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Conduct in combat 1984

Conduct in combat 1984

DEPARTMENT OF THE ARMY PAMPHLET NO. 27-2

ANALYSIS OF CONTENTS
MANUAL FOR
COURTS-MARTIAL, UNITED STATES
1969, REVISED EDITION

HEADQUARTERS, DEPARTMENT OF THE ARMY
JULY 1970

PREFACE

This analysis of contents contains paragraph by paragraph analysis of the changes made in the Manual for Courts-Martial 1969 and the subse- quent changes in the Manual for Courts-Martial 1969 (Revised edition).
This analysis, therefore, replaces the unofficial draft analysis of con- tents, Manual for Courts-Manual United States 1968, and the draft analy- sis of contents for the 1969 revised edition, both of which were printed in limited quantities and distributed on a special pin point distribu- tion basis in 1968 and 1969. This combined analysis of content does not purport to be an official publication, but is merely an unofficial aid for determining the thoughts of the drafters of both manuals concerning the meaning and effect of the changes.
A. MCM, 1969

HISTORY. On 7 December 1965, the Judge Advocates Generd of the Army, Navy, and Air Force agreed to appoint a working group to prepare a draft of a new Manual for Courts-Martial. The mission assigned this group was to make necessary and desirable revisions occasioned by decisions of the Court of Military Appeals and other established and applicable Federal authority as needed to clarify areas where the services had experienced difficulty or which might be difficult for line officers to understand in performing their judicial and administrative fuactions. Appointed to this working group as senior representatives of the services were Colonel Bruce C. Babbitt of the United States Army, Captain Carlton F. Alm of the United States Navy, and Colonel Harry Ehrlich of the United States Air Force. The Army agreed to assume the administrative responsibility for the preparation and staffing of this proposed draft. Accordingly, Lieutenant Colonel George 0. Taylor, Jr. and Major Matthew B. O'Donnell, Jr. were detailed to assist the committee as advisors and administrators. In July 1966, Major O'Donnell was reassigned and replaced by Major Jack G. McKay who assisted the working group for almost eleven months.
The first meeting of the working group took place on 27 December 1965. The procedure followed by the working group was to forward the proposed changes to the Judge Advocates General by indi- vidual chapters. After consideration of informal comments on these chapters, they were again pre- sented for the approval of the Judge Advocates General. Thereafter, the Judge Advocates General ap- proved each chapter and appendix individually. When these approvals included reservations they were considered and disposed of by the working group. Subsequently, the textual material was prepared in final form and staffed as an Executive Order for signature of the President of the United States.
During the preparation of this pamphlet, the working group received suggestions, assistance, and contributions from numerous sources. It is impossible to acknowledge all of these many sources. How-ever, it is felt appropriate to express particular appreciation to those that made the most significant contributions. These contributors were The Judge Advocate's General School, United States Ar.my; Colo- nel V. Homer Drissel, United Sbks Army; Captain Murl A. Larkin, United States Navy; Colonel Myron L. Birnbaum, United States Air Force ;and Lieutenant Colonel William P. Tyson . Jr., United States Army. Special appreciation is expressed to Colonel Gilbert G. Ackroyd, United States Army. C,olo- nel Ackroyd submitted a proposed draft for Chapter XXVII, Rules of Evidence, which reflected a tre- mendous amount of work and which significantly eased the burden of the working group. The majority of this chapter as finally agreed upon was taken from Colonel Ackroyd's draft.
SCOPE AND FORMAT. This analysis discusses the changes from the 1951 Manual which were made in this pamphlet by commenting on each chapter and appendix individually. It was compiled by the administrators provided the working group by the Army from notes made by these officers during the course of the group discussions.
The particular paragraphs or subparagraphs of the Manual which are discussed herein are usually designated on the left of each page. Unnumbered paragraphs of the Manual within numbered para-graphs or subparagraphs are referred to as "paragraphs," for example, "See the second paragraph of 73c(l)." A citation such as 73c(l) without further identification refers to a subparagraph in the text of the Manual itself.
GENERAL CHANGES. Numerous minor editorial changes have been made which are not dis-cussed individually in this analysis. Some of these were made for grammatical reasons. Others were made in order to make the language and terminology of the Manual conform with the language and terminol- ogy used in the Uniform Code of Military Justice as codified in 1956 and the definitions contained in 10
U.S.C. 5 101 (1964). For example, when appropriate, "enlisted person" was changed to "enlisted mem- ber," "appointed" was changed to "detailed," "appointing" was changed to "convening," and the use of "officer," "commissioned officer," or "warrant officer"" was modified to conform with 10 U.S.C. $101 (14)-
(16) (1964).

DEFINITIONS. All readers of the Manual should be aware of the meanings usually intended by certain terms which are used throughout. These are set out below.
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"Secretary concerned" includes the Secretaries as listed in 10 U.S.C. 5 101(8) (1964). See 5a. "Secretary of a Department" includes the various Secretaries included in the definition of "Secre- tary concerned" plus the Secretary of Defense. "Open session" means a session at which the military judge and/or court members, counsel, and the accused, and, if any, reporters are present. Of course, when appropriate, a witness, interpreter, or other
party assisting the court may also be present. "Closed session" means a session at which only the court members are present. "Open court" means that spectators are permitted. "Closed court" means that spectators are excluded. "Out of the presence of the court members" or "out of the hearing of the court members" refers
to an out-of-court hearing or in-court cohference as appropriate in the situation involved. See appen- dix 8a.
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B. MCM, 1969 (Rev.)

