Chapter IV.
Courts-martial

(Continued)

Jurisdiction in General--Jurisdiction of General, Special and Summary Courts-Martial

7. COURTS-MARTIAL--Jurisdiction in General--Source, nature, and requisites.--While courts-martial have no part of the jurisdiction set apart under the article of the Constitution which relates to the judicial power of the United States, they have an equally certain constitutional source. They are established under the constitutional power of Congress to make rules for the government and regulation of the land forces of the United States, and are recognized in the provisions of the fifth amendment, expressly exempting "cases arising in the land and naval forces" from the requirement as to presentment and indictment by grand jury.

   The jurisdiction of courts-martial is entirely penal or disciplinary. They have no power to adjudge the payment of damages or to collect private debts. See 103g (Forfeitures, etc.).

   "Courts-martial are lawful tribunals, with authority to finally determine any case over which they have jurisdiction, and their proceedings, when confirmed as provided, are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced." (Grafton v. U. S., 206 U.S. 333, 347-348.)

   Their jurisdiction does not, in general, depend on where the offense was committed. See, however, A.W. 92, as to murder and rape; and A.W. 96 (152c) as to crimes not capital.

   The jurisdiction of a court-martial, i.e., its power to try and determine a case, and hence the validity of each of its judgments, is conditioned upon these indispensable requisites: That the court was appointed by an official empowered to appoint it; that the membership of the court was in accordance with law with respect to number and competency to sit on the court; and that the court thus constituted was invested by act of Congress with power to try the person and the offense charged.

8. COURTS-MARTIAL--Jurisdiction in General--Persons.--As to persons subject to military law, see A.W. 2. In addition to the persons described in A.W. 2 are the following:

   Officers and enlisted men of the Medical Department of the Navy, serving with a body of marines detached for service with the Army in accordance with the provisions of section 1621 of the Revised Statutes, while so serving. (Act of August 29, 1916, 39 Stat. 573.)

   Various other classes of persons by statutes, which, being of infrequent application, are merely cited in the notes under A.W. 2, App. 1.

   Jurisdiction, limited as to persons, is given courts-martial by A.W. 2 to try certain offenses against the laws for the government of the naval service.

9. COURTS-MARTIAL--Jurisdiction in General--Contempts.--A military tribunal may punish as for contempt any person who uses any menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder. (A.W. 32.) See 101 (Contempts).

10. COURTS-MARTIAL--Jurisdiction in General--Termination.--General Rule.--The general rule is that court-martial jurisdiction over officers, cadets, soldiers, and others in the military service of the United States ceases on discharge or other separation from such service, and that jurisdiction as to an offense committed during a period of service thus terminated is not revived by a reentry into the military service.

    Exceptions.--To this general rule there are, however, some exceptions, among them the following:

    Jurisdiction as to certain cases of fraud and embezzlement is not terminated by discharge or dismissal. See A.W. 94.

    All persons under sentence adjudged by courts-martial remain subject to military law while under such sentence (A.W. 2.)

    Where a soldier obtains his discharge by fraud, the discharge may be canceled and the soldier arrested and returned to military control. He may also be required to serve out his enlistment and may be tried for his fraud.

    A discharge, other than dishonorable, releases only from the particular contract and term of enlistment to which it relates, and therefore does not terminate other subsisting enlistments or relieve the soldier from liability to trial by court-martial for an offense committed during any of such enlistments. On the other hand a dishonorable discharge terminates all subsisting enlistments, and a soldier dishonorably discharged can not be tried by court-martial for an offense committed during any such enlistment, except as provided in A.W. 94 and as stated in the next subparagraph.

In certain cases, where the person's discharge or other separation does not interrupt his status as a person belonging to the general category of persons subject to military law, court-martial jurisdiction does not terminate. Thus, where an officer holding an emergency commission was discharged from said commission by reason of acceptance of a commission in the Regular Army, there being no interval between services under the respective commissions, it was held that there was no termination of the officer's military status, but merely the accomplishment of a change in his status from that of a temporary to that of a permanent officer, and that court-martial jurisdiction to try him for an offense (striking enlisted men) committed prior to the discharge was not terminated by the discharge. So also, where a dishonorably discharged general prisoner was tried for an offense committed while a soldier and prior to his dishonorable discharge, it was held that such discharge did not terminate his amenability to trial for the offense.

Effect of escape.--The fact that after arraignment and during the trial the accused has escaped does not terminate the jurisdiction of the court, which may proceed with the trial notwithstanding the accused's absence.

11. COURTS-MARTIAL--Jurisdiction in General--Exclusive and nonexclusive.--Courts-martial have exclusive jurisdiction of purely military offenses. But a person subject to militia law is, as a rule, subject to the municipal law applicable to persons generally, and if by one act or omission he violates an Article of War and the local criminal law, such act or omission may be made the basis of a prosecution before a court-martial or before the proper civil tribunal, and in some cases before both, the jurisdiction which first attaches in any case being in general entitled to proceed. If in a case where an application under A.W. 74 for delivery to the civil authorities is anticipated, good reason exists for the primary exercise of military jurisdiction, charges should be promptly preferred.

