall be conclusive on any 
 disbursing officer for the payment by 
 him to the injured parties of the stop- 
 pages so ordered. 
 
 " Where the offenders can not be as- 
 certained, but the organization or de- 
 tachment to which they belong is 
 known, stoppages to the amount of 
 damages inflicted may be made and 
 assessed in such proportion as may be 
 deemed just upon the individual mem- 
 bers thereof who are shown to have 
 been present with such organization or 
 detachment at the time the damages 
 complained of were inflicted as deter- 
 mined by the approved findings of the 
 board." 
 
 COMMENT. The proposed change leaves the appointment of a board to the 
 discretion of the commanding officer and it further authorizes the assessment of 
 damages to make good injuries to persons. 
 
 NOTE. Maj. Gen. O'Ryan dissents from the majority opinion of the board 
 that article 105 should not be modified. He proposes the following amendment 
 to be added at the end of the present article : 
 
 " But no damage against any officer, soldier, or organization shall be assessed 
 wider the provisions of this article unless notice in writing of the proceedings 
 has been given such officer, soldier, or organization and an opportunity afforded 
 to be heard in defense before the board; and in all cases of assessment the 
 record of proceedings shall show the character of the notice given, together with 
 
38 
 
 the testimony offered, or the fact that after notice there was refusal to offer 
 such testimony." 
 
 This article furnishes a convenient and what may be termed a rough-and- 
 ready method of doing justice as between civilian claimants for damages and 
 soldiers and organizations charged with responsibility therefor. But because 
 the powers conveyed are so radical and because the rights of soldiers and units 
 appear to be in no way safeguarded, the article not only opens the -way to abuse 
 but, in fact, has resulted in gross abuse. Its loose references to " the command- 
 ing officer " and the failure to provide for a " day in court " for those who 
 become the victims of its provisions, has resulted in boards making assessments 
 against soldiers and units which not only had no opportunity to offer defense 
 or explanation but did not even know of the existence of the board until notice 
 that they had been assessed was received. Cases have occurred where units, 
 having left a camp in the United States for foreign service, were so assessed 
 by boards appointed by " the commanding officer " of the home camp after the 
 units had left the jurisdiction, and this without any opportunity to be heard. 
 
 It would further seem that the provision in relation to the assessment of pro- 
 portional shares of damages against individual members shown to have been 
 present with a unit at the time the damages were inflicted has no practical 
 application to a unit larger than a company. Yet it was attempted to be 
 applied in this war to regiments and even larger units. Not only this, but such 
 attempts were made months after the alleged acts w r hich caused the damage, 
 and at a time when many of the original members of the unit had been killed, 
 wounded, or transferred, and many new officers and men had joined, and when 
 a determination of the men who had constituted the personnel of the command 
 at the time the damage claimed was suffered, would have necessitated an 
 exhaustive inquiry based on former muster rolls. Not only this, but after the 
 listing of such names there remained the mathematical computations necessary 
 to apportion the regimental share of the alleged damage among the " individual 
 members thereof," so listed in order that such several sums might be assessed 
 as " stoppages." The whole procedure is often impracticable of enforcement as 
 presented and results in efforts to force payment from the organization or its 
 officers by duress. Under such circumstances certainly the latter should have 
 their " day in court," which the proposed amendment provides for. 
 
 I think Congress should make provision for prompt payment of damages for 
 honest losses, looking to soldiers or units for reimbursement as a result of some 
 fair method of investigation and determination. In any event, as a preventive 
 against obnoxious abuse, I recommend the inclusion of the amendment offered. 
 
 ART. 106. No change. 
 
 ART. 107. No change. 
 
 ART. 108. No change. , 
 
 ART. 109. No change. 
 
 ART. 110. No change. 
 
 ART. 111. No change. 
 
 PROPOSED LAW. EXISTING LAW. 
 
 " ART. 112. EFFECTS OF DECEASED " ART. 112. EFFECTS OF DECEASED 
 PERSONS DISPOSITION OF. In case of PERSONS DISPOSITION OF. In case of 
 the death of any person subject to the death of any person subject to 
 military law, the commanding officer military law, the commanding officer 
 of the place of command will permit of the place of command will permit 
 the legal representative or widow of the legal representative or widow of 
 the deceased, if present, to take the deceased, if present, to take pos- 
 possession of all his effects then in session of all his effects then in camp 
 camp or quarters, and if no legal rep- or quarters, and if no legal represen- 
 resentative or widow be present the tative or widow be present the corn- 
 commanding officer shall direct a sum- manding officer shall direct a summary 
 mary court to secure all such effects; court to secure all such effects; and 
 and said summary court shall have said summary court shall have author- 
 authority to collect and receive any ity to collect and receive any debts due 
 debts due decedent's estate by local decedent's estate by local debtors; 
 debtors, and to pay the undisputed and as soon as practicable after the 
 local creditors of decedent, in so far collection of such effects said sum- 
 as any money belonging to the de- mary court shall transmit such ef- 
 ceased which may come into said sum- fects, and any money collected, 
 mary court's possession under this through the Quartermaster Depart - 
 article will permit, taking receipts ment, at Government expense, to the 
 
