Guide to the articles of war

Preface

In the Army, knowledge of the Articles of War is not a luxury but a necessity. The beginner in military matters will do well to carry the Articles of War in his pocket.

Hence this little book.

Part I gives those |K)rtions of the Constitution of the United States which expressly or argumentatively serve as a foundation for the Articles of War.

Part n gives the Articles of War themselves, and adds references to some of the relevant passages in the Manual for Courts-Martial, edition of 1917 — the official pubhcation which is in effect a commentary upon the Articles of War.

Part III gives practical problems.

To read the Articles of War again and again, to apply them to the problems herein given and to others, to write queries and comments, and to study the Manual for Courts-Martial — this is the way to know the Articles of War as they should be known. Even the beginner may soon be able to call many of them by their numbers; and doubtless among these will be A. W. 54, 58, 61, 62, 63, 64, 65, 69, 75, 83, 84, 85, 86, 93, 94, 95, and 96.

Finally, it should be borne in mind that the present Articles of War were approved on August 29, 1916, and, with a few exceptions, did not go into effect until March 1, 1917, and that consequently all documents or treatises earher than 1917 must be used with caution.

E. W.

Cambridge, Mass., May 30, 1917.

GUIDE TO THE ARTICLES

OF WAR

Part I Extracts From The Constitution Of The United States^

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article I, Section 8. The Congress shall have Power . ! .

[11] To declare War, . . . and make Rules concerning Captures on Land and Water;

[12] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

[13] To provide and maintain a Navy;

[14] To make Rules for the Government and Regulation of the land and naval Forces;

[15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

[16] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be em-

^ An attempt is here made to present all parts of the Constitution which serve as a basis for the Articles of War.

ployed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; ...

[18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Art. II, Sec. 2. [1] The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; . . . and he shall have Power to grant Reprieves and Pardons for OfiFences against the United States, except in Cases of Impeachment.

Art. rV, Sec. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion ; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Amendment V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation.

Part II The Articles Of War — With References ^

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled . . .

Sec. 3. That section thirteen hundred and forty-two of the Revised Statutes of the United States be, and the same is hereby, amended to read as follows:

"Sec. 1342. The articles included in this section shall be known as the Articles of War and shall at all times and in all places govern the armies of the United States. [M.C.M., pages IX-X.]

"I. PRELIMINARY PROVISIONS

"Article 1. Definitions. — The following words when used in these articles shall be construed in the sense indicated in this Article, unless the context shows that a different sense is intended, namely:

"(a) The word 'oflScer' shall be construed to refer to a commissioned officer;

1 The citations here appended to each of the Articles of War refer to "A Manual for Courts-Martial," revised in the Judge Advocate General's Office in 1916 and published by the Government Printing Office, the impression used being the one "corrected to Apr. 15, 1917."

The text of the Articles of War is taken from " An Act Making appropriations for the Support of the Army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes," approved Aug. 29, 1916, and printed in 39 United States Statutes at Large, Part I, chap. 418, pages 619, 650-670. The Articles of War are also found in M.C.M., pages 308-329.

"(b) The word 'soldier' shall be construed as including a non-commissioned officer, a private, or any other enlisted man;

"(c) The word ' company ' shall be understood as including a troop or battery; and

"(d) The word 'battalion' shall be understood as including a squadron. [M.C.M., pars. ^, 8.]

"Art. 2. Persons subject to military law. — The following persons are subject to these articles and shall be understood as included in the term 'any person subject to military law,' or 'persons subject to mihtary law,' whenever used in these articles: Provided, That nothing contained in this Act, except as specifically provided in Article two, subparagraph (c), shall be construed to apply to any person under the United States naval jurisdiction, unless otherwise specifically provided by law.

" (a) All officers and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same;

"(b) Cadets;

" (c) Officers and soldiers of the Marine Corps when detached for service with the armies of the United States by order of the President: Provided, That an officer or soldier of the Marine Corps when so detached may be tried by military court-martial for an offense committed against the laws for the government of the naval service prior to his detachment, and for an offense committed against these articles he may be tried by a naval court-martial after such detachment ceases;

" (d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles;

**(e) All persons under sentence adjudged by courts-martial;

"(f) All persons admitted into the Regular Army Soldiers' Home at Washington, District of Columbia. [M.C.M., pars. -4, 9-10, 13, 38, 7h (i).]

