Chapter 3.
Disciplinary Punishment Under Article of War 104

10. FUNCTION AND USE OF ARTICLE OF WAR 104. Many minor infractions of the rules may occur from time to time in any command which require some punishment but which are not sufficiently serious to warrant trial by court martial. To provide a prompt and efficient method of disposing of such offenses, Congress in AW 104 authorized commanding officers themselves to impose limited forms of disciplinary punishment directly upon persons of their command without the intervention of a court-martial. Such disciplinary punishment is commonly known as "company," "battery," or "squadron" punishment. The policy as to use of this disciplinary power is clear:

    "A commanding officer should resort to his power under A.W. 104 in every case where punishment is deemed necessary and where that article applies, unless it is clear that punishment under that article would not meet the ends of justice and discipline. Superior commanders should restrain any tendency of a subordinate commander to resort unnecessarily to court-martial jurisdiction for the punishment of offenders" (par. 105, MCM).

    A commanding officer must not disregard the provisions of AW 104. He must decide in each case whether they are applicable, and if so, whether use of them will adequately serve the ends of justice and discipline. AW 104 does not give commanding officers authority to impose any punishment they see fit in any manner they choose. The forms of authorized punishment are limited and the procedure for imposing them clearly prescribed. It is necessary to consider, therefore, what offenses can be dealt with under this Article, who may exercise the power, the persons subject to it, and the nature of the punishment that can be imposed.

11. OFFENSES PUNISHABLE. Only "minor" offenses may be disposed of by use of a commanding officer's disciplinary powers. If a serious offense is to be punished, charges must be preferred and tried by court-martial. Whether an offense is minor or serious is often a question of judgment which cannot be settled by rule of thumb. Everyone easily recognizes some offenses as being very serious. The Manual refers to three such classes which are never minor (par. 105, MCM): (1) those for which the Articles of War provide a mandatory punishment, such as conduct

unbecoming an officer and a gentleman (AW 95) or an officer's being found drunk on duty in time of war (AW 85) for which dismissal from the service is required punishment; (2) those for which the death penalty is authorized, such as wartime desertion (AW 58) or sleeping on post in time of war (AW 86); and (3) those for which confinement in a penitentiary is authorized, of which felonies such as arson, burglary or assault with intent to do bodily harm with a dangerous weapon (AW 93) are examples. Whether an offense not falling within one of the above classes is "minor" depends upon its nature, the time and place of its commission, and the person committing it. "Generally speaking, the term includes derelictions not involving moral turpitude or any greater degree of criminality or seriousness than is involved in the average offense tried by summary court-martial" (par. 105, MCM). In other words, the nature of the offense and the customary punishment for it must be taken into consideration. Offenses such as larceny, an attempt to commit sodomy, or fraudulently passing a bad check involve moral turpitude and so are not properly to be treated as minor. Escape from confinement, willful disobedience of noncommissioned officers, threatening or assaulting a sentinel are offenses which, while not involving moral turpitude, are more serious than the average offense tried by summary court. These should not be regarded as minor. On the other hand, unaggravated absence without leave for a short period or drunkenness in station are offenses usually tried by summary court and properly may be punished under AW 104. Of course, an offense which on its face seems minor may be considered a serious one in the light of the circumstances of the particular case and the person committing it. Drunkenness on the part of a soldier who constantly overindulges and who has not changed his ways despite repeated attempts at correction and the use of disciplinary punishment, may cease to be a minor dereliction. The question is one on which the commanding officer must use his best judgment taking into account the nature of the offense, its effect upon the organization as a whole, the manner in which such offenses are customarily punished in the Army, the circumstances of the particular case, and the record of the offender. Unless his discretion is abused, his decision will be final and conclusive.
12. WHO MAY PUNISH.

    1. The commanding officer of a detachment or a company has power to impose disciplinary punishment upon all persons of his command. Higher authority (for example, regimental, post, division, or army commander) also possesses such power. In the case of enlisted men, the offender's unit commander usually take disciplinary action. If higher authority believes that disciplinary action under AW 104 is appropriate in such cases, he will normally refer the matter to the unit commander for such action rather than impose punishment himself. In the case of officers, the unit commander, although having

the power to impose punishment himself, will usually refer the case to higher authority such as the regimental or post commander. If forfeiture of pay is believed an appropriate punishment in the case of a commissioned officer who may be so punished (par. 14a, infra), the matter must be referred to the commanding general, since only a commanding officer of the rank of brigadier general or higher has authority to forfeit an officer's pay under the Article.
2. The disciplinary power of a commanding officer cannot be delegated to a subordinate (par. 105, MCM). A company commander cannot, therefore, authorize his first sergeant to dispose of offenses under AW 104. He must handle the matter himself. Of course, an officer who is temporarily in command of an organization has full authority to impose disciplinary punishments, since that is one of the command ;owers to which he has succeeded.
13. PERSONS PUNISHABLE. Any person under the command of the commanding officer is subject to disciplinary punishment. This includes not only enlisted men but also warrant officers, flight officers, and commissioned officers. There is often more occasion for utilizing AW 104 in the case of officers than in the case of enlisted men. A commissioned officer can be tried only by general court-martial. Unless his misconduct is such as to warrant or require dismissal from the service, disciplinary punishment is usually sufficient and preferable to trial.

