U B UC-NRLF 7E GIFT OF ^c/ZD/<V->^> jfer-H^/o/-} / ~a/ A' 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 - YC 63096' (J R- ff i 3291 UNIVERSITY OF CALIFORNIA LIBRARY