War Department Technical Manual
TM 27-255

 

Military Justice Procedure

 

War Department · February 1945

United States Government Printing Office
Washington : 1945

WAR DEPARTMENT
WASHINGTON 25, D.C., 23 February 1945

TM 27-255, Military Justice Procedure, is published for the information and guidance of all concerned.
[AG 300.7 (21 Oct 44)]

BY ORDER OF THE SECRETARY OF WAR:

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Foreword

This manual is a practical guide to court-martial and military justice procedure. It is not a substitute for the Manual for Courts-Martial but is intended as an aid in using that book. The Manual for Courts-Martial is a legal work, covering comprehensively, but concisely, the basic law and procedure of military justice. However, officers need to know not merely the legal principles but how to apply them practically in a given situation, what to insert in the blanks on the first page of a charge sheet, for example, or how to state to an accused the effect of his plea of guilty, or how to draft a court-martial order where several accused have been tried jointly. It is to answer such questions as these that this manual is designed. Accordingly, it contains numerous appendices, containing a "step by step" outline of trial procedure, a specimen record of trial by general, special, and summary courts-martial and examples of all other papers and forms commonly encountered in court-martial procedure.

The possible duties which an officer may be required to perform in connection with the administration of military justice are numerous and varied, as for instance, imposition of punishment under AW 104, serving as trial judge advocate or as summary court, or even as reviewing authority. Doubtless no one officer will have to perform all these tasks. Since any officer, however, may from time to time be called on to serve in several different capacities, this manual touches on most of the phases of military justice procedure from the initial question "Is any punishment required?" to the final action to be taken on a completed case. Some of the material is necessarily legal and technical in nature, such as the discussion of the rules of evidence or the powers of reviewing authority. Although all officers other than members of the JAGD will not have to deal with such matters, some must have knowledge of these and other technical aspects of the court-martial system. These subjects are covered as simply as possible and practical examples and forms are furnished.

