On January 20, 1944 Congress amended that portion of the Nationality Act which determines the penalties imposed upon those who desert the Naval Service in time of war. The amendment, drafted and proposed by the Navy, relaxes the severe penalties which heretofore attached to such offenders and allows the Navy to exercise greater leniency and discretion in dealing with them.
The meaning and effect of the new amendment are worth consideration. Moreover, the need for decreasing rather than increasing the severity of punishment of deserters during the third year of war may not be immediately apparent to those not familiar with the technicalities of the offense and the penalties heretofore required by law. An examination of this offense, therefore, and an analysis of the component parts of its trial by general court-martial; a consideration of the substantial body of technical law which attends such trials and which heretofore has determined the punishment required to be meted out to those convicted; and an indication of the changes effected by the new amendment seem both timely and of general interest to the service.
The offense of “Desertion” consists simply of an unauthorized absence of any length, coupled with an intent to desert, provided only that the intent to desert is entertained during the period of the absence. If the coupling of intent and absence occurs while the United States is in a state of war, the offense is “Desertion in Time of War.” Men convicted of Desertion in Time of War are sentenced to be reduced to the lowest rating of their branch of the service, to be confined for a period of years, with accessories, consisting of hard labor and loss of pay, and then to be discharged from the service. The reduction in rating and confinement are required by Department policy. The discharge, prior to the new amendment, was required by statute, and not only were offenders required to be sentenced to a discharge, but higher authorities were powerless to remit the discharge, on probation or otherwise, or to retain the man in the service. Moreover, upon being discharged the man lost his United States citizenship and was never again able to hold an office of trust or profit for the United States.
The offenses of “Absence over Leave” or “Absence without Leave” consist simply of unauthorized absence without the coexistent intent to desert. Persons convicted by general court-martial of these offenses, while they are required by policy, in most cases, to be sentenced similarly to reduction in rating, confinement with accessories, and a discharge from the service, may have their discharges or other portions of their sentences remitted by higher authority on probation or otherwise. After serving a period of confinement they may be restored to duty. In countless such cases the men restored to duty do not again repeat their offenses but take their opportunity to rehabilitate themselves and become valuable members of the service.
The difference in the disposition of two men, one convicted of unauthorized absence who will return to duty and redeem himself, and one convicted of Desertion in Time of War who will be blacklisted for the rest of his life, is determined by a decision as to the state of mind entertained by each. If in fact all men convicted of the more serious offense intended to desert their country in its time of need, the punishment is not unduly severe. Whether in fact all men so convicted did so intend depends upon the accuracy of the court’s finding as to intent, the most intangible and difficult of findings to make, which in turn depends upon the quantity and quality of evidence which the court has available before it.
Before looking at this evidence and examining the proceedings comprising a trial for Desertion in Time of War, however, it is necessary to consider a preliminary step, the convening authority’s order for trial. The decision of the convening authority to issue an order for trial on the more serious charge, rather than a charge of unauthorized absence, is of utmost importance to the outcome of a man’s case. A naval court is unique among courts in that it may find an accused guilty of a lesser included offense. For example, a man against whom the charge of Desertion in Time of War is preferred by the convening authority may be found guilty by the court of Absence over Leave, that is, guilty of the absence but not the concomitant intent to desert. The converse, however, is not true. A man charged with absence over or without leave may not be found guilty of Desertion in Time of War even though the facts developed at his trial may clearly and unequivocally show that he is guilty of that offense. A court has no power to convict an accused of a greater offense than that with which he is charged. Before a man can suffer the severe penalties outlined above, therefore, it is apparent that the convening authority must have determined that the facts before him warranted a charge of Desertion in Time of War.
