The normal reaction to the functioning of military justice which has occurred following every war in which our country has engaged and which apparently will follow any war of the future, resulted in several studies of military justice as practiced in the Army and of naval justice as practiced in the Navy during World War II, beginning as the conflict neared its close. As a result of these studies and widespread publicity given to the complaints which probably were responsible for these studies, the Armed Services Committee of the House of Representatives shortly after formation of the 80th Congress commenced hearings on military justice. These hearings were based upon recommendations of the Army for amending the Articles of War. The proposed bill submitted by the Army, after extensive modification, was passed by the House on January 15, 1948. At the time this bill (H. R. 2575 of the 80th Congress) reached the Senate Armed Services Committee, however, the Chairman, Senator Gurney of South Dakota, had before his Committee the Navy proposed bill to amend the Articles for the Government of the Navy. It took no lengthy study on the part of the Chairman to observe that enactment of the two separate bills would not be a step toward unification. Apparently he believed that a uniform code was more important than enactment of some amendatory legislation by the 80th Congress and, therefore, in a letter to Secretary of Defense Forrestal in May, 1948, he noted that the pending bills before Congress would not provide a uniform system of military justice and suggested that such a uniform code might be prepared for introduction early in 1949. At about the same time reenactment of the Selective Service Act was a vital problem before Congress, and, as it was being considered on the floor of the Senate, Senator Kem of Missouri proposed as an amendment thereto the House amendments to the Articles of War (H. R. 2575). The Selective Service Act as passed by the Senate contained these amendments. The House, of course, having already approved these amendments by previously passing the bill, readily accepted them as Title II of the Selective Service Act of 1948. However, in the course of discussions on the floor of the Senate, Senator Gurney in opposing the appendage of H. R. 2575 as Title II of the Act stated his conviction that a uniform code of military justice should be prepared; and he added that he was taking steps through the Office of the Secretary of Defense to make sure that such a code would be introduced at an early date. He indicated that he would pursue such a course regardless of whether H. R. 2575 became law as a part of the Selective Service Act. Pursuant to this plan he asked Secretary Forrestal to arrange for preparation of a code for submission to Congress early in 1949.
Secretary Forrestal arranged for the formation of a “Committee on a Uniform Code of Military Justice” and under date of August 18, 1948, forwarded a precept reading in part as follows:
The task of the Committee is to draft, in time for submission to the 81st Congress, a uniform code of military justice applicable to the Departments of the Army, Navy and Air Force.
The Code should be drafted so as to be uniform in substance and uniform in application and interpretation. It should protect the rights of those subject to the Code, with the view of increasing public confidence in military justice, without impairing the performance of military functions.
In drafting the new code the Committee shall consult with such persons in the Armed Forces as it may wish and invite the views of such individuals and organizations from outside the National Military Establishment as it may desire. . . .
As chairman of this Committee the services of Professor Edmund Morris Morgan, Jr., of the Harvard Law School were obtained. The other members of the Committee were the Under Secretary of the Navy, Mr. W. John Kenney; the Assistant Secretary of the Army, Mr. Gordon Gray; and the Assistant Secretary of the Air Force, Mr. Eugene Zuckert. Mr. Felix E. Larkin, who has since been appointed General Counsel of the Department of Defense, was appointed as executive secretary of the Committee. A working group consisting of representatives from the Army, Navy, and Air Force, with an observer from the Coast Guard, went into conferences during the summer of 1948 and, with the Committee, worked steadily on the Code until its submission to Congress in February of 1949. Every effort was made by the Committee to obtain unanimity on all points, and in the great majority of problems this was achieved. In those few instances where unanimity was not possible, the matter was submitted to the Secretary of Defense, who made the decision on the issues in controversy.
