U.S. MILITARY JURISDICTION OVER CIVILIANS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP62-00631R000300110016-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 74
• Document Creation Date: December 12, 2016
• Document Release Date: April 29, 2002
• Sequence Number: 16
• Publication Date: November 17, 1958
• Content Type: PAPER

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1. General
This general field has been one of legal and political corrtention In
the English-speaking world since back before Magna Carta. It has recently
come into public focus through the confusion generated by the Supreme
Court's decision in the Covert and Krueger cases.l Aside from the private
advocacy of personal rights, it is an area of particular interest to
those agencies of the Government whose activities are related in at~y
fashion to the military. This is intended tv be a short stmmmary for pi:xpo~es
of immediate administrative guidance as well as an understanding of ~'u~,ure
judicial opinion. At the moment, the lower federal courts seem to be
pointing up issues that will enable the Supreme Court to expand the ~.ir:ite~
guidance it has given in Covert-Krueger. Reduced to its barest form. t"s
a matter of constitutional conflict between certain personal rights of
the individual and the operation and regulation of the armed forces.
Mechanically, the particular cases have come up on the ~urisdictionai
question of courts-martial or civil trial by ,jury. The broader ram:afic.atic~ns,
of course, reach into wartime as well as peace, affect aliens as well ea
U. S. citizens, and have a predictable impact on the status-of-forces
agreements around the world.
2. Constitution
The legal bedrock here is the Constitution itself. From the individual's
standpoint, the provisions so jealously asserted are found mainly ir.. art. III,
and the Fifth and Sixth amendments. In art. III, ~ 2, cl. 3 we find:
"The trial of all Crimes, except in Cases of Impeachment, shall
be by Jury; and such Trial shall be held in the State where the said
Crimes shall have been committed; but when not committed within arty
State, the Trial shall be at such Place or Places as the Congress
may by Iaw have directed."
This petit or trial ,jury guarantee must be read in corl~unction with the
Sixth amendment which states in pertinent part:
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, ~ * * ."
1Reid v. Covert, 35~+ U.S. 1 (1957) .
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And this section, in turn, is affected by the Fifth amendment which confers
the right of grand fury indictment:
"No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; ~ * ~' ?
We shou~d note here that there are no common law offenses against the United
States. Further, what determines a "crime" or its "infamous" nature
depends upon the severity of the punishment as well as the inherent qualities
of the act. Two phrases in particular are important: "except in cases
arising in the land or naval forces does not appear in the Sixth amen~ent,
but it has been read into it and also the art. III provision; the limitation
"when in actual service in time of War or public danger" applies only to
the militia. In passing, the exception touching the "land or naval forces"
was not aimed at the laws of war but was designed rather to permi~ the
military to try crimes otherwise only cognizable by civil courts. So
together, these constitutional provisions seem to mean that an individual
who is neither a member of the armed forces nor a wartime member of the
militia is entitled to a grand fury indictment and a petit fury trial.
Whether these rights apply only in the United States or extend overseas is
one of the current issues. We should also note that the language of the
Fifth amendment refers to "cases arising in" rather than "members of" the
military forces.
On the other side of the ledger is the authority to regulate and control
the armed forces. This appears principally in art. I, ~ 8, with treiin
reliance placed on cl. 1~+, stating:
(The Congress shall have Power)
"To make Rules for the Government and Regulation of the land anti
naval Forces;"
In conjunction with this, however, there are the other powers in ~ t3:
(cl. 1, in part) "provide for the common Defense and general
Welfare of the United States;"
(cl. 10) "To define and punish Piracies and Felonies committed
on the high Seas, and Offenses against the Law of Nations;"
(cl. 11) "To declare War, * * ~ and eke Rules concerning
Captures on Land and Water;"
(cl. 12) "To raise and support Armies,
(cl. 13) "To provide and maintain a Navy;"
~, , F~
2United States v. Hudson, 7 Cr. 29 (1812).
3Johnson v. Sayre, 158 U.S. 11~+ (1895)?
~'Ex parts Quirin, 317 U.S. 1 (19+2).
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(cl. 15) "To provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel Invasions;"
(cl. 16) "To provide for organizing, arming, and disciplining
the Militia, and for governing such Part of them as may be employed in.
the Service of the United States, reserving to the States respectivei~t,
the Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress;''
r
and cl. 18 with the celebrated quote from M'Culloch v. Maryland, def`iring
what other laws are necessary and proper to do these things. ~`inally,
under the executive powers (art. II, ~ 2, cl. 1), "The President shall be
Commander in Chief of the Artr{}r and Navy of the United States, and of the
Militia of the several States, when called into the actual Service of` the
United States; ~- * ~ ."
3. Statutes
The governing statute at present is the Uniform Code of Military Justice
(UCMJ) (50 U.S.C. 551 (1951))? Under art. 2, persons subject to the Code
include:
"(10) In time of war, all persons serving with or accomAar~iring an
armed force in the field;
"(11) Subject to the provisions of any treaty or agreement to
which the United States is or may be a party or to any accepted rule
of international law, all persons serving with, employed by, or
accompa vine the armed forces without the continental limits of the
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United States and without the following Territories: That part of
Alaska east of longitude one hundred and seventy-two degrees west,
the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico,
Guam and the Virgin Islands;
"(12) Subject to the provisions of arty treaty or agreement to
which the United States is or may be s party or to any accepted rule
of international law, all persons within an area leased by or othertirase
reserved or acquired for the use of the United States which is un+ier the
control of the Secretary of a Department and which is without the
continental limits of the United States and without the following
Territories: That part of Alaska east of longitude one hundred and
seventy-two degrees west, the Canal Zone, the main group of the H3waiia*~
Islands, Puerto Rico, Guam and the Virgin Islands." (My emphasis.)
The legislative history of the Code tells us that paragraph (10) is takAn
from AW 2 (d). The phrase "in the field" has been construed to refer to any
place, whether on land or water, apart from permanent cantonments or forti-
fications, where military operations are being conducted.b
54 Wheat. 316 (1819}. "Let the end be legitimate, let it be within the
scope of the Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with
the letter and spirit of the Constitution are constitutional."
6 ~ve~~c~.Rg a 2/ 5: 000300110016-1
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Paragraphs (11) and (12), on the other hand, are adapted from ~~+ U.S.C.
1201, but are applicable in peace as well as wartime. Both are subject to
the supervening provisions of arty treaty or agreement made by the United
States or to accepted rules of international law. Paragraph (11) is some-
what broader in scope than (10) in that it covers persons "employed" by
the armed forces as well as those "serving with" or "accompanying" them.
The territorial limitations have been reduced to include only those areas
where civil court systems are not readily available.
~+. Covert and Krueger Cases
At this point, let's review the action of the Supreme Court in these
two cases. After certain preliminary developments which are not important
here, the two cases were considered as one, which for simplicity, we'll
call "Covert." Each involved the overseas murder of a serviceman by his
dependent, each defendant was tried and convicted by a military court-mart:~al,
each appealed by habeas corpus to the Supreme Court. In each instance,
art. 2 (11) of the UCMJ was alleged to be unconstitutional.
The case was first decided in 196 with an opinion by Clark, J., that
the article was constitutional. He was joined by four other justices.
Warren, Ch. J., and Black and Douglas, J.J., dissented. Frankfurter,, J.,
reserved an expression. On rehearing, the Court then held the article un-
constitutional with regard to the present case. Warren, Ch. J., and Douiglt~s
and Brennan, J.J., ,joined in an opinion by Black, J., finding the military
trial of civilians in peacetime inconsistent with the Constitution.
Frankfurter, J., and Harlan, J., in separate opinions concurred but limited
themselves to capital cases. Clark and Burton, J.J., dissented, adhering
to the majority views of the original opinion.
What does this ease - which must be accepted as the latest milestone -
stand for? In the first place, there is no majority opinion as such. You
have, rather, a position taken on military jurisdiction over United States
civilians who commit a capltal offense overseas in peacetime. Frankfurter
and Harlan, J.J., in their opinions are clearly affected by the capital
nature of the crime.? The Black opinion, on the other hand, shows in its
scope a deep concern for personal liberties, uncompromised by any military
necessities. It is helpful as a harbinger of future stands by these four
members. The dissenters, Clark and Burton, J.J., find ample constitutional
support for military jurisdiction over civilians who are art of the armed
forces. They are concerned with the practicalities of the situation from
both the deterrent aspect and the submission of United States citizens to
foreign courts. Whittaker, J., did not participate.
?Reid v. Covert, supra at 77 (Harlan, J.): "Where, if at all, the dividing
line should be drawn among cases not capital, need not now be decided.
~ * ~ and it seems to me particularly unwise now to decide more than we
have to." Id. at ~~ (Frankfurter, J.): "I must emphasize that it is only
the trial. off civilian dependents in s capital case in time of peace that
is in question."
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The main points in the "majority" opinion should be examined. The first
of these overcomes the old doctrine of the RossB case that the Constitution
does not follow the citizen overseas. This doctrine, incidentally, was the
keystone of the majority opinion in the firs hearing and receives further
comment from Harlan in his concurring views. Its historical fo~d8tion
in the consular and territorial courts is carefully reviewed by Frankfurter.
That it may still have some vitality is a further point that Harlan makes
and he suggests thatlC "in view of Ross and the Insular cases, we have
before us a question analagous, ultimately, to issues of due process; one
can say, in fact, that the question of which specific safeguards of the
Constitution are appropriately to be applied in a particular context over-
seas can be reduced to the issue of what process is 'due' a defendant in
the particular circumstances of a particular case." The "majority" view,
however, is that the Ross case cannot be lifted out of its setting and that
it "should be left as a relic from a different era."11 And Frankfurter
observes that Ross "was decided with reference to a very particular,
practical problem with a long history."~ Read into the context of its time,
Ross stands far extraterritorial support in days when our sovereignty reached
over "barbarian" lands but failed to carry the constitutional protections
beyond the territorial limits.
Conceding that the constitutional restraints followed the individual
overseas, it was argued that these restraints might nevertheless be overcome
by statute or treaty. In other words, it was suggested that art. 2 (11)
of the Uniform Code was "necessary and proper to carry out the United States'
obligations under the international agreements made with" Great Britain
and Japan. The "majority" struck this down without a moment's pause.
BRoss v. McIntyre 1~+0 U.S. x+53 (1891). Jurisdiction of an American Consular
Court in Japan over an American seaman (though a British subject) was
validated and the constitutional provision for indictment aad trial by
fury was held to apply only to persons within the United States.
9Reid v. Covert, s ra at 67 (Harlan, J.): "I also think that we were
mistaken in interpreting Ross and the Insular Cases as standing for the
sweeping proposition that the safeguards of Article 3 and the Fifth and
Sixth Amendments automatically have no application to the trial of American
citizens outside the United States, no matter what the circumstances.
Aside from the questionable wisdom of mortgaging the future by such a croad
pronouncement, I am satisfied that our June holding swept too lightly
over the historical context in which this Court upheld the ,jurisdiction of
the old consular and territorial courts in those cases. I shall not repeat
what i4Y brother Frankfurter has written on this subject, with which I agree.
But I do not go as far as ~y brother Black seems to go on this score. Hip
opinion, if I understand it correctly, in effect discaxds Ross and the
Insular Cases as historical anomalies. I believe that those cases, properly
understood, still have vitality, and that, for reasons suggested later,
which differ from those given in our June opinion, they have an important
bearing on the question now before us."
10id. at ?5.
1lId. at 12.
12za. at 56.
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There was still a question of what was meant by the "land and naval
forces," the phrase used in the rules and regulation part oP art. 1 oP the
Constitution as well as in the exception of the Fifth amendment. The
opinion does not suggest that members of the military may not be subjected to
military law, with all its inherent restrictions and limitations, but it
does ask whether civilian dependents are "in" the military service and
therefore subject to these limitations. It finds that they are nat.
The court observed that the broadest military 3uxisdiction over civilians
was historically supported on],y for those serving with or accomparrring the
forces in the field in time of war. It added that even during wartime, the
Constitution must be observed, and agreed '~ri.th Col. Winthrop, an expert on
military jurisdiction, who declared: 'a statute cannot be Framed by which a
civilian can lawful be made amenable to the milita urisdiction in tine
of peace.' Emphasis not supplied.
The opinion closes on the traditional conflict between the military and
the civil, quoting Lord Coke: "'God send me never to live under the Law
of Conveniency or Discretion. Shall the Souldier and Justice Sit on one
Bench, the Trumpet will not let the Cryer speak in Westminster Hall.'"14
The dissenting views of Clark and Burton, J.J., generally take a position
that dependents are a part of the armed forces, and if extraterritorial
courts and trial by fury are precluded, subjection of these people to foreign
prosecution is an "unhappy prospect."
Thus the case leaves unsettled a number of questions. It does not disclose
the court's attitude toward: dependents committing non-capital crimes;
employers, contractors or sutler-type persons; or dependents of the latter
group.. Furthermore, while it seems more than reasonab]y clear what juris-
diction would be supported in wartime in the field, this itself will be
affected by the meaning of "in the field" and a definition of the extent of
a given theatre of war.
5. Historical
Military jurisdiction has expanded slowly over a long period of time,
the result of necessity and propitious chance. As an area sui generis,it
was applied first to soldiers in wartime, then to soldiers in peacetime;
later it extended over certain civil crimes committed by soldiers in peace,
and, finally, it was made to cover civilians why were part of the armed
forces, or who were in an area of war or who were direct],y under military
control. Underlying the independent area of military jurisdiction, however,
were all the ancient legal systems based on military organization - in times
when a state of war was more normal than peace. As one recent authority
explains:
131a. at 35.
l~Ia. at ~+1.
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"The feudal law was made known to the Romans in ~orYiAlexander~
$.C. by the Teutons and was utilized by the Raman Emp ,
Severus. Upon the decline of the Roman Empire, the Goths, Huns, Franks,
Vandals and Lombards borrowed the feudal law and carried it into Europe
as an instrument of their military policy. It became the 'law of nations'
of the western world of that time. '~ * ~ asytheeLibrieFeudorum.~This
feudal law had been codified in Lombardy __
well-developed continental feudal system was brought to England by
William The Conqueror in 1066 and imposed upon the simpler feudal system
already existing in Britain."15
Some authorities consider Magna Carta a product of the barons' effort to save
their feudal rights rather than a stand for freedom of the cottanon man.lb
Thus, the codes brought down from the Salians of the Fifth Century into
the Fourteenth were almost indistinguishable between the civil and military
aspects. The first French militaY9 law is dated as 1378; the first German -
1487. The codes of particular note are those of: the Free Netherlands (1590),
Louis XIV (1651 and 1665), Czar Peter The Great (1715), Maria Theresa (1768),
but in particular, the celebrated "Carolina" (Constitutio Carolina Criminalis)
of Gustavus Adolphus (1621) which probabl}- shaped much of the succeeding
British articles end was therefore direct]y reflected in the original American
Articles of War.l7
The law was administered by the military magistrates of the Romans, the
German priests, and ultimately by special military courts which first made
their appearance in the France of about 1650. In our direct inheritance, it
canes dawn through the Courts of Chivalry, the Constable's Court (the Constable
was conanander of the Army from William The Conqueror to Henry VIII), the
courts of the Earl Marshal (next in rank to the Constable) from which the term
"court martial" is derived, and then by military officers under Crown comanissions.
First created by royal fiat, English military courts ~r,ere not a matter of
legislative sanction until the first Mutiny Act of 1689? A statutory
sanction to the King to eke articles operative both at home and abroad way
authorized by Psxliment in 1718. The Act and the Articles were finally con-
solidated by Parliment in 1881 into the Armor Annual Act.
Unlike the British, our Articles have always devolved from a legislature
action. The first Articles drafted in this country were those adopted by
the Massachusetts Bay Coiox~y in 1775. The first set of Articles adopted
by the Continental Congress in 1775 were quickly enlarged to become the
Code of 1776. After adoption of the Constitution these were amended in 17tj6 and
by the new code of 1806 which survived until the revision of 1871+. A later
revision became effective in 1917, was amended in 1920, and went through
substantial change in 19+8. The present code dates from May 31, 1951?
iSAYCOCK AND WUE~'EL, MILITARY LAW UNDER THE UNIFORM CODE OF MILITARY .TtbTI~:E,
~+ (1955)?
i6RADIN, ANGIA-AMERICAN LEGAL HISTORY, 152-155 (1936)?
