Chapter III.
Courts-martial

(Continued)

Appointing Authorities--Appointment of Trial Judge Advocate, Defense Counsel, Assistants

5. COURTS-MARTIAL--Appointing Authorities.

   1. General courts-martial.--The President of the United States, the superintendent of the Military Academy (except for the trial of an officer, A.W. 12), and the other commanding officers designated in A.W. 8 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. (A.W. 8.)

      Whether the commander who convened the court is the accuser or the prosecutor is mainly to be determined by his personal feeling or interest in the matter. An accuser either originates the charge or adopts and becomes responsible for it; a prosecutor proposes or undertakes to have it tried and proved. See 60 (Accuser) in this connection. Action by a commander which is merely official and in the strict line of his duty can not be regarded as sufficient to disqualify him. Thus a division commander may, without becoming the accuser or prosecutor in the case, direct a subordinate to investigate an alleged offense with a view to formulating and preferring such charges as the facts may warrant, and may refer such charges for trial as in other cases.

      As A.W. 8 expressly designates those who have authority to appoint general courts-martial, it follows that no one else has any such authority, and that anyone having such authority can not delegate or transfer it to another. The authority of a commanding officer to appoint general courts-martial is independent of his rank and is retained by him as long as he continues to be such commanding officer. The rules as to the devolution of command in case of the death, disability, or temporary absence of a permanent commander are stated in AR 600-20.

      An officer who has power to appoint a general court-martial may determine the cases to be referred to it for trial and may dissolve it; but he can not control the exercise by the court of powers vested in it by law. He may withdraw any specification

2. Special courts-martial.--The commanding officers designated in A.W. 9 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 superior authority when by the latter deemed desirable. (A.W. 9.)

   The principles of the last three subparagraphs of 5a apply to special courts-martial.

   A battalion or other unit is "detached" when isolated or removed from the immediate disciplinary control of a superior of the same branch of the service in such a manner as to make its commander primarily the one to be looked to by superior authority as the officer responsible for the administration of the discipline of the enlisted men composing the same. The term is used in a disciplinary sense, and is not necessarily limited to what constitutes detachment in a physical or tactical sense. For instance, the commanding officers of units that are independent, except in so far as they constitute parts of a division, who are responsible directly to the division commander for the maintenance of discipline in their respective commands, are competent to appoint special courts for the same, subject to the power of the division commander to appoint special courts for all subordinate organizations and detachments under his command if by him deemed desirable.

   The subordinate commander may exercise the power to appoint special courts-martial for his command unless a competent superior deems it " desirable" to reserve that power to himself and so notifies the subordinate.

3. Summary courts-martial.--The commanding officers designated in A.W. 10 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. A.W. 10.)

   Where the appointing authority of a summary court or the summary court officer is the accuser or the prosecutor of the person or persons to be tried, it is discretionary with the appointing authority whether he will f forward the charges to superior authority with a recommendation that the summary court be appointed by the latter; but the fact that the appointing authority or the summary court officer is the accuser or prosecutor in a particular case does not invalidate the trial.

   When more than one officer is present, a subordinate officer will be appointed summary court-martial. When but one officer is present, no order appointing the court will be issued.

The principles of the third and fourth subparagraphs of both 5a and 5b apply to summary courts-martial.
6. COURTS-MARTIAL--Appointment of Trial Judge Advocate, Defense Counsel, Assistants.--For each general or special court-martial the authority appointing the court shall appoint a trial judge advocate and a defense counsel, and for each general court-martial one or more assistant trial judge advocates and one or more assistant defense counsel when necessary. (A.W. 11.)

   In general it is desirable that as many assistant defense counsel as assistant trial judge advocates be appointed. The power of appointment under A.W. 11 can not be delegated.

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