A Subcommittee of the Armed Services Committee of the House of Representatives held extensive hearings on the Code beginning on March 7, 1949, and ending on April 4, 1949. These hearings resulted only in minor changes to the proposed Code as submitted to Congress, and the Armed Services Committee promptly ordered the bill reported to the House. It was passed by that body on May 5, 1949. The Senate Committee on Armed Services commenced hearings on the bill on May 9, 1949, and completed them on May 27, 1949. The bill was reported out by the full committee with only minor changes in the House version. It was placed on the Senate Calendar in June, 1949; but each time the calendar was called during the first session of the 81st Congress, consideration of the bill was objected to on the ground that a matter of such importance should be debated on the floor of the Senate. Due to the press of business, no time for debate was assigned during the first session of the 81st Congress, but the bill became the unfinished business of that body early this year and was passed on February 3, 1950. It was approved by the President on May 5, 1950, and became Public Law 506 of the 81st Congress. It will become effective on May 31, 1951, except that the provisions relating to the establishment of the Court of Military Appeals will become effective on February 28, 1951, and that the provisions relating to requests for the granting of a new trial or requests to vacate a sentence or requests to restore rights, privileges, and property affected by any sentence resulting from a court-martial case involving offenses committed during World War II, became effective on the date of approval and such rights will expire on May 31, 1952.
A study of the law as enacted is essential to those who are charged with the administration of naval justice, and a reading of the Code is strongly recommended to all members of the armed forces. The remainder of this article will attempt to point out the major innovations of the new Code as compared to the existing Articles for the Government of the Navy for those who would like to obtain a quick general picture of the effect it will have on discipline in the sea-going armed forces.
One of the first considerations was the extent of jurisdiction. It was decided that such a code should have application to all the armed forces, and therefore the Coast Guard was included even though it operates under the Treasury Department in time of peace; no great difficulties are anticipated because of this inclusion of armed forces serving in different executive departments in time of peace. Reciprocal jurisdiction between the armed forces is provided for in that “each armed force shall have court-martial jurisdiction over all persons subject to this Code.” The exercise of this interservice jurisdiction, however, will be in accordance with such regulations as the President may prescribe, the intent apparently being that the reciprocal jurisdiction will be used only in cases where it is not feasible to hold a court-martial within the offender’s own service, as is normally done.
The subject of commanding officer’s punishments is treated under the heading of “Nonjudicial Punishment.” The authority of a commanding officer, particularly of a shore unit, to impose punishments will be considerably diminished, apparently as a compromise with the Articles of War which do not permit punishments of enlisted men to exceed extra duty for one week, without confinement. Considerable administrative latitude will be allowed, this being justified largely by the fact that the commanding officer of a vessel is faced with a different disciplinary problem than is an Army captain commanding a company. As to enlisted men, the commanding officer of any unit, ashore or afloat, will have authority to withhold privileges for two weeks, restrict to specified limits for two weeks, impose extra duties of two hours per day for two weeks, or reduce in rating if the man was promoted to the rating by the command or an equivalent or lower command. The commanding officer of a vessel, in addition to the punishments listed above, will have authority to confine an enlisted man for seven days, and may confine on bread and water or diminished rations for three days. As to officers and warrant officers, any commanding officer will have authority to withhold privileges for two weeks or restrict to specified limits for two weeks. An officer exercising General Court-Martial jurisdiction will have authority to impose upon an officer or warrant officer, presumably upon the recommendation of the commanding officer, forfeiture of half a month’s pay. The Secretary may, by regulation, place limitations on the powers of certain categories of commanding officers to impose nonjudicial punishments, and also may make regulations as to enlisted men who demand a court- martial rather than commanding officer’s punishment.
Perhaps the first thing for personnel familiar with the administration of naval justice to learn about the new Code will be the new names of courts-martial, the Army terminology having been adopted. There will be no change in the name of General Courts- Martial, but the existing Summary Courts- Martial will become Special Courts-Martial, and Deck Courts will become Summary Courts-Martial. The new Special Courts- Martial will have jurisdiction to try any member of the armed forces, and its authority to punish is increased, although in most respects there will be no great change as compared with existing Summary Courts, which are limited to the trial of enlisted persons.
Provision is made for the inclusion of a law officer on every General Court-Martial. Such law officer must be a member of the bar and certified as qualified by the Judge Advocate General of his service. The law officer will rule upon all interlocutory questions arising other than a motion for a finding of not guilty or the question of the sanity of the accused, such rulings being subject to change only by the law officer himself during the course of the trial. It is to be noted that there is no provision for a law officer on a Special Court-Martial.