17see W11~THROP, ~QII,ITARY LAWS AND PRECIDENTS, 17 (2d ed., 1896) for a more
detailed discussion. (The author has been styled "The Blackstone of
military law. ")
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~. Application in Theory and Practice
With some impression of the background, history and legislative me~ndateT.
how has the problem been handled?
a. The term "Militax~ Jurisdiction."
The term "military ~urisdict'on" should first be clear. In the muc:~-
cited case of Ex pane Milliganl~ Chief Justice Chase said that:
"There are under the Constitution three kinds of military
jurisdiction: one to be exercised both in peace and war; another
to be exercised in time of foreign war without the boundaries off`
the United States, or in time of rebellion and civil war within
states or districts occupied by rebels treated as belligerents;
and a third to be exercised in time of invasion or insurrection
within the limits of the United States, or during rebellion with-
in the limits of states maintaining adhesion to the national
government, when the public danger requires its exercise. The
first of these may be called ,jurisdiction under military law, and
is found in acts of Congress prescribing rules and articles of
war, or otherwise providing for the government of the national
forces; the second may be distinguished as military government,
superceding, as far as may be deemed expedient, the local iaw,
and exercised by the military commander, under the direction of
the President, with the express or implied sanction of Congress;
while the third may be denominated martial law proper, and is
called into action by Congress, or temporarily, when the action
of Congress cannot be invited, and in the case of ,justifying or
excusing peril, by the President, in times of insurrection or
invasion, or of civil or foreign war, within districts or
localities where ordinary law no longer adequately secures public
safety and private rights."
Each of these: military law, military government, and martial law, have
some application, but for the most part we are concerned with "military
law." What exactly do we mean by this term? In its beginning it often
fell within the loose generic category of "martial law." It devolves.
into "military law proper" and then to its present designation. It
consists of the principles and doctrines found in the military articles
or codes: the written law; and the principles and usages peculiar to
war itself: a sort of unwritten military common law. This]atter is
made up of the customs of the service and the unwritten laws and
customs of war.l~ Customs and usages today are to a large extent
mere],y amplifications of the written law or evidence of its intent,
but they may on occasion serve as more. 'I'he written law - the code
provision - however, is the controlling point of interest fbr us.
The present language of the UCMJ comes down, as already mentioned,
from the articles of the Massachusetts Bay Colony:
1$71 U.S. 107 (1866).
1g4JINTHROP, op. cit. supra, note 17, at ~+1.
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"Article 31st. All sellers and retailers to a camp, arxa. all.
persons whatsoever serving with the Massachusetts Army in the field,
though not enlisted Soldiers, are to be subject to the Articles,
Rules and Regulations of the Massachusetts Army."
The word "retainers" (to a camp) first appears in the American Articles
of War of 1776 (Sec. XIII, Art. 23). No substantial change appears
through the various revisions noted above and the Articles of 1916,
which remained until 1951 state (Art. 2 (d)):
"All retainers to the camp and all persons accompanying or
serving with the armies of the United States without the territorial
jurisdiction of the United States, and in time of war all such
retainers and persons accompanying or serving with the armies o~'
the United States in the field, both within and without the
-territorial jurisdiction of the United States, though not otherwise
subject to these articles."
A brief word on the other two elements of "military jurisdiction?'~
"military government" is distinguished from "martial law" by Winthrop
as "a government exercised over the belligerent or other inhabitants of
an enemy's country in war foreign or civil; martial haw over our own
immediate fellow citizens, who, though perhaps disaffected or in
sympathy with the public enemy, are not themselves belligerents or,
legally enemies. The occasion of military government is war; the
occasion of martial law is simp]y public exigency which, though more
commonly growing out of pending war, may yet present itself in time
of peace. The field of military government is enemy's country; the
field of martial law our own country or such portion of it as is
involved in the exigency." Under military government, the civil laws
and functionaries may be left in force within the discretion of the
military commander. "'Martial law" is not necessarily limited to war
but may be exercised during periods of "public danger" and the bare
fact that civil courts are open does not control when their function
is disturbed by existing conditions.2l Without congressional sanction,
the suspension of the writ of habeas corpus cannot be supported. The
same would seem to be true of indictment and fury trial where the
offense is not directed at the military. Whether or not Congress
might later ratify actions it had not previously approved would depend
of course on the particular facts at hand.
The geographical boundaries added in the present code have been
devised to restrict military jurisdiction over civilians to those
areas where civil courts are not available in peacetime. The basis
of jurisdiction itself, of course, depends not only on "place," but
also on "time," "persons," and "offenses." This varies somewhat, too,
with the nature of the tribunal. Col. Winth~gp covers the jurisdiction
of military courts in the following fashion:
20Id. at 799?
21Id. at 817.
22Id. at 86 et seq.
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(a) Place:
(1) Entire United States;
{2) Area of military occupation in war;
(3) Friendly foreign area where our armed forces are
present with host's consent;
(~+) Friendlyy foreign area, present without host's consent;
(5) Foreign area, over persons not present in a mill+,,ary
capacity, for military offenses.
(b) Time: This depends on the current statute of limitations
see art. 43 of the UCMJ.)
(c) Persons:
(1) Regular armed forces of the U.S. (including volunteers
and draftees);
(2) Militia when called into active service;
(3) Civilians in wartime;
(4) Civilians under statutory jurisdiction in peace as
well as war.
(d) Offenses: See the current articles of war, code or other
statutes.
For "military commissions," Winthrop defines the following jurisdiction:
(a.)
Place:
(except by statute) only of offenses in the Yield
under ~
area.2
he convening commander and for trial in the same
(b)
Time:
only during a period of war, military government or
martial law.
(c)
Persons:
(1) Enemy soldiers violating laws oY war;
(2) Inhabitants of an occupied enemy country;
(3) Inhabitant areas under martial law;
(~+) Members of our armed forces "or gersons serving with"
these forces in the field, who, in time of war, are
charged "with crimes or offenses not cognisable, or
triable, by the criminal courts or under the Articles
of War . "
~3Note, 29 VA. L.R. 317 (1942). The author questions the jurisdiction over
saboteurs in the matter of place when the offense occurs in the United
States although he raises the doubt of availability of the constitutional
safeguards to enemy aliens. He suggests the possible solution of
Ex parts Quirin (supra.): the Constitution did not enlarge common-law
rights and the latter did not include such offenses.
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(In elaboration of this last ,group, he adds: "Besides officers and
soldiers, there are comprised in this category camp-followers and
other civilians employed by the government in connection with the
army in war. And among those tried in the Civil War by military
commission were: "sutlers, officers' servants, teamsters, persons
employed on government steamers and transports, or otherwise in the
quartermaster, provost marshal and other staff corps, as also
individuals serving in such capacities as veterinary surgeons,
government detective, medical cadet, lieutenant in the revenue service,
special agent of the revenue ser7~~ce, special agent of the Treasury,
newspaper correspondent, etc.".)
We might dwell a moment on the military commission. Its a~xthari.ty
stems from the constitutional powers "to declare war" and "raise
armies" - with everything necessary and proper to these ends - and the
implicit authority of the President as Commander-in-Chief of the armed
forces. The occasion for its development were those crimes not other-
wise defined in a written code coeQnitted by persons not members of
the military forces. It is exclusively a war-court. In the beginning,
there was little difference between it and the court-martial and we
find in 1780, a special court-martial convened for the trial of Joshua
Hett Smith for his collaboration with Gen, Arnold. It was not until
the Mexican War that the military commission, as such, appeared. Arts
punishable by it were mainly those criminal offenses cognizable by
civil courts in peacetime. Gen. Scott set up councils of war for
violations of the laws of war. These two functions were finally combined
in the military commission of the Civil War. The tribunal is called
by the President or his military commanders and there is no fixed rule
for its composition, although normal],y the military serve. Nor is
there a fixed rule for its procedure unless stipulated by statute.
b. General Legal Principles.
Beyond the matter of jurisdiction, there are some other principles
of law that are generally pertinent forneference. In the first place,
the criminal law of the United States is wholly statutory. It was
decided early in the history of our courts that criminal jurisdiction
in common-law cases was not within the implied power of the courts
(aside from matters affecting ~ontempt, enforcement of its own orders,
contumacy of witnesses, etc.). 5 However, the statutory effect has
been applied not only in this country but also overseas when the pel
or controlling force can still be applied within the United States.`
In the absence of treaty, the law_4f the local sovereign applies. `fhis
is clear as to its own nationals.( And it covers, as well, all persons
2~GIINTHFtOP, op. cit. supra at 838.
~SUnited States v. Hudson, su ra.
2~Blackmer v. U.S., 28~+ U.S. x+21 (1932). (A U.S. citizen resident in France
had property seized in the U.S. for failure to answer a subpoena ea s
Government witness.)
WILSON, INTERNATIONAL LAW, s ~+8 (3d Ed., 1939)?
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within the ~jurisdiction.z8 On the nature of the act, the Supreme
Court has said that "the general and almost universal rule is that
the character of an act as lawful or unlawful must be determined
wholly by the law of the country where the act is done." All of
which may naturally be modified by treaty,30 although our courts
have held that certain constitutional rights of the individual cannot
be alienated by treaty, which has no more than statutory effect.3i
And, as "a rule nationals of a foreign state cannot claim greater
rights than the subjects of the state in which they are for the time."32
However, where there is no treaty and jurisdiction is not asserted
by the foreign sovereign, a crime may go unpunished.33 Thus we find
that while the sovereign has jurisdiction over all within his domain
for offenses against his law, he may concede certain rights (provided
they don't enhance the position of aliens over his own subjects) and
he may, of course, decline to exercise jurisdiction at all if he pleases.
In the absence of treaty, we may extend our criminal jurisdiction beyond
our shores by act of Congress but we can enforce it only within our
shores and only when the offense is one against the U.S. The current
28Note the classic comments of Chief Justice Marshall in The Schooner Exchange
v. M'Faddon and Others, 7 Cranch 116, 136 (1812).
"The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed by
itself. Any restriction upon it, deriving validity from an external source,
would imply a diminution of its sovereignty to the extent of the restriction,
and an investment of that sovereignty to the same extent in that power
which could impose such restriction.
"All exceptions, therefore, to the full and complete power of a nation
within its own territories, must be traced up to the consent of the nation
itself. They can flow from no other legitimate source.
"This consent may be either express or .implied. In the latter case, it
is less determinate, exposed more to the uncertainties of construction; but,
if understood, not less obligatory."
~9Am. Banana Co. v. United Fruit Co., 213 U.S. 347 (1909). However, an
offense against the sovereign may be punishable even though committed out-
side the jurisdiction. United Staten v. Bowman, 260 U.S. 94 {1922).
30WIISON, op. cit. supra at 143. "The rights of a national of one state in
another state are usually specified in treaty agreement."
31Reid v. Covert (supra).
32WIISON, op. cit. supra, note 30, ~ 51.
3320 Ops. Atty. Gen. 590 (1893). Here was a situation where no foreign
sovereign existed (the New Hebrides Islands at the time). The federal
statute provides for trial in the district in which the offender is found
or into which he is first brought for "offenses coam4i.tted upon the high
seas or elsewhere out of the ,jurisdiction of any particular state or
district" but this was construed to appltiy onl,}r to a crime ainst the
United States.
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position of the Supreme Court is that constitutional protections of the
individual extend throughout the world. We have seen that by inter-
national law and custom military forces have certain rights of juris-
diction over their members.3~' And the personal rights of individuals
are modified by the Constitution itself when the person becomea a
member of these forces.35 Whether certain classes of individuals are
"in" the forces becomes a matter of ,judicial interpretation and whether
the rights of the military to regulate itself can be expanded by
Congress to cover those who are not in uniform has depended on a number
of variable criteria: whether it was war or peacetime, whether the
force was "in the field," whether the function was military, etc. The
cases are tgYriad and review of a few will be illustrative.
On the procedural aspects, ~t seems established that a civil court
cannot review a court-martial,3 although there may be concurrent
.jurisdiction creating both civil and military offenses.37 While, on
the other hand, the consent or voluntary appearance $f the accused
cannot confer ,jurisdiction where it does not exist.3 For the cqn-
current ~us'isdiction of court-martial and military commission, see the
Madsen case.39 Generally, the action takes the form of habeas corpus
and proceedings can be brought in the District of Columbia for persons
imprisoned ove seas (provided, of course, that there is otherwise U.S.
~jurisdiction).~0 It has been held that aliens imprisoned overseas
after cp~art-martial conviction c~~not test due process by habeas
corpus, although citizens can. 2
c. The Individual's Relationship to the Armed Forces.
We come finally, then, to the question of the civilian's relationship
to the armed forces. In what instances has the court-martial jurisdiction
been supported and how have the courts reacted to the varying conditions
of fact? There are a few landmark cases that are constantly cited. In
World War I, several appear. A civilian employed by the quartermQSter
department and assigned to a vessel transporting army supplies attempted
to leave the ship before it sailed from Brook],yn. He was held to be
34Ex parts Johnson 3 F. 2d 0
~ 7 5 (Kan. 1925) - The military has an ie~plicit
power to regulate itself.
~~nited States ex rel. Roberson v. Keating, 121 F. Su 4
x_ parts Vallandigham, 68 U.S. 2~+3 (1864). ~ ~ (N'D?~ 211. 19~~9).
3 United States ex rel. Wessels v. McDonald, 265 Fed. 754 (E.D.N.Y. 1920}.
~cClaughry v. Deming, 186 U.S. 4 1 2
~9Madsen v. Kinsella., 343 U.S. 3419(1852),?
OReid v. Covert (su ra).
41Johnson v. Eisentrager, 339 U.S. 763 (1950),
42In re Bush, 84 F. Supp. 873 (D.C. 1949}.
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serving with the armies in the field.43 Still more clearly, a civilian
mate on a military transport was discharged overseas and was returning
to the U.S. on an army transport. After volunteering to stand watches,
he refused to continue. He was held to be "gccompanying" and "serving
with" the armies of the U.S. "in the field." Another civilian doing.
quartermaster work with the-army on the Mexican border was held to be
accompanying a force "in the field." The continual imminence ~?~
actual conflict was a factor the court considered controlling.YJ ~iow-
ever, some limits are drawn and a civilian employee of a contractor
building a camp in the U.S. was held not to be accompanying the forces,
nor was he a "retainer.11 In this instance, he was apparent],y engaged
in the transportation of certain government employees in the audit
department. The question of whether or~not the individual was "in the
field" was not discussed by the court. Among other civilians of this
period who were held properly under military jurisdiction, we find: a
field auditor in a quartermaster office in South Carolina; laborers
employed by civilian contractors engaged by the American Expeditionary
Force in France; a scout in Texas; laborers on docks at ports of embar-
kation; members of a labor unit in France; stevedores employed by the
army in France; Red Cross personnel serving with the army overseas; the
captain of an army transport in the Port of New York; merchant seamen
on army transports at sea or in English, French, or American ports; a
telephone operator employed by the arcgy in France; secretaries, and
other employees of the YMCA and Knights of Columbus in France.'~7
Winthrop suggests that "retainers to the camp" are officers'
servants or camp followers, szd among the latter, subject to court-
martial, he mentions sutlers, sutlers' employees, newspaper corre-
spondents, telegraph operators and "same others." Among the more
numerous class of those serving with the armies in the field (this,
the Civil War, of course) were: civilian clerks, teamsters, laborers
and other employees of the "different staff departments," hospital
officials ~~d attendants, veterinaries, interpreters, guides, scouts
and spies.
In World Ytar II, the ship's cook again appeared in a situation
quite similar to the Falls case of World War I. The merchant seaman
here was once mare held to be "in the field" even though the ship
under charter to the government, was standing at a Norfolk dock.'`
Two instances of civilians employed by U. S. contractors overseas are
worth noting. Both occurred in Eritrea, former enemy-held territory.
43Ex parte Falls, 251 Fed. 415 (N.J. 1918).
~~Ex rte Gerlach, 247 Fed. 616 (S.D.N.Y. 1917).
~ parte Jochen, 257 Fed. 200 (S.D. Tex. 1919).
~__ paste Weitz, 256 Fed. 58 (Mass. 1919).
~ AYCOCK && WURFEL op. cit. supra at 55?