Convening authorities throughout the various naval districts have varying criteria for determining the offense with which to charge men. The Bureau of Naval Personnel has indicated certain advisory standards, but since the propriety of the charge depends on the absence or presence of the intangible intent, no certain standard is possible. Each convening authority must therefore exercise extreme care in determining those instances in which to order trial for Desertion in Time of War. In a very few cases he may be aided by knowledge of acts committed by the man in question prior to his departure from his ship or station. Disposition of his service clothing, his statements or letters to his friends, may show that he actually intended to sever his relation with the Navy permanently. Occasionally a man may state frankly upon his apprehension that he intended never to come back. Such cases are easy both for the convening authority and the trial court.
Any knowledge of the conduct of the accused during his absence which might be gleaned from a careful investigation would be of value to the convening authority in making his decision. Knowledge of this conduct, however, while frequently available to the trial court, is seldom available to the convening authority. Almost without fail the accused is seized with a desire to tell his story in full when he is served with the order for his trial or, if not then, when he comes before the court. The judge advocate is therefore enabled to, and does, conduct a thorough investigation of the names, places, and events described by the accused. A fairly accurate picture of the manner in which the accused comported himself while he was absent from the service may thus be available to the court and may afford a reasonable basis from which to determine what was in his mind. Equally without fail, however, when the accused, pursuant to Navy Regulations, is asked before his trial whether he desires to make a statement in his behalf in order to present his side of the picture to the convening authority before the latter determines the disciplinary action to be taken against him, he “Does not desire to make a statement at this time.” Fear, excitement, and the unwise counsel of well-meaning friends contribute to this reticence. It is therefore a practical impossibility for the convening authority to determine prior to trial how the accused conducted himself during his absence.
From a realistic point of view, therefore, the convening authority in the great majority of cases must determine the appropriate charge from the length of time that the man has remained away from the service. While many factors may be present which will influence him toward severity or leniency, such as the age of the accused or his previous record, these factors cannot aid him in determining the intent of the accused. If, therefore, the convening authority orders trial on a charge of Desertion in Time of War, he has decided that the absence is of sufficient length reasonably to justify the tentative conclusion that the accused may have intended not to return.
Generally it may be said that six months has been selected as the point of delimitation. While there is no certainty that a man who has been absent for less than six months will not be awarded a trial by general court- martial for Desertion in Time of War, few absences of over six months fail to have that result. Court-martial orders contain records of desertion trials based on two, three, four, and five months of absence. Few records can be discovered of trials for Absence over Leave or Absence without Leave for a period greater than six months. As a punctuation point, then, unauthorized absence of six months, unless attended by extraordinary circumstances, will usually result in the issuance of an order for trial of the accused on the charge of Desertion in Time of War. This is the first step in his conviction with the attendant penalties. Step two, his trial, is more elaborate, more important.
The safeguards which surround the trial of any man by general court-martial are augmented at a trial for Desertion in Time of War. Few such trials occur, and none are encouraged by presidents of courts-martial, without representation of the accused by counsel. Moreover, today, with the ranks swelled by Reserves, counsel is usually a trained lawyer. Care is exercised lest the accused commence his trial without a full understanding of the penalties which will follow if he is convicted. Before he is asked to plead “guilty” or “not guilty,” the penalties required by law are explained to him and he is asked whether he fully understands them. Should he evidence fright, confusion, or stupidity, the explanation is carefully repeated. The accused then answers for himself, but even though he replies in the affirmative, he is still protected against misunderstanding. In a recent case the accused stated that he fully understood the required penalties, but in his statement to the court he expressed a hope that he might be retained in the service. In view of this apparent misunderstanding his case was set aside by the reviewing authority.
Upon arraignment the accused makes his plea himself in order to preclude the possibility that counsel may enter a plea of “guilty” through misunderstanding. The inclination of counsel, however, is usually in the opposite direction, even though the accused may feel that he has decided upon his plea. It is a popular misconception among the men that one absent over thirty days, necessitating the “deserter” entry in his record book, is guilty of Desertion, and that there is no proof capable of acquitting him of the charge. Moreover, there is occasionally encountered the unfortunate conviction that the plea or proof is immaterial and that conviction will most certainly result irrespective of the evidence produced at the trial.
