ONE HUNDRED AND TENTH ARTICLE.1

No sentence adjudged by a field officer, detailed to try soldiers of his regiment, shall be carried into execution until the same shall have been approved by the brigade commander, or, in case there be no brigade commander, by the commanding officer of the post or camp.

ONE HUNDRED AND ELEVENTH ARTICLE.

Any officer who has authority to carry into execution the sentence of death, or of dismissal of an officer, may suspend the same until the pleasure of the President shall be known; and in such case, he shall immediately transmit to the President a copy of the order of suspension, together with a copy of the proceedings of the court.

339. An officer suspending the exccution of a sentence for the action of the President under this Article should first formally approve the same. Simply to forward the proceedings stating that the sentence has been suspended, is incomplete and irregular. IV, 337, November, 1863; IX, 15, May, 1864. If the commander disapproves the sentence, he should not of course suspend and transmit under this Article, since there remains nothing for the President to act upon. II, 50, March, 1863.

340. Where a case is submitted to the President for his action under this Article, he may approve or disapprove the sentence in whole or in part, and, if approving, may exercise the power of remission or mitigation. III, 492, August, 1863; VII, 594, April, 1864.

ONE HUNDRED AND TWELFTH ARTICLE.

Every officer who is authorized to order a general court-martial shall have power to pardon or mitigate any punishment adjudged by it, except the punishment of death or of dismissal of an officer. Every officer commanding a regiment or garrison in which a regimental or garrison court-martial may be held, shall have power to pardon or mitigate any punishment which such court may adjudge.

341. The power to remit or commute sentences of death and dismissal remains with the President. A military commander cannot exercise such power, even where, in time of war, he is authorized to approve and execute the sentence. He may then, however, if he thinks that the sentence should be remitted or commuted, suspend its execution for the action of the President (with a recommendation to clemency) under the preceding Article. II, 67, March, 1863.

342. A military commander vested with the power of pardon or mitigation under this Article is not authorized to delegate the same to an inferior. Thus held that a department commander could not legally authorize a post commander to remit in part, upon good behavior, the

1Repealed by section 2, act of June 18, 1898, establishing the summary court. 2 See 6 Opins. At. Gen., 123, 124-125.

punishment of a soldier under sentence at the post of the latter, who had been convicted by a general court, convened, and whose proceedings had been acted upon, by the former. XXXIII, 119, June, 1872. 343. A punishment cannot be pardoned or mitigated under this Article where it has been once duly executed. Where, however, a sentence has been executed only in part, it may be remitted as to the portion remaining unexecuted. II, 29, February, 1863.

344. The pardoning power here given is not limited in its exercise to the moment of the approving of the sentence, but may be employed as long as there remains any material for its exercise. Under this Article, as interpreted by the usage of the service, a department (or army) commander may remit at any time, in his discretion, for any cause deemed by him to be sufficient, the unexecuted portion of the sentence of any soldier confined in his command under a sentence imposed by a court-martial convened by him or by a predecessor in the command. V. 71, September, 1863; VI, 35, March, 1864; VIII, 582, June, 1864; XXI, 49, November, 1865; XXVI, 463, February, 1868; XXVII, 243, September, 1868.

345. The reviewing authority, in approving the punishment adjudged by the court and ordering its enforcement, is authorized, if he deems it too severe, to graduate it to the proper measure by reducing it in quantity or quality, without changing its species: this is mitigation. XXXVII, 22, June, 1875; XLI, 518, March, 1879. Imprisonment, fine, forfeiture of pay, and suspension, are punishments capable of mitigation. As an instance of a mitigation both in quantity and quality, held that a sentence of imprisonment for three years in a penitentiary was mitigable to an imprisonment for two years in a military prison. XLI, 518, supra.

346. Held that it was not a due exercise of the power given by this Article, but irregular and unauthorized, for a post commander to suspend the execution of the sentence of a garrison court convened by him, during good behavior on the part of the soldiers sentenced. XXX, 115, February, 1870.