~BWINTHROP op. cit. supra at 99-100.
~McGune v. Kilpatrick, 53 F. Supp. 80 (E.D. Va. 1943}.
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In the earlier case, the individual was employed by Douglas Aircraft
in the operation of an aircraft depot. A conviction of theft by a
court-martial was upheld 0 although the case was critizggd on the basis
that connection with the armed services was too r~hees7ame.52 tIn each
second and later case, the facts were essentially ~~ the armed forces,
instance, the defendant wanthhad in factaterminated either prior to
and the fact that employm
the crime or prior to trial was not considered relevant.
Other instances in World War II in which military ,jurisdiction over
civilians was exercised either outside the territorial U.S. or in the
field were: employees of die Board of Economic Warfare sent overseas
at the Theater Commander`s requed btotheeCo ns of Eheineersi mechanics
population; electricians employ y x'p ~
at overseas bases; USO entertainers; American newspaper correspondents
officially accredited to the Army; civilian passengers on army trans-
ports or commercial vessels under array control carrying militar,{ cargo;
post exchange employees at camps in the U.S.; agents of the Treasury
Department on foreign fund control work in North Africa; Civil Service
pilots of the Air Corps Ferrying Coamrand; Civil Air Patrol pilots
under orders of Army Theater Commanders; police and guards at important
installations both in the U.S. and overseas; civilian seamen and
employees of vessels operated by or under army control; and messmen
and cooks on private ships carrying military cargo.53
On the other hand, certain classes of persons have been determined -
at least, by the Judge Advocate General of the Army - not to be
sub3ect to military law: laborers, mechanics or professional personnel
at industrial establishments in the U.S.; employees engaged by an
independent contractor on the Inter-American highway under the direction
of Army Engineer officers, but where no troops were present; clerical
employees in the U.S. not4 at military camps; civilian guards o#' over-
seas OSS installations.5
These were all in wartime. However, the UCMJ extends ,jurisdiction
not only to persons "serving or accompanying an armed force in the
field" in time of war, but also to those "serving with, employed by,
or accompanying the armed forces" outside certain territorial limits
without regard to whether it is war or peace. Thus, civilians who
are not "in the field" in wartime would also be covered by the
second portion, but generally it applies to peacetime rather than war.
Civilian employees who are part of the armed forces have been held
properly subject to court-martial jurisdiction. In one instance,
the individual took an oath of office and was "in" the naval service.
(The crime itself occurred aboard a naval vessel at Norfolk.)55
Soln re Di Bartolo, 50 F. Supp. 929 (s.D.N.Y 1943).
51Comment 13 FORDHAM L.R. 122 (19}+1+).
52Perlstein v. United States, 151 F. 2d 167 (3d Cir. 191+5)?
53AyC0~ & WURFEL oy. ci_t. supra at 56-57.
541a at 58.
55Johnson v. Sayre, 158 U.S. 114 (1895)?
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Where, however, the independent civilian status is distinct, it
would seem that - except in wartime where the "field" is inside the
limits - the act must take place outside the stipulated territorial
boundaries. When it does, military jurisdiction over civilian
employees has been upheld. The Court of Military Appeals has
affirmed it for a civilian employee superintending operation of a 5m
plant by the army under contract with a local corporation in Japan.
And a federal district court in California reached the same result
for another civilian employee of the army in Japan. The case is
useful for a review of the problem but it was decided before Covert
and holds that the Constitution does not extend overseas.57 In a
prosecution after Covert, the D.C. district court supported court-
martial jurisdiction over a civilian employee of the Air Force who
was convicted of larceny at the installation in Nouasseur, Morocco.
Judge Holtzoff distinguished Covert by the difference between serviee-
men's dependents and civilian employees, a difference he found
recognized in principle by Mr. Justice Blsck.5 (On the other hand,
this distinction was not followed by the ma.~ority opinion on appeal,
although it was advocated in the strong dissent to reversal of the
district court.59) And again in a recent decision of a federal
district court, a civilian employee of the army in France was found
to be "in" the forces even though not inducted and not in uniform. It
seems clear in this instance that the ~u~e was pointing an issue for
the Supreme Court in an unresolved area. The case is under appeal
and perhaps the effort will be successful.
In the matter of dependents who commit less-than-capital crimes,
a federal district court in the only case so far reported has followed
Covert "much as I may disagree with it." (The charge was involuntary
manslaughter a~~l the USCMA had already decided in favor of military
jurisdiction.) 1
56tTnited States v. Marker, 1 U.S.C.M.A. 3933 3 C.M.R. 127 (1952)?
57In re Varney's Petition, 141 F. Supp. 190 (S.D. Cal. 1956).
5 nited States ex rel. Guagliardo v. McElroy, 158 F. Supp. 171 (D.C. 1958).
591d. 27 U.S. L. Week 2117 (D.C. Cir. No. 14304, Sept. 12, 1958)? The
circuit court considered the provisions of art. 2 (11) of the UCMJ non-
severable and applied Covert. It observed that legislation bringing some
civilians under military ,jurisdiction for some offenses would not necessarily
be unconstitutional. In a dissenting opinion that expressly did not
"reach the question of capital cases of those serving with or employed
by the military". Judge Burger found no real problem of statutory
construction. The provisions of the UCMJ were easily severable and.
presumptions of constitutionality should not be "so quickly cast aside."
Black's distinction of "in" the forces clearly suggested a difference
between dependents and employees (in non-capital cases). (This seems much
clearer reasoning than the majority point that the "wisdom of reAraining
from avoidable constitutional pronouncements" lead it to decide on non-
severability. It's either severable or it isn't.)
Grisham v. Taylor, 161 F. Supp. 112 (M.D. Pa. 1958)?
61Singleton v. Kinsella, 27 U.S. L. Week 2118 (S.W. Va. 1958)?
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Another group of civilians tried by court-martial are the ex-
servicemen who were on active duty when the crime was committed. The
traditional attitude may be found in a case where, while the defendant
was not a civilian at the time of trial, the civilian rights were
observed. In an Illinois federal district court, s sailor who was
honorably discharged - without deceit or misrepresentation on his part -
re-enlisted and was then tried for an offense committed in his previous
period of service. The court observed that members of the military
forfeit certain constitutional rights when they don the unifore~ but
that these rights become immediatel}r available again when the service
ends. It held that t~e discharge ended the court-martial ,jurisdiction
for the prior period. 2 This was precisely the situation that Congress
sought to change by a.rt. 3(a) of the UCIdJ. The Su reme Court met the
question in United ~~tes ex rel. Toth v. Quarles.~3 A serviceman who
had been honorably discharged was subsequent]y charged with a murder
committed during his tour in Korea, arrested and returned overseas
for military trial. The court found that the constitutional protections
prevailed and that the statute was in conflict.
Although the serviceman returned to civilian is usually beyond t~?~e
military area, the serviceman dishonorably discharged and confined
under military control does not recover his constitutional rights.
Thus, the court found that there was no denial of due process for an ,,
ex-soldier who murdered a f~llow prisoner in a military establishment."`
Similarly in Lee v. Madigan 5 the district court rejected the argument
that a military prisoner attained a civilian status as the result of
a dishonorable discharge. The language of the present Code (art. 2(7))
is explicit although as yet untested. It would seem reasonable to
assume that military jurisdiction in this situation would be supported
on the theory that civilian status has not been reacquired. The fact
that it might be peacetime should not affect the conclusion.
4Je have been considering persons who have some voluntary connection
with the military through service, occupational attachment or domestic
relationship. There are other classes where jurisdiction arises as
the result of bellia~erency or a state of emergency. The characteristics
of martial law have been described above, Its essential provocation
is emergency and while military ,jurisdiction covers all within its
cognizance, it can be applied to civilians only where the civil courts
are not "open " and functioning in the normal fashion, and may continue
only until the civil courts resume.b7 As a result of belligerency,
we find spies, saboteurs and "fifth columnists" brought to trial before
~2Roberson v. Keating (su ra).
~335o U.S. 11 (1955)?
Kahn v. Anderson, 255 U.S. 1 {1920).
b5148 F. Supp. 23 (N.D. Cal. 1957)?
6Ex rterte Milligan {supra).
6 Dun? can v. Kahanamoku. 327 U.S. 30~+ (1946).
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military tribunals. There are ample instances in the Revolutionary
and Civil Wars but two recent examples of World War II should suffice.
In each, the individuals were trained by the enemy and apprehended
inside the U.S. And in each the trial was by military commission.
The most significant point from our view is a challenge to juris-
diction based on the U.B. citizenship of one of the defendants. In
neither case did the court find the ob3ection valid and ruled in effect
that U.S. citizenship did not confer arty rights not otherwise accorded
a defendant in this position. (It should be noted th~ aqy question
of treason, however, was either overcome or avoided.) Still other
groups affected by military ,jurisdiction are prisoners of war and
beyond the usage and custom of war are various intern~#~ional under-
standings concerning them that we won't go into here.?y
7. Conclusions
Covert decided the narrow point that dependents of servicemen maybe
tried under military jurisdiction for capital offenses coganitted overseas
in peacetime. We have taken a look at military jurisdiction, its backa~round
and development. Particular principles of law have been noted, anti cases
limning the limits of fact have been mentioned. In brief, the problem of
military ,jurisdiction is the conflict between the needs of the armed forces
to preserve order and discipline - the marrow of their existence - and the
personal rights preserved for the individual by the Constitution. We've
found that many of these rights are suspended when the citizen becomes a
part of the armed forces. Notably - and mainly for this review - there
is no longer an entitlement to indictment and trial by ,jury. The Zuestion
then is whether a given class of persons becomes such a "part" of the
services. There is no doubt about the man who takes his oath and climbs
into uniform. He falls within military ,jurisdiction with all its limitations.
And he remains under this ,jurisdiction as long as he stays under military
control eventhough he may have been dishonorably discharged from his service.
Once, however, he again becomes a civilian without trick or collusion,
military jurisdiction for all previous crimes is lost. Who else might be
considered t1part" of the forces? The myriad types of camp-followers or
retainers have now been codified to include all those: (1) "serving with"
or "accompanying" an armed force in the field in wartime; (2) "serving with",
"employed by," or "accompanying" the armed forces outside certain territorial
limits in either war or peace and (3) on leased bases outside certain
territorial limits. While the cases give considerable guidance on the
nature of the connection with the forces, there will almost certainly be
some further argument over the interpretation of "in the field" and even
"in time of war." But the connection with the services is still tb~e crux
6~Ex rte Quirin, 317 U.S. 1 (1942); Colepaugh v. Looney, 235 F. ?d 1+29
10th Cir. 1956).
69See: Geneva Convention on Prisoners of War, July, 1929, 1+7 Stat. 2030,
2058; Geneva Convention on the Sick and Wounded, Julj-, 1929, 1+7 Stat.
2071+; Hague Convention on Laws and Customs of War on Land, 1907 (note:
"Spies" arts. 2g e~t.se .); as well as WILSON, RULES OF LAND WARFARE,
U.S., Ch. 15, (1914)?
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of the question. Certainly the dependents in Covert were "accompanying"
the forces. Yet the court felt that they should have their constitutional
protection in a capital case in peacetime. The extent to which the
military may exert its own cohesion probably has to be limited at 'the
moment to these exact considerations. Both Harlan and Frankfurter were
Specific on the capital aspect and Black agreed with Winthrop's emphatic
assertion that "a statute cannot be framed by which a civilian can law-
fully be made amenable to the military iurisdiction in time of pea~e.~'
The Covert case, of course, stands as an overturning of the Ross doctrine --
the continental limitation on constitutional rights. Now the court feels
the Constitution follows the citizen around the world and has its effect
in war as well as peace. To take the Winthrop quote at its exact face
value is probably ante-bellum in every sense. The ranging area of military
occupation today has brought problems and purposes certainly not applicable
prior to World War I. The court has seemed to say that if a person is "in"'
the forces, the constitutional rights are beyond his reach, regardless of
where he is or whether it is war or peace. if he is not "in" the forces,
then it would seem to follow that the rights may be available. But what
is being "in"Y The code says "accompanying" (which the dependents were,
yet their rights prevailed in capital cases. What will happen for: dependents
in less-than-capital cases, civilians employed either directly or indirectly
by the forces, dependents of the latter group? The lower federal >~udiciary
have shown their thought by upholding military jurisdiction over civilian
employees in both capital and .lesser offenses. We should hasten to add "in
peacetime." Whether the code is constitutional for a given class of people,
depending on whether their service, employment or accompaniment makes thew
in effect a part of the services, should probably depend on the balanced
view. Rather than flatly concluding that no peacetime statute is consti-
tutional or that personal rights are always subordinate to the military
need - no matter how remote, some middle ground seems preferable. Mr.
Justice Harlan suggests this in Covert on the basis "of what process is
'due' a defendant in the particular circumstances of a particular ease."
This recognizes the private constitutional safeguards but it relates them
directly to the needs and demands of the military organization. It does
not draw at once a sharp clear line, but there is nothing to suggest that
this cannot be developed by certain well-defined issues. One of these
seems to be already on its way. We suggest that the matter of employees
can be decided on the relationship theory ("in" or not "in" the forces)
or by a "due process" rationale. If the "due process" approach is taken -
as it could compatibly be - even military jurisdiction over dependents for
less-than-capital offenses could be upheld without clouding stare 3ecisis.
This would seem the more realistic conclusion, and particularly so when
we remember that most of this discussion has pertained to peacetime
conditions. Very likely, most of the limitations on military jurisdiction
that app],y in peace would not apply in time of war. However, this. a~cain.
is simply a factor to be fed into the thinking of what process may or may
not be "due" a given class of persons.
As what should probably be a final footnote, one aspect of this problem
deserves a passing comment. In a number of instances, the courts have shown
same degree of influence by the alternatives that would exist when military
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jurisdiction was not available. We were led to the consular courts by a
real concern over the justice that might be meted out to our citizens over-
seas in the `"pagan" countries under civilizations that we thought completely
inimical to our own. The waiver of local sovereignty was accomplished, of
course, by treaty. In the absence of a court of our own overseas - the
waiver still available - we were faced with the difficu7.ties of returning
the person to this country for trial with appropriate witnesses. An extra-
territorial court, assuming the Roas doctrine is completely repudiated,
still poses the matter of finding proper jurors. One solution offered from
time to time is a court that would extend the so-called "Article III"
jurisdiction overseas.7O Done independently of the military, this ns~turally
would require new waivers of jurisdiction. Within the military framework,
however, special provisions might be made for civil jurors in certain
situations, or constitutional safeguards might be provided through appellate
procedures. Thus the overall effect of the Status-of-Forces Agree cents
(SOFA) would be untouched. Just a word on these. Under the form of the
NATO SOFA, jurisdiction is exclusive for offenses punishable by the laws
ofi one state and not of the other. The host country has rp unary jurisdiction
in all cases other than those where the offense is against the property
or security of the United States or the person or property of another member
of the U.S. forces, or where the offense occurs in the course of official
duty. The state with primary rights shall give "sympathetic consideration"
to a request for waiver. (There are miscellaneous provisions for mutual
assistance and certain procedural safeguards.) A further concession has
been made by incorporation of the so-called "Netherlands addendum" - where-
by primary rights are automatically waived by the host except in instances
regarded as of "particular importance." The language leaves dependents
subject to the local jurisdiction, but primary jurisdiction has never been
claimed by the foreign governments. The situation could change overnight
and if ~t did the United States would "be in no position to argue the
point." 1 One effect of restricting military jurisdiction is to broaden
the area subject to foreign control. Bringing dependents and employees
more closely within the military fold will narrow the foreign jurisdiction.
Since it seems likely that renascent nationalism abroad will tend to limit
concessions in the future, this would be a fair argument for preserving
constitutional safeguards within the military structure already protected
by the international agreements now in force. Whether, of course, even
this "bringing within" the present agreements would be tolerated by the
host countries is problematical. At the moment there seems to be no clear-
cut and2consentaneous solution, and all of the proposals have some draw-
backs.?
7OSee a comprehensive note on this whole topic: 71 HARVARD L. R. 712 (195b)?
Also 5 CATHOLIC UNIV. L.R. 65 (1955)?
7iCRIldINAL JURISDICTION IN OVERSEAS AREAS - an analytical report by the Rand
Corporation (March 13, 1950
72See the dissent of Judge Burger in Guagliardo v. McElroy, supra note ,9.
