Chapter XVIII.
Courts-martial--Action

Reviewing Authority--Confirming Authority

87. COURTS-MARTIAL--ACTION--Reviewing Authority.

    1. Who is reviewing authority.--The reviewing authority is the officer to whom the record is transmitted as provided in 85 and 86. In his absence, however, or where the command has been otherwise changed, "the officer commanding for the time being" (A.W. 46) is the reviewing authority.

       The "officer commanding for the time being" is the officer who has succeeded to the command of the appointing authority by assignment or otherwise. For example, where, pending the review of a case tried by a court appointed by the commander of a separate brigade, such brigade has ceased to exist as a distinctive organization and been merged in a division, the commander of the division is the "officer commanding for the time being," in the sense of A.W. 46.

       The fact that, pending action on the proceedings, the accused in the case leaves the command of the reviewing authority, does not divest the latter of his status as reviewing authority with respect to such proceedings.

       A reviewing authority can not delegate his functions as such to anyone.

    2. Powers and duties.--General.--Approval of a sentence by the reviewing authority is one of the actions which must precede the execution thereof (A.W. 46), and such approval must be express, an approval of the findings only, for instance, not being sufficient. An approval of the findings and proceedings is unnecessary. For powers incident to the power to approve, see A.W. 47.

       Where a sentence in excess of the legal limit is divisible, such part as is legal may be approved. Where the court lacked jurisdiction as to some of the offenses tried by it, the proceedings as to the other offenses tried are not invalid for that reason. Neither the reviewing authority nor any other officer is authorized to add to the punishment imposed by a court-martial. As to automatic reduction of noncommissioned officers and privates first class consequent upon action on certain sentences, see 103d. Upon a rehearing no sentence in excess of or more severe than the original sentence shall be enforced, unless the sentence be based upon a finding of guilty of an offense not considered

upon the merits in the original proceedings. (A.W. 50¹/2.) Where only so much of a finding of guilty of desertion as involves a finding of guilty of absence without leave is approved, and it appears from the record that punishment for such absence is barred by A.W. 39, the reviewing authority should not consider any such absence as a basis of although he may disapprove the sentence and order a rehearing. In this connection it should be remembered that absence without leave is not a continuing offense.

A.W. 37 vests a sound legal discretion in the reviewing authority to the end that substantial justice may be done. The effect of a particular error within the purview of A.W. 37 should be weighed by him in the light of all the facts as shown by the record, and, unless it appears to him that the substantial rights of the accused were injuriously affected, he should disregard the error as a basis for holding the proceedings invalid, or for disapproving a finding or the sentence. No finding or sentence need be disapproved solely because a specification is defective if the facts alleged therein and reasonably implied therefrom constitute an offense, unless it appears from the record that the accused was in fact misled by such defect, or that his substantial rights were in fact otherwise injuriously affected thereby. If through mistake or inadvertence the trial judge advocate should be present during all or part of the closed session of a court, such irregularity is not a ground for a disapproval, unless it appears that such presence of the trial judge advocate injuriously affected the substantial rights of an accused.

The reviewing authority will take appropriate action where it appears from the record or otherwise that the accused may have been insane at the time of the commission of the offense, or insane at the time of his trial, regardless of whether any such question was raised at the trial or of how it was determined if raised.

For action where he differs with the court with respect to its rulings on special pleas and similar objections, see 64a.

The disapproval of a sentence puts an end to it as a basis of punishment, and confirmation of a disapproval is not required in any case. A disapproval should be express. Neither an acquittal nor a finding of "not guilty" requires approval or confirmation; and neither should be disapproved. Such disapproval can not in any event affect the finality of a legal acquittal or of a legal finding of not guilty. The reviewing authority may, however, properly advise the members of the court by letter of his nonconcurrence in an acquittal or in a finding of not guilty, and the reasons for such nonconcurrence.

Reference of General Court-Martial Record to Staff Judge Advocate or to The Judge Advocate General.--See A.W.46 for statutory requirement.

The staff judge advocate will submit a written review of the case. The review will include his opinion, both as to the weight of evidence and any error or irregularity, and a specific recommendation of the action to be taken together with his reasons for such opinion and recommendation. The reviewing authority may direct his staff judge advocate to make supplementary reviews or reports, oral or written, and may require a more comprehensive written review. If the reviewing authority is in doubt as to his action, he may, before acting thereon, transmit the record to The Judge Advocate General with request for advice either as to the whole case or as to any particular matter involved in the case; and will so transmit it for advice on the whole case before acting on it, if he has no staff judge advocate or officer acting as such.

