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In general, the record of proceedings of a general court-martial shows a complete history of the proceedings had in open court and the material conclusions arrived at in both open and closed sessions. The record of a special court-martial is substantially the same, except that the testimony and arguments are not recorded. The 11th Article of War provides that every person tried by general court-martial shall, on demand therefor made by himself or by any person in his behalf, be entitled to a copy of the record of trial.
In making up the record the usual practice is for the reporter to type the entire record except the findings and sentence, if any, and submit it to the judge advocate who makes such interlineations and corrections as may be necessary to have the record of proceedings conform to the facts and inserts the findings and sentence, if any. The record is then submitted to the president of the court, who, if he finds it correct, signs it. In case of any dispute as to the record the matter is submitted to the court which, as a whole, is responsible for it.
After the record is authenticated it is forwarded "with such expedition as circumstances may permit''20 to the appointing authority who, while exercising the supervising powers conferred on him by the Articles of War, is usually termed the "reviewing authority."
The articles referred to are Articles 46 to 53, inclusive, and are as follows:
"Art. 46. Approval and execution of sentence. No sentence of a court-martial shall be carried into execution until the same shall have been approved by the officer appointing the court or by the officer commanding for the time being.
“Art. 47. Powers incident to power to approve. The power to approve the sentence of a court-martial shall be held to include:
"(a) The power to approve or disapprove a finding and to approve only so much of a finding of guilty of a particular offense as involves a finding of guilty of a lesser included offense when, in the opinion of the authority having power to approve, the evidence of record requires a finding of only the lesser degree of guilt; and
"(b) The power to approve or disapprove the whole or any part of the sentence.
"Art. 48. Confirmation-when required. In addition to the approval required by article forty-six, confirmation by the President is required in the following cases before the sentence of a courtmartial is carried into execution, namely:
20 Article 35.
"(a) Any sentence respecting a general officer;
“(b) Any sentence extending to the dismissal of an officer, except that in time of war a sentence extending to the dismissal of an officer below the grade of brigadier general may be carried into execution upon confirmation by the commanding general of the Army in the field or by the commanding general of the territorial department or division;
"(c) Any sentence extending to the suspension or dismissal of a cadet; and
“(d) Any sentence of death, except in the cases of persons convicted in time of war of murder, rape, mutiny, desertion, or as spies; and in such excepted cases a sentence of death may be carried into execution upon confirmation by the commanding general of the Army in the field or by the commanding general of the territorial department or division.
"When the authority competent to confirm the sentence has already acted as the approving authority no additional confirmation by him is necessary
“Art. 49. Powers incident to power to confirm. The power to confirm the sentence of a court-martial shall be held to include:
“(a) The power to confirm or disapprove a finding, and to confirm so much only of a finding of guilty of a particular offense as involves a finding of guilty of a lesser included offense when, in the opinion of the authority having power to confirm, the evidence of record requires a finding of only the lesser degree of guilt; and
"(b) The power to confirm or disapprove the whole or any part of the sentence.
"Art. 50. Mitigation or remission of sentences. The power to order the execution of the sentence adjudged by a court-martial shall be held to include, inter alia, the power to mitigate or remit the whole or any part of the sentence, but no sentence of dismissal of an officer and no sentence of death shall be mitigated or remitted by any authority inferior to the President.
“Any unexecuted portion of a sentence adjudged by a courtmartial may be mitigated or remitted by the military authority competent to appoint, for the command, exclusive of penitentiaries and the United States Disciplinary Barracks, in which the person under sentence is held, a court of the kind that imposed the sentence, and the same power may be exercised by superior military authority; but no sentence extending to the dismissal of an officer or loss of files, no sentence of death, and no sentence approved or confirmed by the President shall be remitted or mitigated by any other authority.
“The power of remission and mitigation shall extend to all uncollected forfeitures adjudged by sentence of a court-martial.
“Art. 51. Suspension of sentences of dismissal or death. The authority competent to order the execution of a sentence of dismissal of an officer or a sentence of death may suspend such sentence until the pleasure of the President be known, and in case of such suspension a copy of the order of suspension, together with a copy of the record of trial, shall immediately be transmitted to the President.
“Art. 52. Suspension of sentence of dishonorable discharge. The authority competent to order the execution of a sentence, including dishonorable discharge, may suspend the execution of the dishonorable discharge until the soldier's release from confinement; but the order of suspension may be vacated at any time and the execution of the dishonorable discharge directed by the officer having general court-martial jurisdiction over the command, exclusive of penitentiaries and the United States Disciplinary Barracks, in which the soldier is held or by the Secretary of War.