HISTORY. On 11September 1968, the President promulgated Executive Order No. 11430, the Manual for Courts-Martial, United States, 1969 to be effective 1January 1969. Six weeks later, on 24 October 1968, he signed the Military Justice Act into law. Except for two provisions which were effec- tive immediately, the Act went into effect on 1August 1969. The Manual for Courts-Martial 1969 had to be revised prior to that date to implement the Act. The revised manual was titled Manual for Courts- Martial, United States, 1969, Revised edition.
The Department of Defense, by a memorandum signed by the Deputy Secretary of Defense on 16 October 1968, designated the Secretary of the Army as Executive Agent for DOD with overall respon- sibility for preparing and staffing within the Executive Branch an Executive Order amending the Manual to conform to the new Act which the President was expected to sign shortly. The memorandum stated that the proposed Executive Order would be submitted to the Secretary of Defense no later than 15 February 1969.
By memorandum dated 21 October 1968, the Secretary of the Army delegated his authority as Executive Agent for DOD to the Judge Advocate General of the Army and specifically authorized for- mation of an Ad Hoc Joint Department of Defense Committee for the accomplishment of this mission.
The Judge Advocate General determined that an ad hoc cornittee was the ~mc~steffective way to draft the proposed Executive Order and such a committee was formed during the week of 21-25 October 1968.
The Army members were-
Col Dale R. Booth-USA Judiciary, Chairman
LTC James A. Mounts-Military Justice Div., OTJAG
Maj Philip Suarez-Asst. Exec., OTJAG
The Navy members were-
Capt Charles McDowell-Admin. Law Div., OJAG
Cdr Walter Andry-Mil. Justice Div., OJAG
Lt Homer E. Moyer-Mil. Justice Div., OJAG
The Air Force members were-
Col Carl Goldschlager-Chairman B/R OTJAG AF
LTC Jean Morris-Mil. Justice Div., OTJAG AF
Maj Frank Moniz-Appellate Gov't Div., OTJAG AF
SCOPE. The revision of the Manual for Courts-Martial, United States, 1969 was confined, with ex- ception of the input of the Standing Committee, to changes required by the "Military Justice Act of 1968." Numerous minor editorial changes required by the Act and a few grammatical changes have been made which are not discussed individually in this analysis. The term "Law Officer" has been re- placed by "Military Judge" wherever it appears in the text of the January Manual. "Convening" has been replaced by "Assembling" when referring to the formal commencement of proceedings after the gathering of the court whether the court includes members or the military judge alone. "Court Mem-bers" has replaced "Court" when appropriate to emphasize the duality of the court composed of mem- bers and military judge. The term "court" has been used when referring to the court composed of the military judge alone in recognition of his new and expanded role, although its use in the generic sense has been retained when that meaning of the term is evident from the context. The Committee found no acceptable abbreviation or "key" that would distinguish the special court-martial with a military judge detailed from the special court-martial composed of members only. It was necessary to add the words "without a military judge" to "special courts-martial" to distinguish between these two types of special courts-martial.
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In addition, a Standing Committee was appointed within the various services to keep the manual up- dated and to provide necessary input to the Ad Hoc Committee which was beyond the scope of the Mil-itary Justice Act itself. This committee was composed of-
John C. Wasson, Colonel, USAF.
William J. Chilcoat, Colonel, JAGC, USA.
Joseph E. Ross, Captain, JAGC, USN.
Myron G. Sugarman, Captain, JAGC, USA, Recorder.
The Committee provided draft changes to paragraphs 75d, 762, (I), 140b 144d, 145b, 145c, 149b(l), 153a, 153b(l), of the MCM, 1969 (Rev.).
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PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY
NO. 27-2 WASHINGTON,D. C., 28 July 1970
ANALYSIS OF CONTENTS, MANUAL FOR COURTS-MARTIAL,
UNITED STATES, 1969 (REVISED EDITION)

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Paragraph 4a
CHAPTER 2

CLASSIFICATION-COMPOSITION OF COURTS-MARTIAL
General. Recognizes that general and special courts may be constituted of the Military Judge (MJ) alone subject to the requirements of Art. 16. As changed, it no longer relates only to the number of members so that title and position of the paragraph was changed from "b. Number of Members." to "a. General." A request for trial by the MJ alone will nor- mally be made after a case has been referred to a court composed of an MJ and members. Art. 16 allows an accused to request trial by the MJ alone up to assembly of the court, and Art. 18 requires that a capital case be referred as non-capital before an MJ alone has jurisdiction to try it. Thus, the articles contemplate that the accused will decide whether he wishes to request trial by the MJ alone after referral, at which time he may compare trial by the MJ alone with trial by that MJ and members. This is the most orderly procedure for processing requests for trial by the MJ alone since referral to a specified court constitutes proof for the record that the accused knew the identity of the MJ prior to making his request and avoids the possible appearance of improper pressure upon the accused to request trial by the MJ alone.
Who may serve as members. This paragraph deals with eligibility of members of the armed forces to serve on courts-martial. It was formerly designated 4a. See notes to 4a.
In the third sentence of the first paragraph, "who is not a member of the same unit as the accused" was inserted to conform with Art. 25(c) (1). It is provided that an enlisted accused may request enlisted members on the court-martial at any time prior to assembly even though Art. 25(c) (1) provides that the right of an enlisted accused to request enlisted members may lapse at the "conclusion of a session called by the military judge under . . . Art. 39(a) prior to trial." The right to request trial by the Military Judge alone is not lost until assembly of the court, so the accused has the right to request enlisted members up to that time. Requests for enlisted members are rare and the position taken in the manual will not substan- tially increase administrative burdens.
In the first sentence of the third paragraph, "or other" was added after "new." This covers situations where the original proceedings were declared invalid for lack of jurisdiction or for failure to allege an offense. See 92b.
In the fourth paragraph, the definition of "a unit" of the Marine Corps is new. In the first sentence of the fifth paragraph, "suspension from rank" was deleted as a reason for being ineligible to sit as a member of a court-martial. "Suspension from rank" was deleted as a punishment. See comments on 126i.
Rank of members. No substantive changes were made. However, the paragraphing was changed, and the last sentence of the second paragraph is a transposition of the second paragraph in MCM, 1951.
4c
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Paragraph 4d Qualification of members. The aeaond paraxaph, whi'& euggesbed the detail of a lawyer as a member of a special court-martial in complicated
cases, was deleted to avoid placing presidential approval on a practice that
led to difficulties in the past. See United States v. Sears, 6 USCMA 661, 20
CMR 377 (1956). In appropriate cases an MJ should be detailed to the
court.
Military Judge of a court-martial. This paragraph was changed to provide for MJ detailed to SPCM as well as GCM. It also incorporates the expanded designation and qualification provisions of amended Art. 26.
In the second sentence of the last paragraph, after "a rehearing (92a) or a new trial (109, 110)," the words, "or other (92b) trial", were added. See comments to 4a and paragraph 92b.
The term "general court-martial" was deleted from the first sentence since an MJ may be detailed to a special as well as a general court-martial.
.Detail of Military Judges and members from other armed forces- General policy. The first and second sentences were transposed. The first sentence now allows a convening authority to detail as military judge any qualified officer who is available to him, not just qualified officers under his command.
In the second sentence "ordinarily are" was substituted for "should be" to prevent the establishment of a policy that members of a court-mar- tial be of the same armed force as the accused. In the third sentence, "when" was substituted for "whenever it is necessary to convene" to avoid this limitation in the detailing of members to a court-martial who are not of the same armed force as the accused.
The effect of this change with changes in 4g(2), discussed below, is that the detail of members of armed forces different from that of the accused is at the discretion of the convening authority when he is properly authorized to utilize them, except for the limitation provided when they would constitute a majority.
Joint command or joint task force. This title was substituted for "Appointment of members and law officers from within a joint command or joi~t task force," and this subparagraph was reworded so that the convening authorities to whom it applies may detail as members of a court-martial persons who are available to them as well as members of their commands. The former second sentence was deleted to avoid possible conflict with 4g (1).
Consideration was given to substituting "joint force" for "joint com- mand." This substitution was not made as the terms "joint command," and "joint task force," are used in a generic sense and the term "joint com-mand" includes a "joint force." "Joint command" is not defined in the Dictionary of United States Army Terms, Army Regulation 320-5 (23 April 1965), as changed by Change No. 2 (1Feb 1966), or in the Diction- ary of United States Military Terms for Joint Usage, JCS Pub. 1 (1 Jan 1966). However, the term "joint force" is presently defined in each at page 220 and page 103, respectively, as follows :
A general term applied to a force which is composed of significant elements of the Army, the Navy or the Marine Corps and the Air Force, or any two of these Services, operating under a single com-
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Paragraph mander authorized to exercise unified command or operational control over such joint forces. This essentially is the sense in which "joint command" is used.
All other Convening Authorities. This title was substituted for "Ap-pointment from commands of other armed forces." The requirement of concurrence of the Judge Advocates General concerned was substituted for concurrences of the Secretaries concerned. The example of a Navy law specialist being appointed as law officer in the trial of an airman was deleted because under 4g(l) this can now be accomplished without the secretarial authorization. This subparagraph was specifically made subject to 4g(l).
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Paragraph
5a
CHAPTER 3
COURTS-MARTIAL

