qualifications and make his sole duty that of a "police judge" it is believed that many faults of the Summary Courts would be removed. As supplemental to this action the Commanding Officer should provide the Summary Court officer with a court-room and a clerk, so that the atmosphere would be judicial. This is an example again of a problem of administration. No amount of legislation can correct this condition unless there is a keen realization on the part of the Commanding Officers that the Summary Court is a part of the Armed Forces judicial system and should be accorded the rank and dignity which a Court deserves.

E. Appellate Review

1. Boards of Review. In respect to the Boards of Review, each of the Services has set up under the Code Boards of Review consisting of three members in each of the offices of the Judge Advocates General. In the Navy one civilian has been assigned to each Board; in the Air Force and the Army the personnel is purely military.

The experience of witnesses who appeared before the committee seemed to indicate that there was little difference in the end result reached in any of the Services. The Air Force Boards write rather lengthy opinions. The Army Boards write "short form" opinions but the conclusions are more or less the same. Some attorneys have expressed the view that it is a waste of time to appear before the Boards of Review. What we have stated with relation to the cases which go to the United States Court of Military Appeals, indicating the type of practice which that Court has been called upon to discourage, and the type of cases which come before the Court as outlined in Appendix C, to some extent indicates that the Boards of Review are not discharging their assignments properly. If they were, that type of case would never go as far as the Court of Military Appeals. The opinions of the Court of Military Appeals indicate that there is something lacking in the handling and disposition of cases by the Boards of Review as they are presently constituted.

No evidence of any interference by The Judge Advocates General with the Boards of Review has been brought to our attention, but we have been reminded of the fact that the respective The Judge Advocates General, except in the case of the Navy civilians who are so employed, mark the fitness reports of the officers who sit. It takes little imagination to conclude that the wishes and general legal theory of The Judge Advocates General in respect to the manner in which cases should be handled and disposed of can be and probably are conveyed to the members of the various Boards to the extent that while the members of the Boards may not consciously strive to adhere to the desires and viewpoint of their Commanding Officer, there are instances where the result reached by a Board is not the same as that which would be reached if the Board members were free of fear of command retribution. The system must incite in the mind of each officer the knowledge that the possibility exists that if his conclusion does not meet with the approval of, or conflicts with the desires of his commanding officer, he may receive a fitness report which will not contribute substantially, or to any degree, to his further advancement or promotion in the Service.

One of the main difficulties with the Boards of Review as presently constituted seems to be that there is considerable rotation of the personnel of these Boards. This rotation is caused by the laws of Congress, specifically the "Manchu Act" which requires a change in station after the expiration of four years, approximately, in any billet in Washington, D. C., for all officers in the Services. The result is that in the case of men who show themselves eminently qualified to be Board of Review members at the expiration of a period of four years, they must be transferred to other duties to duties in many instances which they cannot perform as efficiently as those carried out by them while on the Board. Such a system unquestionably is a waste of manpower and under such a system obviously the most qualified persons are not serving at all times.

It is our conclusion that Boards of Review should be so constituted that a much more permanent status shall be enjoyed by each of the members of a Board. The Board members should have rank sufficient to enable them to be relatively oblivious to financial considerations and while we see no objection to rotation of

officers among the various Boards, it is our view that more permanent staffing of these Boards would be of great advantage to the Services and to the Nation.

Because of what is stated hereinabove with reference to the possibility of influence of Commanding Officers on Boards of Review and after considerable thought, we have come to the conclusion that the Boards of Review should be removed from the immediate control of The Judge Advocates General in the individual Services. It is our belief that the Boards of Review should be placed in the Department of Defense, responsible solely to the Secretary of Defense; that officers who serve on such Boards be given permanent assignments to this duty in the Defense Department subject always, of course, to efficient performance of duty and good behavior and that the only control over their military performance of the duties assigned to them shall be that exercised when necessary by the Secretary of the Department of Defense.

It is our position that the possibility of improper influence or influences of any kind on a person who in effect occupies a position of an appellate judge should be removed so that absolutely no opportunity for such influence can exist or even be hinted at.

It is believed that such changes would contribute to these very desirable reforms:

a. Independence of the Boards of Review of the General Staff and of the line would be promoted;

b. Substantial uniformity of decision would result; and

c. Continuity of tenure of office of members of the Boards of Review would be promoted.

Such changes would require the amendment and modification of many provisions of the Code.

With respect to Boards of Review, the committee recommends:

a. That they be removed from the offices of The Judge Advocates General and be placed under the direct supervision of the Secretary of Defense.

b. That the "Manchu Act" be amended so that at least members of the Boards of Review as reconstituted in the office of the Secretary of Defense be not subject to its provisions.