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Table of Contents

  Foreword   iii
        Paragraphs Page
Chapter 1. General    
    Military Justice and the Articles of War 1 1
      In general 1a 1
      History of the Articles of War 1b 1
      Nature of the Articles of War 1c 2
    Crimes and Offenses 2 2
    Agencies through which Crimes and Offenses Punished 3 3
      In general 3a 3
      Nature of courts-martial 3b 3
      Classes of courts-martial 3c 3
    Manual for Courts-Martial 4 4
Chapter 2. Preventive and Corrective Measures    
  In General 5 5
  Disciplinary Instruction 6 5
  In general 6a 5
  Explanation of the Articles of War 6b 6
  Discharge Proceedings 7 6
  Noncommissioned Officers 8 7
  Use of Nonpunitive Correctional Measures 9 7
Chapter 3. Disciplinary Punishment Under Article of War 104    
  Function and Use of Article of War 104 10 8
  Offenses Punishable 11 8
  Who May Punish 12 9
  Persons Punishable 13 10
  What Punishment May Be Imposed 14 10
  Authorized punishments 14a 10
  Time limit and apportionment 14b 11
  Prohibited punishments 14c 11
  Procedure for Imposing Punishment 15 11
  On enlisted men 15a 11
  In the case of officers 15b 13
  Records of Disciplinary Punishment 16 13
  Effect of Disciplinary Punishment 17 13
  In general 17a 13
  As a bar to trial 17b 13
  As a previous conviction 17c 14
Chapter 4. Arrest and Confinement    
  Arrest of Confinement before Trial 18 15
  In general 18a 15
  Necessity and purpose of restraint 18b 15
  Types of restraint 18c 15
  Degree of restraint to be imposed 18d 15
  Who May Arrest and Confine 19 16
  Enlisted men 19a 16
  Officers and warrant officers 19b 16
  Procedure for Arresting or Confining 20 17
  Preliminary inquiry into offense 20a 17
  Procedural steps to arrest 20b 17
  Procedural steps to place person in confinement 20c 17
  Statements and reports required 20d 17
  Status of Person in Arrest or Confinement 21 18
  Status of arrest 21a 18
  Status of confinement prior to trial 21b 18
  Duration and Termination of Arrest and Confinement 22 19
Chapter 5. Preferring Charges    
  Charges in General 23 20
  Definitions 23a 20
  By whom charges preferred 23b 20
  Necessity for inquiry before preferring charges 23c 20
  Promptness in preferring charges 23d 21
  Additional charges 23e 21
  Selection of Charge 24 21
  General 24a 21
  Multiplication of charges 24b 22
  Combining charges of serious and minor offenses 24c 22
  Joint charges 24d 23
  Drafting Charges and Specifications 25 23
  The charge 25a 23
  Specifications, in general 25b 24
  Abbreviations 25c 24
  Serial numbers 25d 25
  Description of persons 25e 25
  Dates 25f 25
  Details 25g 25
  Value 25h 25
  Several larcenies 25i 25
  Examples of correct and incorrect drafting 25j 26
  Numbering charges and specifications 25k 26
  Preparation of Charge Sheet 26 26
  General 26a 26
  Name, etc., of accused 26b 26
  Age of accused 26c 27
  Pay of accused 26d 27
  Service of accused 26e 27
  Data as to witnesses, etc. 26f 27
  Data as to restraint of the accused 26g 27
  Preparing Joint Charges 27 28
  Signing and Swearing to Charges 28 28
  Evidence of Previous Convictions 29 28
  General 29a 28
  Convictions which should be included 29b 29
  Where no admissible previous convictions 29c 29
  Statement of Evidence upon which Charges Based 30 30
  Letter of Transmittal 31 30
  Submission of Charges to Immediate Commander of Accused 32 30
  Forwarding Charges 33 31
Chapter 6. Action Upon Charges    
  In General 34 32
  Dismissal of Charges and Action under AW 104 35 32
  Dismissal 35a 32
  Action under AW 104 35b 32
  Renumbering of charges and specifications 35c 32
  Making Changes and Corrections in Charges 36 33
  Reference to Trial by Inferior Court 37 33
  Policy 37a 33
  Procedure 37b 34
  Forwarding Charges to Authority Have General Court-Martial Jurisdiction 38 34
  Reference to investigating officer 38a 34
  Action after investigation 38b 34
  Forwarding charges where general court-martial not recommended 38c 35
  Action by officer exercising general court-martial jurisdiction 38d 35
  Suspected Insanity 39 36
  Suggested Time Standard for Disposition of Charges 40 36
Chapter 7. Investigation of Charges    
  Purpose and Scope of Investigation Under AW 70 41 37
  Preliminary Procedure upon Receipt of Charges 42 37
  Investigation Proper 43 37
  Preparation of Summaries of Expected Testimony 44 38
  Witnesses 44a 38
  Statement of Accused 44b 39
  Sufficiency of Evidence to Sustain the Charges 45 39
  General 45a 39
  Lesser included and related offenses 45b 39
  Recommendation as to Disposition of Case 46 40
  Report of Investigating Officer 47 40
  Contents 47a 40
  Documents and other evidence 47b 41
  Explanatory remarks 47c 41
  Investigation of the Case of Private Bark 48 41
Chapter 8. Appointment and Jurisdiction of Courts-Martial    
  Appointment in General 49 43
  Who may Appoint General Courts-Martial 50 43
  Who may Appoint Special Courts-Martial 51 43