Convening authorities. In subparagraph (1)the definition of "Secre- tary concerned" was added.
In the second sentence of subparagraph (3), "who is superior in rank of that accuser or, if in the same chain of command, who is superior in command to that accuser" was inserted. Therefore, "another competent convening authority" must be senior in rank to the accuser if they are not in the same chain of command, but only senior in command if they are in the same chain of command. See United States v. La Grange, 1 USCMA 342, 3 CMR 76 (1952) where it was held that an officer junior to the accuser and one not in normal chain of command did not have authority to appoint the court-martial because of Article 22(b). In United States v. Haygood, 12 USCMA 481, 482, 31 CMR 67, 68 (1961), the Court wrote in reference to the words "superior competent authority" in Article 22(b) as follows: ". . . we leave for future resolution the question whether that phrase embraces only those officers who are senior in both rank and com- mand."
In subparagraph (5),the addition of the exception to the general rule against delegation was inserted as Article 140 permits the President to delegate any authority vested in him under the Code.
Special courts-martial. In subparagraph (I), the first sentence was reworded and made to include "any other commanding officer empowered by the Secretary concerned" as a person who can convene a special court- martial. In the second sentence, "Coast Guard" was deleted as the Coast Guard does not now have an "officer in charge of a command" who may convene a special court-martial.
Summary courts-martial. Changes analogous to those in 5b(l) were made.
Detail of trial counsel, defense counsel, assistants in general. The second and third sentences of the first paragraph are new. The second requires detailed counsel to be commissioned officers. See United States v. Long, 5 USCMA 572, 18 CMR 196 (1955) ; United States v. Goodson, 1 USCMA 298, 3 CMR 32 (1952). The third sentence points out that the accused may be represented by individual counsel.
The last paragraph was reworded, and its application broadened to allow any convening authority to detail as counsel any qualified officer re- gardless of armed force with the concurrence of the appropriate command- ing officer. This sentence had applied only to commanding officers of joint commands or joint task forces, and limited them to their own commands when detailing an officer of another armed force as counsel.
Qualification of counsel of general courts-martial. In the second para- graph, the definition of a "judge advocate of the Army" and a "judge 6b
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Paragraph advocate of the Air Force" was changed to conform witH the language in 10 U.S.C. g 3072 (1964) and 10 U.S.C. 5 8067(g) (1964), respectively. The
definition of a "Judge Advocate of the Navy" was added pursuant to PL 90-179,lO U.S.C. 5148.
Qualification of counsel of Special Courts-Martial. This paragraph in- corporates the counsel requirements of Art. 27. An accused must be offered representation by counsel qualified in the sense of Art. 27 (b) prior to trial. There is no requirement that this offer be made prior to the issuance of the convening order. Non-lawyer counsel may be detailed initially and qualified counsel subsequently added in the event the accused access the offer of such counsel. Conversely, qualified counsel may be detailed, and if the accused declines representation by qualified counsel, such counsel need not be present at trial, subject to the restrictions of 15b and 61f.
The "physical conditions or military exigencies" exception has been narrowly defined (1) to implement Congressional intent and (2) to con- form it with the analogous provision of 4c. The discussion of "physical conditions or military exigencies" parallels that given to the same phrase in paragraph 4c of the MCM, 1969 with the additional requirement that the convening authority explain why trial had to be held at that time and place. The legislative history of 4c was considered in drafting this paragraph of the Manual. See page 8, Senate report. The statement that counsel could not be obtained must be made prior to trial and appended to the record of trial as an appellate exhibit. This prevents unnecessary delay and realisti- cally implements Congressional intent.
The third sentence of the third paragraph is new and provides that if the assistant trial counsel has legal qualifications, the assistant defense counsel must have equal qualifications.
Qualification of assistant trial counsel and assistant defense counsel.
The paragraph was generally rewritten. The second and third sentences of the first paragraph of MCM, 1951 were deleted in view of the changes in 45 and 47 concerning the duties of assistant trial counsel and assistant de- fense counsel. This removes the implication that an assistant counsel who is a non-lawyer can participate in a trial by general court-martial if the principal counsel is present.
In the second paragraph, words were deleted which limited the inquiry into the qualifications of individual defense counsel to those cases in which the accused did not desire the services of the regularly detailed counsel, as this inquiry should also be made when the accused desires the services of the regularly detailed defense counsel.
Detail or employment of reporters and interpreters. The last sentence of the first paragraph is new, and provides that no person may act as reporter or interpreter in any case in which he is an accuser. United States
v. Martinez, 11USCMA 224, 29 CMR 40 (1960) ; United States v. Moeller, 8 USCMA 275,24 CMR 85 (1957).
As to the oath for the reporter, the specific reference to 114 was changed to Chapter XXII generally in view of the complete statutory change as to oaths found in the amended Art. 42(a).
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CHAPTER 4

