Chapter VI.
Courts-martial--Procedure before trial

(Continued)

Preparation of Charges

24. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Preparation of Charges--Definitions.--The formal written accusation in court-martial practice consists of two parts, the technical charge and the specification. The charge, where the offense alleged is a violation of the articles, merely indicates the article the accused is alleged to have violated, while the specification sets forth the specific facts and circumstances relied upon as constituting the violation. Each specification, together with the charge under which it is placed, constitutes a separate accusation. The term "charges" or "charges and specifications" is applied to the formal written accusation or accusations against an accused.

    New and separate charges preferred after others have been preferred are known in military law as "additional charges." Such charges may relate to transactions not known at the time the original charges were preferred or, as is more frequent, they may relate to offenses committed after the original charges were preferred. Charges of this character do not require a separate trial, but, subject to the usual procedure, may be tried with the original charges.

25. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Preparation of Charges--Who may initiate; who may prefer; ordering preferment.--Charges are frequently initiated by some one bringing to the attention of the military authorities information concerning a supposed offense committed by a person subject to military law. Such information may, of course, be received from anyone, whether subject to military law or not.

    Any person subject to military law may prefer charges, even though he be under charges, or in arrest, or in confinement. Instead of preferring charges it is ordinarily preferable, especially in a minor case, to inform the accused's immediate commanding officer of the matter.

    A person subject to military law can not legally be ordered to prefer charges to which he is unable truthfully to make the required oath on his own responsibility; but he may legally be ordered by

a proper superior to prefer such charges as in his (the subordinate's) opinion he may properly substantiate by the required oath. (See 5a.)
26. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Preparation of Charges--When preferred.--When any person subject to military law is placed in arrest or confinement, immediate steps will be taken to try the person accused or to dismiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion shall be punished as a court-martial may direct. (A.W. 70.) When it is intended to prefer charges, they should be preferred without unnecessary delay. Anything like an accumulation or saving up of charges through improper motives is prohibited; but when a good reason exists (e.g., when in the interest of discipline it is advisable to exhibit a continued course of conduct) a reasonable delay is permissible if the person concerned is not in arrest or confinement.

    Ordinarily charges for an offense should not be preferred against anyone when the only basis for the belief that the offense was committed is his statement that he committed it.

27. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Preparation of Charges--General rules and suggestions.--One transaction, or what is substantially one transaction, should not be made the basis for an unreasonable multiplication of charges against one person. Thus a soldier should not be charged with disorderly conduct and for an assault when the disorderly conduct consisted in making the assault, or for a failure to report for a routine scheduled duty, such as reveille, and for absence without leave, when such failure to report occurred during the period for which he is charged with such absence without leave. So also the larceny of several articles should not be alleged in several specifications, one for each article, when the larceny of all of them can properly be alleged in one specification (see 149g, Larceny); and where a soldier willfully disobeys an order to do a certain thing, and persists in his disobedience when the same order is again given by the same or other superior, a multiplication of charges of disobedience should be avoided. However, there are times when sufficient doubt as to the facts or law exists to warrant making one transaction the basis for charging two or more offenses.

    Where charges are preferred for serious offenses, there should not be joined with them charges for minor derelictions unless the latter serve to explain the circumstances of the former. Thus, as an extreme case, charges for willfully disobeying an order of a commissioned officer and for absence from a routine duty should not be joined.

    Any demand for trial made under A.W. 104 may be noted on a memorandum attached to the charges.

In joint offenses the participants may be separately or jointly charged. See forms in App. 4 (Instructions, f). In drafting charges in such cases consideration should be given to the increased labor, time, and expense that may be involved in separate trials.

Two or more persons can not join in the commission of one offense of a kind that can only be committed by one person. For instance, soldiers A and B can not join in the offense committed by B in absenting himself without leave with the intent not to return to the military service, even if A also leaves without authority with a like intent, and the two desert together. A has deserted and so has B, but neither committed the other's desertion. In a proper case, however, two or more men may be jointly charged with, and tried for, conspiracy, or entering into an agreement to desert.

28. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Preparation of Charges--Drafting of charge.--The technical charge should be appropriate to all specifications under it, and ordinarily will be written thus: "Violation of the Article of War," giving the number of the article. Neither the designation of a wrong article, nor the failure to designate any article is ordinarily material, provided the specification alleges an offense of which courts-martial have jurisdiction. For other instructions and some specimen charges see App. 4.

29. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Preparation of Charges--Drafting of specification.

    1. The specification should include the following:

       The name of the accused person and a showing, either by a description of such person by rank and organization or otherwise, that the accused is within court-martial jurisdiction as to persons. For rules as to the use of the Christian name; use of an alias; change in rank; general prisoners; etc., see instructions in App. 4.

       A statement in simple and concise language of the facts constituting the offense. The facts so stated and those reasonably implied therefrom should include all the elements of the offense sought to be charged. Any intent expressly made an essential element of the offense by the Articles of War should be alleged; for example, a false muster should be alleged as "knowingly" made. To a reasonable extent matters of aggravation may be recited. If applicable, the wording of the appropriate Article of War should be used in preference to a supposedly equivalent expression. Thus in charging an officer found drunk on duty, the specification should not allege that he was found intoxicated on duty.

       A statement of when and where the offense was committed. For details, see App. 4 (Instructions, g).

2. One specification should not allege more than one offense either conjunctively or in the alternative. Thus a specification should not allege that the accused "lost and destroyed" or that he "lost or destroyed" certain property.

3. A specification alleging the violation of a written order, or of any written obligation--as an oath of allegiance, parole, etc.--should set forth the writing, preferably verbatim, and the act or acts which constitute the alleged violation. Oral statements should be set out as nearly as possible in exact words, but should always be qualified by the words "or words to that effect," or some similar expression, as, for example, in cases of insubordinate or disrespectful language.

4. Some specimen charges and forms for specifications covering the more usual offenses are given in App. 4.

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