The authority of the intermediate courts- martial—now to be known as Special Courts- Martial—to imprison offenders will be increased to a maximum of six months’ confinement; this should serve to cut down the number of General Courts-Martial inasmuch as many cases which heretofore required trial by the higher court-martial because of the seriousness of the offense involved may be assigned to trial by Special Courts- Martial. Existing law limits the term of imprisonment that may be imposed by the intermediate court to two months’ confinement. In addition the Special Court-Martial will retain existing authority to impose a bad conduct discharge.
In case an accused personally requests in writing that enlisted men serve on a court- martial before which he is to be brought to trial, the membership of the court shall include enlisted men to the extent of at least one-third of the total membership thereof, except where physical conditions or military exigencies prevent their assignment. No enlisted person who is a member of the same unit as the accused shall serve on such a court-martial, and the term “unit” is defined as meaning a body no larger than a company, a squadron, a ship’s crew, or a corresponding body. This provision as to enlisted men applies to General or Special Courts-Martial but will not, of course, apply to the new Summary Court-Martial.
In the case of each General Court-Martial it will be required that the convening authority appoint a prosecutor, who will be known as the trial counsel, and a defense counsel, together with such assistants as deemed necessary. Both the trial counsel and the defense counsel must be qualified as law specialists or as members of the bar, and in addition must be certified as competent to perform such duties by the Judge Advocate General. In the case of a Special Court- Martial the convening authority will be required to make a similar assignment of trial counsel and defense counsel, but the lawyer qualifications will not apply; however, if the trial counsel of a Special Court meets the qualifications of a trial counsel for a General Court, then the defense counsel assigned must also be so qualified.
Charges and specifications preferred against an accused shall be signed by a person subject to the Code, under oath, and shall state that the signer has personal knowledge of the offense or has investigated it, and that the matters setting forth the offense are true in fact to the best of his knowledge and belief. Upon the preferring of charges, proper authority shall take immediate steps to determine what disposition should be made of them, and the person accused must be informed as soon as practicable. When a person is held for trial by General Court-Martial it is required that his commanding officer shall forward charges within eight days after the arrest or confinement. An officer exercising General Court- Martial jurisdiction shall refer a case to his staff judge advocate or his legal officer for consideration and advice before ordering trial by General Court-Martial. No person shall be ordered to trial before a General Court-Martial until a thorough and impartial investigation of the case has been conducted. At the beginning of this pretrial investigation, the accused shall be advised of the charges made against him and shall be advised that he may be represented by counsel, civilian or military, during the investigation. The accused will have the right to cross-examine any witnesses against him and may present anything he may desire in his own behalf. An accused shall not be brought to trial in less than five days after service of the charge upon him in the case of a General Court-Martial, or in less than three days in the case of a Special Court- Martial.
There is a strong provision to the effect that no authority convening any court- martial, nor any commanding officer, may censor, reprimand, or admonish any person connected with a court-martial with respect to his functions in the conduct of court- martial proceedings, and, further, that no person subject to the Code shall attempt to coerce or influence the action of a court- martial. The punitive articles have a special provision making such coercion, or reprimand, or attempt to influence the court an offense punishable under the Code.
Any member of a General or Special Court-Martial will be subject to challenge for cause, as heretofore; but, in addition, one challenge without showing cause will be permitted both to the accused and to the trial counsel, but the law officer will not be subject to challenge except for cause.
Specific provision is made for the postponement of the meetings of a court-martial upon the request of any party for such time, and as often as may appear to be just.
After all the evidence has been introduced in a General or Special Court-Martial case and prior to any vote on the findings, the law officer of a General Court-Martial and the president of a Special Court-Martial shall specifically instruct the court as to the elements of the offense and shall charge the court as follows:
(1) That the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt
(2) That in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt shall be resolved in favor of the accused and he shall be acquitted
(3) That if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no such doubt; and
(4) That the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the Government.
A sentence of death shall be by unanimous vote, a sentence to confinement in excess of ten years shall be by concurrence of three- fourths of the court members, and all other sentences shall be by concurrence of two-thirds of the court members. Every court- martial will be required to announce its findings and sentence to the parties involved as soon as determined.
In any court-martial case the defense counsel, in the event of conviction, will have the right to forward, along with the record, a brief of such matters as he feels should be considered by the reviewing authorities in behalf of the accused.