JURISDICTION OF COURTS-MARTIAL
Paragraph 8 Sources, nature, and requisites. The third paragraph, which dealt with the scope of review of courts-martial by civil courts, was deleted as inappropriate; also it was probably dated by Burns v. Wilson, 346 U.S. 137 (1953). See paragraph 108.
Jurisdiction as to persons. The first sentence of the first paragraph was reworded, an,d a reference to the statute providing for courts-martial jurisdiction over patients in the Army and Navy General Hospital at Hot Springs, Arkansas was deleted as this hospital was deeded to Arkansas. The last sentence of the first paragraph is new. As for the proposition that civilians cannot be tried under this article in peacetime, see McElroy
v. Guagliardo, 361 U.S. 281 (1960) ; Grisham v. Hagan, 361 U.S. 278 (1960) ;Kinsella v. Singleton, 361 U.S. 234 (1960) ; Reid v. Covert, 354
U.S. 1(1957). The target of this sentence was carefully limited to Article 2(11) ; and it does not relate to the extent of jurisdiction over civilians relative to the law of war under Article 18.
llb Termination of jurisdiction. Exceptions. The last sentence of the first exception is new and was substituted for a sentence which required Secre- tarial consent before exercising jurisdiction under Article 3(a). This re- quirement was because of adverse publicity which could possibly flow from a trial of a civilian. See page 11, Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, and Army Reg. 22-110 (21 Sep. 1955). The requirement of Secretarial consent was deleted as civilians cannot be tried under Article 3(a). Toth v. Quarles, 350 U.S. 11(1955). The new sentence recognizes that Article 3 (a) retains vitality in certain cases, for example, where the accused has reenlisted. United States v. Winton, 15 USCMA 222, 35 CMR 194 (1965) ; United States v. Gallagher,7 USCMA, 506,22 CMR 296 (1957).
The third exception was changed to conform to the language of Article 3(b). It was not the legislative intent that a person be subject to the Code during the interval between his fraudulent discharge and his apprehension. Both the House and Senate reports on the Code provide as follows :
"Subdivision (B) [of Article 31 is the statutory expression of the law as set out in the Manual for Courts-Martial, paragraph 10, and Naval Courts and Boards, section 334. It differs from a similar provi- sion in Article 5 (a) of the proposed amendments of the Articles for the Government of the Navy in that it provides that a person who obtains a fraudulent discharge is not subject to this code for offenses committed during the period between the date of the fraudulent dis- charge and subsequent apprehension for trial by military authorities."
(S. Rep. No. 486, 71st Cong., 1st Sess. 8 (1949) ;H. R. Rep. No. 491, 81st Cong., 1st Sess. 11-12 (1949) ).
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llc
lld 12

See also Hearings on HR 2498 before a Subcommittee of the Commit- tee on Armed Services, House of Representatives, 81st Cong., 1st Sess. 85-86 (1949).
The third sentence of the fifth exception was deleted. See United States v. Ginyard. 16 USCMA 512,37 CMR 132 (1967).
The fourth sentence of the fifth exception, which stated in effect that a member discharged in a foreign country was amenable to trial for offenses committed before his discharge if his status as a person subject to the Code was not interrupted, was deleted. See McElroy v. Guagliardo, 361 U.S. 281 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); Kinsellu
v. Singleton, 361 U.S. 234 (1960) ;Reid v. Covert, 354 U.S. 1 (1957).
The last sentence of the fifth exception was made to apply to any "discharged prisoner in the custody of an armed force" by deleting the word "dishonorably."
Paragraph was changed to correct the statement that trial com-mences in the accused's presence "by arraignment."
Trial may commence with an Art. 39(a) session held prior to assem bly without arraignment. Arraignment is retained as the time subsequent to which the accused's voluntary absence does not terminate the jurisdic- tion of the court.
Eflect of termination of term of service. The next to the last sentence is new. CM 384814, Mansbarger, 20 CMR 449 (1955).
Exclusive and nonexclusive jurisdiction. The last sentence of the first paragraph was deleted as it was contrary to various status of forces agree- ments.
The third paragraph was revised in light of Wilson v. Girard, 354
U.S. 524,529 (1957).
Reciprocal jurisdiction. The last sentence of the first paragraph was added to provide for the same delegation of authority to the Secretary of Defense as in Exec. Order No. 10428, 18 Fed. Reg. 408 (1953). See United States v. Hooper, 5 USCMA 391, 18 CMR 15 (1955), for the validity of this delegation.
Added last paragraph reflects jurisdictional limitations imposed by Art. 18 on a GCM constituted by an MJ alone. See U.S. v. Jackson, 390
U.S. 570.
Punishments. The first part of the second sentence was deleted to remove the inference that a special court-martial may adjudge a bad-con- duct discharge only is approved by a general court-martial convening authority or other appellate authority. The second part of this sentence was revised to require a "verbatim" record. Article 19 requires only a "complete" record. In MCM, 1951, 15b and 83a were inconsistent. While the Court recognized that Article 19 does not require a "verbatim" record, it chose the verbatim requirement of 83a, MCM, 1951, over the less strin- gent requirement of 15b, MCM, 1951. United States v. Whitman, 3 USCMA 179, 11CMR 179 (1953). Thus, the use of "verbatim" does not require a change in present practice and removes the inconsistency with 83a. In United States v. Nelson, 3 USCMA 482, 486, 13 CMR 38, 42
(1953), after the Court accepted the definition of verbatim as being
"word for word; in the same words," it then stated that it would apply
this definition sensibly as "a strict application would transform a com-
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Paragraph monsense provision into an impossible requirement." The Court applied the test that "if the transcript is sufficiently complete to present all mate- rial evidence bearing on all issues, minimal standards have been met and we will not reverse." Nelson was cited by the Court with approval when it applied this test in United States v.Donati, 14 USCMA 235, 242, 34 CMR 15,22 (1963).
Tiivo additional requirements before a BCD can lawfully be adjudged by an SPCM were imposed by the new Act. 19:
(1) Counsel qualified in the sense of Art. 27(b) must be detailed, and