"II. COURTS-MARTIAL

"Art. 3. Courts-martial classified. — Courts-martial shall be of three kinds, namely: "First, general courts-martial; "Second, special courts-martial; and "Third, summary courts-martial. [M.C.M., pars. 3, 5.]

"a. composition

"Art. 4. Who may serve on courts-martial. — All officers in the military service of the United States, and officers of the Marine Corps when detached for service with the Army by order of the President, shall be competent to serve on courts-martial for the trial of any persons who may lawfully be brought before such courts for trial. [M.C.M., pars. 6, 9-12.]

"Art. 5. General courts-martial. — General courts-martial may consist of any number of officers from five to thirteen, inclusive; but they shall not consist of less than thirteen, when that number can be convened without manifest injury to the service. [M.C.M., par. 7.]

"Art. 6. Special courts-martial. — Special courts-martial may consist of any number of officers from three to five, inclusive. [M.C.M., par. 7.]

t(

'Art. 7. Summary courts-martial. — A summary court-martial shall consist of one officer. [M.C.M., pars. 7, 9, 26, 27.]

"b. by whom appointed

'Art. 8. General courts-martial. — The President of the United States, the commanding officer of a territorial division or department, the Superintendent of the Military Academy, the commanding officer of an army, an army corps, a division, or a separate brigade, and, when empowered by the President, the commanding officer of any district or of any force or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority, and no officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution. [M.C.M.y para. 6, 1^-19, 62-6^, 129- 131, 19U

"Art. 9. Special courts-martial. — The commanding officer of a district, garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a brigade, regiment, detached battaHon, or other detached command may appoint special courts-martial; but when any such commanding officer is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior authority, and may in any case be appointed by sup>erior authority when by the latter deemed desirable; and no officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution. [M.C.M., pars. 6, 17, 21-2I^, 62-6^, 129-131, 19J^.\

"Art. 10. Summary courts-martial. — The commanding officer of a garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a regiment, detached battaHon, detached company, or other detachment may appoint summary courts-martial; but such summary courts-martial may in any case be appointed by superior authority when by the latter deemed desirable: Provided, That when but one officer is present with a command he shall be the summary court-martial of that command and shall hear and determine cases brought before him. [M.C.M., pars. 6, 9, 25-29.]

"Art. 11. Appointment of judge advocates. — For each general or special court-martial the authority appK)inting the court shall appoint a judge advocate, and for each general court-martial one or more assistant judge advocates when necessary. [M.C.M., pars. 30-31, 94, 106.]

"C. JURISDICTION

"Art. 12. General courts-martial. — General courts-martial shall have power to try any person subject to military law for any crime or offense made punishable by these articles and any other person who by the law of war is subject to trial by military tribunals : Provided, That no officer shall be brought to trial before a general court-martial appointed by the Superintendent of the Military Academy. [M.C.M., pars. 3, 13, 14, 16, 38-40, 78, 173, 320.]

"Art. 13. Special courts-martial. — Special courts-martial shall have power to try any person subject to military law, except an officer, for any crime or offense not capital made punishable by these articles: Provided, That the President may, by regulations, which he may modify from time to time, except from the jurisdiction of special courts-martial any class or classes of persons subject to military law.

"Special courts-martial shall not have power to adjudge dishonorable discharge, nor confinement in excess of six months, nor to adjudge forfeiture of more than six months' pay. [M.C.M., pars. 41-42, 78, 173, 320.]

"Art. 14. Summary courts-martial. — Summary courts-martial shall have power to try any person subject to military law, except an officer, a cadet, or a soldier holding the privileges of a certificate of eligibility to promotion, for any crime or offense not capital made punishable by these articles: Provided, That non-commissioned officers shall not, if they object thereto, be brought to trial before a summary court-martial without the authority of the officer competent to bring them to trial before a general court-martial: Provided further. That the President may, by regulations, which he may modify from time to time, except from the jurisdiction of summary courts-martial any class or classes of persons subject to military law.