2. Certificates of Probable Cause. H. R. 6583 proposed an amendment to the Code, whereby the Court of Military Appeals is prohibited from considering a petition for grant of review unless counsel representing the accused at his trial or before the Board of Review, or Appellant Defense Counsel appointed by The Judge Advocate General if the accused was not represented by counsel before the Board of Review, or civilian counsel retained by the accused, certifies that, in his opinion, a substantial question of law is presented and that the appeal is made in good faith. The committee opposed this amendment before Congress. This provision was also opposed by all witnesses appearing before the committee, except Armed Forces representatives. This amendment was not included in the seventeen recommendations of the 1954 report made by the United States Court of Military Appeals, the Judge Advocates General of the Armed Forces, and the General Counsel of the Treasury Department. It is a direct effort to limit the Court of Military Appeals in the exercise of its jurisdiction. In its original conception, as proposed by The Judge Advocate General of the Air Force, this certificate of probable cause could only have been issued by a newly created judicial appeals board in the office of The Judge Advocate General of the particular Service involved. (See the 1954 report of the Judge Advocate General of the Air Force.)

The committee is of the opinion that any limitation upon the authority of the Court of Military Appeals to review records of trial would prove highly injurious to the process of military justice as implemented by the Code. The opposition of The American Legion to any such proposal should continue.

3. Appeal Time. H. R. 6583 also proposed to reduce the time within which the accused must ask for a review by the Court of Military Appeals from thirty (30) days to fifteen (15) days. In support of such amendment, it is claimed by the proponents thereof that time could be saved in the disposition of cases by the Court

of Military Appeals. It is not necessary for the accused to deposit his notice of appeal with the Clerk of the Court but it is effective when transmitted through military channels. This was a highly necessary interpretation of the law. In all of the discussions before the committee, there was no evidence that this time reduction would effectively speed up the disposition of cases. The committee opposed the amendment before the committee of Congress and still does oppose it.

4. Delays and Time Lag. All of the military witnesses vigorously protested against the time consumed in the military justice process which ends with the action of the Court of Military Appeals. The fundamental reason given for several of the amendments displayed in H. R. 6583 is to reduce this time lag. The committee finds that there is considerable time consumed in following through the processes, commencing with the preliminary investigation and ending with the action of the Court of Military Appeals. It must, however, exculpate the Court from any charge of being dilatory in its disposition of cases. It is true that there are several cases which the Court held under consideration for several months, but in each case there was an extraordinary situation which justified the Court in carefully considering its final action. The evidence shows that the great majority of cases are handled by the Court in a reasonably expeditious manner. We refer again to Admiral Radford's statement concerning the functioning of the Manual for Courts Martial. We repeat-delays for the most part are the result of the requirements of the Manual and not of the Code.

The evidence displayed to the committee shows that it is while cases are in process in the Services that the greatest amount of time is consumed. For example, the committee was informed of one case where a period of approximately three months elapsed following the final decision of the Board of Review before the accused was notified of the decision (R. 730). In making this statement, the committee comprehends fully the problems and complexities involved in the trial and disposition of cases before they reach the Court of Military Appeals. It is not at all certain that these delays are unreasonable when consideration is given to the fact that the Courts Martial are intended to administer justice and not act as mere instrumentalities of discipline. The committee also takes notice of the fact that the same criticism is made of civilian criminal courts-a criticism which undoubtedly is justified in many instances. Notwithstanding this criticism, the committee asserts that speed is not the objective of any judicial process, be it civil or military. The end to be achieved is justice-justice both to the prosecution and the accused. If justice can be obtained with speed, it is to be commended, but if justice is to be sacrificed in order to attain speed, then speed is not justified. While some of the cases appealed to the Court of Military Appeals are without merit, within the whole volume of cases for which review is asked, there is certain to be a large number in which justice would be defeated if most careful and time-consuming review of trial proceedings were not had. The committee has concluded, after most careful study and consideration of this problem (and it fully understands the viewpoint of the Armed Services), that further examination and research must be given by the Court of Military Appeals and by the Armed Services in order to find a satisfactory solution without impairing the jurisdiction and powers of the Court. It is again strongly suggested that there are provisions in the Manual which must be amended with the objective of eliminating time-consuming processes. In one respect, this problem has been the most troublesome which has been presented to the committee, but it has concluded that no amendment of the Code should be made at present which will change the methods of review.

It strongly recommends that the Court of Military Appeals and the Armed Services and all other persons interested in military justice give time and effort to developing greater speed in the disposition of cases without sacrificing the rights of the individual accused, not only to a fair trial but also to an exhaustive review of the trial court's action.