Both of these misconceptions are normally dispelled by the accused’s counsel or, if necessary, by an alert judge advocate or the president of the court. Should the accused nevertheless insist upon a plea of “guilty,” which is the rule in the majority of cases, he is still protected against misunderstanding. After the finding of “guilty” is entered the accused is afforded an opportunity to make an unsworn statement in which he tells the court of any facts connected with his case which may mitigate the seriousness of his offense or otherwise incline the members of the court to recommend him to the clemency of the convening authority. Should any part of this statement be inconsistent with his plea of “guilty,” it is immediately incumbent upon the court to reject his plea, enter a plea of “not guilty,” and proceed with the trial on that basis.
Any statement which would have had evidentiary value in favor of the accused had it been offered as testimony on a plea of “not guilty” is inconsistent with the plea of “guilty.” Any statement which implies or suggests that the absence of the accused was motivated by a reason other than an intent permanently to sever his connection with the service is inconsistent. Counsel for the accused, the judge advocate, and the court must be alert to catch such inconsistencies. Should they fail to do so, the convening or reviewing authorities will not fail, and if the interests of the accused have been prejudiced the case will be set aside and the accused given an opportunity for a new trial.
Usually the inconsistency will consist of a simple statement that the accused intended to return to the service. Since failure to ascribe an inconstant meaning to a borderline statement, however, may result in a tragic injustice to the accused, while a decision that the same statement is inconsistent will simply require proof of the case against the accused, courts and reviewing authorities subject these statements to an incisive scrutiny which results occasionally in the discovery of rather subtle inconsistencies. In a case not yet published in the court-martial orders the accused, apprehended after four months’ absence, remarked that his wife was ill and said, “Although knowing that I would be punished, I could not bring myself to leave my wife while she was in this condition.” His conviction upon a plea of “guilty” was set aside on the ground that the statement was inconsistent with his plea. In a more recent case the accused was delivered after six months’ absence. He pled “guilty” and stated, “ . . . my absence for such a long period was due entirely to the excessive daily use of liquor during the whole period . . . .” This statement appeared innocent to the court but the case was set aside by the Secretary of the Navy. If in fact he was intoxicated for the entire six months’ period he might not have had the mental capacity at any time during the period to entertain any thoughts, which inability would preclude entertainment of the necessary intent to desert. In both cases the men were afforded an opportunity to request a new trial which both did.
In all of the proceedings mentioned thus far the accused is afforded consideration and protection unparalleled in other judicial systems. There remains for examination the trial on a plea of “not guilty,” the plea which will invariably be entered when either the court or the accused feels that there is a doubt as to the latter’s guilt. On the efficacy of these proceedings to select between those truly guilty and those innocent of the necessary intent hinges the justice of the requirement that severe penalties be inflexibly required to attach to a finding of guilt in every instance.
The Navy’s case commences, and usually ends, with the judge advocate. He is sworn as a witness and introduces into evidence, first, the entry in the accused’s service record which shows the commencement of his unauthorized absence, and second, the “Report of Return of Deserter,” which shows its termination. As the official custodian of these writings, the judge advocate may properly offer them in evidence, and because they fall within a recognized exception to the “hearsay evidence” rule, the court may properly accept them. In instances where the witnesses who themselves could testify to the facts are unavailable, “entries made in the regular course of business” are made admissible in evidence by federal law, even though they are hearsay, and service record entries and deserters’ reports have been construed by court-martial orders to be such entries made in the regular course of Navy business. Since many of the cases tried involve men who have deserted on one coast and have been apprehended on the other, and since further, the place of apprehension may have been far from the place of trial, or the persons who completed the apprehension may have been transferred before the trial, in the majority of cases the witnesses are not available to testify before the court and the two writings are admitted in evidence.
As mentioned above, the judge advocate, through pre-trial conversations with accused’s counsel, may have investigated the accused’s conduct during his absence. The times, places, and events which have been disclosed to him, however, are customarily not such as strengthen or make a part of the government’s case. The information gained by the judge advocate is usually useful only in ascertaining the truthfulness of the accused’s statements.