"Summary courts-martial shall not have power to adjudge confinement in excess of three months, nor to adjudge the forfeiture of more than three months' pay: Provided, That when the summary court officer is also the commanding officer no sentence of such summary court-martial adjudging 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 same shall have been approved by superior authority. [M.C.M., pars. JfS- U, 78, 173, 320, 483, and page ^09.]

"Art. 15. Not exclusive. — The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in resj>ect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals. [M.C.M., pars. 2-3, J^5.]

"Art. 16. Officers: how triable. — Officers shall be triable only by general courts-martial, and in no case shall an officer, when it can be avoided, be tried by officers inferior to him in rank. [M.C.M., pars. 8, 12.]

**D. PROCEDURE tt

'Art. 17. Judge advocate to prosecute. — The judge advocate of a general or special court-martial shall prosecute in the name of the Unites States, and shall, under the direction of the court, prepare the record of its proceedings. The accused shall have the right to be represented before the court by counsel of his own selection for his defense, if such counsel be reasonably available, but should he, for any reason, be unrepresented by counsel, the judge advocate shall from time to time throughout the proceedings advise the accused of his legal rights. [M.C.M., pars, 95-1 n, 123, 133, and pages 353-356.]

"Art. 18. Challenges. — Members of a general or special court-martial may be challenged by the accused, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. ■ [M.C.M., pars. 120-131, 137.]

"Art. 19. Oaths. — The judge advocate of a general or special court-martial shall administer to the members of the court, before they proceed upon any trial, the following oath or affirmation: 'You, A. B., do swear (or affirm) that you will well and truly try and determine, according to the evidence, the matter now before you, between the United States of America and the person to be tried, and that you will duly administer justice, without partiality, favor, or affection, according to the provisions of the rules and articles for the government of the armies of the United States, and if any doubt should arise, not explained by said articles, then according to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear (or affirm) that you will not divulge the findings or sentence of the court until they shall be published by the proper authority, except to the judge advocate and assistant judge advocate; neither will you disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof as a witness by a court of justice in due course of law. So help you God.'

"When the oath or affirmation has been administered to the members of a general or special court-martial, the president of the court shall administer to the judge advocate and to each assistant judge advocate, if any, an oath or affirmation in the following form: *You, A. B., do swear (or affirm) that you will not divulge the findings or sentence of the court to any but the proper authority until they shall be duly disclosed by the same. So help you God.'

"All persons who give evidence before a court-martial shall be examined on oath or affirmation in the following form : ' You swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God.'

"Every rep>orter of the proceedings of a court-martial shall, before entering upon his duties, make oath or affirmation in the following form: 'You swear (or affirm) that you will faithfully perform the duties of reporter to this court. So help you God.'

"Every interpreter in the trial of any case before a court-martial shall, before entering upon his duties, make oath or affirmation in the following form: 'You swear (or affirm) that you will truly interpret in the case now in hearing. So help you God.'

"In case of affirmation the closing sentence of adjuration will be omitted. [M.C.M., pars. 91, 132-136.]

"Art. 20. Continuances. — A court-martial may, for reasonable cause, grant a continuance to either party for such time and as often as may appear to be just. [M.C.M., pars.

"Art. 21. Refusal to plead. — When the accused, arraigned before a court-martial, from obstinacy and deliberate design stands mute or answers foreign to the purpose, the court may proceed to trial and judgment as if he had pleaded not guilty. [M.C.M., pars. lJi.4--14^, 155.]

"Art. 22. Process to obtain witnesses. — Every judge advocate of a general or special court-martial and every summary court-martial shall have power to issue the like process to compel witnesses to appear and testify which courts of the United States, having criminal jurisdiction, may lawfully issue; but such process shall run to any part of the United States, its Territories, and possessions. [M.C.M., pars. 159-169, 172, and pages 383-390.]