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PUBLIC LAw 5O6-SIST CONGRESS
CHAPTER 1G9-2D SESSION
[]3. R. 4080]
AN ACT
To unify, consolidate, revise, and codify the Articles of RTar, the Articles for the
Government of the Navy, and the disciplinary laws of the Coast Guard, and
to enact and establish a Uniform Code of 1VIilitary Justice.
Re it enacted by th.e Senate and Rouse of Representatives of the
United States o f A~nerica in Congress assembled, That a Uniform
Code of Military Justice for the government of the armed forces
of the United States, unifying, consolidating, revising, and codifying
the Articles of War, the Articles- for the Government of the Navy,
and the disciplinary laws of the Coast Guard, is hereby enacted as
follows, and the articles in this section may be cited as "Uniform Code
of Military Justice, Article ".
Part - - - ~_"'~ Article
I. General Provisions---------------------------------------------- 1
II. Apprehension and Restraint_____________________________________ 7
III. Non-Judicial Pnnishment________________________________________ 15
IV. Courts-11lartial Jurisdiction______________________________________ 16
V. Appointment and Comlwsition of Courts-blartial_________________ 22
VL Pre-Trial Procedure ____________________________________________ 80
VII. Trial Procedure------------------------------------------------ 36
VIII. Senterices ------------------------------------------------------ 55
IX. Review of Courts-1~?artial_______________________________________ 59
X. Punitive Articles _______________________________________________ 77
XI. Miscellaneous Provisions________________________________________ 135
Article
1. Definitions.
2. Persons subject to the code.
3. Jurisdiction to try certain personnel.
4. Dismissed officer's right to trial by court-martial.
5. Territorial applicability of the code.
6. Judge advocates and legal officers.
ARTICLF. 1. Definitions.
The following terms when used in this code shall be construed in
the sense indicated in this article, unless the context shows that a dif-
ferent sense is intended, namely
(1) "Department" shall be construed to refer, severally, to the
Department of the Army, the Department of the Navy, the Depart-
ment of the Air Force, and, except when the Coast Guard is operating
as a part of the Navy, the Treasury Department;
(2) "Armed force" shall be construed to refer, severally, to the
Army, the Navy, the Air Force, and; except when operating as a part
of the Navy, the Coast Guard;
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(3) "Navy" sht~ll be construed to include the lYTarine Corps and,
when o}~~erating as a part of the Navy, the Coast Guard;
(4) `?I`he Judge Advocate General" shall be- construed to :refer,
severally, to Tlce Judge Advocates General of tl~e Army, Navy, and
Air I+ orce, and, elcept when the Coast Guard is operating as a part
of the Navy, the Uc~neral (-ounsel of the Treasury Department;
(5) "Officer" shall be construed to refer to a commissioned officer
inchzding a com3ni~sioned warrant officer;
(ti) ``Superior officer" shall be construed to refer to an officer
superior in rank or command;
(7) "Cadet" shall be construed to refer to a cadet of the United
States Military Academy or of the United States Coast Guard
Academy ;
(S) "Midshipnc~.n" shall be construed to refer to a midshipman at
i;he United Stai.e~ Naval Academy and any other midshipman on
active duty in the naval service;
(9) "Enlisted l.~erson" shall ba construed to refer to any person
who is serving in zrn enlisted grade in any armed force;
(10) "Military'' shall be construed to refer to any or all of the
armed forces;
(1.1) "Accuser'' :;.hall be construed to refer to a person who signs and
swears to charges, to any person who~aiz?~~cts that charges nominally
be signed and savor?n by another, and to any other. person who has an
interest other tlnrn an official interest in the prosecution of the
accused;
(12) "Law offic?cr" shall be construed to re#irr to an official of a
general court-martial detailed in accordance with article 26;
(1:;) "Law spec?i~list" shall be construed to refer to an officer of
the l~Tavy or Coast Girard designated foi? special duty (law) ;
(14) "Legal officer" shall be construed to ~refe~r to any officer in the
Navy or Coast t award designated to perform legal duties for a
command.
Anm. 2. Persons subject to the code.
The following ~~ersons are subject to this eocle:
(1) All persons belonging to a regular component of the armed
forge, including i:hose awaiting discharge after expiration of their
terms of enlistment; all volunteers from the time of their muster or
acceptance into tl:r~ armed forces of the 1Jnitec~ States; all inductees
from the time of 1 heir actual induction into the awned forces of. the
United States, and all other persons lawfully called or ordered into, or
to duty in or for training in, the armed forces, from the dates they
are required by the. terms of the call or order to obey the same;
(2) Cadets, avia ion cadets, and midshipmen;
{3) Reserve personnel while they are on inactive duty training
authorized by written orders which are voluntarily accepted by them,
which orders specify that they are subject, to this code;
(4) Retired personnel of a regular component of the armed forces
who are entitled to receive pay;
(5) Retired personnel of a reserve component who are receiving
hospitalization from an armed force;
(6) Dlembers of the Fleet Reserve and l+leet Marine Corps Reserve;
(7 All persons in custody of the armed forces serving a sentence
imposed by acourt-martial;
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(8~ Personnel of the Coast and Geodetic Survey, Public Health
Service, and other organizations, when assigned to and serving with
the armed forces of the United States;
(9) Prisoners of war in custody of the aimed forces;
(10~ ~In t me of w ~r'~ all persons serving with or accomnanyina an
-
--------_ _~ .._
o
the United States is or may ,;be a party or to any acc.~pted rule of
international la~v 1 erso~ls selving wltlla emnloved by or nccom-
an in the armed Drees wrthout the continental limits of the United
~n wit lout t le~O'1`~owln~Tterrrtorles : That p?rrt of ~hr~l~a
east o ongltu e ore un re aid seventy-t~vo degrees west, the
Canal Zone, f11e main group of the Hawaiian Islands, Puelto I$ico,
and the Virgin Islands ;
(12) Snb))ect to the provisions of any treaty or agreement to which
the United States is or may be a party or to any accepted rule of inter-
national law, all ersons within xn area leased by or otherwise reserved
or ac ulred for le use ol?~Tie" CJ`rilted-~~tates svhlch is under`the. control
of le ecre-'Eal?y u~a Dep~rTme~it ~1~wliic~`i rs wl#hoizt'the continental
lin7i~s o : e nl ec-I.'States dull ~~i~~fFi`e?"?fo"1lo~vln'Terri`tol~ies:'I'hat
eas o Tongi%ride` one~Iilindreci and seventy-two degrees
~1Test, the Canal Zone, the main ~roun of the Ha~vai;;rn T41a?.~~ P~,nrtn
~~111C.V.,~aI1C1 Cile V lrglll lslanc[S.
~xT. 3. Jurisdiction to try certain personnel.
(a) Subject to the provisions of article 43
any person char
ed with
,
g
having comnutted, while in a status in which he was subject to this
code, an offense against this code, punishable by confinement of five
years or more and for which the person cannot be tried in the courts
of the United States or any State or Territory thereof or of the District '
of Columbia, shall not be relieved from amenability to trial by courts-
martial by reason of the tcrrnnation of said status.
(b) All persons discharged from the armed forces subsequently,
charged with having fraudulently obtained said discharge shall, sub-
ject to the provisions of article 4~3, bo subject to trial by court-martial
on said charge and shall after apprehension be subject to this code
while in the custody of the armed forces for such trial. Upon :onvic-
tion of said charge they shall be subject to triad. by court-martial for all
offenses under this code committed prior to the fraudulent discharge.
(c) Any person who has deserted from the armed forces shall not
be relieved from amenability to the jurisdiction of this code by virtue
of a separation from any subsequent pel?iod of service.
AxT. 4. Dismissed officer's right to trial by court-martial.
(a) When any officer, dismissed by order of the President, makes
a written application for trial by court-martial, setting forth, under
oath, that he has been tivrongfully dismissed, the President, as soon as
practicable, shall convene a general court-martial to try such officer
on the charges on which lie tivas dismissed. A coul?t-martial so con-
vened shall have jurisdiction to t.ry the clisnlissed officer on such
charges, and he shall be held to have waived the right to plead any
statute of limitations applicable to any offense with which he is
charged. Tho court-martial may, as part of its sentence, adjudge the
affirmance of the dismissal, but if the court-lnal?i;ial acquits the accused
awr / ft(, ~ou~d - //,,
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or if the sentence .adjudged, as finally approved c)r affirmed, does not
include disfriissal or death, the Secretal~r Uf the Department shall
substitute for the dismissal ordered by tlae President a form of dis-
charge authorized for administrative issuance.
(b) If the Y~?esident fails to convene a general c;ourt-maxtial within
sig months from the presentation of an application-r for trial under this
article, the "Secretary of the Department :;hall substitute for the dis-
missal ordered by the President a form of discharge authorized for
administrative issuance.
(c) Where a discharge is substituted for a dismissal under the
authority of this article, the President alorle mad reappoint the officer
~" to such commissioned raltk and precedence as In the opinion of the
.K~-lss'?? President such former officer would have attained. had he not been. dis-
missed. The reappointment of such a former officer shall be without
regard to position vacancy and shall aflc~et the promotion status of
other officers only insofar as the President Inay direct. All time
between the dismissal and sucll reappointment shall be considered as
actual. service for all purposes, including ;,he right to receive pay and
allowances.
(d) When an officer is discharged from any aI?rned forco byy admin-
istrative action oi- is dropped from. the rolls by order of th? Presi-
dent, there shall not be a right to trial under this article. ~
ART. 5. Territorial applicability of the co+le. _ ~a,~,?"r.
This code shall_be applicable in all places.
AxT. 6. Judge advocates and legal officers.
(a) The assignment for duty of all judge advocates of the .Army
and Air Force and law specialists of the :~,Tavy and Coast Guard. shall
be made upon the recommendation of The Judge Advocate General of
the armed force ,rf which they are meni;pers. `l'he Judge Advocate
Gencritil or senior rriembers of his staff shall m~l~;~. frequent Inspections
in the field in sn rervision of the admini ~tration of military ]ustice.
(b) Convening authorities shall at all times c~crmmwlicate directly
with their staff ~rrdge advocates or legal oflicet?s in matters relating
to the administration of military justice; and tl~e. staff judge advocate
or legal off~~ero#` any command is attthornzed to communicate directly
with the stafF jnclge advocate or legal c.fficer of a superior or sub-
ordinate command, or with The Juclge Advot?.wte General.
(c) No person who has acted as member, law officer, trial counsel,
assrstant trial cornnsel, defense counsel, n~ssistaa~i-. defense counsel., or
investigating offic?c+r in any case shall. sttb: egrre.Ilil,y act as a staff judge
advocate or legal c,i~icer to any revietiving authority upon the same case.
P,l t;'>? II-APi'R3~IIENfii()N A h`D RE~TRAlNT
Ari rcl e
7. Apprehension.
8. Apiirebnnsion of deserters?.
Il. Irnriosition oT restraint.
10. Restraint of ps~~rsons charged with of&:nses.
11. Reports acid receiving of prisoners.
1.2. Couiinernent cr?ith enen,v in?isoners prohibited.
13. PunishrnE+nt P~'ohibited before tri:~l.
]4. llelivery of otlTenders to civil authorities.
Alrr. 7. Appreh.e;nsion.
(a) Apprehension is the taking into custody of a person,
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(b) Any person authorized under regulations governing the armed
forces to apprehend persons subject to this code or to trial thereunder
may do so upon reasonable belief that an offense has been committed
and that the person apprehended committed it.
(c) All officers, warrant officers, petty officers, and noncommissioned
officers shall have authority to quell all quarrels, frays, and disorders
among persons subject to this code and to apprehend persons subject
to this code who take part in the same.
Ax?r. 8. Apprehension of deserters.
It shall be lawful for any civil officer having authority to appre-
hend offenders under the laws of the United States or of any State,
District, Territory, or possession of the United States summarily to
apprehend a deserter from the armed forces of the United States and
deliver him into the custody of the armed forces of the United States.
ArzT. 9. Imposition of restraint.
(a) Arrest is the restraint of a person by an order not imposed as
a pxmxshment for an offense directing him to remain within certain
specified limits. Confinement is the physical restraint of a person.
(b) An enlisted person. may be ordered into arrest or confinement
by any officer by an order, oral or written, delivered in person or
through other persons subject to this code. A commanding officer may
authorize warrant officers, petty officers, or noncommissioned officers
t.o order enlisted persons of his command or subject to his authority
into arrest or confinement.
(c) An officer, a warrant officer, or a civilian subject to this code or
to trial thereunder may be ordered into arrest or confinement only
by a commanding officer to whose authority he is subject, by an order,
oral or written, delivered in person or by another officer. The author-
ity to order such persons ixrto arrest or confinement may not be
delegated.
(d) No person shall be ordered into arrest or confinement except
for probable cause.
(e) Nothing in this article shall be construed to limit the authority
of persons authorized to apprehend offenders to secure the custody
of an alleged offender until proper authority may be notified.
AxT. l0. Restraint of persons charged with offenses.
Any person subject to this code charged with an offense under this
code shall be ordered into arrest or confinement, as circumstances may
require; but when charged only with an offense normally tried by a
summary court-martial, such person shall not ordinarily be placed
in confinement. V~~hen any person subject to this code rs placed in
arrest or confinement prior to trial, immediate steps shall be taken to
inform him of the specific wrong of which he is accused and to try
him or to dismiss the charges and release him.
Aril. 11. Reports and receiving of prisoners. _
(a,) No provost marshal, commander of a guard, or master at arms
shall refuse to receivo or keep any prisoner committed to his charge
by an officer of the armed -forces, when the committing officer furnishes
a statement, signed by him, of the offense charged against the prisoner.
(b) Ever commander of a guard or master at arms to whose
charge a prisoner is committed shall, within twenty-four hours after
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such commitment or as soon as he is relieved from guard, report to
the- commanding oilicer the name of such prisont~e, the offense charged
against him, and the name of the person who ordered or authorized
the commitment..
AsT. 12. ~onfinernent with enemy prisoners prohibited.
No member of the armed forces of the ~ilnited ~~tates shall be placed
in confinement in immediate association with enerl>y prisoners or
other foreign nationals not members of the armed farces of the United
States.
AxT. 13. Punishment prohibited before trial.
Subject to the 13rovisions of article 57, no person, while being held
for trial or the results of trial, shall be subjected to punishment or
penalty other than alTest or confinement upon the charge's pendilln
against him, nor shall the arrest or canfinement imposed upon him
be any more rigr~rous than the circumstances require to insure his
presence, but he ruay be subjected to minor punishment during such
periad for infraci:ions of dlsclplme.
ART. 14. Delivery of offenders to civil auw.horitics. .
(a) Uncler such regulations as the Secretary oI` the- Department may
prescribe, a menyl.>er of the armed farces accrasecl of an offense against
civil autllvrity n~gy be delivered, upon request, t.o t11e civil autlority
fore trig]..
(b) tiVhen delivery under this article is made to any civil authority
of a person ulyder~oing sentence of a ~~ourt-martial, such delivery,
if followed by cor}vlctrort In a civil tribunal, shall be held to interrupt
the execution of tlFe sentence of the cotrrti.-mar?t.ial, and the offender
after having answered to the civil authorities ferr his offense shal], upon
tho request of competent military authority, be returned to military
custody for the ~~ompletion of the said ~,ourt-martial sentence.
l' ART 1II-_LVTaN-eIIIDICIAL PUNI~IIbiENT
Article
Iv. Commanding; ,rfllcer's non-judicial ptxnisl~ukent.
ART. 15. Commanding officer's non-judicial punishment.
(a} Under such regulations as the I'resder~t may prescribe, any
commanding oifi~.?er may, in addition to or in lieu of admonition or
reprimand, mpcr~c, one of the folla~ving disciplinary punishments for
minor offenses > it; the commanding officer of any Dlz~.rine b:i,rracks, wing, group,
separate squadron, station, base, ausi?iary asrfield, or other place
where members of the Marine Corps :zee on duty;
(G) t;he connnanding officer of any separ~rte or detached com-
mand or group of detached units of any of the armed forces placed
under a single commander for this purpose; or
(7) the co~nrnanding oflcer or oflieer in charge of any other
cd,mxnand wh+~n empowered by the .~ecret.a.r??y of a Depax~t:ment.
