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military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital, of which persons subject to military law 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."
It will be noted in reading the Articles of War that in most of them the punishment is left to the discretion of the court. There are, however, important restrictions upon this discretion. The 45th Article of War provides:
"Whenever the punishment for a crime or offense made punishable by these articles is left to the discretion of the court-martial, the punishment shall not, in time of peace, exceed such limit or limits as the President may from time to time prescribe.”
This article has been construed to refer to offenses committed in time of peace. Under the authority conferred by this article the President has fixed a maximum limit of punishment for all of the more usual offenses.
Other articles prohibit the imposition of the death penalty except for offenses expressly made so punishablet; limit the power to impose confinement in a penitentiary to certain casess; and forbid punishment by flogging, or by branding, marking or tattooing “on the body''.
With reference to the death penalty it is provided that where this penalty is made mandatory by the Articles, two-thirds of the members of the court must concur in the finding of guilty, and that in any case where a capital sentence is imposed the same proportion of the members must concur in the sentence.
The more usual punishments imposed in the case of enlisted men are dishonorable discharge, confinement at hard labor, hard labor, forfeiture or detention of pay, and loss of rating as noncommissioned officers, first-class privates, etc.
By far the greater number of offenses committed by soldiers are disposed of either without any trial, in the way presently to be considered, or by trial by one of the inferior courts, i.e., the special and the summary court-martial, the latter being much the busier court of the two.
During the fiscal year ended June 30, 1917, out of an approximate total of 60,000 trials in the Regular Army, about 90 per cent. were by inferior courts and over 48,000 of them were by summary court. Offenses in number probably at least equal to those tried by summary court were disposed of without trial under the authority of the 104th Article of War, or under the regulations on the same subject which were in force prior to March 1, 1917, the date the article referred to took effect.
This article provides: “Under such regulations as the President may prescribe, and which he may from time to time revoke, alter, or add to, the commanding officer of any detachment, company, or higher command may, for minor offenses not denied by the accused, impose disciplinary punishments upon persons of his command without the intervention of a court-martial, unless the accused demands trial by court-martial.
“The disciplinary punishments authorized by this article may include admonition, reprimand, withholding of privileges, extra fatigue, and restriction to certain specified limits, but shall not include forfeiture of pay or confinement under guard. A person punished under authority of this article, who deems his punishment unjust or disproportionate to the offense may, through the proper channel, appeal 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 command, and superior authority shall have power to mitigate or remit any unexecuted portion of the punishment. The imposition and enforcement of disciplinary punishment under authority of this article for any act or omission shall not be a bar to trial by courtmartial for a crime or offense growing out of the same act or omission; 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 punishment to be adjudged in the event of a finding of guilty."
Let us assume that a minor infraction of the Articles of War, such, for instance, as a trivial unauthorized absence, comes to the attention of the immediate commander of an enlisted man. This class of offenses—that is, unauthorized absences—is, by the way, the most numerous of any, there having been approximately 25,000 convictions in the Regular Army for offenses of this kind in the last fiscal year.
The officer causes the man to be brought before him, states to him the particulars of the supposed offense, and announces that, in the absence of a denial or a demand for trial, he intends to proceed to impose a “company punishment,” as it is usually termed. Of course, if the man denies his guilt or demands a trial the summary jurisdiction is ended. If the man does neither, the officer fixes the punish
ment, which usually takes the form of restriction to the post, camp or barracks for a specified time or of assignment of a number of days' "kitchen police" or other labor. The man is notified of the punishment and a brief note of the case is made in the company records. To discourage groundless appeals in these cases it is provided by regulation that the officer to whom the appeal is made may increase the punishment imposed, without, however, changing its kind.
For some reason this excellent method of disposing of minor offenses is not resorted to as much as it should be, although the regulations not only encourage its use but indicate the desire of the War Department that it should be used in appropriate cases.
It may be mentioned that the authority conferred by the 104th Article of War is not limited in its application to enlisted men. An officer may be summarily punished under this article, except that "extra fatigue" or other punishment not appropriate for an officer cannot be imposed.
Let us now assume an offense by an enlisted man where, either on account of the fact that the summary disciplinary action described has been tried without producing the desired effect, or because of the offense being of a more serious nature (such, for instance, as the disobedience of an order of a non-commissioned officer) or for some other reason, the company commander decides that the case should go before a summary court-martial.