  Post, station, and regimental commanders 51a 43
  Other commanding officers 51b 44
  Reservation by superior authority of power to appoint 51c 44
  Who may Appoint Summary Courts-Martial 52 44
  General 52a 44
  Reservation by superior authority of power to appoint 52b 45
  Courts Appointed by "Accuser" or "Prosecutor" 53 45
  General and special courts-martial 53a 45
  Summary courts-martial 53b 45
  Composition of Courts-Martial 54 46
  Who may serve as members 54a 46
  Number of members 54b 46
  Experience and qualifications of members 54c 46
  Orders Appointing Courts 55 47
  Preparation 55a 47
  Detail of members 55b 47
  Amending orders 55c 47
  Dissolving court 55d 48
  Withdrawing cases from old court 55e 48
  Jurisdiction in General 56 48
  Jurisdiction of General Courts-Martial 57 48
  Jurisdiction of Special Courts-Martial 58 48
  As to persons 58a 48
  As to offenses 58b 48
  As to punishments 58c 49
  Jurisdiction of Summary Courts-Martial 59 49
  As to persons 59a 49
  As to offenses 59b 50
  As to punishments 59c 50
Chapter 9. Summary Court Officers    
  Nature and Functions of Summary Court 60 51
  Selection of Summary Court Officers 61 51
  Duties of Summary Court Officer before Trial 62 52
  Conduct of Trial 63 53
  Explanation of accused's rights 63a 53
  Arraignment and pleas 63b 53
  Conduct of trial proper 63c 53
  Findings and sentence 63d 54
  Duties of Summary Court Officer after Trial 64 54
Chapter 10. Trial Judge Advocate    
  Functions and duties in general 65 56
  Preliminary duties before trial 66 57
  Preparation of the Case 67 58
  Analyzing the case 67a 58
  Interviewing witnesses 67b 59
  Arrangement of evidence 67c 59
  Preparation of questions and opening statement 67d 61
  Attendance of Witnesses; Stipulations; Depositions 68 61
  In general 68a 61
  Stipulations 68b 61
  Depositions 68c 62
  Attendance of military witnesses 68d 63
  Attendance of civilian witnesses 68e 63
  Attendance of witnesses for the defense 68f 63
  Arranging for Trial 69 64
  Notifying members, witnesses, and the accused 69a 64
  Preparation of courtroom, etc. 69b 64
  Duties during Trial 70 64
  Duties after Trial 71 65
  Report of result of trial 71a 65
  Preparation of the record 71b 65
  Preparation of vouchers 71c 65
  Weekly Reports 72 65
Chapter 11. Defense Counsel    
  Right of Accused to Counsel 73 66
  Duties of Defense Counsel in General 74 66
  Duties before Trial 75 67
  In general 75a 67
  Receipt and examination of charges and accompanying papers 75b 67
  Interview with accused 75c 67
  Advising accused as to pleas 75d 68
  Preparation of the case 75e 68
  Duties during Trial 76 68
  In general 76a 68
  Calling accused as witness 76b 69
  Duties after Trial 77 69
  Clemency 77a 69
  Examination of record 77b 70
Chapter 12. Members of General and Special Courts-Martial    
  In General 78 71
  President 79 71
  Definition 79a 71
  Assembling the court 79b 71
  Excusing members 79c 71
  Duties during trial in general 79d 72
  Rulings on interlocutory questions 79e 72
  Concluding incidents of trial 79f 73
  Authentication of record 79g 73
  Law Member 80 73
  Definition 80a 73
  Presence at trial 80b 73
  Rulings on interlocutory questions 80c 73
  Other duties during trial 80d 74
  Duties in closed session 80e 74
  Junior Member 81 74
Chapter 13. Trial Procedure    
  General 82 76
  Preliminary Matters 83 76
  Challenges 84 77
  In general 84a 77
  Disclosing grounds of challenge 84b 78
  Presenting challenges 84c 78
  Disposition of challenges for cause 84d 78
  Voting 84e 79
  Peremptory challenges 84f 79
  Acton after challenges 84g 80
  Arraignment and Continuances 85 80
  Pleas 86 80
  General 86a 80
  Special pleas 86b 80
  Pleas to the merits 86c 81
  Opening Statements 87 82
  Introduction of Evidence and Examination of Witnesses 88 82
  In General 88a 82
  Calling and qualifying of witnesses 88b 83
  Order of testimony 88c 83
  Direct examination 88d 83
  Cross-examination 88e 83
  Examination by the court 88f 84
  Objections 88g 84
  Motion for Findings of Not Guilty 89 84
  Arguments 90 85
  Joint and Common Trials 91 85
  Joint trials 91a 85
  Common trials 91b 86
Chapter 14. Evidence    
  Nature and Purpose of Rules of Evidence 92 87
  Direct and Circumstantial Evidence 93 87
  Hearsay Rule 94 88
  Definition 94a 88
  Exceptions to the hearsay rule 94b 89
  Admissions and Confessions--In General 95 89
  Proof of Confessions and Admissions 96 90
  A confession must be voluntary 96a 90
  There must be other evidence of the offense 96b 91
  Procedure 96c 92
        Written confessions 96c(1) 92
        Oral confessions 96c(2) 92
  Admissions against interest 96d 92
  Official Writings 97 93
  Admissibility in general 97a 93
  Entries obviously not based on personal knowledge 97b 93
  Service records 97c 94
  Proof of official writings 97d 95
  Method of Proving Writings 98 95
  In general 98a 95
  Original writing must be produced 98b 95
  Writing must be authenticated 98c 96
