Chapter 1.
General

1. MILITARY JUSTICE AND THE ARTICLES OF WAR.

   1. In general. Military Justice is the system for enforcing discipline and administering criminal law in the Army. If an Army is to be anything but an uncontrolled mob, discipline is required and must be enforced. In civilian life, every citizen is subject to many laws ranging from local ordinances to federal statutes. If he breaks those laws, he may be tried in the criminal courts and punished. So also in the Army, there are rules governing the conduct of military personnel and providing a method by which persons who break those rules may be punished. They are contained in the Articles of War, statutes enacted by Congress in the exercise of the power which the Constitution gives it "to make rules for the government of the land and naval forces."

   2. History of the Articles of War. The present Articles of War were enacted by Congress in 1920, and amended in a few particulars since that date. In all armies, it has been necessary to have similar rules and some system of enforcing those rules through military authorities. In this country, regulations for the government of the Army have been continuously in force since the time of the Revolution, existing even before the colonists declared their independence and long before the Constitution itself was adopted. On June 4, 1775, the Second Continental Congress appointed a committee, of which George Washington was chairman, to "prepare rules and regulations for the government of the Army," and the first Articles were adopted on June 30, 1775, 3 days before George Washington took command of the Continental Army. Those Articles were patterned largely on the British Articles then in force, which, in turn were derived from earlier Articles traceable back through the seventeenth century to the middle ages. The system of military justice, is there, the product of centuries of experience in many countries. While retaining the substance which history has proved sound, nevertheless our Articles of War are not mere relics of the past. Congress has periodically reconsidered and revised them in the light of new experience. The original Articles adopted in 1775 were completely revised in 1776, 1786, 1806, 1874, 1916, and finally in 1920, and there have been many minor changes at other times.

3. Nature of the Articles of War. The present Articles of War consist of a series of articles numbered from 1 to 121, each being referred to in this manual as AW. Forty-three of these (AW 54 through 96) describe various crimes and offenses and how they shall be punished. These are known as the "punitive articles." Most of the remaining articles deal with the procedure by which the punitive articles are to be enforced. They provide for a system of courts-martial and establish the procedure of such courts in general. There are also miscellaneous provisions not dealing with military justice but with other aspects of military service, such as courts of inquiry, separation from the service, rank and precedence, and deceased persons.
2. CRIMES AND OFFENSES. The crimes and offenses made punishable by the punitive articles of war (AW 54 through 96) may be divided into three general groups. First, the crimes with which every one if familiar, such as murder and rape (AW 92), arson, burglary, larceny, and sodomy (AW 93) and frauds against the United States (AW 94). Second, the offenses which are strictly military in nature, arising out of military duties and having no counterpart in civilian life, of which desertion (AW 58), willful disobedience of lawful orders of superior officers and noncommissioned officers (AW 64, 65), misbehavior before the enemy (AW 75) and sleeping on post (AW 85) are examples. Third, there are two articles (AW 95 and 96) which do not specify particular acts of misconduct, but cover a variety of transgressions in broad and general terms. AW 95, which applies only to commissioned officers and to cadets at the United States Military Academy, makes punishable any "conduct unbecoming an officer and a gentleman"--i.e., any acts which are morally unfitting and unworthy of a man of honor. Examples of offenses under this Article are making false official reports, breaches of trust, fraudulently passing bad checks, and drunkenness of a gross and disgraceful nature. AW 96 applies to all persons subject to military law. It makes punishable (1) disorders and neglects which are directly prejudicial to good order and the maintenance of military disciplines; (2) conduct tending to bring discredit on the military services; and (3) the commission of crimes of offenses not capital denounced in federal laws other than the Articles of War. The purpose of this general article is to cover offenses no expressly made punishable in the more specific Articles and thus to prevent the possibility of a failure of justice. In practice, perhaps, a greater number of charges are based upon this Article than upon any other. A detailed discussion of the punitive articles would be out of place in this manual which is intended to cover only the procedure of military justice. Such a discussion, together with the facts which must be proved to establish the various offenses, will be found in chapter XXVI, MCM. In every case before attempting to decide whether a particular offense has been committed, the pertinent paragraph in that chapter dealing with the offense in question should first be carefully studied.

3. AGENCIES THROUGH WHICH CRIMES AND OFFENSES PUNISHED.

   1. In general. Having defined the various offenses and authorized punishment for them (AW 54 through 96), Congress provided the means whereby that punishment could be imposed. It established the system of courts-martial to try offenders, and conferred upon commanding officers a disciplinary power to impose limited punishment for minor offenses without trial. The exercise of such disciplinary power by commanding officers is considered fully in chapter 3, infra.

   2. Nature of courts-martial. A court-martial is a court composed of one or more commissioned officers (the number depending upon the class of court), the function of which is to decide whether a person subject to military law has committed a violation of the Articles of War and, if it finds him guilty, to adjudge punishment for the offense. It is an instrumentality through which military authorities enforce discipline and punish offenders. Unlike the criminal courts of a state or the United States, it is not a permanent judicial body. It comes into existence only when ordered by competent military authority, its members are selected by the officer who appoints it; and its sentences are carried out only when the authority who appointed it, or in some cases like or higher authority, so orders. It is, however, a court of law and justice, determining each case only after hearing witnesses and receiving evidence. Similarly it is bound by certain rules of evidence and the fundamental principles of criminal law, and is empowered to adjudge only such sentences as the Articles of War permit.

   3. Classes of courts-martial. There are three classes of courts-martial: (1) The highest court, known as a general court-martial, consisting of at least five officers as members (one of whom is designated as law member), together with a trial judge advocate (the prosecuting attorney), an assistant trial judge advocate, a defense counsel, and an assistant defense counsel. It has power to try any person subject to military law for violation of any Article of War. It may impose an authorized punishment from a mere reprimand to dishonorable discharge, dismissal, life imprisonment, or even death itself. (2) An intermediate court known as a special court-martial, consisting of at least three officers as members, together with a trial judge advocate and defense counsel. It may try any person subject to military law form a warrant officer down to a private. It is more limited as to the offenses it can try and the punishment it can impose than a general court. (3) The lowest court, known as a summary court-martial, consisting of but one officer who performs the functions of court, trial judge advocate and defense counsel. It is narrowly limited as to the persons it can try and as to the punishments it can impose. Only relatively minor offenses are referred to it. The jurisdiction of general, special, and summary courts-martial with respect to persons, offenses and punishments is discussed in chapter 8, infra.

4. MANUAL FOR CoURTS-MARTIAL. Congress itself in the Articles of War defined the crimes and offenses which are punishable and the general system for imposing punishment. No statue, however, can provide for all the numerous details encountered in the operation of any judicial or administrative system. The laws establishing the procedure of civil courts, for example, are often supplemented by detailed rules of court. In providing for the court-martial system, Congress accordingly authorized the President to prescribe the detailed procedure to be followed before military tribunals and the manner of proof and rules of evidence (AW 38), and also to establish maximum limits of punishment for most offenses (AW 45). The President issued these regulations in the Manual for Courts-Martial, U.S. Army, 1928. The Manual for Courts-Martial covers the operations of the entire court-martial system, from the initial steps to be taken before trail through the completion of the case. It deals fully with the various crimes and offenses, the evidence which can be used to prove them and the sentences which can be imposed. It is the bible of military justice. Being an order of the President issued by direction of Congress, it has all the force of law. From time to time since 1928 changes were made in the Manual for Courts-Martial by executive order of the President. These changes are included in the present edition of the Manual for Courts-Martial corrected to April 20, 1843. All references to the Manual for Courts-Martial herein are to this edition. It will be cited as MCM.

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