14. WHAT PUNISHMENT MAY BE IMPOSED.

    1. Authorized punishments. The types of disciplinary punishments which may be imposed are set out in AW 104 and in paragraph 106, MCM. These include admonition (i.e., a warning or reproof), reprimand, withholding of privileges for not exceeding 1 week, extra fatigue for not exceeding 1 week, restriction to limits for not exceeding 1 week, and hard labor without confinement for not exceeding 1 week. The term "extra fatigue" includes kitchen police. Hard labor may not be imposed on any person above the rank of private first class and no punishment which would tend to degrade the rank of the person punished is permitted (par. 106, MCM). In the light of these limitations, the punishments which are applicable to noncommissioned officers and officers are somewhat restricted. In their case, admonition and reprimand, restriction to limits, and withholding of privileges may be utilized. An additional punishment available in time of war in the case of commissioned officers below the rank of major--i.e., only captains and lieutenants--is forfeiture of half of 1 month's pay. The pay subject to forfeiture is base pay, which includes the increase for foreign service plus longevity pay. Flying pay is not included. (See WD Cir. 420, 1942.) Only commissioned officers are subject to such forfeiture.

Warrant officers or flight officers are not commissioned officers, nor are aviation cadets. (See WD Cir. 420, 1942.) Their pay cannot be forfeited under AW 104.
2. Time limit and apportionment. The Article limits withholding of privileges, extra fatigue, restriction and hard labor without confinement to a period not exceeding 1 week. A week means 7 consecutive calendar days. Restriction to the limits for two or more weekends or kitchen police for 7 Sundays, for example, are illegal forms of punishment. Furthermore, any combination of the punishments referred to above cannot exceed a total of 1 week. Thus, a soldier may not be restricted to the limits for 1 week and in addition be required to perform extra fatigue or hard labor. If it is desired to impose a combination of two or more punishments for a single offense, they must be apportioned so that the total will not exceed 1 week. Thus, 4 days' restriction plus 3 days' hard labor is authorized since the combined punishment falls within the 1 week limitation. This rule as to apportionment does not, however, prevent adding also a reprimand or admonition (or, in the case of a captain or lieutenant, forfeiture of pay), even if other authorized punishment in the full amount of 1 week is imposed.

3. Prohibited punishments. Confinement under guard and forfeiture of pay (except the forfeiture of pay of captains and lieutenants) are expressly prohibited (AW 104; par. 106 MCM). Detention of pay (par. 106 MCM) or any forced contributions or deductions are likewise illegal. Reduction of noncommissioned officers or privates first class is not authorized as punishment under AW 104, but may be accomplished administratively in accordance with paragraphs 13c and 15, AR 615-5, 30 June 1943. Punishments not sanctioned by the customs of the service, such as carrying a loaded knapsack (par. 102 MCM) or "double-timing" may not be imposed. Strictly military duties, such as guard duty, drills, practice hikes, and marches, are not to be degraded by use as punishments (par. 102 MCM), and it illegal to impose them under AW 104.
15. PROCEDURE FOR IMPOSING PUNISHMENT.

    1. On enlisted men. The procedure to be followed in exercising disciplinary powers under AW 104 is provided for in paragraphs 107 and 108, MCM.

       (1) The first step taken by the commanding officer is to satisfy himself that the person to be punished has committed the offense in question and that it is a minor offense which can be disposed of under AW 104. No particular form of investigation is required, but the commanding officer should fully acquaint himself with the facts before he takes action. To do this he will usually interview informally persons having knowledge of the offense. It is desirable to give the accused an opportunity to explain his side of the case, and he may be permitted to be present when other witnesses are interviewed if this seems desirable. It must be remembered

that no person can be required to admit his guilt or to make any statement which will incriminate him (AW 24). In talking with the accused, therefore, the commanding officer must be careful not to indicate that he has to make any statement. On the contrary, he should explain to the accused that he is perfectly free to remain silent if he chooses but that if he does say anything, it may be considered against him.

(2) Having satisfied himself that an offense was committed and that disciplinary action under AW 104 is appropriate, the commanding officer will call in the accused, notify him briefly and clearly of the nature of the offense, and inform hi9m that he proposes to impose punishment under AW 104 unless trial by court-martial is demanded. The accused must have an opportunity to demand trial by court-martial before punishment is imposed. Failure to afford him this opportunity nullifies the order of punishment and renders it illegal. He should, therefore, be given a reasonable time in which to make up his mind whether to demand trial. He is not entitled to be informed as to the punishment he will receive if he selects disciplinary punishment in place of trial. If the accused demands trial, disciplinary action under AW 104 cannot be taken. In such case, if trial is advisable, charges should be promptly preferred and the fact that a demand for trial was made should be noted on a memorandum attached to the charges (par. 27, MCM) or opposite the specification on the charge sheet itself (par. 33, MCM). A demand for trial does not require the preferring of charges (par. 109, MCM), but if any punishment is to be imposed, it must be by way of trial.