(2) An MJ must be detailed to the court unless one cannot be ob- tained due to physical conditions and military exigencies. It is not enough that the MJ be detailed, that is, that he be listed on the convening order. He must be present at trial; an accused may not waive or decline the presence of an MJ. The meaning of the phrase "physical conditions and military exigencies" is discussed in the notes to 6c. If the convening authority intends that a BCD be authorized and an MJ is not present, the convening authority must have, attempted prior to trail, to obtain an MJ and failed. In such a case, a statement must be completed explaining that such an attempt to obtain an MJ was made but that an MJ could not be obtained. It must also state what reasons required trial to be held at that time and at that place, despite the absence of an MJ. This statement must be presented at trial as an appellate exhibit and it is subject to review. If an MJ is not present and such a statement is not furnished, the president of the SPCM should know that a BCD is not authorized and his instruc- tions to the court on maximum punishment will not include a BCD. More- over, the case may be referred initially as a non-BCD SPCM. See 33j. If the requirements of Art. 19 are not met, a BCD may not be adjudged even though it might be otherwise authorized. See Senate report, pp 5 and 6.
Jurisdiction of Summary Courts-Martial-Persons and Offenses. Changed to incorporate the right, now provided by Art. 20, of a person to object to trial by summary court-martial, even after he has refused non- judicial punishment. A cross reference to paragraph 132 was added for completeness.
Punishments. The second sentence of the first paragraph was changed and conformed in substance to Exec. Order No. 11081, 28 Fed. Reg. 945 (1963), which amended paragraph 16b by substituting "enlisted persons" for "noncommissioned or petty officers."
The last paragraph was deleted as the power of a summary courts- martial to adjudge a reprimand or admonition is adequately covered in 126f.
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CHAPTER 5

APPREHENSION AND RESTRAINT
Paragraph 17 Scope. A reference to correctional custody under the revised Article 15 was added.
Basic considerations. The word "restriction" was added in two places in the second sentence for clarity and to foreclose the possibility of confu- sion.
The former last two sentences were deleted. These sentences dealt with the effective date of forfeitures and the convening authority's action in regard thereto. This material is covered elsewhere in the MCM in detail and is not related to the other subject matter of this subparagraph, that is, restraint.
Who my apprehend. The first paragraph was amended to authorize criminal investigators to apprehend persons subject to the Code.
Status of person in arrest. The phrase "within the specific limits of his arrest" was deleted from what now is the next to the last sentence because it improperly implied a limitation on the duties which may be required of a person in arrest. ACM S-1894, Hunt, 3 CMR 573 (1952).
The last sentence, a cross reference to 131c(3), is a new addition. The significance of this cross reference is to point out that different rules apply as to duties that may be performed while in arrest in quarters as a punishment under Article 15. Particularly, it should be, noted $hat the Secretary concerned has full authority to prescribe duties that may be performed by a commissioned or warrant officer undergoing this punish- ment under Article 15. Also, there is no limitation under Article 15 on requiring performance of full military duty.
Preliminary inquiry into offense prior to arresting or confining. The second paragraph is a completely new addition. The first sentence of this paragraph is based upon United States v. Teague, 3 USCMA 317, 12 CMR 73 (1953) and United States v. PetrofS-Tachomakolflf, 5 USCMA 824, 19 CMR 120 (1955). The remainder of the paragraph is based upon United States v. Howard, 2 USCMA 519,lO CMR 17 (1953).
Apprehension of deserters by civil authorities. This paragraph has been substantially modified. The material formerly contained in the first paragraph of 23b as to the arrest of deserters by civilians has been deleted. The legality of such a procedure is highly questionable, particu- larly since the best authority for these arrests is dicta in Kurtz v. Mofit, 115 U.S. 487 (1885). Additionally, it is felt that there is no necessity for dealing with this subject in $he MCM and that citizen arrests should not be encouraged. Accordingly, the paragraph has been assigned a title suita- ble for its revised content and all subparagraphing has been abolished.
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CHAPTER 6