347. Held that a reviewing officer other than the President, was not empowered by this Article to commute a punishment; that the "pardon" here specified was remission, which, unlike the pardoning power vested in the President, did not include commutation or conditional pardon. So, held that a reviewing commander was not authorized to commute the punishment of dishonorable discharge, and that, as such punishment was not susceptible of mitigation, it could not legally be reduced under this Article. LVII, 89, October, 1888; 32, 401, May, 1889.

348. The substitution of the punishment of confinement for that of dishonorable discharge, imposed by sentence of court martial, would

not, of course, be authorized by way of mitigation (which can not change the nature of the punishment), but may be effected by a commutation of the sentence by the President. 32, 401, May, 1889; 34, 237, August, 1889.

1

349. Where a prisoner is serving out a sentence of imprisonment at a military prison or place of confinement within the command of the officer who approved the proceedings, such officer (or his successor in the command) may, under this Article, remit at any time the unexpired portion of the pending confinement, although the punishment of dishonorable discharge, imposed by the same sentence, may meanwhile have been duly executed. 57, 371, January, 1893.

350. Where a soldier was sentenced to a term of confinement and at the end of the term to be dishonorably discharged, and pending the confinement the unexecuted portion of the sentence was remitted, held, that such remission included the dishonorable discharge, as the same under the terms of the sentence remained to be executed. XX, 460, March, 1866.

351. A soldier was sentenced to be confined for a term, and at the end of such term to be dishonorably discharged. At the end of the term he was at once restored to duty and continued on duty. Held that such restoration operated as a constructive pardon and remitted the unexecuted part of the sentence, to wit the punishment of dishonorable discharge.3 51, 126, December, 1891.

352. A punishment in itself illegal is not capable of mitigation. Thus where a sentence of imprisonment in a penitentiary is not legally authorized, it cannot be made valid by mitigating this imprisonment to confinement in a military prison. In such case the latter will be equally invalid and inoperative with the original punishment. 29, 209, January, 1889; 43, 151, October, 1890; 53, 181, April, 1892.

353. A substitution, for a punishment of dishonorable discharge with loss of all pay and allowances due and to become due, of a punishment. of confinement at hard labor at the post for one year with forfeiture of ten dollars per month for the same period, held not a legitimate mitigation, the confinement at hard labor being a substitution of an entirely different punishment from that awarded by the court. XLVIII, 666, January, 1885. So where the substitution for such a sentence was

1See instance of such commutation by the President in the case of Private Hayes, 5th Artillery, in G. C. M. O. 58 of 1888.

2 The counter opinion of the Attorney General, in 19 Opins., 106, was not adopted by the Secretary of War, or followed in practice-as is shown by the terms of par. 916, A. R. (1017 of 1901), and par. 6, p. 62, Manual for Courts-Martial (1901).

4

See 6 Opins. At. Gen., 714, 715.

But see A. R., 940, as amended (1041 of 1901), which provides that when a penitentiary has been erroneously designated in the sentence the reviewing authority may disapprove that portion of the sentence and designate a proper place.

confinement at hard labor for six months and forfeiture of ten dollars per month for the same period, it was held that the confinement, and so much of the forfeiture, if any, as exceeded the pay and allowances due the soldier, were illegal. Card 5887, February, 1899.

354. Where a sentence of dishonorable discharge, with forfeiture of all pay and allowances and confinement at hard labor for four years, was mitigated to confinement for one year with forfeiture of ten dollars per month for the same period, held that the same was regular and legal and not in contravention of Circ. No. 2, A. G. O. of 1885. L, 96, March, 1886; Card 9328, November, 1900.

355. Dishonorable discharge cannot legally be mitigated to "discharge without a character." The latter is not a recognized punishment. 43, 176, October, 1890.

