Chapter 6.
Action Upon Charges

34. IN GENERAL. The charges and allied papers are forwarded to the officer exercising summary court-martial jurisdiction over the organization--for example, the regimental or post commander--who will be referred to in this chapter as the "commanding officer." It is his task to see that the charges are properly disposed of. The various types of action he can take are discussed in the following paragraphs.

35. DISMISSAL OF CHARGES AND ACTION UNDER AW 104.

    1. Dismissal. Upon examination of the charges, he may decide that all or some of them do not warrant further action because they are trivial, do not constitute any offense or because there are sound reasons for not punishing the accused for such offenses. If so, he may dismiss all or part of the charges. If he wishes to dismiss all of the charges, he normally will return the charge sheet and allied papers to the accuser by indorsement on the letter of transmittal (if any) or by separate communication, stating that no action appears warranted. If he wishes to dismiss only some of the specifications or charges, he will draw lines through such specifications or charges and initial them.

    2. Action under AW 104. He has the same obligation and authority as the immediate commanding officer of the accused to make use of disciplinary punishment under AW 104 if such punishment is appropriate. If, therefore, any of the offenses charged are "minor" offenses which can be adequately punished under that article, he will, unless trial is demanded, line out the specification or charge alleging that offense and have appropriate disciplinary punishment imposed. Although he may himself impose the punishment, normally the matter should be referred back to the immediate commanding officer of the accused for action. The procedure to be followed in imposing disciplinary punishment under AW 104 is in chapter 3, supra. Of course, if the accused demands trial, disciplinary punishment cannot be imposed. In such case the charge must be either dismissed or tried.

    3. Renumbering of charges and specifications. Where some charges and specifications are dismissed or disposed of under AW 104, the remaining charges and specifications may require renumbering. Thus, if there

were two charges, with one specification under Charge I and three specifications under Charge II, and the commanding officer struck out Charge I and its specifications and also Specification 1 of Charge II, all that would be left would be a single charge with two specifications under it. Therefore, the Numeral II should be stricken out after the Charge and the specifications should be renumbered 1 and 2. In such case it would be necessary to change the numerical designations of the charge and specifications appearing in the affidavit on the charge sheet to correspond to this renumbering.
36. MAKING CHANGES AND CORRECTIONS IN CHARGES. If the commanding officer decides that trial by court-martial is necessary on all or some of the charges, he should, before referring them to trial, have the charges carefully examined to determine that they are properly signed and sworn to, free from defects of form or substance, and that they properly set out an offense under the Article of War alleged. If any errors or omissions are discovered in the charge sheet or allied papers, relating to formal matters, such as data as to service, previous convictions, etc., corrections should be made or the missing data supplied. If the charges and specifications themselves contain obvious errors, corrections may be made, or the charges and specifications may be redrafted without sending the charges back to the accuser, provided that the correction or redraft does not involve any substantial change or include matters not already fairly included. Where corrections or changes are made, they must be initialed by the officer making them. If a specification sets out all the elements of an offense, but is carelessly drawn, its wording can be changed to conform to the appropriate form in appendix 4, MCM. Or if, for example, a specification and charge allege larceny in violation of AW 93, the specification can be redrafted to allege wrongful taking, and the charge changed to allege a violation of AW 96, since that offense is fairly included in the original charge. This change can be made by striking out the necessary words and figures and substituting new ones, or by retyping the entire specification and charge. However, the specification could not be redrafted over the accuser's signature to allege larceny of different or additional property, or to charge embezzlement rather than larceny. Such redrafting would result in charging new matters to which the accuser has never sworn. If such a change is necessary, new charges must be prepared and signed and sworn to either by the original accuser or some other authorized person.

37. REFERENCE TO TRIAL BY INFERIOR COURT.

    1. Policy. Having determined that trial by court-martial is warranted, the commanding officer must decide to what type of court-martial the charges should be referred. The Manual for Courts-Martial provides that "charges, if tried at all, should be tried by the lowest court that has power to adjudge an appropriate and adequate punishment" (par. 34, MCM). The first question

to be determined then is whether a summary court has jurisdiction to try the accused and the offense in question, and if so, whether the punishment it has power to impose is adequate and appropriate for the offense. If the case cannot adequately be disposed of by summary court, then consideration must be given to referring it to a special court-martial. In this connection, the jurisdictional limits of summary and special courts-martial, discussed in chapter 8, infra, should be considered. Trial by general court-martial should be the exception, not the rule. Charges against an enlisted man should not be referred to general court-martial unless the offense is so serious that only a general court-martial has power to adjudge an adequate sentence or unless the accused should be dishonorably separated from the service because he is unsuitable to associate with other enlisted men.
2. Procedure. If the charges are to be referred to a summary or special court-martial the 1st indorsement on page 3 of the charge sheet should be completed and signed by the adjutant on each of the three copies. The charge sheets, together with the allied papers, will then be transmitted to the summary court officer or trial judge advocate of the special court-martial as the case may be.
38. FORWARDING CHARGES TO AUTHORITY HAVING GENERAL COURT-MARTIAL JURISDICTION.

    1. Reference to investigating officer. If the commanding officer decides that trial by general court-martial is required, the charges must be formally investigated in compliance with AW 70 before being forwarded to superior authority (par. 30c, MCM). A formal investigation under AW 70 is not required before charges are referred to inferior courts-martial for trial (AW 70; par 30c, MCM), although the commanding officer may have any charges investigated before deciding how to dispose of them. Such action would be proper if he were doubtful as to the nature of the offense, the appropriateness of the charges or the type of inferior court to which they should be referred. However, he should not unduly delay trial by requiring investigations in the usual case of minor offenses. The purpose and procedure of an investigation under AW 70 is discussed in chapter 7, infra.