(b) When any such officer is au accuser, the court shall be convened
by superior competent authority, anal m:~y in :rny case be convened
by such authority when deemed advisable by hix,a.
Axxr. 24. tiVho may convene summary courts-martial.
(a) Summary courts-martial may be cc.nveneal by-
(1) any person who may convene a gene=:ral or special court-
xn arti al ;
(2) the co3nmanding officer of a detached company, or other
detachment o F the Army ;
(3) the commanding officer of a detached squadron or other
detachment of the Air Force; or
(4) the commanding officer or officer in +:harge of any other
eomma:nd wbc!+n empowered by the Secretary of a Department.
{b) When but. one officer is present with a command or detach-
ment he shall be the summary court-m,rrt,ial of that command or
detachment and shall hear and determine a l summary court-martial
cases brought before him. Summary courts-martial may, however,
be convened in any case by superior compcten.t authority when deemed
desirable by him.
Ax;~r. 25. Who may serve on courts-martin?1.
{a) Any officer on active duty with the arm+~cf forces shall be eli-
gible to serve on a.l lcourts-martial for the trial oi' any person who may
lawfully be brought before such courts for trial.
(b) Any warrant officer on active duty wat.lx the armed .forces
aha,ll be eligible to serve on general and speca~d courts-martial for
the trial of any person, other than an officer, ~~?ho may lawfully bo
brought before such courts for trial.
(c) {1) Any enlisted person on active duty with the armed forces
who is not a mensber of the same unit as the ace-used shall ba eligible
to serve on general and special courts-martial for the trial of any
enlisted person who may lawfully be brought b~:fore such courts for
trial, but he shah serve as a member of a,court only if, prior to th?
convening of such court, the accused personally la as requested in writ-
ing i:hat enlisted persons serve on it. After such a request, no enlisted
person shall be tried by a general or special court-inertial the member-
ship of which doe,: not include enlisted persons in a number comprising
at least one-third of the total membership. of tlc+ court, unless elagible
enlisted persons canxiot be obtained on account of physical conditions
or military exigencies. Where such per:;ons caaanot be obtained., the
court may be convened and the trial held wit.hinat them, but the con-
vening authority shall make a detailed written statement, to be
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ap ended to the record, stating why they could not be obtained.
(p2 For the purposes of this article, the word "unit" shall mean any
regularly organized body as defined by the Secretary of the Depart-
ment, but in no case shall it be a body larger than a company, a squad-
ron, or a ship's crew, or than a body corresponding to one of them.
(d~ ~1) When it can be avoided, no person m the armed forces shall
.be tree by acourt-martial any member of which is junior to him in
rank or grade.
(2) When convening acourt-martial, the convening authority shall
appmnt as members thereof such persons as, in his opinion, are best
-qualified for the duty by reason of age, education, training, experience,
length of service, and judicial temperament. No person shall be
eligible to sit as a member of a general or special court-martial when
he is-the accuser or a witness for the prosecution or has acted a.s investi-
gating officer or as counsel in the same case.
AaT. 26. Law officer of a beneral court-martial.
(a) The authority convening a general court-martial shall appoint
as law oflcer .thereof an officer who is a member of the bar of a
-Federal court or of the highest court of a State of the United States
.and who is certified to lie qualified for such duty by The Judgge
Advocate Gener:t,l cif the armed force of which he is a member. No
person shall be eligible to act as law officer in a case when he is the
accuser or a witness for the prosecution or has acted as investigating
officer or as counsel. in the same case.
(b) The law officer shall not consult with the members of the court,
other than on the form of the findings as provided in article 39, except
in the presence of the accused; trial counsel; and defense counsel, nor
shall he vote with the members of the court.
AttT. 27. Appointment of trial counsel and defense counsel.
(a) For each general and special court-martial the authority con-
e vening the court shall appoint a trial counsel and a defense counsel,
together with such assistants as he deems necessary or appropriate.
No person who has acted as investigating officer, law officer, or court
member in any case shall act subsequently as trial counsel, assistant
trial counsel., or, unless expressly requested by the accused, as defense
counsel or assistant defense counsel in the same case. No person who
has acted. fo1? the prosecution shall act subsequently in the same case
for the defense, nor shall any person zvho has acted for the defense act
subsequently in the same case for the prosecution.
(b) Any person who is appointed as trial counsel or defense counsel
in the case of a eneral court-martial-
(1) shall be a judge advocate of the Armyy or the Air Force,
or a law specialist of the Navy or Coast Gttard, who is a graduate
of an accredited law school or is a member of the bar of a Federal
court or of the highest court of a Stato; or shall be a poison who
is a member of the bar of a Federal court or of the highest court
of a State; and
(2) shall be certified. as competent to perform such duties by
The Judgo Advocate General of the armed force of which he is
a member.
(c) In the case of a special court-martial-
(1) if the trial counsel is qualified to act as counsel before- a
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general court-martial, the defense counsel al+pointed by the con-
vening authority shall be a person similarly qualified; and '
(2) if the trial counsel is a fudge advocate, or a law specialist,
or a member cif the bar of a Federal court or t:he highest court of a
State, the defense counsel appointed by the c~.onvening authority
shall be one of the foregoing.
Axt~r. 2S. Appointment of reporters and interpretet~s.
Under such regulations as the Secretary of tlr.e Department may
prescribe, the convening authority of a court-inart.ial or military com-
mtssron or a court of inquiry shall appoint qualified court reporters,
who shall record the proceedings of and testimony taken before such
court or commission. Under like regulations the convening authority
of acourt-martial, military commission, or crnix?t of inquiry may
appoint an interpreter who shall interpret i?or the court or commission.
AizT. 29. Absent and additional members.
(a) No member of a general or special enact-martial shall be absent
or excused after t]xe accused has been arraigned except for physical
disability or as a t?esult of a challenge or by order of the convening
authority for good cause.
(b) Whenever a. general court-martial is reduced below five mem-
bers, the trial shall t cot proceed unless the cc>nveni.n n authority appoints
now members sufficient in number to provide not less than. five
members. When such new members have been s~tivorn, the trial may
proceed after the recorded testimony of each. witness previously
examined has been. read to the court in the presence of the law officer,
the accused, and counsel.
(c;) Whenever a special court-martial is reduced below three mem-
bers, the trial shrr.]1 not proceed unless the c?.onvening authority
appomts new members sufCcaent in number to l rovide not less than
three members. When such new mernbex?.: have l.~een sworn, the trial
shall proceed as if no evidence had previously been introduced unless
a verbatim record of the testimony of previously examined wltrtesses
or a stipulation t]x~reof is read to the court in the presence of the
accused and counscr.l.
Article
30. Charges and sFeciflcations.
31. Compulsory self-incrimination prohibited.
32. Investigation.
33. Forwarding of charges.
34. Advice of st.aft .i;.dge advocate and rei'erence for trial.
35. Service of charges.
Axi~r. ~0. Charges scud specifications.
(:a,) Charges and specifications shall be signed by a person subject
to this code under oath before an officer of the armed forces authorised
to administer oath,; and sha]1 state-
(1) that the signer has personal kltowledw~:e of, or has investi-
gated, the matlers set forth therein; and
(2) that the same ar?e true in fact i.a the best of his knowledge.
?tn ~l belief.
(b) Upon the pr?eferring of charges, the proper authority shall take
immediate steps to determine what disposition should be made thereof
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in the interest of justice and discipline, and the person accused shall
be informed of the charges against him as soon as practicable.
AaT. 31. Compulsory self-incrimination prohibited.
(a) No person subject to this code shall compel any person to
incriminate himself or to answer any question the answer to which
may tend to incriminate him.
(b) No person subject to this code shall interrogate, or request
any statement from; an accused or a person suspected of an offense
without first informing him of the nature of the accusation and advis-
ing him that he does not have to make any statement regarding-the
offense of which he is accused or suspected and that any statement
made by him may be used as evidence against h.im in a trial by court-
martial.
(c) No person subject to this code shall compel any person to make
a statement or produce evidence before any military tribunal if the
statement or evidence is not material to the issue and may tend to
degrade him.
(d) No statement obtained from any person in violation of this
article, or through the use of coercion, unlawful influence, or unlawful
inducement shall bo received in evidenco against him m a trial by
court-martial.
AuT. 32. Investigation.
(a) No charge or specification shall be referred to a general court-
martial for trial until a thorough and impartial investigation of all
the matters set forth therein has been made. This inves~tigganon shall
include inquiries as to t-he truth of the matter set forth in the charges,
form of charges, and the disposition which should ba made of the
case in the interest of justice and discipline.
(b) The accused shall be advised of the charges against him and
of his right to be represented at such investigation by counsel. Upon
his own request he shall be represented by civilian counsel if provided
by him, or military counsel of his own selection if such counsel be
reasonably available, or by counsel appointed by the officer exercising
general court-martial jurisdiction over the command. At such investi-
gation full opportunity shall be given to the accused to cross-examine
witnesses a?atnst him if they aro available and to present anything ho
may desire m his own behalf, either in defense or mitigation, and the
investigating officer shall examine available witnesses requested by the
accused. If the charges are forwarded after such investigation, they
shall be accompanied by a statement of the substance of the testimony
taken on both sides and a copy thereof shall be given to the accused.
(c) If an investigation of the subject matter of an offense has been
conducted prior to the time the accused is charged with the, offense,
and if the accused was present at such investigation and afforded the
opportunities for repi.esentation, cross-examination, and presentation
prescribed in subdivision (b) of this article, no further investigation
of that charge is necessary under this article unless it is demanded
by the accused after he is informed of the charge. A demand for fur-
ther investigation entitles the accused to recall witnesses for further
cross-examination and to offer any new evidence in his own behalf.
(d) 1'he requirements of this article shall be binding on all persons
administering this code, but failure to follow them in any case shall
not constitute jurisdictional error.
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ART. 33. Forwarding of charges.
~%lzen a person is held. for trial by ge~cex~z,l c~~izrt-martial. the com-
manding officer shall, within eight days after tlxe accused is ordered
into arrest or confinement, if practicable, 1`orward the charges, together
with the investigation acid allied papers, to the officer e~erciszng gen-
eral court-martial jurisdiction. If the same is not practicable, he
shall report iii writing to such officer the reasons for delay.
ART. 34. Advice of staff judge advocate ;s and sentence to the
parties as soon as determined.
ART. 54. Record of trial.
(a) Each general court-martial shall I:eep a separate record of the
proceedings of the trial of each case brou~-ht. befc>re it, and such record
shall be authenti~?ated by the signature of the president and the law
officer. In case the record cannot be authenticated by either the presi-
dent or the la.w caflicer, by reason of the death, disability, or absence
of such officer, it shall be signed by a member in lieu of him. If both '
the president and the law officer are unavailable for such reasons, the
record shall be authenticated by two members.
(b) Each speci:i.l and summary court-c:iartial Shall keep a separate
record of the proceedings in each ease, which record shall contain
such matter anal lie authenticated in such mann+, t:? as may be required
by regulations which the President may 1+rescri.be.
(c) A copy of the record of the proceedings of each general and
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special court-martial shall be given to the accused as soon as
Article
55. Cruel and unusual punishments prohibited.
56. Maximum limits.
57. L+'ffective date oP sentences.
58. Execution of confinement.
AR~r. 55. Cruel and unusual punishments prohibited.
Punishment by flogging, or by Branding, marking, or tattooing on
the- body, or any other cruel or unusual punishment, shall not be
adjudged by any court-martial or inflicted upon any person subject
to this code. The use of irons, single or double, except for the purpose
of safe custody, is prolxibited.
ART. 56. Maximum limits.
The ~punishlnent which a court-martial may direct for an offense
shall not exceed such limits as the President may .prescribe for that
offense.
ART. 57. EfFective date of sentences.
(a) Whenever a sentence of acourt-martial as lativfully adjudged
and approved inchxdes a forfeiture of pay or allowances in addition to
confinement not suspended, the forfeiture may apply to pay or allow-
ances becoming due on or after the date such sentence is approved by
the convening authority. No forfeiture shall extend to any pay or
allowances accrued before such date.
(b) Any period of confinement included in a sentence of a court-
-martial shall begin to run from the dato the sentence is adjudged by
the court-martial, but periods during which the sentence to confine-
ment is suspended shall be excluded xn computing the service of the
term of confinement:
(c) All other sentences of courts-martial shall become effective on
.the date ordered executed.
ART. 58. Execution of confinement.
(a) Under such instructions as the Department concerned may
prescribe, any sentence of confinement adjudged by acourt-martial or
other military tribunal, whether or not such sentence includes dis-
charge or dismissal, and whether or not such discharge or dismissal
has been executed, may be carried ilxto execution by confinement in any
place of confinement under the control of any of the armed forces,
or in any penal or correctional institution under the control of the
United States, or which the United States may be allowed to use; and
persons so confined iu a penal or correctional institution not under the
control of one of the armed forces shall be subject to the same discipline
and treatment as persons confined or committed by the courts of the
United States or of the State, Territory, llistrict, or place in which
the institution is situated.
(b) The omission. of the words "hard labor" in any sentence of a
court-martial adjudging confinement shall not be construed as depriv-
ing the authority executing such sentence of the power to require
hard labor as a part of the punishment..
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PART IX-REVrz:w o>? (",ours-11IeR~
arrticle
6A. IJrror of law; lesser included offense.
fio. Initial acti~~n on the record.
Gl. Same-f:~~n.~eal court-martial records.
E;2. Iteconsiderra t.ion and revision.
63. Rehearings.
6t?. Approval by the convening authority.
65. Disposii;ion of records after review by the convening authority.
66. Review by CF~e board of review.
G7. Review by the Gourt of Military Appeals.
fiR. Pranch ofFices.
G:). Review in tale office of The Judge Advocate General.
7t). Appellate eorrnsel.
TL L+`xecution a~' sentence; suspension of sentence.
72. Vacation of suspension.
73. Petition for a new trial.
74-. Remission and suspension.
7~ . Restoration.
7E;. Finality of erourt-martial Judgments.
AxT. 5J. Error of law; lesser included offense.
(a) A finding or sentence of acourt-martial shall not be held incor-
rect on the gz?fnznd of an error of larv unless .the error materially
prejudices the substantial rights of the accused.
(b) Any reviewing authority with t~ze l~orrc:r to approve or affirm
a finding of guilty may approve or aflirn~, inst;eaad, so much of the find-
ing as includes a lesser included offense.
AxT. 60. Initial action on the record.
After every trial by court-martial the recur?d shall be forwarded
to the convenu>~; ~ authority, anc~ action thereon may be taken by the
officer who convened the court, an officer conunandrng for the time
being, a successor in command, or by any officer exercising general
court-martial jurisdiction.
Azar. 61. Same-General court-martial records.
The convenin;~ authority shall refer the z~t~c:ord of every general
court-martial to his staff lodge advocate or legal ofpicer, who shall
submit his written opinion thereon to the ccua ven.ing authority. If
the fin:~l action of the court has resulted in an rccquittal of all charges
and specifications, the opinion shall be limited to questions of juris-
diction and shall be forwarded with the record t.o The Judge Advocate
General of the armed force of which the accused is a member.
AxT. G2. Reconsideration and revision.
(a) If a specification before acourt-martial has been dismissed on
motion and the ruling does not amount i.o a finding of not guilty, the
convening authority may return the record to t-tie court for reconsid-
eration of the r?ulin~? and any further appropa?iate action.
(b) ~~lzere thc~r? rs an apparent error or oar:i sion in the record or
where the record shows improper or inconsistc=.nt action by a court-
mart;ial with resf,ect to a finding or sentence rvhich can be rectified
without material prejudice to the substantial z?ights of the accused,
the convening aarthorrty may return the record to the court for appro-
priate action. In no case, however, may the rc,cord be returned-
(1) for reconsideration of a finding of not guilty of any specifi-
cation or a railing which amounts to a finding of not guilty; or
(2) for r?E~ronsrderation of a finding of not guilty of any charge,
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unless the record shows a finding of guilty under a specification
laid under that charge, which sufficiently alleges a violation of
some article of this code ; or
(3) for increasing the severity of the sentence unless the
sentenco prescribed for the offense is mandatory.
ART. 63. Rehearings.
(a) If the convening authority disapproves the findings and sen-
tence of acourt-martial he may, except where there is lack of sufficient
evidence in the record to support the findings, order a rehearing, in
which case he shall state the reasons for disapproval. If he disap-
proves the findings and sentence and does not order a rehearing, he
shall dismiss the charges.