The service record entry and the “Report of Return of Deserter,” then, usually comprise the entire case for the government. The judge advocate, having authenticated and introduced them, leaves the witness stand and the prosecution rests.
Normally the remainder of the case will do nothing toward convicting the accused. He will tell his story, explain his reasons for desiring a temporary vacation, outline the efforts he made to return, explain why they were unsuccessful, and call his friends and family to substantiate his story. If the accused is convicted, the facts causing his conviction were those put in evidence by the judge advocate. These “facts” are the two entries showing his unauthorized absence. Yet in a striking percentage of cases the accused is convicted and the conviction results from these two entries alone. What are the formulas by which the court proceeds from these two pieces of paper to the finding of “guilty” with its severe results for the accused, the finding that the accused absented himself from the service with the intent never to return?
The formulas, which are quite logical, are as follows: Acceptance of the two entries in evidence establishes for the court the beginning of the accused’s absence and its end, establishes, therefore, an absence of a certain duration. Both termini of the absence must be shown since proof of the commencement without proof of its end, or vice versa, fails to establish any definite period of time, and numerous court-martial orders correctly point out that proof of an absence of certain duration is essential to the case against the accused. Proof of the absence is relatively simple. Were the judge advocate required to prove the intangible intent to desert by direct evidence, however, no deserters would be convicted since intent, being a state of mind, is not subject to proof by direct evidence. Court-martial law, therefore, has developed a presumption or inference which aids the judge advocate in proving intent, which in fact in most cases is the only proof available to him.
Naval Courts and Boards, Section 76, says that “intent being a state of mind is not subject to direct proof, but is a presumption of fact to be inferred from other facts,” that “a presumption is ... a rule of law that courts . . . shall draw a particular inference from a particular fact, unless . . . disproved,” an inference being “a deduction . . . which the reason of the [court] makes from the facts proved.”
This means that the particular fact proved, the absence of certain duration, gives rise to a presumption, or requires as a rule of law, that the court draw an inference, if reason so dictates. The inference is that the accused intended to desert; reason so dictates when the absence is of sufficient length reasonably to indicate such intent.
Numerous court-martial orders consider the length of absence necessary to give rise to this inference. Twelve-, eight-, and six- month absences are common and unquestionably do so. Court-Martial Order 2-25-5 reads in part, “Had this evidence been introduced and the delivery of the accused, after an unauthorized absence of four months, established, a prima facie case for the prosecution would have been made,” and the Naval Digest at page 173 states, “ . . . the fact that [the accused] failed to communicate with and remained absent from the service for a period of nearly two months is good presumptive evidence as to his intentions to desert.” Absences of four and even two months’ duration thus give rise to the inference of intent to desert. Since convening authorities customarily use six months as the dividing line in ordering trial for Desertion in Time of War, few cases are likely to occur where the “reason of the court” will not require the “deduction” that the accused intended to desert. What is the practical effect of this reasoning? Of the two elements of desertion, unauthorized absence and intent to desert, the absence has been proved and the intent to desert is inferred from the absence. The case of desertion has, therefore, been proved. “The absence when proved if not satisfactorily explained,” says Naval Courts and Boards, “establishes a prima facie case,” and a prima facie case is “that amount of evidence which [will] counterbalance the general presumption of innocence, and warrant a conviction” if not contradicted or nullified by the evidence offered by the accused.