PREPARATION OF CHARGES
Paragraph
24b Definition of additional charges. The third sentence was changed and the last sentence was added to make it unquestionably clear that charges cannot be added after arraignment. United States v. Davis, 11 USCMA 407,29 CMR 223 (1960). See 37c(l).
Joining minor and serious offenses. A cross reference to 30g and 33h was added at the end of this subparagraph to indicate that the joining of minor and serious offenses is also subject to the general rule that all known charges should be tried at a single trial as stated in those subpara- graphs.
General rules and suggestions regarding joint offenses. In the next to the last sentence of the last paragraph, the words "except upon his own request" have been substituted in place of "for the prosecution upon his consent." See 18 U.S.C. $3481 (1964).
Contents of specification. The second sentence was restated as a gen- eral rule. The sentence as written in the former Manual b.ound drafters of specifications to a standard which was too rigid, and which practice indi- cates need not be literally followed in all instances. For example, the form specifications for rape, carnal knowledge, larceny, and maiming do not specifically set out all the individual essential elements (app 6c), although it might be said that these elements are included by implication. Addition- ally, the Court of Military Appeals has held that the sufficiency of a specification may be determined by other tests. In United States v. Au-trey, 12 USCMA 252, 30 CMR 252 (1961), the test applied was whether the specification stated the facts in sufficient particularity to apprise the accused of the crime against which he must defend and to enable him to avoid a second prosecution for the same offense. In United States v. Chaney, 12 USCMA 378, 30 CMR 378 (1961), the test was whether the specification followed the language of the statute defining the offense and the form specification prescribed in the Manual.
The former third sentence was deleted. That sentence indicated that a specification must exclude every reasonable hypothesis of innocence. It was felt that this sentence was not literally true in all cases and presented the danger of being misunderstood by laymen using the MCM.
The present third sentence, a cross reference to appendix 612, is a new addition. The purpose of this addition is to qualify the general rule in the preceding sentence by showing that, if abbreviated pleadings are used, the ones in the appendix are the ones to be used.
Each specification to allege but one offense. The third sentence was modified to illustrate that conjunctive pleading is permissible when more than one means are used to commit an offense. See Fed. R. Crim. P. 7(c).
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Paragraph
AGO 20081A
CHAPTER 7

SUBMISSION OF AND ACTION UPON CHARGES
Preparation of charge sheet. The sentence, "Charges will be prepared as prescribed by regulatiohs of the Secretary of a Department," was substituted for this entire subparagraph as this matter was viewed as best left to regulations.
Basic considerations. Subparagraph b is a new addition which was added because of the decision in Mircmda v. Arizona, 384 U.S. 436 (1966) and United States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967). The subparagraphs following b have been redesignated accord- ingly.
The second paragraph of the former e (now f) was deleted. Its advice about preferring charges in AWOL cases to stop the running of the statute of limitations is now covered by the new second sentence of 32c. Its statements about depositions were dated by United States v. Jacoby, 11USCMA 428, 29 CMR 244 (1960), which recognized the right of an accused to be present with his counsel at the taking of a deposition; and the matter about holding the charges and allied papers with the service record of the accused pending his return to military control was viewed as a subject best left to regulations.
The language in g (formerly f) was changed to emphasize that the referral of all known offenses to one trial is discretionary and not manda- tory with the convening authority. As for the possible need of this empha- sis, see the statement in dictum by Judge Ferguson that the referral of all known offenses is mandatory. United States v.Showalter, 15 USCMA 410, 413,35 CMR 382,385 (1965).
Action by persons having knowledge of a sz~pected offense. Every- thing after the second sentence was deleted. The procedure which was outlined did not represent current practice. Usually the accuser, unless he is a commander, does not participate in the administrative handling of the case and merely brings the incident to the attention of the appropriate authorities.
Action by commander exercising immediate jurisdiction under Arti- cle 15. The introductory paragraph and 32a are, in substance, the same as in the former Manual. The substance of the former 32a was placed in the first two sentences of the introductory paragraph for emphasis. In addi- tion, the term "warrant officer'' is used in the introductory paragraph to conform with 128a which provides that a warrant officer exercising com- mand and, under certain conditions, an "officer in charge" in the Navy, Marine Corps, and Coast Guard, may exercise Article 15 authority.
General. This subparagraph, which makes 32 and its subparagraphs subject to the basic considerations stated in 30, is a transposition of part of the material that was in the introductory paragraph.
Pam 27-2
Paragraph

32b Preliminary Inquiry. The fourth and fifth sentences were adapted from the former fourth sentence. The change removes any implication that general exploratory searches are proper.
Preferring charges. The second sentence was deleted because of the
change in 29d. A new second sentence was inserted. See the comment on
the changes in 30e.
Nonjudicial punishment. The second to last sentence is the same as the amendment to this subparagraph by Exec. Order No. 11081, 28 Fed. Reg. 945 (1963), which removed the limitation of this sentence to just noncommissioned or petty officers.
Forwarding charges-Minor offenses.The last sentence, which stated that the forwarding of charges without a letter of transmittal by the commander exercising immediate Article 15 jurisdiction was a recommen- dation for trial by summary court-martial, was deleted as it is no longer appropriate. It was inserted in the Manual at a time when a summary. court-martial could impose far more serious punishment than could be imposed under Article 15. In this connection, see the first clause of the sentence comprising this subparagraph.
Fo~warding charges-Serious offenses. "Personnel records" was sub- stituted for "service records" as "personnel records" is a generic term which includes any records in which a record of previous convictions are entered. In accordance with Army usage, "service records" formerly re- ferred to a particular portion of the personnel records.
Preliminary inquiry by officer exercising summary court-martial ju- risdiction. In the second sentence of the second paragraph, "as appropri- ate" was inserted after "will take the action outlined in 32" as all of 32 may not be applicable.
Date of receipt. In the first sentence, "again& a member of his com- mand" was deleted ~EIan unnecessary qualification.
Alterations. In the first sentence, "are formally correct" was inserted.
Effect of investigation of subject matter before charges preferred. In the first sentence after "if the accused was present at the investigation," the words "of that charge" were deleted to conform more closely to the language of Article 32 (c) .
Dismissal of charges. No change of substance was made. The refer- ence to Article 43(e), which had been the second sentence of the second paragraph, was transposed to be the last sentence of the second para- graph. In the first sentence of the second paragraph the words, "who, if he concurs in such finding, will forward the case through the chain of command to the Secretary of the appropriate department," were deleted. The forwarding of charges to the Secretary concerned was covered by the addition of this action to the next to last sentence of the second para- graph.
Nonjudicial punishment. In the third sentence, "he may return the case to the immediate commander for appropriate action" was substituted for "he may direct the immediate commander of the accused to take appropriate action," to avoid the implication that the higher command may direct the action of the lower commander. The fourth and fifth
AGO 20081A