356. Held that "good conduct time" to a prisoner's credit should not be deducted from the shortened sentence in a case where it has been ordered that he "be released after he has been confined a certain number of months." A mitigation so expressed is not equivalent to a reduction of the term to the number of months stated but it means that the prisoner will be released after he has been in actual confinement for that time. Card 3862, February, 1898.

357. The order prescribing maximum punishments was not intended to and does not affect the established principle that the reviewing authority, in the exercise of his power of mitigation, can not change the kind of punishment. The power of substitution which may be exercised by the court under the order has no relation to the power of the reviewing officer. Thus held that the substitution by the reviewing officer of confinement for forfeiture, though the period of confinement proposed were less than the court could have substituted, would not be legal mitigation. Card 3487, September, 1897.

358. An officer under a sentence of suspension for five years, with forfeiture of one quarter of his pay, applied to be allowed to receive his full pay for three months, the forfeiture imposed by the sentence for these months to be satisfied in one sum from the pay of the month next succeeding. Held that such action-for which there was no precedent-would have to be taken, if at all, by way of mitigation, but that the same would amount to a postponement of the execution (of a part) of the sentence, which would not be legitimate mitigation. 61, 132, August, 1893.

1 A legal sentence of dishonorable discharge, forfeiture of all pay and allowances due and confinement at hard labor for a definite period, may be mitigated by the authority approving such sentence to confinement at hard labor and forfeiture of pay and allowances, for a period not to exceed the period of confinement awarded in the sentence. Court-Martial Manual of 1901, p. 63, par. 8.

ONE HUNDRED AND THIRTEENTH ARTICLE.

Every judge-advocate, or person acting as such, at any general court-martial, shall, with as much expedition as the opportunity of time and distance of place may admit, forward the original proceedings and sentence of such court to the Judge-AdvocateGeneral of the Army, in whose office they shall be carefully preserved.

ONE HUNDRED AND FOURTEENTH ARTICLE.

Every party tried by a general court-martial shall, upon demand thereof, made by himself or by any person in his behalf, be entitled to a copy of the proceedings and sentence of such court.

359. A copy of the proceedings and sentence cannot properly be furnished under this Article till the same have been finally acted upon and such action has been promulgated in the usual manner. 624, and XXI, 386, May, 1866.

XIX,

360. A person applying for the copy, "in behalf" of the accused, should exhibit some satisfactory evidence that he duly represents the accused, as his agent, attorney, or otherwise. Where it does not satisfactorily appear that the party is applying for and on behalf of the accused, he cannot be furnished with the copy, as of right, under the Article. A person other than the accused, applying on his own account, is not entitled to the copy. III, 409, August, 1863; XIX, 318, January, 1866; XXI, 12, November, 1865; XXXI, 499, July, 1871; XXXVII, 106, November, 1875. The fact that the applicant is a member of the family of the accused does not entitle him to the copy in the absence of evidence that he applies at the instance or in behalf of the accused. III, 348, August, 1863. A party applying in behalf of "friends and creditors" of the accused, held not entitled to a copy of the record of his trial. XXI, 583, August, 1866. So held of one who subscribed his application merely as "attorney at law," without showing that he was authorized to act for the accused. XIX, 459, March, 1866.

361. Applications for copies under this Article may be, and in practice commonly are, addressed in the first instance to the Judge-Advocate General,' who thereupon furnishes the copy, certified by him as correct, at the expense of the United States, provided the application is made by the accused or in his behalf. If not, he can furnish the copy only by the special authority of the Secretary of War. Any person desiring a copy of the record of a court martial, or of any portion of a record, who is not entitled to be furnished with the same by the terms of this Article, should apply therefor to the Secretary of War, stating the reason for his application, in order that it may appear that he makes the same in good faith and for a proper purpose. If the application is

1See A. R., 894 (995 of 1901), and par. 2, p. 69, Manual for Courts-Martial (1901).