(3) If no demand for trial is made, the commanding officer determines the appropriate punishment for the offense and informs the accused of the punishment. At the same time the accused must be notified of his right to appeal to the "next superior authority" if he believes the punishment unjust or out of proportion to the offense. Such superior authority has the power to modify or set aside the punishment if justice requires, but he may not increase it or impose a different kind of punishment (par. 108, MCM). Failure to notify him of his right renders the punishment illegal. An appeal must be in writing, signed, and include a statement of reasons for regarding the punishment as unjust or excessive (par. 108, MCM). If the accused expressed a desire to appeal, the commanding officer should assist him in preparing the appeal, have him sign it and forward it (through channels) to next superior authority. Having imposed punishment, the commanding officer is charged with the responsibility of having it executed. Punishment should be strictly enforced. Failure in this respect may well have a worse effect on discipline than imposing no punishment at all. The fact that the accused has appealed does not prevent his being required to undergo the punishment in the meantime, but the officer imposing the punishment may suspend it until action by higher authority is taken.

2. In the case of officers. If the commanding officer decides to impose punishment under AW 104 upon an officer of his command, notification of the offense and of his intention to impose punishment therefor must be by written communication to the officer through proper channels. The accused will be directed to acknowledge receipt by indorsement through channels and to include in the indorsement any demand for trial. Notification of the punishment imposed (and of any reprimand or admonition included therein) will be by indorsement on the original communication and the accused will be directed to acknowledge receipt by similar indorsement and to include the date of receipt and any appeal (par. 107, MCM). A form for imposition of company punishment upon an officer is attached. (See app. 5.) Such disciplinary power is an attribute of command and may not be delegated to any subordinate. For this reason the commanding officer authorized to impose punishment under AW 104 must discharge the duty personally and cannot authorize any other officer to impose punishment.
16. RECORDS OF DISCIPLINARY PUNISHMENT. In every case in which punishment is imposed under AW 104, the immediate commanding officer of the person punished must make a record of such punishment (par. 109, MCM) noting the offense with date and place of commission, the punishment which was imposed, the authority who imposed it, the date the accused received notice of the imposition of punishment, the decision of higher authority (in case there was an appeal), and mitigation or remission of punishment and any additional information desired. No form for this record is prescribed. It is commonly kept in a punishment book. A suggested form for such a book is set out in appendix 6. No entry of such punishment will be made in the service record (par. 47, TM 12-230) nor will any transcript of the record be furnished or forwarded in the event of enlisted men's transfer. In the case of officers, a copy of the communication imposing the punishment with its indorsements in usually placed in the officer's 20 file.

17. EFFECT OF DISCIPLINARY PUNISHMENT.

    1. In general. The fact that punishment under AW 104 has been imposed upon a soldier or officer may be taken into account by his commanding officer in connection with other matters affecting him in the future. It is a factor in considering his fitness for promotion. The fact that the offender has been punished under AW 104 in the past may be an important consideration in deciding whether trial by court-martial should be had for a subsequent offense. The authority acting upon a sentence may well take into account such prior punishment in determining whether the sentence should be remitted or mitigated.

    2. As a bar to trial. No person under military law may without his consent be tried twice for the same offense (AW 40). Punishment under AW 104 is not technically a "trial" within the meaning of the provision.

However, the same fundamental principle of fairness which precludes "double jeopardy" is the basis for the rule set forth in the Manual for Courts-Martial that punishment under AW 104 will bar a subsequent trial for the same offense (par. 69c, MCM). Thus a soldier who has been properly punished under AW 104 for failure to appear at drill cannot be later tried by court-martial for the same act. As has been stated above, only "minor" offenses can properly be punished under AW 104. There is no power to dispose of "serious" offense under that article. If, therefore, disciplinary punishment was in fact imposed for a serious offense, such punishment would not prevent trial by court-martial for that offense, since his commanding officer had no power at all to dispose of so serious a transgression by such limited punishment. The offenses which are minor and properly punishable under AW 104 are described in paragraph 11, supra. Although the imposition of disciplinary punishment for a minor offense will bar a later trial by court-martial for the same offense, it will not bar trial for another crim or offense growing out of the act which was punished (AW 104; par. 69c, MCM). For example, if a soldier were punished under AW 104 for reckless driving, that punishment would not preclude trying him later for manslaughter if his reckless driving had caused a death (par. 69c, MCM); or if a solider while drunk struck a noncommissioned officer, punishment under AW 104 for drunkenness would not mean that he could not be tried for the assault. If he were so tried, however, he would be entitled to show at the trial the punishment he had already received so that the court could consider that fact in determining it sentence (par. 79c, MCM).
3. As a previous conviction. As noted above, disciplinary action under AW 104 is not a trial, and an accused who has been so punished has not been "convicted" of any offense. Records of disciplinary punishment, therefore, are not previous convictions and may not be introduced in evidence by the trial judge advocate nor considered by the court against the accused under the provisions of paragraph 79c, MCM.

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