Pam 27-2
Paragraph The last two sentences were deleted. These sentences suggested that ap- pointment of permanent pretrial counsel might be appropriate to avoid delay, and this type of suggestion can be better covered by means other than an executive order.
The second and third paragraphs were transposed.
The last paragraph is new. It recognizes that the United States may be represented by counsel at the Article 32 investigation when the accused is represented by counsel. United States v. Weaver, 13 USCMA 147, 32 CMR 147 (1962) ; United States v. Young, 13 USCMA T34, 32 CMR 134 (1962).
Witnesses. At the end of the second sentence of the first paragraph, "who will determine the availability of the witness" was added. The third sentence of this paragraph is MCM, 1951, was deleted as the issue of the availability of the witness can be raised at trial.
In the first sentence of the second paragraph, "must be examined on oath or affirmation" was substituted for "should be examined on oath or affirmation." See United States v. Samuels, 10 USCMA 296, 27 CMR 280 (1959). In the fourth sentence of this paragraph, the suggestion concern- ing the taking of depositions was limited to witnesses who "are not reasonably available"; and this limitation was removed as depositions should be taken from material witnesses who may not be available at time of trial even if their absence would be unreasonable.
The last sentence of the last paragraph is new.
Action by officer exercising genepal court-martial jurisdiction in gen- eral. The third and fourth sentences were changed to be the same as the amendments to this subparagraph in Exec. Order No. 11081, 28 Fed. Reg. 945, (1963). The primary change was in the fourth sentence where "of which only the power under Article 15 may be delegated (128a)" was substituted for "none of which may be delegated." In the last sentence, "for appropriate disposition" was substituted for "with the instruction that appropriate action by taken by him" to avoid the suggestion that the officer exercising general court-martial jurisdiction may direct the action to be taken by the subordinate commander.
Reference to staff judge advocate or legal officer. The third sentence of the first paragraph is new. It provides that the appropriate Judge Advocate General will act as the staff judge advocate when the Secretary concerned is the convening authority. The next to last sentence of the first paragraph is also new, and provides, in effect, that there will be a new pretrial advice before referral to trial in a case where there was a mistrial. It is contemplated that this advice will discuss whether the mistrial was "manifestly necessary in the interest of justice" relative to determining if further prosecution is permissible. See 56e(l). If there is further prosecution, no review of the proceedings terminated by the mistrial is required. See 56e(3). However, if there is no further prosecu- tion, a review limited to the question of jurisdiction should be prepared. See 56e and 85b.
In the first sentence of the second paragraph, "in such manner and form as the convening authority may direct" was deleted in favor of a cross reference to 35c. See United States v. Heaney, 9 USCMA 6, 25 CMR 268 (1958).
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CHAPTER 8

CONVENING OF COURTS-MARTIAL
Paragraph
36a Convening orders in general. The second sentence was modified to indicate that it may be inferred from the detail of personnel to court-mar- tial duty that they are on active duty with an armed force. Previously, this sentence indicated that such an appointment was prima facie evid-
ence of this fact. This change is based on numerous cases condemning the use of the term "prima facie." See e.g., United States v. Simpson, 10 USCMA 548,28 CMR 109 (1959).
Form and content of convening orders. The third sentence is a new addition. This sentence sets forth the rule that convening orders should not contain a large number of court members with the intention that only some of them will be present for each trial. The practice eliminated by this sentence has been condemned as reflecting unfavorably on the dignity of the court by giving a casual appearance to the convening of the court. That practice also made it appear that a subordinate of the convening authority was selecting the composition of the court for trial. See United States v. Allen, 5 USCMA 626, 18 CMR 250 (1955) ;CM 363955, Andress, 11CMR 299 (1953).
In addition to the technical changes of replacing "law officer" with "military judge," a new provision was added whereby the convening order shall, unless otherwise provided by secretarial regulations, show that the certified legal personnel have previously taken a prescribed oath as now provided for in Art. 42(a).
This paragraph was amended to state that although the accused may request enlisted members at any time prior to assembly, he should do so at any Art. 39(a) session held prior to assembly. See comments opposite 4b. "Court has been assembled for trial" has replaced "accused has been arraigned" since arraignment may now occur at an Art. 39(a) session held prior to assembly.
Exception to the general rule regarding changes in personnel of the court. The second sentence of the first paragraph was modified to define "good cause." See United States v. Boysen, 11USCMA 331, 336, 29 CMR 147, 152 (1960). Of course, ordinary leave (ACM 12932, Boshears, 23 CMR 737 (1956)) and routine duties would not constitute good cause under this definition.
The requirement was added to the first paragraph that the record of trial must detail the basis for the absence or relief of a member. United States v. Whitley, 5 USCMA 786, 19 CMR 82 (1955) ; United States v. Grow, 3 USCMA 77,83,11 CMR 77,83 (1953).
Also in the first paragraph, the policy against appointment of addi- tional court members after assembly, except as required by reduction of court membership below a quorum (United States v. Greenwell, 12
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Pam 27-2
Paragraph

USCMA 560, 31 CMR 146 (1961)) or for other good cause such as a request of an accused for replacement of a member excused for good cause (United States v. Grow, supra). was stated in mandatory language.
If permitted by secretarial regulations, arraignment may be held at an Art. 39(a) session held prior to assembly. he presence of members, however, is not required until "assembly." Therefore, "arraignment" was changed to "assembly" as the critical point with reference to absence of court members. This change conforms with amended Art. 29.
Manner of effecting changes in the composition of the court. The title of this subparagraph has been changed from "Formal changes" to "Changes in composition" on the basis that the new title is more appro- priate.
"If trial proceedings have not begun, any case pending before the old court may be withdrawn subject to the limitations in 56" was substituted for "any unarraigned case which is pending before the old court may be withdrawn from it and referred to the new court." Significant action in the case such as an Art. 39(a) session and request for trial by the MJ alone may occur prior to arraignment. The critical point for having good cause for withdrawing charges is commencement of trial including an Art. 39(a) session rather than arraignment. The standards of 56 serve as sufficient guidance that such action will be scrutinized for arbitrary or unfair withdrawal. 56 also covers the situation where the accused has requested trial by MJ alone, although the trial has not yet commenced.
Manner of effecting excusal of personnel. The title of this subpara- graph has been changed from "Informal changes" to "Excusing person- nel" on the basis that the new title is more appropriate.
Command relationship with court. The prior first paragraph was deleted and the title of the paragraph, formerly designated as "Instruct- ing Personnel of Court," was changed in order to provide a more appro- priate title as required by the deletion.
This paragraph was extensively revised to implement the amendment to Art. 37. The revised paragraph strengthens the existing prohibitions against unlawful influence on members or officials of a court-martial by the convening authority or other commanding officers. General informa- tional lectures on military justice are exempt from the prohibitions. See United States v. Davis, 12 USCMA 576, 31 CMR 166 (1961) and United States v. Danxine 12 USCMA 350, 30 CMR 350 (1961). The paragraph now provides that performance of a member of a court-martial may not be evaluated in preparing an effectiveness, fitness, or efficiency report on him or in determining his fitness for promotion, transfer, or retention in the service. A counsel may not be given a less favorable rating or evalua- tion because of his zeal in acting as defense counsel in a court-martial. The convening authority and any member of his staff may not prepare or review any report concerning the effectiveness, fitness, or efficiency of the MJ which relates to his performance of duty as MJ at a GCM, provided the court was not convened by the President or the Secretary concerned (Art. 25 (c).
As for the SPCM, the prohibition extends only to the convening authority and not to any member of his staff. The provisions dealing with MJ's performance of duty as a SPCM is not an implementation of an
AGO 20081A