"Art. 23. Refusal to appear or testify. — Every person not subject to mihtary law who, being duly subpoenaed to appear as a witness before any military court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to be read in evidence before such court, commission, court of inquiry, or board, willfully neglects or refuses to appear, or refuses to qualify as a witness, or to testify, or produce documentary evidence which such person may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, for which such person shall be punished on information in the district court of the United States or in a court of original criminal jurisdiction in any of the Territorial possessions of the United States, jurisdiction being hereby conferred upon such courts for such purpose; and it shall be the duty of the United States district attorney or the officer prosecuting for the Government in any such court of original criminal jurisdiction, on the certification of the facts to him by the military court, commission, court of inquiry, or board, to file an information against and prosecute the person so offending, and the punishment of such person, on conviction, shall be a fine of not more than $500 or imprisonment not to exceed six months, or both, at the discretion of the court: Provided, That the fees of such witness and his mileage, at the rates allowed to witnesses attending the courts of the United States, shall be duly paid or tendered said witness, such amounts to be paid out of the appropriation for the compensation of witnesses. [M.C.M., pars. 168, 170-172, 183-188, 192, 232, 235, and pages 381-388.]

"Akt. 24. Compulsory self-incrimination prohibited. — No witness before a military court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to be read in evidence before a mihtary court, commission, court of inquiry, or board, shall be compelled to incriminate himself or to answer any questions which may tend to incriminate or degrade him. [M.C.M., pars. 2U-215, 233-

"Art. 25. Depositions — When admissible. — A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, if such deposition be taken when the witness resides, is found, or is about to go beyond the State, Territory, or district in which the court, commission, or board is ordered to sit, or beyond the distance of one hundred miles from the place of trial or hearing, or when it appears to the satisfaction of the court, commission, board, or appointing authority that tlie witness, by reason of age, sickness, bodily infirmity, imprisonment, or other reasonable cause, is unable to appear and testify in person at the place of trial or hearing: Provided, That testimony by deposition may be adduced for the defense in capital cases. [M.C.M., pars, 165, 167, 174, 263-269, 275, and pages 379-382.]

"Art. 26. Depositions — Before whom taken. — Depositions to be read in evidence before military courts, commissions.

courts of inquiry, or military boards, or for other use in military administration, may be taken before and authenticated by any oflBcer, mihtary or civil, authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths. [M.C.M., pars. 175-182.]

"Art. 27. Courts of inquiry — Records of, when ADMISSIBLE. — The record of the proceedings of a court of inquiry may be read in evidence before any court-martial or military commission in any case not capital nor extending to the dismissal of an officer, and may also be read in evidence in any proceeding before a court of inquiry or a military board: Provided, That such evidence may be adduced by the defense in capital cases or cases extending to the dismissal of an officer. [M.C.M., pars, m, 272, Jf75.]

"Art. 28. Resignation without acceptance does not RELEASE OFFICER. — Any officer who, having tendered his resignation and prior to due notice of the acceptance of the same, quits his post or proper duties without leave and with intent to absent himself permanently therefrom shall be deemed a deserter. [M.C.M., pars. 281, 28^.]

"Art. 29. Enlistment without discharge. — Any soldier who, without having first received a regular discharge, again enlists in the Army, or in the militia when in the service of the United States, or in the Navy or Marine Corps of the United States, or in any foreign army, shall be deemed to have deserted the service of the United States; and, where the enlistment is in one of the forces of the United States mentioned above, to have fraudulently enlisted therein. [J/.C.Jf., pars. 74 (n), 284, 409.]

"Art. 30. Closed sessions. — Whenever a general or special court-martial shall sit in closed session, the judge advocate and the assistant judge advocate, if any, shall withdraw; and when their legal advice or their assistance in referring to the recorded evidence is required, it shall be obtained in open court, and in the presence of the accused and of his counsel if there be any. [M.C.M., pars. 91-92, 101.]

"Art. 31. Order of voting. — Members of a general or special court-martial, in giving their votes, shall begin with the junior in rank. [M.C.M., pars. 90, 29J^, 308.]

"Art. 32. Contempts. — A court-martial may punish at discretion, subject to the limitations contained in Article fourteen, any p>erson who uses any menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder. [M.C.M., par. 173.]

"Art. 33. Records — General courts-martial. — Each general court-martial shall keep a separate record of its proceedings in the trial of each case brought before it, and such record shall be authenticated by the signature of the president and the judge advocate; but in case the record can not be authenticated by the judge advocate, by reason of his death, disability, or absence, it shall be signed by the president and an assistant judge advocate, if any; and if there be no assistant judge advocate, or in case of his death, disability, or absence, then by the president and one other member of the court. [M.C.M., pars. 95, 107, m (d), 354-357, 400, and pages 357- 364 and 375.]