    2. Action after investigation. On the basis of the investigating officer's report, the commanding officer may conclude that his initial decision to recommend trial by general court-martial was not sound and that it would be better to dismiss the charges, dispose of them under AW 104 or refer them to an inferior court. He would accordingly take such of those actions as was indicated. If, however, he still believes that trial by general court-martial is warranted, he will forward the charges, allied papers and the investigating officer's report to the authority having general court-martial jurisdiction over the command. Unless he has been otherwise directed, all three copies of the charge sheet and other papers will be forwarded. Usually he will forward the charges by indorsement on the letter of transmittal. He must include in the indorsement,

or other communication, his recommendation as to trial. The indorsement or letter should be personally signed by the commanding officer and not by his adjutant. (See app. 2, p. 179 infra.)
3. Forwarding charges where general court-martial not recommended. The commanding officer may believe that trial by an inferior court is adequate, but he may have no power to refer the charges to such a court. For example, he is without authority to refer a capital case to a special court-martial (par. 58b, infra), or to refer charges against a noncommissioned officer to a summary court over his objection. (See par. 59a, infra.) In such cases trial by the inferior court in question can be authorized only by the authority having general court-martial jurisdiction. The commanding officer, therefore, would forward the charges to the authority having general court-martial jurisdiction, recommending trial by special or summary court, as the case may be.

4. Action by officer exercising general court-martial jurisdiction. AW 70 and paragraph 35b, MCM, require the authority having general court-martial jurisdiction to consider the advice of his staff judge advocate, based on all the information relating to the case which is reasonably available, before he orders trial by general court-martial. This requirement for examination of the charges by a trained military lawyer safeguards the substantial rights of the accused and protects him against trial on unfounded or relatively minor offenses by a general court-martial and insures adequate preparation and investigation of each case. The staff judge advocate rechecks the charges and accompanying papers to ascertain that all necessary data appear on their face, that they have been properly investigated and that there is sufficient evidence to warrant trial. Just as the "commanding officer" may correct errors and redraft charges and specifications over the signature of the accuser, provided no substantial change is made and no matter not fairly included in the original charges is added (par. 36, supra), so the staff judge advocate may make similar corrections and changes. If the investigation has been inadequate or is incomplete, he may recommend that the charges be sent back for further investigation. He must make a written report to the officer exercising general court-martial jurisdiction as to the kind of trial, if any, which should be had, taking into account the nature of the offenses charged, the circumstance surrounding them, the age, character, length of service, and former convictions of the accused, and policies as to trial by inferior court. (See app. 2, p. 178 infra for an example of such a report.) In addition to reference to a general court-martial for trial, he may recommend, and the appointing authority may take, any of the actions which the commanding officer could have taken--e.g. dismissal of any charge or specification, disposition under AW 104, or reference to an inferior court. Normally if disposition under AW 104 or trial by an inferior court is deemed proper, the charges will be returned to the commanding officer who forwarded them, with directions to take such action. If trial by general court-martial is decided upon, the charges

will be referred to the trial judge advocate of that court by completion of the first indorsement on the charge sheet.
39. SUSPECTED INSANITY. If there is reason to believe that the accused is mentally defective or was so at the time the offense was committed, steps should be taken to settle the question before charges are referred to trial. The matter should be referred to a board of one or more medical officers for its opinion on three questions: (1)whether both at the present time and at the time the offense was committed the accused knew the difference between right and wrong, 92) whether he had the capacity to keep from doing wrong, and (3) whether at the present time he has the mental ability to understand the nature of the proceedings against him and to do what is necessary to present his defense. To determine these questions the board should place the accused under observation, examine him and conduct such further investigation as it thinks necessary. Its report, in an nontechnical language as possible, should state its opinion specifically on these questions. On the basis of this report, further action on the charges may be suspended or the charges dismissed, proceedings may be taken to discharge the accused from the service on the ground of mental disability,or the charges may be referred to trial. Both the commanding officer who first received charges and higher authority to whom the charges are forwarded have authority to have the accused examined by a board of medical officers.

40. SUGGESTED TIME STANDARD FOR DISPOSITION OF CHARGES. There is no prescribed period of time within which charges must be preferred and the various steps in the trial of a case taken and completed. Normally, however, the following time periods can be observed without any sacrifice of thoroughness or fairness. In most cases it should be possible to prefer charges within 48 hours after an offense is known to have been committed. If such charges are to be tried by a summary court, the case should be tried and completed within 3 days after the charges are preferred. In special court-martial cases, the charges should be referred for trial, the trial had and the record completed within 7 days after the charges are preferred. In general court-martial cases, the charges should be investigated within 48 hours after they are preferred, should be sent to the officer exercising general court-martial jurisdiction within 24 hours after completion of the investigation and should be referred for trial within 48 hours after receipt by the officer exercising general court-martial jurisdiction. After being so referred they should promptly be served on the accused, but, except where military necessity demands it, the accused should not be brought to trial on those charges before a general court-martial within 5 days after such service unless he consents thereto. There will, of course, be many cases in which for good reasons compliance with this suggested standard will not be possible. However, this standard should be the rule, and departure from it the exception.

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