In brief, the acceptance of the two entries by the court means that unless the accused can explain his absence he will be convicted of Desertion in Time of War. Court-Martial Order 1-1939-37 and the Naval Digest at page 178 summarize the case against the accused and its effect as follows: “under naval court-martial procedure to establish a prima facie case of Desertion, it is sufficient to introduce in evidence the ‘Declaration of Desertion’ and the ‘Report of Return of Deserter,’ ” and “Where a prima facie case of ‘Desertion’ has been established, if no defense is offered by the accused, or his defense is not sufficient to rebut the evidence of the prosecution and the natural inference to be drawn therefrom, the prima facie case established by the prosecution becomes conclusive and the accused should be found guilty of ‘Desertion.’ ”
When the judge advocate resumes his seat, then, a burden has shifted to the accused. Not the burden of proof, which always remains upon the prosecution in a criminal case, but the burden, so-called, of going forward with the evidence. If the accused offers no evidence, he will be convicted. If the accused convinces the court that he did not intend to desert, he will be acquitted. He need not achieve this much, however. If he offers sufficient evidence that the court cannot make a decision as to his intent, that is, cannot decide whether the presumption should stand or whether the accused has told the truth, then also he must be acquitted. Thus the burden of proof in fact remains with the prosecution. If the court cannot decide, if the evidence produces in the court’s mind a so-called state of equilibrium, then the burden has not been sustained and the accused must be set free.
What evidence is available to the accused to achieve this result? First, he may testify in his own behalf, and quite frequently this is the last of his case. What may he say on the witness stand to prove his intent, or more precisely, his absence of intent to desert? His state of mind is no more subject to direct proof by the accused than by the judge advocate. He may say, “I did not intend to desert,” and always does. He may outline the reasons which decided him upon leaving. He may tell what he did while he was gone. He may tell how many times and in how many ways he attempted to return and was prevented. There is very little else to which he can testify and these facts are certainly of little influence upon the average court.
Moreover, he may not give this testimony with impunity. Immediately upon taking the stand, the accused, like any other witness, subjects himself to cross examination. To be sure, he may decline to take the stand and tell the same facts in an unsworn statement to the court, which will not subject him to any form of cross examination by the court or the judge advocate. Few courts, however, fail to discern the reason for his failure to take the stand and swear to his story. His statements will be subject to skepticism on the part of the court which may well prejudice his case.
When he elects to testify and his cross examination begins, his every statement will be examined. His unequivocal declaration that he did not intend to desert may be turned against him. He will be asked when he made his decision to return and what caused it. If he is unwary he may well outline conversations with parents or friends in which he was urged to return. He may indicate that realization of the penalties of desertion or of the shame his act is causing his family decided him to return. Such testimony obviously discloses a change of mind, a change to an intent to return, therefore a change from an intent not to return. Exhortation to return by friends or family indicates a state of mind reasonably requiring exhortation, that is, intent not to return. He may well say, “That conversation changed my mind, and I decided to go back.”
Any such disclosure by the accused practically “admits” him into a conviction. “The offense of desertion,” says Court-Martial Order 1-25-4, “is not a continuing offense but is completely consummated the moment unauthorized absence is coupled with intent to permanently abandon the naval service.” “If the accused at any time during his unauthorized absence,” adds Naval Digest, page 172, “had the intent permanently to abandon the naval service . . . that is all that is necessary to establish his guilt, and it is immaterial whether the intention was formed at the time of leaving the ship or station or at a subsequent date.” Moreover, his voluntary return will not negative an intent to desert. “A man who separates himself from the service with the intent to desert,” says the Naval Digest at page 174, “might, subsequently, find it more desirable, for various reasons, to return, and the mere fact that an absentee surrenders himself is not in itself sufficient evidence that he did not intend to desert . . . .” The accused must be wary lest in his own testimony in an effort to show the good intentions which motivated his return, he let slip the fact that at one single instant during his absence he was without those good intentions, and thereby convict himself.
His reasons for departing, offered in explanation on his direct testimony, will be explored. They are limited to two customary classes of situations; first, failure of promotion, harsh treatment from a superior, dislike of the particular duty or ship, dissatisfaction with his pay, dissatisfaction with medical treatment; and second, anxiety about his wife’s fidelity, finances, or health, or the finances or health of his parents or children. The first class of reasons, though offered by the accused, strengthen the government’s case. They show dissatisfaction with some phase of the service which unescapably supports the conclusion that the accused intended not to remain with the service. The second class of reasons might well go logically with an intent to return after the difficulty, not of the accused’s making, is cleared up by his activities during his absence. It must be remembered, however, that the accused charged with desertion today has been away six or more months. Financial matters cannot justify this absence, and while health or fidelity of one’s spouse may not be restored in one or two months, the inability of the accused to effect their restoration must have been apparent to him in that time, and the bona fides of his professed reason for his absence has evaporated when a greater time has expired.