Paragraph amendment to Art. 37. "The Military Jbstice Act of 1968," leaves to the services a degree of flexibility in regard to the use of judge advocates as MJ's of SPCM's. This leaves the MJ of a SPCM without some of the isolation provided for the MJ under an independent field judiciary concept. In an effort to balance the desirability of having a system whereby the MJ of a SPCM can be used for other duties but to insure independence in his judicial capacity, this provision has been added to the paragraph without statutory basis.
CHAPTER 9

PERSONNEL OF COURTS-MARTIAL
Paragraph 393(1) The MJ presides over each session of the court-martial to which he has been detailed-Art. 26(a). His rulings on matters of law or interlocu- tory questions other than the factual issue of mental responsibility are final. He may change his rulings at any time during the trial (including during Art. 39 (a) sessions)-Art. 51 (b). He rules finally on challenges Art. 41. He may permit or forbid the taking of depositions-Art. 49.
Recognizes Art. 39 (a) sessions. The term "Article 39 (a) session" was devised in lieu of the "pretrial session" referred to in the committee report, because an Art. 39(a) session is part of the trial and may be held at any time, including subsequent to announcement of sentence. The possi- ble confusion engendered by use of the term pretrial with regard to changing rulings, detailing counsel, calling witnesses and accepting a plea of guilty and entering a finding thereon, destroyed the utility of that term for the purposes of the Manual. The text is silent relative to challenges, but see 62d.
Provision is made for ho1,ding arraignment, receiving plea^, and entering findings at such sessions if permitted by regulations of the secre- tary concerned.
As the presiding officer, the MJ sets the time for assembly. He may no lbnger assist the court in putting its findings in proper form in closed session. He may, however, give additional guidance in open court. (Art.
26(e).)
Provides for the court composed of the MJ alone. See Arts. 16 and 51 (d) and notes opposite 4a. The MJ alone determines all questions of law and fact, makes findings, and adjudges sentence. No instructions are given by an MJ but special findings may be requested. See notes opposite 71f.
Provision for assisting the members in closed session in putting their finding in proper form has been eliminated to conform to Arts. 26 and 39.
New Military Judge. Conforms existing paragraph to the Act with regard to replacing MJ who is presiding over a trial with members, and implements new Art. 29(d) with regard to replacing MJ who is trying case alone.
The first sentence was rewritten to permit change of the MJ during the trial only for good cause. Two sentences were added thereafter which define good cause and provide that the facts are to be recorded. United States v.Boysen, 11USCMA 331,336,29 CMR 147,152 (1960).
The fourth sentence was modified so as not to require that the read- ing of the record to a new MJ be done in the presence of the court members. Reading in the presence of the members is not required by the
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Paragraph
41d(2) Changed to insure presence of EM's "at all sessions at which mem-bers are present after assembly" when EM's are required pursuant to request of accused for EM's on the court.
Changed "arraignment" to "assembly" to conform with Art. 29. The last sentence was added requiring TC to state the reason for the excusal of a court member by the convening authority. See also 37b. United States
v. Metcalf, 16 USCMA 153,36 CMR 309 (1966).
In covering the procedure to be followed with new members of a general or special court-martial, a parenthetical phrase was added to cover the possibility that the new member might have been previously sworn pursuant to secretarial regulations as now authorized by Art. 42(a).
New member of general court-martial. In the first sentence, the word "evidence" was substituted for the words "testimony of each witness" and the word "introduced" substituted for "examined." See the discussion of changes in 39e, supm. The words "in open session" are also a new addi- tion to this sentence. They were added because it would be improper to have a new member hear testimony which was previously heard out of the presence of the court members.
New member of special court-martial. In the first sentence the word "evidence" has been substituted for the words "testimony of" and the word "introduced" substituted for the words "examined witnesses." See the discussion of changes in 39e, supra.
Suspension of counsel. The scope of the first paragraph was broad- ened by providing that suspension may also be temporary and that a suspension may be on other reasonable grounds besides professional or personal misconduct. These changes now give the Judge Advocates Gen- eral authority to suspend for reasons such as security or mental impair- ment. Temporary suspension contemplates suspension for a particular case or series of cases.
The second paragraph is a new addition. It provides that suspension by one Judge Advocate General or disbarment or suspension by the Court of Military Appeals will be a basis for suspension as counsel by other Judge Advocates General, without further hearing.
Absence of trial counsel. The MJ was added as an authority permit- ted to excuse trial counsel from attendance at trials. The authority of the president to excuse was limited to special courts-martial without an MJ.
Trial counsel reports of result of trial. This subparagraph was modi- fied to eliminate the requirement for the trial counsel submitting the report of the status of cases on hand to the convening authority. This report was frequently not submitted in actual practice, and its deletion is consistent with the Presidential directive to reduce reports. The title of the subparagraph was changed to one which will more accurately describe the material now remaining therein.
Notification of perso

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