This court consists of one officer. It may be appointed by the commanding officer of any place where troops are on duty and by the commanding officer of a regiment, detached battalion, detached company or other detachment. Provision is made for the appointment of the court by the authorities superior to those mentioned when any such authority deems it desirable; and it is further provided that where there is but one officer present with the command he shall be the summary court-martial of that command.
The summary court can try any person subject to military law for any non-capital offense, except an officer, a cadet, a soldier who holds a certificate that he is eligible for promotion to the grade of second lieutenant, a non-commissioned officer who objects to trial by summary court unless such trial is authorized by one of certain higher commanders; and any person included in a class exempted by the President from the jurisdiction of summary courts-martial. Up to date the President has exempted Army Field Clerks and Field Clerks of the Quartermaster Corps only.
The punishing power of the summary court is also restricted. It cannot impose dishonorable discharge, nor can it adjudge confinement or forfeiture of pay in excess of three months. It may sentence non-commissioned officers, rated privates, and some others to reduction, except in the cases of certain non-commissioned officers who are not subject to reduction. It is further provided that where the summary court officer is also the commanding officer no sentence of the court which adjudges confinement at hard labor or forfeiture of pay or both for a period in excess of one month shall be carried into execution until the sentence shall have been approved by superior authority.
The company commander having investigated the case, which investigation usually includes giving the accused an opportunity to make a statement in regard to the accusation against him, and having decided, as above stated, that the accused shall be tried by summary court-martial, places the accused man in arrest or confinement.
Arrest is the usual restriction imposed where it is contemplated that the case will be disposed of by an inferior court. The 69th Article of War provides a penalty for escaping from confinement or for breaking arrest, which penalty in the case of an officer may include dismissal from the service.
The arrest in the assumed case would be accomplished by simply communicating to the man the order of the officer placing him in arrest.
The company commander then proceeds to prepare the charges in the case. The charge corresponds to the civil indictment, and consists of two parts. The first part is a bare statement of the Article of War violated, and the second, known as the specification, is a statement of the facts constituting the supposed violation, including details of time and place. With reference to the specification the Manual provides "that it shall set forth in simple, concise language facts sufficient to constitute the particular offense and in such manner as to enable a person of common understanding to know what is intended."
The charges are usually prepared on a printed blank form. Spaces are provided in this form for various administrative notations and for the name, rank, rate of pay, previous service, number of previous convictions, and the date of arrest or confinement of the accused. A list of the witnesses is also included. The Manual for CourtsMartial contains a great number of forms for specifications corresponding to the forms of indictment given in the ordinary form book on criminal law. These forms cover most of the offenses usually encountered in military practice and greatly facilitate the preparation of charges.
Charges are prepared in triplicate, one original and two exact copies, the original bearing the signature of the officer, with his rank and organization.
For use in determining the amount of punishment to be imposed in the event of conviction, the officer attaches to the charges properly authenticated evidence of convictions by court-martial, if any, of offenses committed by the accused during his current enlistment and within one year next preceding the date of the commission of any offense set forth in the charges. The company commander then forwards the charges to the officer immediately exercising summary court-martial jurisdiction over the command to which the accused belongs, unless the officer preferring the charges happens to be the only officer present with the command, in which case he would ordinarily try the accused himself.
If the officer receiving the charges concurs in the view of the company commander that the case should be tried by a summary court, he causes the charges to be referred to the summary court officer for trial. This reference is usually accomplished by an indorsement on the face of the charges.
With reference to the procedure of the summary court, the Manual provides as follows:9
"(a) The summary court will be opened at a stated hour daily, except Sundays, for the trial of such cases as have been properly referred to it for trial. Trials will be had on Sunday only when the exigencies of the service make it necessary.
"(b) The summary court will at the beginning of each trial, in the order of such trial, give to and enter in the proper place on the charges in the case a serial number.
"(c) The procedure of and before summary courts-martial will, so far as practicable, be identical with that prescribed for general courts-martial. In the trial of a case the summary court represents both the Government and the accused. He will see to it that the interests of both are fully conserved.
“(d) When the accused pleads guilty he will —
"1. Explain to him (a) the elements constituting the offense to which he has pleaded guilty, and (b) the maximum punishment therefor;
Ask him whether he fully understands (a) that by pleading
'Par. 351, Manual for Courts-Martial.