His conduct during his absence usually includes making his living. This entails donning civilian clothes and taking civilian pay. Discarding his uniform indicates an effort to evade identification; civilian pay indicates an intent to sustain himself independently of the Navy. It is not to be expected that one absent without authority will communicate with his commanding officer, yet the accused’s failure to do so will be brought out on cross examination and will militate against him.
The accused invariably testifies as to his efforts to return to the service. He attempted his return but could not raise the bus fare. He got as far as the gate of a naval station but did not know whom to report in to, or became frightened. Such testimony is common and may be true, yet such testimony must seem to the court to be ludicrous. No bus fare is necessary except to the nearest police, army, or naval station. No question as to whom to turn in to should exist when the list includes any civil officer or member of the Army or Navy, and it is hard to believe that one who has served in the Navy can have an overpowering fear of returning to it.
So much for the testimony offered by the accused in his own behalf. In an early case reported on page 176 of the Naval Digest, the Department' remarked,
He was absent a period of five months and fourteen days, during which time he failed to communicate in any way with the naval authorities; he took passage to a distant point, discarded his uniform for civilian clothes, obtained employment while absent, and finally was apprehended and forcibly returned to the service by the civil authorities—all of which, in the opinion of the department, conclusively disproves his statement as to his intentions.
All told, the appearance of the accused on the stand in his own behalf may well do more for the government’s case than for his own.
In some cases the accused sees fit to call his friends or family as witnesses. What can they add to the story he has told? They can corroborate some of the facts he has already told and do little else to help him. They may well harm him, however. They too may disclose inadvertently that he intended at one time or another not to return to the service. Moreover, the accused may have stated in their presence that he did not intend to return to the Navy. If so, they may be required to repeat his statement to the court. Should the accused have said in their presence that he did intend to return, however, they may not repeat that statement in evidence. The latter statement is hearsay and inadmissible, popularly called self-serving. The former, while hearsay, falls within an exception to the rule excluding hearsay. It is an extrajudicial “admission” made by the accused against his interest and may be heard. Similarly, if they have received letters from the accused, portions of them which are damaging to the accused are admissible, portions which help him are not.
This, then, comprises the case on behalf of the accused. With this he must carry the burden of going forward with the evidence and returning the court’s mind to a “state of equilibrium” or more. With this he must dispel or meet the conclusion which the court is required by “rule of law” to draw from proof of his absence. With this he must meet the prima facie case which has been established against him by two pieces of writing, or the court must find him guilty of Desertion in Time of War.
Yet the evidence which he is able to produce, his story and those of his friends and relatives, can hardly hope to have that effect. If unimpeached, if told with care and intelligence, it has at best a rather negative effect. In frequent cases, his story, after scrutiny and dismemberment, has strengthened the presumption that he is actually guilty as charged. Perhaps he is; but is his guilt sufficiently certain in every such case to require his discharge from the service; to require that he lose his citizenship without hope of a chance to rehabilitate himself?
Upon conviction for robbery, murder, or other serious offense, the trial court may sentence the accused as it sees fit. Should it award a discharge from the service, either the convening authority or the reviewing authority has the power to mitigate the sentence and retain the accused in the service upon probation. Not so, prior to the change in the statute, upon conviction for Desertion in Time of War. The court, convening and reviewing authorities, and the Secretary of the Navy were powerless to retain an accused so convicted in the service and his loss of citizenship, with the attendant disabilities, occurred automatically.