  Exceptions in the case of official records 98d 96
  Mechanics of introducing documentary evidence 98e 97
  Impeachment of Witnesses 99 98
  In general 99a 98
  Methods of impeaching witnesses 99b 98
  Evidence of reputation for truth and veracity where witness has been impeached 99c 99
  Character of accused 99d 99
  Proof of Value of Property 100 100
  In general 100a 100
  Civilian property 100b 100
  Inference of some value from nature of property 100c 101
  Value of government issue property 100d 101
Chapter 15. Findings    
  Closing of Court and Deliberations 101 102
  Voting Procedure 102 102
  Number of Votes Required 103 102
  Duties of Members in Voting 104 103
  Types of Findings on Specifications 105 104
  In general 105a 104
  Findings with exceptions 105b 104
  Findings with exceptions and substitutions 105c 104
  Lesser Included Offenses 106 105
  Findings as to Charges 107 106
  Findings as to Joint Accused 108 107
  Procedure after Voting on Findings 109 107
Chapter 16. Sentences and Punishments    
Section I. Procedure.    
  Closing of Court and Deliberations 110 109
  Duties of Members 111 109
  Method of Voting 112 110
  Number of Votes Required 113 110
  Form of Sentence 114 110
  General 114a 110
  Sentence must be single 114b 110
  Sentence for Joint Accused 115 110
  Announcement of Sentences; Clemency; Adjournment 116 111
II. Punishments--general limitations.    
  Considerations in Determining Punishment 117 111
  Sentence should be adequate and appropriate 117a 111
  Limitations on the court's discretion 117b 112
  Mandatory Sentences 118 112
  Table of Maximum Punishments 119 113
  Definition 119a 113
  To whom applicable 119b 113
  Offenses covered by the Table 119c 113
  Offenses to which the limitation in Table no longer applies 119d 113
  Substituted Punishments 120 114
III. Types of punishments.    
  Confinement and Hard Labor 121 115
  Definition 121a 115
  Who subject to 121b 115
  Length of confinement 121c 116
  Imposing forfeiture with confinement 121d 116
  Form of sentence 121e 116
  Hard Labor Without Confinement 122 117
  Definition 122a 117
  Who subject to 122b 117
  Execution of Sentence 122c 117
  Restriction to Limits 123 117
  Definition 123a 117
  Who subject to 123b 117
  Length of restriction 123c 117
  Forfeiture of Pay 124 118
  Definition 124a 118
  Who subject to forfeiture 124b 118
  Amount of forfeiture 124c 118
  Pay subject to forfeiture 124d 118
  Class F deductions 124e 119
  Effect of reduction of noncommissioned officer or private first class 124f 119
  Forms of sentences 124g 119
  Fines 125 120
  Definition 125a 120
  Who subject to 125b 120
  Detention of Pay 126 121
  Definition 126a 121
  Who subject to 126b 121
  Amount of detention 126c 121
Chapter 17. Court-Martial Records    
  In General 127 122
  General Court-Martial Cases 128 122
  Number of copies of record 128a 122
  Reporters 128b 122
  Form and contents 128c 122
  Examination by defense counsel 128d 123
  Authentication 128e 123
  Service on accused 128f 123
  Correction 128g 123
  Forwarding 128h 124
  Special Court-Martial Cases 129 124
  Number of copies of record 129a 124
  Reporters 129b 124
  Form and contents 129c 124
  Examination, authentication, and correction 129d 124
  Forwarding to reviewing authority 129e 124
  Summary Court-Martial Cases 130 124
Chapter 18. Action on Proceedings by Reviewing Authority    
  General 131 126
  Examination of Record 132 126
  Approval of the Sentence 133 127
  Disapproval 134 127
  Approval and Disapproval of Findings 135 127
  Rehearing 136 128
  Correction of the Record and Revision 137 129
  Certificate of correction 137a 129
  Revision proceedings 137b 130
  Remission and Mitigation 138 131
  General 138a 131
  Reduction in quantity 138b 131
  Reduction in quality 138c 132
  Limitations 138d 132
  Execution and Suspension 139 132
  Form of Reviewing Authority's Action 140 133
  Completion, Arrangement, and Disposition of Record 141 133
  In summary court-martial cases 141a 133
  In special court-martial cases 141b 134
  General court-martial records 141c 135
  Subsequent Action on Sentences 142 135
  What action may betaken 142a 135
  Who may take action 142b 135
  How accomplished 142c 136
  Restoration of Garrison Prisoners to Duty 142d 136
Chapter 19. Court-Martial Orders    
  Publishing Result of Trial 143 137
  Preparation 144 137
  Headquarters 144a 137
  Date 144b 138
  Numbering 144c 138
  Orders appointing the court 144d 138
  Description of accused 144e 138
  Charges and Specifications 144f 138
  Pleas 144g 138
  Findings and sentence 144h 138
  Previous convictions 144i 138
  Date of sentence or acquittal 144j 139
  Action 144k 139
  Authentication 144l 139
  Acquittal 144m 139
  Joint and common trials 144n 139
  Rehearing 144o 139
  Distribution 145 139
  Court-Martial Orders Remitting or Suspending Sentences, or Vacating Suspensions 146 140
List of Appendices   177
Appendices   184
Index   185

Transcribed and formatted by Patrick Clancey, HyperWar Foundation