Chapter XIX.
Courts-martial--Action

(Continued)

Ordering Rehearings--Place of Confinement

89. COURTS-MARTIAL--ACTION--Ordering Rehearings.--When the President or any reviewing or confirming authority disapproves or vacates a sentence, the execution of which has not theretofore been duly ordered, he may authorize or direct a rehearing. Such rehearing shall take place before a court composed of officers not members of the court which first heard the case. Upon such rehearing the accused shall not be tried for any offense of which he was found not guilty by the first court. (See A.W. 50¹/2.)

    A rehearing is not authorized where a part of the sentence has been approved.

    Where the accused is convicted at the first trial of a lesser included offense only, a rehearing on the offense originally charged can not properly be ordered; although even if convicted of the offense originally charged on such improperly ordered rehearing such conviction may be valid as far as concerns a conviction of such lesser included offense.

    The order directing a rehearing should be made at the time of disapproving or vacating the sentence and will ordinarily be included in the action on such sentence.

    When a rehearing is directed there will be referred with the charges to the trial judge advocate the record of the former proceedings and the accompanying papers which are pertinent, together with a copy of the holding of the board of review or the review by the staff judge advocate or such other holding or opinion as may inform him of the errors made at the former hearing which necessitated a rehearing.

90. COURTS-MARTIAL--ACTION--Place of Confinement.

    1. Penitentiary.--A penitentiary may be designated as the place of confinement for the whole period of confinement imposed by the sentence as ordered executed, provided such period exceeds one year, and provided also that such sentence is wholly or partly based on one or more of the offenses listed below or was imposed by way of commutation of a death sentence:

       Desertion in time of war.
       Repeated desertion in time of peace.
       Mutiny.

An offense involving an act or omission recognized as an offense of a civil nature and made punishable by penitentiary confinement for more than one year by some statute of the United States of general application within the continental United States, excepting section 289, Penal Code of the United States, 1910, or by the law of the District of Columbia, whether statutory or common. Sodomy, being recognized as an offense by the common law in force in the District of Columbia, is included.

A penitentiary will not be designated as the place of confinement, except as authorized above in this paragraph (90a). For limitation "on length of penitentiary confinement, see proviso of A.W. 45. Instructions as to the particular penitentiary to be designated will be issued from time to time by the War Department.

It is the policy of the War Department to separate, so far as practicable, general prisoners convicted of offenses punishable by penitentiary confinement from general prisoners convicted of purely military offenses or of misdemeanors in addition to purely military offenses. In furtherance of this policy, reviewing authorities should designate a penitentiary as the place of confinement in every case when such action is authorized, unless it appears that the holding of the prisoner in association with misdemeanants and military offenders will not be to the detriment of such misdemeanants and military offenders, and that the purposes of punishment do not demand penitentiary confinement.

2. Disciplinary barracks; military post, etc.--Subject to such instructions as may be issued from time to time by the War Department, the United States Disciplinary Barracks at Fort Leavenworth, Kans., or one of its branches, or a military post, station, or camp, will be designated as the place of confinement in cases where a penitentiary is not designated.

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