The punitive articles of the Code all provide that punishment shall be as a court- martial may direct, but a covering section provides that the punishment which a court- martial may direct for any offense shall not exceed such limits as the President may prescribe for that offense. Any sentence involving confinement or imprisonment will begin to run as soon as adjudged in those cases where the accused is actually in confinement at the time. Any Federal penal institution may be used as a place of imprisonment, in addition to any penal institution maintained by the armed forces.
The original review of court-martial cases will remain in the convening authority; but, in the case of General Courts-Martial, he shall require a written opinion in every instance from the legal officer or staff judge advocate to whom he is required to refer such cases. In case the convening authority disapproves the findings and sentence, he may order a rehearing or a new trial. The customary safeguards protecting the accused against additional findings of guilty or a more severe sentence are provided. After action by the convening authority he shall forward the records of all General Courts- Martial and Special Courts-Martial which sentence a person to a bad conduct discharge to the Judge Advocate General of his service. Those cases which impose a sentence as severe as confinement for one year shall be reviewed by a board of review composed of three officer or civilian lawyers. In considering a court-martial record, a board of review shall act only with respect to the findings and sentence as approved by the convening authority, and shall affirm such findings of guilty and the sentence, or part of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controversial questions of fact, recognizing that the trial court saw and heard the witnesses. General Court-Martial cases imposing lesser sentences than confinement for one year shall be reviewed as determined by the Judge Advocate General. Special Court-Martial records not otherwise provided for, and Summary Court-Martial records shall be reviewed by a law specialist and will be transmitted and disposed of as the Secretary of the Department concerned may prescribe by regulations.
Perhaps the most important innovation of the entire Code is the establishment, within the Department of Defense, of the Court of Military Appeals. It is to be composed of three civilian judges appointed for terms of fifteen years who will enjoy retirement and other benefits as provided for judges of the United States Courts of Appeal. It apparently is the intent of the Code that these judges shall have the same qualifications as persons appointed to other Federal judge- ships.
The cases subject to review by the Court of Military Appeals will be divided into three categories: (1) all cases in which the sentence, as affirmed by a board of review, affects a General or Flag Officer or involves a death sentence; (2) all cases reviewed by a board of review which in the discretion of the Judge Advocate General are forwarded for further review; and (3) all cases reviewed by a board of review in which, subsequent to a petition of the accused and a showing of good cause by him, a review has been granted by the Court itself. In every case heard before the Court of Military Appeals the Government may in the discretion of the Judge Advocate General be represented by appellate counsel, and the accused also may be represented by appellate defense counsel. In no case will the Government be' represented by counsel and the accused be without such representation. The accused may have civilian counsel if he so desires.
The review by the Court of Military Appeals will be on the law only. The authority of the court will extend only to approving or disapproving the sentence and findings as already approved by the convening authority and as approved, or set aside as incorrect in law, by a board of review. It will have authority to dismiss a case or order a rehearing.
The Judge Advocates General of the various armed forces and the members of the Court of Military Appeals shall meet annually to make a comprehensive survey of the operation of the Code, and shall report the status of pending cases, along with any recommendations they may have, to Congress.
No sentence extending to death or involving a General or Flag Officer shall be executed until approved by the President. No sentence extending to the dismissal of an officer, cadet, or midshipman shall be executed until approved by the Secretary or designated Assistant Secretary. No sentence extending to confinement for one year or more shall be executed until affirmed by a board of review and, in cases reviewed by it, the Court of Military Appeals.
Rigid new requirements concerning the vacation of suspended sentences are set forth. Before such vacation may be effected in a case which involves a bad conduct discharge imposed by Special Court-Martial or any General Court-Martial sentence, the officer having Special Court-Martial jurisdiction over the person involved shall hold a hearing on the alleged violation of probation; representation by counsel will be had at this hearing if subject person so desires. The record of this hearing shall be forwarded for action to the officer exercising General Court-Martial jurisdiction over the person involved; that officer will have authority to vacate any suspension except that of a dismissal. The vacation of the suspension of a dismissal shall not be effected until approved by the Secretary. The suspension of any sentence not mentioned above may be vacated by any authority competent to convene, for the command in which the person involved is serving, a court of the kind that imposed the sentence.