    The provisions of the Articles of War conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war are triable by such military commissions, provost court, or other military tribunals. (A.W. 15.) See A.W. 80-82 for instances of concurrent jurisdiction expressly conferred on courts-martial and certain other tribunals.

12. COURTS-MARTIAL--Jurisdiction of General Courts-Martial--Persons and offenses.--General courts-martial shall have power to try any person subject to military law for any crime or offense made punishable

by the Articles of War, 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. (A.W. 12.)
13. COURTS-MARTIAL--Jurisdiction of General Courts-Martial--Punishment.-Punishment upon conviction is discretionary with a general court-martial within certain limitations, the more important of which are as follows: Certain punishments are mandatory under the law (e. g., A.W. 95); such discretion may be limited by the President under A.W. 45; the death penalty can be imposed only when specifically authorized (A.W. 43); and certain kinds of punishment are prohibited (A.W. 41).

    The statutory limitations just mentioned and other limitations will be fully taken up in other connections. See in particular 102-104 (Punishments).

14. COURTS-MARTIAL--Jurisdiction of Special Courts-Martial--Persons and offenses.--Special courts-martial shall have power to try any person subject to military law for any crime or offense not capital made punishable by the Articles of War: Provided, That the President may, by regulations, except from the jurisdiction of special courts-martial any class or classes of persons subject to military law (A.W. 13): Provided further, That the officer competent to appoint a general court-martial for the trial of any particular case may, when in his judgment the interest of the service shall so require, cause any case to be tried by a special court-martial, notwithstanding the limitations upon the jurisdiction of the special court-martial as to offenses set out in A.W. 13; but the limitations upon jurisdiction as to persons and upon punishing power set out in said article shall be observed. (A.W. 12.)

    Under the authority of A.W. 13 commissioned officers and persons of equivalent, relative or assimilated rank are hereby excepted from the jurisdiction of special courts-martial.

    The crimes and offenses denounced in A.W. 64, 66, 67, and 92 are capital at all times; those denounced by A.W. 58, 59, 75-78, 81, 82, and 86 are capital if committed in time of war.

    Although capital under one of the articles just cited, a crime or offense is not capital within the meaning of A.W. 13 if the applicable maximum limit of punishment prescribed by the President under A.W. 45 is less than death; and even though a crime or offense is capital within the meaning of A.W. 13, it may be tried by a special court-martial under the conditions stated in the proviso of A.W. 12, quoted above. But no crime or offense, capital or otherwise, for which a mandatory punishment is prescribed, can be tried

by a special court-martial if such punishment is beyond the power of such court to impose. Thus a case of murder can not properly be referred to a special court-martial for trial, as the penalty in the event of conviction must be either death or imprisonment for life.
15. COURTS-MARTIAL--Jurisdiction of Special Courts-Martial--Punishment.--A special court-martial can not adjudge death (A.W. 12, 13), dishonorable discharge of an enlisted man (A.W. 108), dismissal of an officer (A.W. 118), confinement in excess of six months (A.W. 13), or forfeiture of more than two-thirds pay per month for a period of not exceeding six months (A.W. 13). See in this connection 102-104 (Punishments).

16. COURTS-MARTIAL--Jurisdiction of Summary Courts-Martial--Persons and offenses.--Summary courts-martial shall have power to try any person subject to military law, except an officer, a member of the Army Nurse Corps, a warrant officer, an Army field clerk, a field clerk Quartermaster Corps, a cadet (i.e., cadet of the United States Military Academy), or a soldier holding the privileges of a certificate of eligibility to promotion, for any crime or offense not capital (see 14) made punishable by the Articles of War: Provided, That noncommissioned 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, except from the jurisdiction of summary courts-martial any class or classes of persons subject to military law. (A.W. 14.) Under the authority of A.W. 14, persons of actual, relative, or assimilated rank above that of private, first class, in the Army are hereby excepted from the jurisdiction of summary courts-martial, provided that noncommissioned officers of actual, relative, or assimilated rank below that of technical sergeant in the Army may be tried by summary court-martial, either if they do not object, or if such trial is authorized by the officer competent to bring them to trial before a general court-martial.

17. COURTS-MARTIAL--Jurisdiction of Summary Courts-Martial-Punishment.--A summary court-martial can not adjudge dishonorable discharge of an enlisted man (A.W. 108), confinement in excess of one month, restriction to limits for more than three months, or forfeiture or detention of more than two-thirds of one month's pay. (A.W. 14.) See also 102-104 (Punishments).

    Summary court-martial may not lawfully sentence a soldier to one month's confinement and three months' restriction to limits, but only one or the other of the two forms of deprivation of liberty may be adjudged in maximum amount in any one sentence. If it be desired

to adjudge both forms of punishment, i.e., confinement and restriction to limits, in one and the same sentence, there must be an apportionment. For example, assuming the punishment to be in conformity with other limitations, a summary court might impose confinement at hard labor for 15 days; restriction to limits for 45 days; and forfeiture of two-thirds of one month's pay.

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