(b) Every rehearing shall take place bafore acourt-martial com-
posed of members not members of the court-martial which first heard
the case. Upon such rehearing the accused shall not be tried for an
offense of which he was found not guilty by the first court-martial,
and no sentence in excess of or more severe than the on nal sentence
shall be imposed unless the sentence is based upon a finding of guilty
of an offense not considered u on the merits in the original proceedings
or unless the sentence prescribed for the offense is mandatory.
ART. 64. Approval by the convening authority.
In acting on the findings and sentence of acourt-martial, the con-
vening authority shall approve arily such findings of guilty, and t:he
sentenco or such part or amount of the sentence, as he finds correct
in law and fact and as lie in his discretion determines. should be
approved. Unless he indicates otherwise, approval of the sentence
shall constitute approval of the findings and sentence.
ART. 65. Disposition of records after review by the convening
authority.
(a) When the conveningg authority has taken final action in a
general court-martial case, he shall forward the entire record, inc~ud-
mg his action thereon and the opinion or opinions of the staff judgo
advocate or legal. officer, to the appropriate Judge Advocate General.
(b) Where the sentenco of a special court-martial as approved by
-the convening authority includes abad-conduct dischar e, whether or
not suspended, the record shall be forwarded to the ofl~cer exercising
general court-martial jurisdiction over the command to be reviewed
in the same manner as a record of trial by general court-martial or
directly to the appropriate Judge Advocate General to be reviewed by
aboard of review. If the sentence as approved by an officer exercising
general court-martial urisdiction includes abad-conduct discharge,
whether or not suspen~ed, the record shall be forwarded to the ap~ro-
priate Judge Advocate General to be reviewed by a board of review.
(c) All other special and summary court-martial records shall be
reviewed by a judge advocate of the Army or Air Force, a law special-
ist of tho Navy, or a law specialist or lawyer of the Coast Guard or
Treasury Department anal shall be transmitted and disposed of as the
Secretary of the Department may prescribe by regulations.
ART. 66. Review by the board of review.
(a) The Judge Advocate General of each of the armed forces shall
constitute in his offico arse or more boards of review, each composed
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of not less than three officers or civilians, each of whom shall be a
member of the bar of a Federal court or of the highest court of a
State of the Unil:ed States.
(b) The Judge Advocate General shill refer to a board of review
the record in every case of trial by court-martial. in which the sentence,
as approved, affects a general or flag officer or extends to death, dis-
missal of an officer, cadet, or midshipman, dishonorable or bad-conduct
discharge, or confinement far one year or more.
(c) In a case referred to it, the board of review shall act only with
respect to the findings and sentence as approved by the convening
authority. It shall affirm only such findings ~f guilty, and t;he sen-
tence or such part or amount of the sentence, as zt finds correct in
law and fact and determines, on the basis of the entire record, should
be approved. l u considering the recoa?d it shall have authority to
weigh the evide~ ce, judge the credibility of witnesses, and determine
controverted qu{~stions of fact, recogn:.ing that the trial court saw
and heard the witnesses.
(d) If the board of review sets aside the findings and sentence, it
may, except where the setting aside is based on lack of sufficient evi-
dence in the record to support the findings, order a rehearing. If it
sets aside the findings and sentence and does not order a rehearing,
it shall order that the charges be dismissed.
(e) The Judge Advocate (xneral shall; unless there is to be further
action by the President or the Secretary of t ie Department or the
Court of Military Appeals, instruct the convening authority to take
action in accordance with the decision of the board of review. If
the board of review has ordered a rehearuc~; but the convening
authority finds a rehearing impracticable, he may dismiss the charges.
(f) The Judge Advocates General of the armed forces shall pre-
scribe uniform rules of procedure for proceedings in and before
boards of review and shall meet periodically to formulate policies and
procedure in re~,ard to review of court-martial cases in the offices of
the' Judge Advocates General and. by the boards of review.
ART. 67. Review by the Court of Military Appeals.
(a) (1) There is hereby established a Court of l~Tilitary Appeals,
which shall be located far administrative purposes in the Department
of Defense. Tlie Court of Military Appeals shall consist of three
judges appointed from civilian life by the President, by and with the
advice and consent of the Senate, for a term. of fifteen years. Not
more than two of the judges of such court shell be appointed from
the same political party; nor shall any person l,~a eligible for appoint-
ment to the court; who is not a member of the baa? of a Federal. court or
of the highest court of a State. Each judge shall receive a salary of
$17,00 a year aiid shall be eligible for reappointment. The President
shall desi note from time to time one .>f the judges to act as Chief
Judg?. T~e Court of Military Appeals shall have power to prescribe
its own rules of procedure and to determine t;he number of judges
required to constitute a quorum. A vacancy iii the court shall not
impair the right of the remaining judges to e.Yercise all the powers
of the court.
(2} The terms of office of the three judges first taking office after
the effective dat< of this subdivision shall expire, as designated by the
'resident at the time of nomination, one on May 1, 1956, one on May
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1 1961, and one on May 1, 1966. The terms of office of all successors
s;tiall expire fifteen years after the expiration of the terms for which
their predecessors were appointed, but any judge appointed to fill a
vacancy occurring prior to the expiration of tho term for which his
predecessor was appointed shall be appointed only for the unexpired
term of his predecessor.
(3~ Judges of the Court of Military Appeals may be removed by the
President, upon notice and hearing, for neglect of duty or mal-
feasance in office, or upon the ground of mental or physical disability,
but for no other cause.
(4) If any judge of the Court of Military Appeals is temporarily
unable to perform his duties because of illness or other disability, the
President may designato a judge of the United States. Court of
Apppeals to fill the office for the period of disability.
~b) The Court of i~Tilitary Appeals shall review the record in the
fol owing cases
(1) All cases in which the sentence, as affirmed by a board of
review, affects a general or flag officer or extends to death;
(2) All cases reviewed by a board of review which The Judge
Advocate General orders forwarded to the Court of 14Tilitary
Appeals for review; and
(3) All cases reviewed by a board of review in which, upon
petition of the accused and on good cause shown, the Court of
Military Appeals has granted a review.
(c) The accused shall have thirty days from the time he is notified
of the decision of a board of review to petition the Court of Military
Appeals for a grant of review. The court shall act upon such a peti-
tion within thirty days of the receipt thereof.
(d) In any case reviewed by it, the Court of Military Appeals shall
act only with respect to the findings and sentence as approved by the
convening authority and as affirmed or set aside as incorrect in law by
the board of review. In a case which The Judge Advocate General
orders forwarded to the Court of Military Appeals, such action need
be taken only with respect to the issues raised by him. In a case
reviewed upon petition of tho accused, such action need be taken only
with respect to issues specified in the grant of review. The Court of
Militaryy Appeals shall take action only with respect to matters of law.
(e) If the Court of Military Appeals sets aside the findings and
sentence, it may, except whero the setting aside is based on lack of
suflicicnt evidence in the record to support the findings, order arehear-
ing. If it sets aside the findings and sentence and does not order a
rehearing it shall order that the charges ba dismissed.
(f) After it has acted on a case, the Court of Military Appeals
may direct The Judge Advocate General to return the record to the
board of review for further review in accordance with the decision of
tho court. Otherwise, unless there is to be further action by the Presi-
dent, or the Secretary of the Department, The Judge Advocate Gen-
eral shall instruct the convening authority to take action in accordance
with that decision. If the court has ordered a .rehearing, but the
convening authority finds a rehearing impracticable, he may dismiss
the charges.
(g) The Court of Military Appeals and The Judge Advocates
General of the armed forces shall meet annually to make a compre-
hensive survey of the operation of this code and report to the Com-
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mittees on Armed Services of the Senate and of the House of
Representatives anal to the Secretary of DefenscY and the Secretaries
of the Departments the number and status of pending cases and any
recommendations relating to uniformity of sentence policies, amend-
ments to this code, and any other matters deemed appropriate.
Ax~~. 68. Branch offices.
Whenever the President deems such action necessary, he may direct
The Judgo Advocate General to establish a branch office, under an
Assistant Judge Advocato General, with any distant command, and
to establish in suds. branch office one or mare boards of review. Such
Assistant Judge Advocate General and any such board of review
shall be empowerec to perform for that command, under the general
supervision of The Judge Advocate General, the duties which The
Judge Advocate ~ xeneral and a board of review in his office would
otherwise be required to perform. in respect of. all cases involving
sentences not requiring approval by the Preside:r~t.
AxT. G9. Review. in the office of The Judge Advocate General.
Every record of trial by general court-martial, in which there has
been a finding of guilty and a sentence, the. appellate review of which
is not otherwise provided for by article E.6, shall bo examined in the
office of The Judge Advocate General. If any part of the findings or
sentence is found unsupported in law, or if The Judge Advocate Gen-
eral so directs, the record shall be reviewed by a board of review in
accordance with article 66, but in such event there will be no further
review by the Court of Military Appeals except pursuant to the pro-
visions of article t17 (b) (2).
AxT. 70, Appellate counsel.
(a) The Judge Advocate General shall appoint in his office one or
more officers as appellate Government cotuisel, and one or more officers
as appellate defense counsel who shall be qualified. under the provisions
of article 27 ~b) (1).
(b) It shall e the duty of appellate Govcrnment~ counsel t.o represent
the United States before the board of review or the Court of Military
Appeals when directed to do so by The Judge Advocate General.
(c) It shall be t;he duty of appellate defense counsel to represent
the accused before the board of review or tho Court of Military
Appeals-
1) when lie is requested to do so by the accused; or
2 when i]ce United States is represented by counsel; or
3) when The Judge Advocate General has transmitted a case to
the Court of Military Appeals.
(d) The accused shall have the right to be represented before tho
Court of Military Appeals or the board of review by civilian counsel
if provided by him.
(e) Military a~~pellate counsel shall also perform such other func-
tions m connecti+;n with the review of court-martial cases as Tho
Judge Advocate General shall direct.
AxT. 71. Executio:~ of sentence; suspension of sentence.
(a) No court-martial sentenco extending to death or involving a
general or flag officer shall be executed until apl,>roved by the Presi-
dent, He shall approve the sentence or such part, amount, or com-
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muted form of the sentence as he sees fit, and may suspend the execu-
tion of the sentenco or any part of the sentence, as approved by him,
except a death sentence.
(b) No sentence extending to the dismissal of an officer (other than
a general or flag officer), cadet, or midshipman shall be executed until
approved by the Secretary of the Department, or such Under Secre-
tary or Assistant Secretary as may b? designated by him. He shell
approve the sentence or such part, amount, or commuted form of the
sentence as he sees fit, and may suspend the execution of any part of
the sentence as approved by hun. In time of war or national emer-
gency he may commuto a sentence of dismissal to reduction to any
enlisted grade. A person who is so reduced may be required to serve
for the duration of the war or emergency and six months they- ~~fter.
(c) No sentence which includes, unsuspended, a dishoizor..~~lc ,or
bad-conduct discharge, or confinement for one year or more- shall be
executed until affirmed by aboard of review and, in cases reviewed by
it, the Court of Military Appeals.
(d) All other court-martial- sentences, unless suspended, may be
ordered executed by the convening authority when approved by him.
The convening authority may suspend the execution of any sentence,
except a death sentence.
AxT. 72. Vacation of suspension.
(a) Prior to the vacation of the suspension of a special court-
martial sentence which as approved includes abad.-conduct discharge,
or of any general court-martial sentence, the officer having special
court-martial jurisdiction over the probationer. shall hold a hearing
on the alleged violation of probation. The probationer shall be repre-
sented at such hearing by counsel if he so desires?
(b) The record of the hearing and the recommendations of the
officer having special court-martial jurisdiction shall be forwarded for
action to the officer exercising general court-martial jurisdiction over
the probationer. If he vacates the suspension, the vacation shall be
effective, subject to applicable restrictions in article 71 (c), to execute
any unexecuted portion of the sentence except a dismissal. The vaca-
tion of the suspension of a, dismissal shall not be effective until
approved by the Secretary of the Department.
(c) The suspension of any other sentenc? may be vacated by any
authority competent to convene, for the command in which the accused
is serving or assigned, a court of the kind that imposed the sentence.
AxT. 73. Petition for a new trial.
At any time within one year after approval by the convening .i.utlzor-
it~* of acourt-martial. sentence which extends to death, dismissal,
? dishonorable or bad-conduct discharge, or confinement for one year
or more, the accused may petition The Judge Advocate General for
a new trial on grounds of newly discovered evidence or fraud on the
court. If the accused's case is pending before the board of review or
before the Court of Military Appeals, The Judge Advocate General
shall refer the petition to the board or court, respectively, for action.
Otherwise The Judge Advocate General shall act upon. the petition.
Az{T. 74. Remission-and suspension.
(a) The Secretary of the Department and, when designated by
him, any Under Secretary, Assistant Secretary, Judge Advocate Gen-
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eral, ar commanding officer may remit ar suspc+nd any part or amount
of the unexecutc~d par~tion of any sentence, including all uncollected
forfeitures,_other than a sentence approved by the President.
(b) The Secretary of the Department may, for goad cause, sub-
stit~ute an adm ~ ~ istrative form of discharge for a discharge or dis-
rriissal executed in accordance with the sentence of acourt-martial,
ART. 75. Restor;ltion.
(a) Under such regulations as the President may prescribe, all
rights, privileges, and property affected by an executed portion of a
court-martial seitence which has been set aside or disapproved, except
an executed distiiissal or discharge, shall be restored unless a new
trial or rehearin~,~ is ordered and such executed. portion is included in
a sentence imposx+d upon the new trial or rehearing.
(b) Where a ireviously executed sentence of dishonorable or bad-
conduct dischar?f;e is not sustained on a new trial, the Secretary of the
Department shalt substitute therefor a form of discharge authorized
for administrate ve issuance unless the accused is to serve out the
remainder of his enlistment.
(c) Where a previously executed sentence of dismissal is not sus-
tained on a new t 9?ial, the Secretary of the Department shall substitute
therefor a form of discharge authorized for ac ministrat.ive issuance
and the officer dismissed by such sentence. ma.3l be reappointed by the
President alone to such commissioned rank and. precedence as in the
opinion of the President such former officer would have attained had
he not been dismissed. The reappointment of such a former officer
shall be without regard to position vacancy and shall affect the pro-
motion status of ether officers only insofar as the -President may direct.
All time between the dismissal and. such reappointment shall be con-
sidered as actual service for all purposes, including the right to
receive pay and allowances.
AxT. 76. Finality of court-martial judgments.
The appellate review of records of triaLprovided by this code, the
proceedings, findings, and sentences of courts-martial as approved,
reviewed, or affirl-,led as required by this code, and all dismissals and
discharges carried into execution pursuant to sentences by courts-
martial following approval, review, or a$irmation as required by this
code, shall be final and canclusive, and orders publishing the proceed-
ings of courts-martial and all action taken .pursuant to such proceed-
ings shall be bindin~ upon all departments, .courts; agencies, and
officers of the United Mates, subject only to action upon a petition for
a new trial as provided in article 73 and to action by the Secretary
of a Department as provided in article 74, and the authority of the
President.
PART ~-PUNI'CiVI9 E~ RTiCLEti
Article
77. Principals.
78. Accessory after the fact..
7t1. Conviction of l~?sser included offense.
80. Attempts.
81. Conspiracy.
82. ~olicitatinn.
83. Fraudulent enlistment, appointment, or separation.
84. Unlawful enlistment, appointment, cSr separation.
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A rticlo
85. Desertion.
8G. Absence without leave.
87. Missing movement.
88. Contempt towards officials.
89. Disrespect towards superior oflcer.
90. Assaulting or willfully disobeying officer.
91. Insubordinate conduct towards noncommissioned officer.
92. Failure to obey- order or regulation.
93. Cruelly and maltreatment.
94. Mutiny or sedition.
95. Arrest and confinement.
9Fi. Releasing prisoner without proper authority.
97. Unlawful detention of another.
98. Noncompliance with procedural rules.
99. Misbehavior before the enemy.
100. Subordinate compelling surrender.
-101. Improper use of countersign.