Any accused person may within one year after the approval of a sentence by the convening authority, in case the sentence extends to confinement for one year, petition his Judge Advocate General for a new trial on the ground of newly discovered evidence, or fraud on the court. The Judge Advocate General shall take action upon such petition unless the case is before a board of review or the Court of Military Appeals, in which case the body having the case for review shall take action.
Under regulations of the President all rights and privileges affected by an unexecuted portion of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing reimposes the former sentence. Adequate provision is made for the substitution of administrative types of discharge in those cases where sentences of dismissal or discharge under other than honorable conditions have proved to be improper. Where it is shown that an officer has been improperly dismissed by sentence of a court, the President will have authority to reappoint such officer to the commissioned grade and precedence as in the opinion of the President such officer would have attained had he not been dismissed. The Code provides that the proceedings, findings, and sentences of courts- martial as approved under the Code, and all dismissals and discharges executed pursuant to court-martial sentences, when properly approved upon review, shall be final and conclusive; and such proceedings shall be binding upon all departments, courts, agencies, and officers of the United States, subject only to petition for a new trial upon discovery of new evidence, or clemency action by the Secretary or the President in appropriate cases. This means that the boards established by section 207 of the Legislative Reorganization Act of 1946 may still function in an advisory capacity to the Secretary for the purpose of assisting him in clemency action, this point having been covered in the hearings.
An effort was made to simplify and, at the same time, to expand the punitive articles. For example, an all-inclusive article on attempts has been incorporated reading as follows:
(1) An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending but failing to effect its commission, is an attempt to commit that offense.
(b) Any person subject to this code who attempts to commit any offense punishable by this code shall be punished as a court-martial may direct, unless otherwise specifically prescribed.
(c) Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was not consummated.
This should eliminate the difficulty convening authorities and Courts-Martial have had in the past in certain types of attempt cases where it seemed impossible to impose an appropriate punishment because a person failed to consummate an offense due solely to reasons beyond his control.
The articles on desertion and absence without leave have been thoroughly revised and should prove to be handier tools in the administration of military justice. A new article on “missing movement” should prove of great benefit in the case of a straggler who misses the sailing of his ship; it reads as follows:
Any person subject to this code who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.
The new article designed to put teeth in the prohibition against influencing a court- martial, or using “command influence” is quoted herewith:
Any person subject to this code who—
(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this code; or
(2) knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused; shall be punished as a court-martial may direct.
The final punitive article is the new “general charge” which would replace the old charges of “conduct to the prejudice of good order and discipline” and “scandalous conduct tending to the destruction of good morals.” The charge “conduct unbecoming an officer and a gentleman” is preserved as the penultimate punitive article. The new general article reads as follows:
Though not specifically mentioned in this code, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this code may be guilty, shall be taken cognizance of by a General or Special or Summary Court-Martial, according to the nature and degree of the offense, and punished at the discretion of such court.
Any member of the armed forces will have the privilege, under the Code, of complaining to any superior officer that he has been wronged by his commanding officer. The officer exercising General Court-Martial jurisdiction will have authority to redress the wrong if there be one, after which he shall report the matter to his Department.
There is contained in the Act, but not as part of the Code, a section that will permit any person who, as a result of serving in World War II, was dismissed, or received a dishonorable discharge or a bad conduct discharge, to petition the appropriate Judge Advocate General for a new trial, vacation of a sentence, restoration of rights adversely affected, and substitution of a form of discharge authorized for administrative issuance. This privilege went into effect upon approval of the Act, and will continue for approximately two years.
Certain new qualifications that a prospective Judge Advocate General must fulfill before his appointment are prescribed. He shall be a member of the bar of a Federal court or of the highest court of a state or territory, and shall have had a total of not less than eight years’ experience in legal duties as a commissioned officer.
For those who would like to or must become familiar with this new law under which discipline will be administered in the armed forces for many years to come, there is no substitute for a careful study of the Code as found in Public Law No. 506 of the 81st Congress. In making such a study it is important to note that the Code proper is contained in section 1 of the Act beginning with the enacting clause on the first page and ending with Article 140. The remaining sections are supplementary, and while related, are not a part of the Code. Their purpose is to facilitate its administration.