Revision and Correction of Record.--A record of trial, which by reason of some apparent omission, error, or other defect appears to be substantially incomplete or incorrect, or which in the opinion of the reviewing authority shows improper action by the court as to a finding or sentence, may be returned to the president of the court (or to the summary court), directing that the court reconvene for such action as may be appropriate. See A.W. 40 for matters as to which a return of a record of trial for reconsideration is prohibited.

If a previous conviction was erroneously considered by the court, and it is believed that the consideration of such conviction influenced the court in its sentence, the reviewing authority may return the record to the court to reconsider the sentence without regard to the previous conviction.

The record of trial must speak the truth. When it appears that any material matter has through clerical error or through inadvertence been omitted or erroneously stated in the record, and it is impracticable or inconvenient to reconvene the court, the record itself, or a copy, or a synopsis of the pertinent part thereof, may be sent to the officers who authenticated the record for a certificate as to the facts with reference to such apparent omissions or erroneous statements. The certificate will be attached to the record of trial immediately after the original signatures authenticating it and will become part of the record of trial. The necessary action will be taken by the reviewing authority to the end that each accused who was furnished a copy of the record is likewise furnished a copy of such certificate. Such method of correction is appropriate where, for instance, the record of a general court-martial fails to show that the members were sworn or that the required number of members concurred in a finding. It is, of course, understood that the certificate must correspond to the facts; for instance, if in such a case the members were not in fact sworn, the certificate must so state.

Miscellaneous and Advisory Instructions.--Appropriate action be taken where the court has imposed an unwarranted though legal punishment. For example, while evidence of previous convictions may always be considered in determining the proper measure of punishment, evidence of previous convictions of offenses materially less grave than the offense or offenses for which the sentence was adjudged is not to be regarded as in itself justifying a sentence of maximum severity. In every case the punishment should be graded according to the circumstances of the offense.

Dishonorable discharge, in itself a severe punishment, should be approved only when it is clear that the accused should be separated from the service or that he should be required to undergo a period of reformatory discipline before he can again be permitted to serve in an organization composed of honorable men. When the accused is relatively young and his record, except for the offense of which he stands convicted, is good, the reviewing authority should, in the exercise of his sound discretion, suspend the execution of the dishonorable discharge, to the end that the offender may have an opportunity to redeem himself in the military service; but he should not suspend the execution of the dishonorable discharge in any case of conviction of an offense involving that degree of moral turpitude which disqualifies the accused for further military service.

The reviewing authority may properly consider as a basis for mitigation or remission not only matters relating solely to clemency (e.g., long confinement pending trial or the fact that an accomplice turned State's evidence), but any factors which properly should have been, but apparently were not, considered by the court in fixing the punishment. See 80a (Basis for determining sentence).

The reviewing authority may properly weigh the evidence in determining his action.

Ordering Execution of Sentence; Mitigation; Remission,; Suspensions.--Upon approval of a sentence the reviewing authority may, subject to the provisions of A.W. 50¹/2, order the execution thereof unless confirmation (see 88) is required. The fact that a sentence involves a loss of files or rank or other punishment described in 103h does not of itself prevent the reviewing authority from ordering execution.

The authority ordering the execution of a sentence of death designates the time and place for such execution, any designation made by the court as to such matters being disregarded.

The power to order the execution of the sentence includes the power to mitigate or remit the whole or any part of the sentence (A.W. 50); but in any case the punishment imposed by the sentence as mitigated or remitted must be included in the sentence as imposed by the court and should be one that the court might have imposed in the case.

Thus a sentence as mitigated should not provide for confinement in excess of six months without dishonorable discharge.

To mitigate a punishment is to reduce it in quantity or quality, the general nature of the punishment remaining the same. A sentence can not be commuted except by the President or by a commanding general empowered by the President under A.W. 50.

A sentence imposing dishonorable discharge only can not be mitigated. Forfeiture of pay may be mitigated to detention of pay for a like period, or less. Confinement at hard labor may be mitigated to hard labor without confinement for a like period, or less. A sentence of dishonorable discharge, forfeiture of all pay and allowances due and to become due, and confinement at hard labor for a definite period may be mitigated to a lesser punishment, for example, to confinement at hard labor and a forfeiture of a specified portion, for example, two-thirds of the soldier's pay per month for a period not exceeding that prescribed in the sentence, or to hard labor without confinement for a definite period not exceeding the period prescribed in the sentence, and forfeiture of any portion not exceeding two-thirds of the soldier's pay per month for a period not exceeding that prescribed in the sentence.

The action of a reviewing authority in approving a sentence and simultaneously remitting a part thereof is legally equivalent to approving only the sentence as reduced.

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. (A.W. 51.)