102. Forcing a safeguard.
103. Captured or abandoned property.
104. Aiding the enemy.
105. Misconduct as prisoner.
106. Spies.
107. False official statements.
,108. Military property of United States-Lose, damage, destruction, or wrong-
ful disposition.
109. Property other than military property of the United States-~~Vaste, spoil,
or destruction.
110. Improper hazarding of vessel.
111. Drunken or reckless driving.
112. Drunk on duty.
113. Misbehavior of sentinel.
114.. Dueling.
115. Malingering.
116. Riot or breach of peace.
117. Provoking speeches or gestures.
118, Murder.
17.9. Manslaughter.
120. Rape and carnal knowledge.
121. Larceny and wrongful appropriation.
122. Robbery.
123. Forgery.
124.- Maiming.
125. Sodomy.
120. Arson.
127. Fstox?tion.
128. Assault.
129. Burglary.
130. IIousebrcaking.
131. Perjury.
132. Frauds against the Government.
133. Conduct unbecoming an officer and gentleman.
134. General article.
Ai;T. 77. Principals.
Any person punishable under this code who-
- (1) commits an offense punishable by this code, or aids, abets,
counsels, commands, or procures its commission; or
(2) causes an act to be done which if directly performed by
him would be punishable by this code;
is a principal.
AxT. 78. Accessory after the fact.
Any person subject to this code who, knowing that an offense pun-
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[Pus. Lew 506.] `~O
fishable by this code. has been committed, receives, comforts, or assists
the offender in order to hinder or prevent his apln'ehension, trial, or
punishment shall k,c~ punished as a court-ma~?tial may direct.
AxiT. 79. Conviction. of lesser included offense.
An accused may be found guilty of an offense necessarily included
in the offense charged or of an attempt to commit either the offense
charged or of an offense necessarily included ther?,i.
A,;T. 80. Attempts.
(a) An act, done with specific intent to comx?,it an offense under
this code, amounting to more than mere preparation and tendingg but
failing to effect its commission, is an attempt to commit that offense.
(b) Any person subject to this code who atteir,.pts to commit any
offense punishable l,y this code shall. be pnnishecl as acourt-martial
inay direct, unless otherwise specifically prescribed.
(c) Any person. subject to this code may be coriaicted of an attempt
to commit an offense although it appears an the trial that the offense
was consummated.
Axcl. 81. Conspiracy.
Any person subject to this code who consliires v~ith any other person
or persaris to commit an offense under this; code shall, if one or more
of the conspiratox?s does an act to effect the objec.?t of the conspiracy,
lre punished as a co?rt-martial may direct.
ART. i3~.~.. SOllcitatl(,)n.
(a} Any person subject to this code who solicits or advises another or
others to desert in violation of article 8~ or rn~tiny in violation of
article 94 shall, if the offense solicited or acEvised is attempted or com-
rnitted, be punished. with the punishment provided for the commission
c,f the offense, but if the offense solicited cr advised is not committed
or attempted, he shall be punished as a co~zrt,martia] may direct.
(b) Any person subject to this code who solicits or advises another
or others to commi]: an act of misbehavior before the enemy in violation
of article 99 or sedition in violation of article 94 shall, if the offense
solicited or advised is committed, be punished Frith the punishment
provided for the commission of the offense., but ii the offense solicited
or advised is not committed, he shall be punishedi as acourt-martial
inay direct.
AxT. 83. Fraudulent enlistment, appointaYient, or separation.
Airy erson who-
~1) procures his own enlistment or appointment in the armed
faeces by means of knowingly false rc~presenl;ations or deliberate
concealment .~S to his qualifications for such enlistment or
a.~>poiutment a.nd receives pay or allowances thereunder; or
(2) procurers his own separation from the armed forces by
means of knowingly false representations ar deliberate conceal-
ment as to his eligibility for such separation ;
shall be punished ;is acourt-martial may direct.
AirT. 84. Unlawful enlistment, appointmciit, or separation.
Any person subject to this code who effects an enlistment or appoint-
ment in or a separation from the aimed :Forces c,f any person who is
known to him to be ineligible for such enlistment, appointment, or
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separation because it is prohibited by law, regulation, or order shall be
punished as acourt-martial may direct.
AxtT. 85. Desertion.
(a) Any member of the armed forces of the United States who-
. (1) without proper authority goes or remains absent from his
place of service, organization; or place of duty with intent to
remain away therefrom permanently; or
(2) quits his unit or organization or place of duty with intent
to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one of the armed
forces enlists or accepts an appointment in the same or another one
of the armed forces without fully disclosing the fact he has not
been so regularly separated, or enters any foreign armed service
except when authorized by the United States ;
is guilty of desertion.
(b) Any officer of the armed forces who, h~.ving tendered his resig-
nation and prior to duo notice of the acceptance of the same, r~uits his
post or proper duties without leave and with intent to remain away
therefrom permanently is guilty of desertion.
(c) Any person found gtttlty of desertion or attempted desertion
shall be punished, if the offense is committed in time of war, by death
or. such other punishment as acourt-martial may direct, but if the
desertion or attempted desertion occurs at any. other time, by such
punishment, other than death, as acourt-martin} may direct.
AxT. 86. Absence without leave.
Any member of the armed forces who, without proper authority-
, (1) fails to go to his appointed place of duty at the time
prescribed; or
(2) goes from that place; or
(3) absents himself or remains absent from his unit, organiza-
tion, or other place of duty at which he is required to be at tlxe time
prescribed ;
shall be punished as acourt-martial may direct.
AxtT. 87. Missing movement:
Any person subject to this code who through neglect or design misses
fhe movement of a ship, aircraft, or unit with which he is required
in the course of duty to move shall be punished as acourt-martial
may direct.
AxT. 88. Contempt towards officials.
Any officer who uses contemptuous words against the President, Vice
President, Congress, Secretary of Defense, or a Secretary of a Depart-
ment, aGovernor or a legislature 'of any State, Territory, or other
possession of the United States in which he is on duty or present
-shall be punished as acourt-.martial may direct.
Ai;T. 89. Disrespect towards superior officer:
Any person. subject to this code who behaves with disrespect towards
his superior officer shall be punished as acourt-martial may direct.
AxT. 90. Assaulting or willfully disobeying officer.
Any .person subject to this code who-
(1) strikes his superior officer or draws or lifts up any weapon
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or offers am> violence against him while lie is in the execution
of his office; or
(2) willfully disobeyys a lawful command of his superior officer;
shall be punished, if the offense is committed in time of war, by death
or such other punishment as acourt-martial may direct, and if the
offense is commit ed at any other time, by such punishment, other
than death, as acourt-martial may direct.
AxT. 91. Insubordinate conduct towards noncommissioned officer.
Any warrant o}liter or enlisted person who=-
(1) strike:, or assaults a warrant of&cer, ~soncommissioned offi-
cer, or petty officer, while such officer is in the execution of his
office ; or
(2) ,willfully disobeys the lawful order of a warrant officer,
noncorrimissi~ ~ned officer, or petty officer; or
(3) treats with contempt o:r is disrespectful in language or
deportment toward a warrant officer, noncommissioned officer,
or petty officer while such officer is in the execution of his office;
shall be punished .cs acourt-martial may direct.
Ai;T. 92. Failure t.o obey order or regulation.
Any person subject to this code who-
(1) violates or fails tv obey any lawful general order or regu-
lation; or
(2) having knotivledge of any other lawful order issued by a
member of tl,c~ armed forces, which it is his duty to obey, fails
to obey the same; or
(3) is derelict in the perforrriance of his duties;
shall be punished ns subject to this code shall secure all public property
taken. from the ++neniy for the service oi` the United States, and shall
give. notice and d;urn over to the proper tcutliority without delay all
capt:nred or abai+cloned property in their possession, custody, or control.
(b) Any per~ani subject to tlns code who-
(1) fads t;o carry out the duties prescribed in subdivision (a)
of this artic?(~>; or
(2) buys, sells, trades, or in a~n~~? way deals in or disposes of
captured or abandoned property, whereby he shall receive or
expect any profit, benefit., or advantage to himself or another
directly or mdirectl3= connected with himself; or
(3) engages in looting or pillagi.clg;
shall he punishe.l as acourt-martial may direct.
AnT. 104. Aidiaig the enemy.
Any person who-
(1) aids, or attempts to aid, the enemy with arms, ammunition,
supplies, mcuiey, or other thing; oi?
(2) without proper authority, knowingly harbors or protects
or gives iiii.elligence to, or communicates or corresponds with or
holds any intercourse with the enemy, either directly or indirectly;
shall suffer de: th or such other punishment; as acourt-martial or
military comnri-lion may direct. -
Aiir. 105. Miscr any other structure,
movable or imxrrovable, wherein to the knowledge of the offender there
is at tlxe time Fr human being, is guilty of. aggi.?avated arson and shall
be punished as .L court-martial may dira:,ct.
(b) Any per?;on subject to this code who willfully and maliciously
biac?ns or sets fi~?s~ to the property of another, ea4~ept as provided in sub-
division (a} of this article, is guilty of sinpple arson and shall be
punished as a court-marti~:l may direct.
AxT. 127. Extortion.
Any person Subject to this code who caxmmui~ ~cates threats to another
person with tlit+ intention thereby to obtain anything of value or any
acquittance, ade~antage, or immunity of any description is guilty of
extortion and s}a all be punished as acourt-martial may direct.
Axr. 128. Assault.
(a) Any pex.son subject to this code who attempts or offers with
unlawful force or violence to do bodily hhall lie deemed to have ended
as of the effective date of this Act.
QIIAL,IPrCATIO:VS OF TIZE JUDGE ADVOCATES GENERAL
Sr~:c. 13. Hereafter The Judge Advocate General of an armed force,
exclusive of the #~resent incumbents and exclnsi ve of the Coast Guard
shall be appointed from among those officers who at the time of
such appointnxe.nt are members of the bar of a Federal court or
the Highest court of a State or '1'erritorv and who have had not less
than a total of eight years' experience inLlegal. duties as commissioned
officers.
S~~c. 14. The following sections or Darts thereof of the Revised
Statutes or Statutes a.t Large are hereby repealed. Any substantive
rights or liabilities existing under such sections or parts thereof prior
to the effective deyond'tbe rule of the Colony, Inc. v. Comr., 357
ills or the correlative right of practitioners to en- U.S. 28, 26 LW 4387, the Tax Court holds that
gage in the practice of a useful profession. ,1 return's erroneous treatment of realty-sales
Without hearing the evidence, the court cannot i>rofits as capital gains, with a resulting reduction
say that the requirements of a diploma from a ,if gross income by more than 25 percent, does not
college approved by the American Medical Asso_ ~ onstihrt:~ an "omission from gross income" sub-
dation and a knowledge of surgery and materia ,?ecting Lire taxpayer to the five-year limitations
medics bear no reasonable ielation to the practice ~~eriod #+,r deficiency assessments. (Webb Estate,
of chiropractic. e?/10/58'~
Judge Wisdom, whose dissenting opinion was
written as the majority opinion, says evidence that +i)ther Iunportant Rulings
materia medics and surgery bear no relation to ,If Courts and Agenries
chiropractic is immaterial. `The standards estab-
lished in the Louisiana Medical Practice Act do New ~"ork court cannot order direct payment to
not purport to bear a relation to the practice of foreign guardian of infant remaindermen's shares
chiropractic. The object oi- the law is to license in New 'York estate (NY SupCt NYCty: In re
those persons holding themselves out as qualified ianover Rank, 9/3/S8) ...Employees' indebted-
medical doctors--qualified t,, practice surgery and ,.ess to employer not subject to counterclaim in
medicine generally, not chiropractic, i;ovetnm+::nt's FLSA suit (USDC WSC; Mitchell
~:. Richey 8/29/58) ...Justice Department with-
,iraws atsempt to put National Lawyers' Guild on
Tax Deduction Allowed !`or Return ; ith~rne} +General's list of subversive organizations
Of FHA Mortgage Loari Windfalls Justice f )ept.; Announcement, 9/12/58) .
The Federal Housing ftuthority's success in Isxam~:.ing officer can ask questions in exclu-
li i,gaNon to compel buildin:*-company sharehold- pion prpc~?eding (Justice Dept.; File A-642-1949,
ers to return "windfalls" dititributed by the com- `-'/5/58) ...Mere following of struck employer's
parries from the excess of FI-{A loans over building trucks no Taft Act violation (NLRB; Warehouse
costs prompts the Internal Revenue Service to Union, l,,cal 688, 121 NLRB No. 88, 8/29/58)
define the tax consequences c,f such a refund. Re- ? ? ~ Reg:uations issued governing compliance with
payment of such windfalls to the corporation `c~oluntar. Oil Import Progtam east of Rocky
entitles the shareholders, under Section 1341 of wfountar,s (Interior Dept.; Announcement,
~,/ )
the 195=f Internal Revenue Ccrde, to an income tax 8/58
deciucticm to the extent the windfall distributions Railrpad freight rates increased (ICC; Increased
were reported as capital gains in the earlier year freight 1~'.ates, 1958, Ex Parte 212, 9/}/58) .. .
when they were distributed. (Rev.Rul. 58-456, ~iffiliatec corporations can fife new elections to
9/15/58) fil? separate returns (IRS; Rev. Rul. 58-471,
Of course, some courts have held that windfall `'/29/58, released 9/10/58) ...Personal holding
distributions of this type mica be treated as ordi- (~mpany regulations issued (IRS; T.D. 6308,
nary income, rather than a~. capital gains. And '' 3/58)"
the Service makes it clear that, if ordinary-income CJasolic,e dealer. considered registered "pro-
treatment is required, interest runs on the defici- ctuier" 'tlcspite use of small portion of gasoline
in his h.,siness motor vehicles (IRS; Rev.Rul
envy for the earlier year in spite of the later re- ~,g..157, ~~!15/58) ...Related regulations issued
payment. And this interest is not includable in ?;overnirat; transactions between related taxpayers
computing the decrease in tax for the later year in (IRS; T.1~. 6312, 9/8/58).
which the repayment occurs.
rllintnrzy-1n a belated atb:'mpt t0 br(ng 1t5 treat- published'c;~ch Tuesday a=cept third Tuesday in August and
ment of alimon under the 2339 Code more in line first Tuesday rn September by The Bureau of National ARalrs,
y enc., 1231 "C~wenty-tonrth Street, N.W., Washington 7, D.C.
with the rule applied by the courts of appeals, the c?agbxicmatItrec;rpelvjieges aailiorliedaaCnVPashjngtoncD.Cecona-
Service announces it Wlll a1sOW dedUCtlOn Of pe- Far further information on items In this POCBET EDITION,
riodiS4~~dr'~i-4~~~~~~e?2~2~~i~si: c~~C'~t~f;~?l~S~~'Pl~b~~30`o~i'~ bid~f~ e~tes La"
4 September 16, 1958
 LAW WEEK's
SUMMARY f~ ANALYSIS
Of Current Law
A WEEKLY REVIEW OF SIGNIFICANT DECISIONS, REGULATIONS, INTERPRETATIONS
Canon 35 Amendment
Is Postponed by ABA
Last February, at its mid-winter meeting, the
American Bar Association postponed action on
proposed changes in Canon 35 (photography,
telecasts, and broadcasts of courtroom proceed-
ings until the August Meeting in Los Angeles.
The August meeting again postpones action on
this controversial 9uestion. The new president of
the Association will appoint a special committee
to make a study and report its conclusions as soon
as possible.
In other actions of general interest, the Asso-
ciation approves a National Interprofessional Code
Eor Physicians and Attorneys; disapproves legisla-
tion to put automobile accident cases on a work-
men's compensation basis; and opposes amend-
ments to the social security laws that would add
the costs of hospital care, nursing, and surgery to
the benefits granted.
New officers are elected, including Ross L. Ma-
lone, as president.
CO11bCCS5 Permits Appeals
From Iuterlocntory Orders
For the first time in the history of the federal
judiciary, appeals can be taken generally from in-
terlocutory orders. Congress passes and the Presi
dent approves a bill, H. R. 6238, whidi, to a am?
sidcrable extent, eliminates the clement of finality
from the duestion of appealability.
However, the new measure is hedged about with
restrictions. First, d~te district court must state
in its order that it involves "a controlling question
of law as to which there is substantial ground for
difference of opinion, and that an immediate
appeal * * * may materially advance the ultimate
termination of the litigation." Secondly, the court
of appeals "in its discretion" may permit the ap-
peal if application is made within lu days.