39 
 
 therefor for file with said court's final 
 report upon its transactions to the 
 War Department; and as soon as prac- 
 ticable after the collection of such 
 effects said summary court shall trans- 
 mit such effects, any money collected, 
 through the Quartermaster Depart- 
 ment at Government expense to the 
 widow or legal representative of the 
 deceased, if such be found by said 
 court, or to his son, daughter, father : 
 Prorided, The father has not aban- 
 doned the support of his family, mother, 
 brother, sister, or the next of kin in 
 the order named, if such be found by 
 said court, or the beneficiary named 
 in the ivill [byl of the deceased, if 
 such be found by said court, and said 
 court shall thereupon make to the War 
 Department a full report of its trans- 
 actions ; but if there be none of the 
 persons hereinabove named, or such 
 persons or their addresses are not 
 known to, or readily ascertainable by, 
 said court, and the said court shall 
 so find, said summary court shall 
 have authority to convert into cash, 
 by public or private sale, not earlier 
 than 30 days after the death of the 
 deceased, all effects of the deceased 
 except sabers, insignia, decorations, 
 medals, watches, trinkets, manu- 
 scripts, and other articles valuable 
 chiefly as keepsakes ; and as soon as 
 practicable after converting such ef- 
 fects into cash, said summary court 
 shall deposit with the proper officer, 
 to be designated in regulations, any 
 cash belonging to decedent's estate, 
 and shall transmit a receipt for such 
 deposits, any will or other papers of 
 value belonging to the deceased, any 
 sabers, insignia, decorations, medals, 
 watches, trinkets, manuscripts, and 
 other articles valuable chiefly as 
 keepsakes, together with an inven- 
 tory of the effects secured by said 
 summary court, and a full account 
 of its transactions to the War De- 
 partment for transmission to the 
 Auditor for the War Department for 
 action as authorized by law in the 
 settlement of accounts of deceased 
 officers and enlisted men of the Army. 
 " The provisions of this article shall 
 be applicable to inmates of the United 
 States Soldiers' Home who die in any 
 United States military hospital out- 
 side of the District of Columbia, 
 where sent from the home for treat- 
 ment." 
 
 ART. 113. No change. 
 ART. 114. No change. 
 ART. 115. No change. 
 ART. 116. No change. 
 ART. 117. No change. 
 ART. 118. No change. 
 
 widow or legal representative of the 
 deceased, if such be found by said 
 court, or to his son, daughter, father, 
 mother, brother, or sister, in the or- 
 der named, if such be found by said 
 court, or to the beneficiary named by 
 the deceased, if such be found by 
 said court, and such court shall there- 
 upon make to the War Department a 
 'full report of its transactions; but 
 if there be none of the persons here- 
 inabove named, or such persons or 
 their addresses are not known to, or 
 readily ascertainable by, said court, 
 and the court shall so find, said sum- 
 mary court shall have authority to 
 convert into cash, by public or private 
 sale, not earlier than 30 days after 
 the death of the deceased, all effects 
 of the deceased, except sabers, insig- 
 nia, decorations, medals, watches, 
 trinkets, manuscripts, and other ar- 
 ticles valuable chiefly as keepsakes ; 
 and as soon as practicable after con- 
 verting such effects into cash said 
 summary court shall deposit with the 
 proper officer, to be designated in 
 regulations, any cash belonging to de- 
 cedent's estate, and shall transmit a 
 receipt for such deposits, any will or 
 other papers of value belonging to 
 the deceased, any sabers, insignia, 
 decorations, medals, watches, trin- 
 kets, manuscripts, and other articles 
 valuable chiefly as keepsakes, to- 
 gether with an inventory of the ef- 
 fects secured by said summary court, 
 and a full account of its transactions 
 to the War Department for transmis- 
 sion to the Auditor for the War De- 
 partment for action as authorized by 
 law in the settlement of the accounts 
 of deceased officers and enlisted men 
 of the Armv. 
 