The authority competent to order the execution of the sentence of a court-martial may, at the time of the approval of such sentence, suspend the execution, in whole or in part, of any such sentence as does not extend to death, and may restore the person under sentence to duty during such suspension. (A.W. 52.) The reviewing authority should suspend the whole of a sentence when it appears to him that such action will promote the discipline of his command.

As to penitentiary confinement, see 90a.

Forms of Action and Related Matters.--The reviewing authority will state at the end of the record of trial in each case his decisions and orders. This equally applies in summary court cases, even where the reviewing authority is the officer that tried the case as summary court. Forms of action are in App. 10. Any reprimand or admonition provided for by the sentence of a general or special court-martial as ordered executed will be included in the action. He will sign in his own hand the action taken by him on the proceedings, his rank, and the fact that he is the commanding officer appearing after his signature. So also any supplementary or corrective action pursuant

to a holding of the board of review and The Judge Advocate General under A.W. 50¹/2 must be signed by the reviewing authority personally.

Any action taken may be recalled and modified before it has been published or the party to be affected has been duly notified of the same.

In a proper case the action may include an order as to the release of the accused from arrest or confinement. In such a case steps should be taken with a view to the prompt carrying out of the order.

Where in his final action on a case the reviewing authority disapproves a finding of desertion or a sentence based wholly or in part on such a finding, he should indicate in his action the reasons therefor. Such reasons assist the Finance Department in making certain decisions relative to forfeitures and stoppages. In any case the reasons for a disapproval may be stated.

If the sentence of a general court-martial as ordered executed provides for confinement, the place of confinement will be designated. See 90.

3. Disposition of record and related matters.--General Court-Martial.--The record, with the decisions and orders of the reviewing authority thereon, will be transmitted, ordinarily without letter of transmittal, direct to The Judge Advocate General of the Army. With the record will be forwarded the accompanying papers (see 85), six authenticated copies of the order, if there be any, promulgating the result of the trial, and two signed copies of the review of the staff judge advocate. In cases involving more than one accused an additional copy of the order of promulgation, if any, will be forwarded for each additional accused. This applies equally to cases in which the sentence is suspended under A.W. 51, but where action by a confirming authority other than the President is necessary, the record, etc., will be transmitted to such authority. Where the order of execution is withheld under A.W. 50¹/2, the reviewing authority will, before forwarding the record, take therefrom the data necessary for drafting a general court-martial order, and when such order is issued the same number of copies thereof will be forwarded as in the case of an order not so withheld.

   Special Court-Martial.--The record and accompanying papers, together with a copy of the order publishing the result of the trial, will be forwarded by indorsement to the officer exercising immediate general court-martial jurisdiction over the command. See in this connection AR 345-125 (Service record) and 345-800 (Reports of changes, etc.).

   Summary Court-Martial.--The several records of trial by summary courts-martial within a command shall be filed together in the office

of the commanding officer and shall constitute the summary court record of the command. See in this connection AR 345-125 (Service record) and 345-800 (Reports of changes, etc.). A report of each trial--that is, a copy of the record--will be sent to the officer exercising immediate general court-martial jurisdiction over the command.
4. Orders and related matters.--An order promulgating the result of a trial by general or special court-martial, while not necessary to the validity of the trial, will be issued whether such result was an acquittal or otherwise. For forms of orders and data to be shown therein see App. 11 and AR 310-50. Matter unfit for publication will be set forth only in the original order, in such copies as may be furnished The Adjutant General, the authorities of the post or other place where the accused is, and to the commanding officer or other head of the place where the accused is to be confined, if confinement is involved.

   The order will be of the date that the reviewing or confirming authority takes final action on the case. The order will state the date upon which the sentence was adjudged by the court.

   When a rehearing is directed, neither the action of the court at the former proceeding nor the action of the reviewing or confirming authority thereon will be published in orders, but the court-martial order promulgating the final action in the case will in a separate paragraph publish such charges and specifications at the former hearing as may not have been referred for rehearing, together with the action of the court and reviewing authority thereon.

88. COURTS-MARTIAL--ACTION--Confirming Authority.--See A.W. 48 for cases where confirmation is required. The power of confirmation of certain sentences in time of war conferred by that article upon the commanding general "of the territorial department or division" can not be exercised by the commanding general of a corps area or Army area.

    When empowered by the President so to do, the commanding general of the Army in the field or the commanding general of the territorial department or division may approve or confirm and commute (but not approve or confirm without commuting), mitigate, or remit, and then order executed as commuted, mitigated, or remitted, any sentence which under the Articles of War requires the confirmation of the President before the same may be executed. (A.W. 50.)

    As to powers included in the power to confirm, see A.W. 49. A confirming authority will be guided by the principles and provisions of 87 as far as applicable.

Table of Contents
Previous Chapter (17) *  Next Chapter (19)