The Navy’s attitude toward the application of this inflexible requirement in every case is perhaps disclosed by a procedure which has been employed in certain cases. The court’s decision, commonly called a “conviction,” is not in fact a conviction but simply a finding of “guilty” subject to review by higher authority. Actual conviction of the accused occurs only when final approval of the proceedings and finding is given. If approval is withheld there is no conviction and there being no conviction the statute does not apply. Not infrequently the Department, therefore, “withholds all action” on a finding of “guilty,” subject to the good conduct of the accused, and restores the accused to duty. This action, legally impeccable, has the unfortunate result that the accused, admittedly guilty of an unauthorized absence of six months, receives no punishment at all. Execution of the other parts of his sentence, reduction to the lowest rating of his branch of the service, confinement, and accessories including loss of pay, must also be withheld since there has as yet been no conviction upon which to base them. Thus this accused must be set completely free while a contemporary who has absented himself only five, four, or three months will certainly serve some confinement, lose his pay, and be reduced in rating.
Trials for Desertion in Time of War, then, whether upon a plea of “guilty” or “not guilty,” will in most cases result in a conviction. The writer has personally participated in many such trials in only one of which was the accused acquitted. The presumption of guilty intent inferred from the accused’s absence is logical, yet the accused, confronted with the urgent necessity of proving a contrary state of mind, has only a meager chance of doing so. Defense counsel frequently and indignantly pronounce this trial as an instance where the accused is presumed guilty until his innocence is proved. Yet in every case of conviction, heretofore, the law rigidly and inflexibly required a punishment which blacklisted and marked the offender for life. The need for some change in the law was apparent.
Until January of 1944, Section 401(g) of the Nationality Act of 1940 imposed loss of nationality for Desertion in Time of War providing the deserter was “convicted thereof by court-martial.” Revised Statutes, Sections 1996 and 1998, added that such persons also lost their citizenship and should be forever incapable of holding any office of trust or profit under the United States, and these provisions were embodied in Articles 18 and 1705 of Navy Regulations. From this disability flowed the proviso in Section 444, Naval Courts and Boards, that an accused so convicted must be discharged from the service, and the court-martial orders interpreted this to require a dishonorable discharge.
On January 20 the Nationality Act was amended so that the loss of nationality does not necessarily result when the accused deserts in time of war and is “convicted thereof by court-martial,” but only when in addition “as the result of such conviction [he] is dismissed or dishonorably discharged from the service . . . .” The amendment further provides: “That notwithstanding loss of nationality or citizenship . . . under the terms of this or previous Acts by reason of desertion committed in time of war, restoration to active duty ... in time of war . . . shall . . . have the immediate effect of restoring . . . citizenship and all civil and political rights…” Re-enlistment of deserters in war time, with permission of competent naval authority, is authorized by a separate section of the amendment, and also effects restoration of citizenship and civil and political rights.
This change in the Nationality Act, then, modifies the requirements of the Revised Statutes, the corresponding sections of the Regulations, and the requirement of dishonorable discharge contained in Naval Courts and Boards. The result is that courts and reviewing authorities may treat the trial of this offense as they do the trials of others. While it may be expected that courts will still continue to include a discharge in their sentence pursuant to established policy, convening and reviewing authorities are now at liberty to withhold the execution of the discharge on probation in cases where the facts disclosed at the trial indicate that such action would be reasonable. This will be particularly appropriate in the cases of men with outstanding war records or in cases where some doubt as to the accused’s guilt, though not enough to require acquittal, may exist. In such cases the men may be retained in the service and afforded a chance to benefit the Navy and redeem themselves. In those cases where the accused is clearly a deserter, the discharge may be executed and the sanctions of the statutes will attach.
Thus, under the law as now amended, any injustice which may heretofore have resulted from the inflexible application of the statutory penalties may now be remedied through the re-enlistment provisions, and henceforth courts, convening authorities, and reviewing authorities may deal with this class of naval offenders as they see fit. An impediment to the otherwise uniform operation of the naval disciplinary system has been removed, and the disposition of these naval offenders is placed where it should be, in the hands of the Navy. The amendment to the statute appears to be a change for the better.