“Art. 53. Suspension of sentences of forfeiture or confinement. The authority competent to order the execution of a sentence adjudged by a court-martial may, if the sentence involve neither dismissal nor dishonorable discharge, suspend the execution of the sentence in so far as it relates to the forfeiture of pay or to confinement, or to both; and the person under sentence may be restored to duty during the suspension of confinement. At any time within one year after the date of the order of suspension such order may, for sufficient cause, be vacated and the execution of the sentence directed by the military authority competent to order the execution of like sentences in the command, exclusive of penitentiaries and the United States Disciplinary Barracks, to which the person under sentence belongs or in which he may be found; but if the order of suspension be not vacated within one year after the date thereof the suspended sentence shall be held to have been remitted."
To prevent overtechnicality on the part of reviewing authorities, the 37th Article of War provides that “The proceedings of a courtmartial shall not be held invalid, nor the findings or sentence disapproved in any case on the ground of improper admission or rejection of evidence or for any error as to any matter of pleading or procedure unless in the opinion of the reviewing or confirming authority, after an examination of the entire proceedings, it shall appear that the error complained of has injuriously affected the substantial rights of an accused: Provided, That the act or omission upon which the accused has been tried constitutes an offense denounced and made punishable by one or more of these articles."
Where, in the opinion of the authority appointing a general or special court-martial, the findings of the court are not sustained by the evidence or the sentence is inadequate or otherwise inappropriate or where the record exhibits some substantial omission or error, he may return the record to the president of the court directing that the court be reconvened for appropriate action. In view of the powers of the reviewing authority over the findings and sentence of the court the occasions for such return of the record are usually limited to cases where there is some omission in the record or to cases where the court has, in the opinion of the reviewing authority, erroneously acquitted the accused of all or part of a charge or has imposed too lenient a sentence.
Where the record is returned the court, consisting of only those members who participated in the final session, assembles and takes the views of the reviewing authority under advisement. If the record has been returned for correction or for supplying some omission, the record is formally amended to conform to the facts. If the record is returned for reconsideration of the findings or sentence, or both, the court may, in its proceedings on revision, adhere to its original views or may revoke its former findings or sentence and substitute other findings or impose a different sentence.
Records of trial by summary court may be similarly returned to the court but the occasions for so doing are comparatively infrequent.
Where the sentence of a general court-martial includes confinement the sentence is so worded that the designation of the place of confinement is left to the reviewing authority. In cases where a sentence of confinement for six months or more is coupled with a sentence of dishonorable discharge, the United States Disciplinary Barracks or a branch thereof is usually designated. In certain cases a penitentiary may be designated as the place of confinement.21
The action of the reviewing authority is entered in the record after the signatures of the president and judge advocate.
A typical form of action is as follows:
Headquarters Division, Camp
January 1, 1918. In the foregoing case of Private John Smith, Company K, Infantry, the sentence is approved but, owing to the length of time the accused has been in confinement, two months of the confinement imposed are remitted. As thus modified, the sentence will be duly
21 Article 42.
executed. The United States Disciplinary Barracks at Fort Leavenworth, Kansas, is designated as the place of confinement.
(sgd.) Peter Jones,
After final action by the reviewing authority each record of trial by general court-martial is transmitted to the Judge Advocate General of the Army who is charged by the statute with the duty of reviewing such records.22
The results of a trial by general court-martial are announced in orders, the order being in substantially the same form as in the case of orders publishing the result of trial by special court-martial. Copies of these orders are furnished, among others, to the company commander of the soldier who was tried, and, in important cases, to all the organizations in the command.
It would unduly prolong this paper to go into the details of the treatment of military prisoners while undergoing confinement in guardhouses or in the Disciplinary Barracks. It will be sufficient to remark that the system provides for good conduct allowances, release by remission of sentence or under parole or on probation, and for honorable restoration to duty or re-enlistment in the cases of men sentenced to be dishonorably discharged.
The Disciplinary Barracks, as its name partially implies, is less a penal institution than a military school where the inmate who chooses to avail himself of the opportunity is systematically trained with a view to returning him to civil or military life better equipped for either than when he entered. Provision is also made in the Disciplinary Barracks for giving the prisoners vocational training.
The system I have thus attempted roughly to outline in the limited space at my disposal has been found in practice to be admirably adapted to the needs of our military service. Substantial justice is, as a rule, swiftly but fairly administered, and while a guilty soldier finds that a journey through a military court cannot be retarded or stopped by merely technical obstructions, an innocent man need have no fear if he is compelled to undertake it.
22Sec. 1199, Revised Statutes.