This measure has had support of the Judicial
Conference and the American Bar Association.
Other important bills enacted into law include
I~
the `i~~#hib~rF~P~'~2t~'fD6~5 : CI~?-'~~~~~~~~~'~'~~'~'`~UUr1~ ~is con-
"Social Security Amendments of 1958," and the
"Food Additives Amendment of 1958." Also
passed is a bill to improve the opportunities of
small business concerns to obtain a fair proportion
of government business.
NLRB Decides to
Apply Jencks Rule
"In conformity with the decision of the Court
of Appeals for the Second Circuit in Adhesive
Products," 42 LRRM 2421, 27 LW 2028, the Na-
tional Labor Relations Board changes its mind
and announces that it will apply the Jencks Rule,
353 LI. S. 657 25 LW 4365, in unfair-labor-prac-
tice proceedings. (Ra-Rich Mfg. Corp., 8/28/58)
Specifically, this conclusion means that a re-
spondent in an unfair-practice proceeding will
have a right to production, for cross-examination
purposes, of pretrial statements submitted to the
Board by a witness supporting the charge. "To
the extent inconsistent with this holding," the A&P
Case, i 18 NLRB 1280, 26 LW 2123, is overruled.
The Board gives no further explanation of its
decision. It relies entirely upon the reasoning of
the Adhesive Products case, where the Second Cir-
cuit rejected a suggestion that an unfair-labor-
practice proceeding must be distinguished from
Jencks because such a proceeding is not criminal in
nature.
Supreme Court's Scienter
Rule Given Limited Scope
Mr. Justice Frankfurter's prediction that Lam-
bert v. California, 355 U. S. 225, 26 LW 4059,
"will turn out to be an isolated deviation from the
strong airrent of precedents" is borne out by the
narrow scope afforded the Lambert decision by
the U. S. courts of appeals. Just as did the Ninth
Circuit in Reyes v. U. S., 27 LW 2049, the Second
Circuit holds that a narcotics convict's lack of
knowledge of the Narcotic Control Act's registra-
Washington, D. C. Copyright, 1958 by The sureau of National Aljairs, tnc. Se tember 9, 1958, No. 278
Rtghts of redistribution or reproduction belong fo copyright owner f~
 A~proyed For Release 2002/06/25
viction or fading to register- when he departed
from the United States. ([J. S. v. Juzwiak
8/25/S8~
Both courts of appeals point to the emphasis the
Supreme Court placed upon the fact that the con-
duct of Lambert violating the C;alifornia ordinance
was a mere passive failure to register as a con-
victed felon. Under the Narrntic Control Act
provision involved here, on the other hand, the
violation is not the mere failure to register but is
the positive act of leaving or entering the United
States without registering.
In his special concurring opinion, Chief Judge
Clark has "more difficulty * *' * in distinguishing
Lambert v. California." He cannot see a more
positive act by the narcotics convict---a seaman
who left the country on his drip-than Lambert's
continued stay in Los Angeles. However, he is con-
vinced the courts must be slowrer to strike down a
statute far the control of trallic in narcotics than
to invalidate mere law enforccrrnent techniques de-
signed for the convenience of law-enforcement
agencies. Also, he feels that L.nnbert "disclosed so
sharp a division in the Cour# that the extension
of its policy to new areas may well be thought un-
likely."
Firm's Purchase of Half Its Own Stock
No llividend to Its Other Stockholder
Stressing a change in the stockholder's propor-
tionate interest in a corporation, the U. S. Court
of Appeals for the Third Circuit says that a 50
percent stockholder's assignment to the corpora-
tion of an option to purchasrporation's exercise
of the option, does not constitute the constructive
distribution of a taxable dividend. to the stock-
holder. (Holley v. Comr., 9/y f 5$~
The Government had been successful. in con-
vincing the LT. S. Tax Court, 26 LW 2097, that
the corporation's action in exercising the option
was just the same as if it had laid a dividend to
the stockholder who had then exercised the option.
The court of appeals agrees, ~~f course, that the
taxpayer was benefited indirectly by the trans-
action. The value of his own stock was inr_reased.
But these benefits operated Drily to increase the
value of his stockholdings; they could not give
rise to taxable income within rho meaning of the
Sixteenth Amendment until thf? corporation made
a distribution to the taxpayer or his stock was sold_
The most significant of the criteria applied to
determine whether payments made by a corpora-
CIy4-RDP62-006318000300110016-1
ditributitur leaves the proportionate interest of the
stockholders unchanged, as occurs when a true
dividend i; paid. Apply that criterion here shows,
th+~ -opinion concludes, that prior to the distribu-
tion the Ca::payer had a mere 50 percent interest
in the company, whereas after it was over he had.
a t00 percernt interest in it.
Judge McLaughlin, dissenting, agrees with the
Ta.x Court that the assignment was made so that
the corpcrt;ation could exercise the option for the
taxpayer's personal benefit. The payment secured
fa- the taxpayer exactly what it was always in-
tended he should get if he had exercised the option
himself.
ARA Urges Changes
In NLRB ff'rocedures
The American Bar Association approves seven
proposed changes in the practices and procedures
of the National Labor Relations Board and also
favors initial circuit court review of wage deter-
minations ccnder the Walsh-Healey Act.
"the Board, says the Association, should be more
liberal in granting requests for oral argument in
representation cases; attorneys, wherever possible,
should be ,assigned as hearing officers; and the
Board should reconsider its view that its policies
on such matters as jurisdictional standards do not
cone within the rule-makin#; procedures of the
administrative Procedure Act.
'1'he AB.A Section of Administrative Law ap-
proves in substance the draft of a code of agency
conduct for adoption by federal agencies. The
Association approved the proposal of the Section
that the draft be completed and that it be sup-
ported by the Association before Congress-
/i joint session of the Association's Section of
International and Comparative T_aw, the Section of
Real Property, Probate, and Trust Law, and the
Standing C+~mmittee on Aeronautical Law discuss
anti consider the law and the lawyer in the com-
ing space a~;e.
Congress' Expatriation Power
Is ITpheld by Supreme 1:ourt
Despite tl;~e absence of a constitutional grant to
Congress of power to legislate in the field of for-
eigu affairs, the Supreme Court during its recent
Term upheld by a 5-4 vote Congress' right to ex-
patriate a native-born citizen for voting in a for-
eign. election. However, the Court did not give
Congress c.?rte blanche, for the withdrawal of
citizenship must be reasonably related to the end
txm rn acdrunng and redeeminr~ its own stock are Con rcas seeks to reach-h rc t~, r u1~ ti n of
essentia~~pp~t~t~tDt'dtelr~~S~ 2,Q~$~~$5 : ~.~~~-00631R00~300~1~~1~-`~
~ September 9, 1958
 Thn@~pxr~t~s~e4~0iri~~~t~~l.0~l~~sr~ ~ C~i'r~~s~~L4~i~~~~~~e~t30081,1trr{i~16-11, Con-
t' h d
t
ion
at un er our form of government the utr- stitution} even though he had not formally been
zenship of the lawfully naturalized and the native- inducted into the military."
b
orn cannot be taken from them.
However, the Court refused to go along with
Congress' withdrawal of citizenship for away-time
deserter. Four justices felt that cruel and unusual
punishment was being imposed, and one that there
was no relevant connection between the legislation
and the power under which it was enacted-the
war power. The four dissenters found the neces-
sary relationship between expatriation for deser-
tion and the power to raise an army; they denied
that punishment was being imposed.
Without deciding the extent to which freedom
to travel can be curtailed by Congress, the Court
held that the Secretary of State has not been au-
thorized to condition the issuance of a passport
on the applicant's furnishing of anon-Communist
affidavit. The government agreed with the Court
that the right to travel "is a part of the 'liberty' of
which the citizen cannot be deprived without the
due process of law of the Fifth Amendment."
Again four dissenting votes were cast. The dis-
senters were convinced that the denial of a pass-
port for security reasons has been both a part of
the administrative practice and the purpose of
~__~ ~ .
Fifth Amendment Discharge
Not Subject to Arbitration
Serviceman's Wife Can Be
Court-Martialed Overseas
The U. S. Court of Military Appeals has now
restricted the rule of Reid v. Covert, 354 tJ. S. 1,
25 LW 4444, to the precise facts of that case-
the court-martial of a serviceman's dependent for
a capital offense committed while accompanying
him overseas. In its most recent nilin on the
-'~-_ --
su ect t ~e court sustains t re court-martial of a
serviceman s wife for a noncapital crime c~mmit-
- - - ----
tee w ile accom anyin r rer ~us~and at an over-
seas uty station, v, i~a~T"~/SR~ ~~
~'~nce again the court states its convictron that
Congress constitutionally has the power to con-
sider "dependents of military personnel i^ foreign
lands, who are associated with the military in
every way but for the performance of military
duties," as part of the Armed Forces for the pur-
pose of regulating their conduct.
The court displayed the same attitude in IJ. S.
v. Wilson, 26 LW 2502, when it refused to apply
the Covert doctrine to a civilian employee of the
Army who committed a noncapital crime while he
was ernployed abroad. That holding was also
based upon Mr. Justice Black's statement in the
Reid case that "there might be circumstances where
a person~~~~{~@'~ ~1~P~@'F~~~v~f~OfPf(~~25
September 9, 1958
An employee who had claimed his Fifth
Amendment privilege against self-incrimination
when questioned by the House Committee on Un-
American Activities is not entitled to have leis
discharge under a union contract's `just cause' pro-
vision submitted to arbitration. The New York
Supreme Court, New York County, says that when
the cause for firing is `just cause' as a matter of
law, arbitration would be pointless. A refusal to
answer the questions on the ground stated creates
a doubt as to the "trustworthiness and reliability"
of the employee. (Carey v. Westinghouse Electric
Corp., 8/19/58)
The court says it is constrained to follow the
California Supreme Court's reasoning in Black v.
Cutter Laboratories, 43 Cal. 2d 788, 23 LW 2372,
which held that California's public policy forbade
the enforcement of an arbitration award that di-
rected the reinstatement to employment of a Com-
munist Party member. New York courts, the opin-
ion asserts, are no less aware of the Communist
menace to democracy. While the employee was
perhaps within his constitutional rights in refus-
ing to answer the questions and even in holding
his warped political beliefs, he had no constitu-
tional right to employment.
Court of Appeals Suggests Amendment
Of Television Permit-Transfer Rules
An inconsistency between the Communications
Act's comparative-hearing rule for construction-
permit applications and its 1952 Amendment's
much more summary proceeding for approval of
permit transfers prompts the Court of Appeals for
the District of Columbia Ciraiit to suggest an
amendment of the permit-transfer provisions.
The 1952 amendment's language and history
persuade the court to affirm the Federal Communi-
cations Commission's denial to an unsuccessful
applicant of any right to challenge the successful
applicant's transfer of the permit only a few
months after it was granted. But the court ex-
presses afear that the amendment wjll "open the
door to something not unlike the `trafficking in
licenses' long since disapproved." (St. Louis
Amusement Co. v. FCC, 8/28/S8)
I?nder Section 310(6) of the Act as amended
in ] 952, when a construction permittee seeks to
>~~1~CuR~~8~410fl~1~fl(ibOf3s4Q1i1 Q~~GGV~red
 Approved For Release 20(~2/0~/25
to consider only whether the ,sslgnee se ecte Is
qualified. It has no power to consider the compara-
tive qualifications of prior unsuccessful applicants.
In the present case, the coml}laining unsuccess-
ful applicant had dropped out of the proceeding at
an early stage, correctly antici]>ating that the suc-
cessful applicant would be found the hest quali-
bed. Later the successful permittee changed his
plans, bought another station, rind then contracted
to assign the permit to anothi?r unsuccessful ap-
plicant.
In the court's view, this tyl>e of situation re-
veals a "serious gap in the statutory scheme to
which congressional attention should be directed."
The point made by the court: may be illustrated
even more forcefully by a case not mentioned in
the opinion. In In re Huffman, 23 LW 2011, the
successful applicant, selected on the basis of his
local connections, had arranged for the sale of his
license to an out-of-state publisher before the li-
cense had even been issued.
Company's Disability Payments to
Officer Exempt From Income Tax
Bn:radty interpreting "accident or health insur-
ance" benefits under Section 22 (b) of the 1939
Internal Revenue Code, the C.J. S. Court of Ap-
peals for the Third Circuit fro(ds that payments
received during total disability by a corporate
officer whose employment ci rotract entitled hirn
to reduced compensation whc ^ he was unable to
perform his duties are exchldable Erom gross in-
come as "accident or health insurance" benefits.
(Kuhn v. U. S., 8/28/58)
The opinion relies primarily on Haynes v. U. S.,
353 iJ. S. 81, 25 LW 4228, where the Supreme
Court, after de}fining health irsurance as an under-
taking by one person, for reasons satisfactory to
him, to indemnify another liir losses caused by
illness, gave the term its broad general meaning.
The Supreme Court in Haynes refused to restrict
the deduction of payments received as health in-
surance to conventional diodes of insurance.
SITBFlan-Likewise, the Internal Revenue Serv-
ice gives a broad reading to ~he words "life, sick,
accident; or other benefits" in Section 501 (c) (9)
of the 1954 Internal Revenue Code. It holds that
a mist established pursuant to a supplemental un-
employment benefit plan required by a union con-
tract is entitled to federal tai: exemption since the
plan and trust create an "asscuiation" to pay "life,
sick, accident, or other benefits." (Rev.Rul. 58-
442, 9/8/58)
iJn~~m,~~to~~men nefi c ~,alify a "other bene-
fits",'tll''eF'~iYi~~~a~p~~n~Ps~~~~te~~~~~/~-
C~Arie'61'he~its-~t~a~lhit R~~sQi~a~l~~~ning
power of the employee has been interrupted, and
in ddition, they are peculiarly adapted to the
hazards of being an employee.
E:xpertse :9ccounts-The Service beats a retreat
from its prior position. o^ employees' business ex-
penses. UncLee the newly promulgated regulations,
an employee- who is required to account, and who
does account, to his employer for his business ex-
penses wild. not be required to report them on his
tax return.
However, an employee who is not required. to
account. far his expenses must report on his re-
turn the total amount spent for travel, transpor-
tation, entertainment, or other purposes that are
incurred under a reimbursement or other arrange-
ment with his employer.
'the nc~? regulations will be effective for tax-
able years beginning after December 3t, 1957.
Tar Rettrrn.r-Taxpayers with annual incomes
up to SIO,O~DO can now use Form 1040A .for 1958,
according tci the Service. (Announcement, 9/4/58)
WGzrker Boradirzg Period-Regulations are pro-
mulgated '>y the Service relating to the 20-year
bonding period and the commingling of distilled
spirits provisions of Title II of the Excise Tax
Te?chnical Changes Act of 1958. (T.D. C307,
9%3/58)
The nee statute extended the bonding period
for distilled spirits from 8 to 20 years, and pro-
vijed for limited commingling of distilled spirits
of different: ages.
Other Iiliportaiit Rulings
Of Courts and Agencies
Corporation dissolution no bar to antitnist con-
viction (C;A 4, Melrose Distillers, Inc. v. U. S.,
8; 29/58 National Firearms Act not re-
pealed (t ~SDC Md, U. S. v. One 1955 I`ord Sedan,
8; 29/59 No federal suit for discharge vio-
lating Railway Labor Act (CA 2, Stack v. New
York Central R.R. Co., 8/2.7/58).
PPC denial of right to intervene immediately
reviewable (CA DC, Virginia Petroleum Jobbers
Assn. v. I'PC, 8/29158) ..Veterans reinstated
by intra-dr_partment appeal entitled to back pay
(GAO, (.omp.Gen.Dec. B-1'>C715, 8/2 L,/58 .
C:SA's rif;ht to negotiate contracts delimited
(GAO, t:omp.Gen.Dec. I~-135559, 8/29158).
Published each Tuesday except third Tuesday in August and
fis~st Tuesday in September by The Bureau of National ARairs,
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S~ibscription. rate 512.50 per year, payable in advance. Second-
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mF r eer~~ ~nformal~tioon,~,o~]nr itelm~se~inM t~hisg POCKETS~EaDITION,
~'We~K'at'tRi~dVJ-IR??VJVV 1 1~~~~-Ites Law
4 September 9, 1958