"Art. 34. Records — Special and summary courts-martial. — Each special court-martial and each summary court-martial shall keep a record of its proceedings, separate for each case, which record shall contain such matter and be authenticated in such manner as may be required by regulations which the President may from time to time prescribe. [M.C.M., pars. 154 (d), 358-363, 400, and pages 365-367 and 376-377.]

"Art. 35. Disposition of records — General courts-martial. — The judge advocate of each general court-martial shall, with such expedition as circumstances may permit, forward to the appointing authority or to his successor in command the original record of the proceedings of such court in the trial of each case. All records of such proceedings shall, after having been finally acted upon, be transmitted to the Judge Advocate General of the Army. [M.C.M., pars. 366-368.]

"Art. 36. Disposition of records — Special and summary COURTS-MARTIAL. — After having been acted upon by the oflBcer appointing the court, or by the oflScer commanding for * the time being, the record of each trial by special court-martial and a report of each trial by summary court-martial shall be transmitted to such general headquarters as the President may designate in regulations, there to be filed in the office of the judge advocate. When no longer of use, records of special and summary courts-martial may be destroyed. [M.C.M., pars. 366-368.]

"Art. 37. Irregularities — Effect of. — The proceedings of a court-martial 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 : Provided further. That the omission of the words 'hard labor' in any sentence of a court-martial adjudging imprisonment or confinement shall not be construed as depriving the authorities executing such sentence of imprisonment or confinement of the power to require hard labor as a part of the punishment in any case where it is authorized by the Executive order prescribing maxi-

"Art. 38. President may prescribe rules. — The President may by regulations, which he may modify from time to time, prescribe the procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals: Provided, That nothing contrary to or inconsistent with these articles shall be so prescribed: Provided further. That all rules made in pursuance of this article shall be laid before the Congress annually. [M.C.M., pars. 198-199.]

"e. limitations upon prosecutions

(C

'Art. 39. As to time. — Except for desertion committed in time of war, or for mutiny or murder, no person subject to military law shall be liable to be tried or punished by a court-martial for any crime or offense committed more than two years before the arraignment of such person: Provided, That for desertion in time of j>eace or for any crime or offense punishable under articles ninety-three and ninety-four of this code the period of limitations upon trial and punishment by court-martial shall be three years : Provided further. That the period of any absence of the accused from the jurisdiction of the United States, and also any period during which by reason of some manifest imp)ediment the accused shall not have been amenable to military justice, shall be excluded in computing the aforesaid periods of limitation: And provided further. That this article shall not have the effect to authorize the trial or punishment for any crime or offense barred by the provisions of existing law. [M.C.M., pars. 1^9, U51.]

"Art. 40. As to number. — No person shall be tried a second time for the same oflFense. [M.C.M., par. 149.]

"f. punishments

*'Art. 41. Certain kinds prohibited. — Punishment by flogging, or by branding, marking, or tattooing on the body is prohibited. [M.C.M., pars. 3^-3 Jf5.]

"Art. 42. Places of confinement — When latvtul. — Except for desertion in time of war, repeated desertion in time of peace, and mutiny, no i>erson shall under the sentence of a court-martial be punished by confinement in a penitentiary unless an act or omission of which he is con\'icted is recognized as an offense of a civil nature by some statute of the United States, or at the common law as the same exists in the District of Columbia, or by way of commutation of a death sentence, and unless, also, the period of confinement authorized and adjudged by such court-martial is one year or more: Provided, That when a sentence of confinement is adjudged by a court-martial upon con\'iction of two or more acts or omissions any one of which is punishable under these articles by confinement in a penitentiary, the entire sentence of confinement may be executed in a penitentiary: Provided further , That p>enitentiary confinement hereby authorized may be served in any i>enitentiary directly or indirectly under the jurisdiction of the United States: Provided further. That persons sentenced to dishonorable discharge and to confinement not in a penitentiary, shall be confined in the United States Disciplinary Barracks or elsewhere as the Secretary of War or the reviewing authority may direct, but not in a penitentiary. [M.C.M., pars. 337-339, 341, 396-399.]