 " The provisions of this article shall 
 be applicable to inmates of the United 
 States Soldiers' Home who die in any 
 United States military hospital out- 
 side of the District of Columbia, 
 where sent from the home for treat- 
 ment." 
 
40 
 
 PKOPOSEI) LAW. 
 
 "ART. 119. RANK AND PRECEDENCE 
 AMONG REGULARS, MILITIA, AND VOL- 
 UNTEERS. That in time of war or pub- 
 lic danger, when two or more officers 
 of the same grade are on duty in the 
 same h'eld, department, or command, 
 or of organizations thereof, the Presi- 
 dent may assign the command of the 
 forces of such field, department, or 
 command, or of any organization 
 thereof, without regard to seniority of 
 rank in the same grade. In the ab- 
 sence of such assignment by the Presi- 
 dent, officers of the same grade but 
 icith different dates of commission 
 shall rank and have precedence ac- 
 cordingly, the elder date giving sen- 
 iority; if of the same grade and date 
 of conunixxioH tliey shall rank and 
 have precedence in the following order, 
 [without regard to date of rank or 
 commission as between officers of dif- 
 ferent classes,] namely : First, officers 
 of the Regular Army and officers of 
 the Marine Corps detached for service 
 with the Army by order of the Presi- 
 dent ; second, officers of forces drafted 
 or called into the service of the United 
 States: and, third, officers of the vol- 
 unteer forces: Provided, That officers 
 of the Regular Army holding commis- 
 sions in forces drafted or called into 
 the service of the United States or in 
 the volunteer forces shall rank and 
 have precedence under said commis- 
 sions as if they were commissions in 
 the Regular Army ; the rank of officers 
 of the Regular Army under commis- 
 sions in the National Guard as such 
 shall not, for the purposes of this 
 article, be held to antedate the accept- 
 ance of such officers into the service 
 of the United States under said com- 
 missions." 
 
 COMMENT. This section was amended in its present form at the time of the 
 recent revision. The effect was to give preference not only to officers of the 
 Regular Army in each grade, over those of the same grade appointed at the same 
 time from sources other than the Regular Army, but to give seniority and pref- 
 erence to all other regular officers who at any subsequent time might be pro- 
 moted to an advanced grade over all the nonregular officers already in such 
 advanced grade. Under this article the nonregular officer during this war 
 descended in his lineal rank as he gained in experience and length of service 
 due to the appointment with the expansion of the Army, of additional regular 
 officers in the grade. Officers of the Army not holding Regular Army commis- 
 sions found themselves suddenly junior to officers who had been their subordi- 
 nates, for the latter officers upon promotion to the higher grade were, by virtue 
 of this provision, jumped over all in the advanced grade who were not originally 
 of the Regular Army. 
 
 The provision criticized was one of the causes w T hich rendered abortive the 
 ^attempt to create during the war one army dominated by one-army spirit. 
 
 ART. 120. No change. 
 
 ART. 121. No change. 
 
 EXISTING LAW. 
 
 "ART. 119. RANK AND PRECEDENCE 
 AMONG REGULARS, MILITIA, AND VOL- 
 UNTEERS. That in time of war or pub- 
 lic danger, when two or more officers 
 of the same grade are on duty in the 
 same field, department, or command, 
 or of organizations thereof, the Presi- 
 dent may assign the command of the 
 forces of such field, department, or 
 command, or of any organization 
 thereof, without regard to seniority of 
 rank in the same grade. In the ab- 
 sence of such assignment by the Presi- 
 dent, officers of the same grade shall 
 rank and have precedence in the fol- 
 lowing order, without regard to date 
 of rank or commission as between 
 officers of different classes, namely : 
 First, officers of the Regular Army and 
 officers of the Marine Corps detached 
 for service with the Army by order of 
 the President ; second, officers of forces 
 drafted or called into the service of 
 the United States; and, third, officers 
 of the volunteer forces : Provided, 
 That officers of the Regular Army 
 holding commissions in forces drafted 
 or called into the service of the United 
 States or in the volunteer forces shall 
 rank and have precedence under said 
 commissions as if they were commis- 
 sions in the Regular Army: the rank 
 of officers of the Regular Army under 
 commissions in the National Guard as 
 such shall not, for the purpose of this 
 article, be held to antedate the ac- 
 ceptance of such officers into the serv- 
 ice of the United States under said 
 commissions." 
 
 [250.03, A. G. O.] 
 
 O 
 

 
 JUN 29 592 
 JUN 
 
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 UNIVERSITY OF CALIFORNIA LIBRARY