5. Review by Appointing Authority. One of the unique features of the functioning of Courts Martial has been the review of the trial proceedings and action on the same by the appointing or reviewing authority. Out of this unique primary review has grown several obvious weaknesses. It is due to this review by the ap

pointing authority that the idea originated that a Court was the personal representative of the appointing authority and that it was but an instrumentality of discipline. Further, this power of the appointing or reviewing authority over the proceedings and the sentence necessarily encouraged a certain amount of command influence. These weaknesses are inherent. There have been many instances where Courts Martial have retreated from that statutory duty and have imposed maximum sentences in the belief that they will be reduced by the reviewing authorities. The committee has evidence in its record where ill-informed appointing authorities have indicated to trial courts that they should impose the maximum sentence, and that the appointing authority would, in the exercise of his judgment, grant clemency. Happily, however, under the Code, apparently there have been but few such cases. There can be no question but what this primary review by the appointing authority has been exercised in the majority of cases in a most judicial manner and has resulted in the reduction and amelioration of sentences. So long as the present method.of appointment of courts is continued, this primary review by the appointing authority is almost a necessity. Its elimination would require a complete reconstruction of the Courts. It is not at all certain that Congress, at the present time, would be willing to indulge in any such radical departure from established precedent. Again, there is presented an example of the necessity of a wise and judicial action by the appointing authority who fully understands the present military justice system and who is sympathetic to its objectives. It is believed that the present method works, in general, to the advantage of the accused. However, in the hands of an arbitrary appointing authority who does not comprehend or understand that Congress has erected a judicial system, this power is subject to grievous abuse.

The committee makes no recommendation as to any change at this time, believing there is involved the broader problem of the nature of the military judicial system.

4. MANUAL FOR COURTS MARTIAL

Except for the Table of Maximum Punishments (Article 56) and the Rules of Procedure and Evidence (Article 36) contained within the Manuel for Courts Martial, many reputable legal authorities regard it only as a text book or an exposition of law. There is a sharp division of opinion on this question and it must be frankly admitted that the Court of Military Appeals in a number of decisions has considered certain provisions of the Manual as possessing the dignity of a Congressional enactment. Appendix "D" summarizes numerous instances where there appears to be a conflict between dissertations in the Manual and the provisions of the Code. It also contains references to cases where the Court of Military Appeals has in instances struck down Manual provisions as being in conflict with mandates of the Code and in other instances it has sustained Manual provisions as not being in conflict with the Code, and as correct expositions of military law on the particular subject. The latter cases show a tendency to read the Manual provisions as part of the statutory law. The committee at this time does not offer the foregoing as criticism of the Court, but only by way of illustration of the confusion and uncertainties which have arisen in attempting to administer the Code as elucidated in the present Manual.

The Manual is in truth an Executive Order of the President promulgated pursuant to delegated authority (Articles 36 and 56) and a most serious Constitutional question has always existed as to the power of Congress to delegate authority to the President (with due regard for his dual capacity as Commander in Chief) to promulgate rules and regulations which pertain to substantive law as distinguished from the procedural detail (Ex parte Quirin, 317 U. S. 1, 25-26; Ex parte Milligan 4 Wallace 2, appear to limit the "commander in chief's" function to "the command of the armed forces and the conduct of campaigns" except as Congress under the "necessary and proper clause" may otherwise provide.) However, by long standing tradition and practice it has been accepted that the promulgation of the Manuals for Courts Martial by the President is a valid exercise of delegated authority,

particularly since Congress has required that the rules and regulations as set forth in the Manual be reported to it (Art. 36).

It is notorious that the present Manual was the product of the Armed Forces and was prepared by them. Undoubtedly it was approved by them before being submitted to the President. Whether the President made alterations in the submitted draft the committee is, of course, unable to state, but it is believed that the Manual in its present form is substantially the same as prepared by the Armed Forces. Changes and amendments of the Manual necessarily come from the Armed Forces. As an example of amendment, the committee refers to Executive Order 10565 dated Sept. 28, 1955 (whereby paragraphs 76a and 122c of the Manual are amended) which provides that if an accused is found guilty of an offense or offenses for none of which dishonorable discharge is authorized, proof of three or more previous convictions during the year next preceding the commission of the offense of which accused stands convicted will authorize a sentence of dishonorable discharge, forfeiture of all pay and allowances, and if confinement otherwise authorized is less than one year, confinement at hard labor for one year. Here is a revolutionary method of determining severity of sentences. Three convictions by a summary court (within the year) of simple AWOL each for a few days authorizes the Court to impose a terrific punishment in form of dishonorable discharge for an offense for which the law authorized no such punishment.

Without entering into a discussion of the legal problems created by this amendment to the Manual, the committee suggests the Court of Military Appeals and the Federal civil courts will be offered opportunities to pass on the validity of this amendment. Assuming eventually it will be declared valid by the courts, the fact remains that it is an example of the process of the military mind in dealing with a problem, which certainly belongs to Congress for solution and not to an administrative or executive agency of Government.

The committee hereinbefore has expressed its opinion that many of the alleged shortcomings in the Code may be attributed to the Manual for Courts Martial. We have set forth the opinion of Admiral Radford, the Chairman of the Joint Chiefs of Staff, in this connection.

In the past we have suggested that, since the Manual was the product of compromise between views of the Army, the Navy and the Air Force, it is natural to expect some confusion therein. We have suggested that the real difficulty in military justice "does not lie within the Code but lies within the Manual for Courts Martial under which the Code is administered. Whether the Manual was the product of deliberation or of ignorance, is difficult to state; but if one were trying to sabotage the Uniform Code of Military Justice one could not have devised a more artful or a better means for so doing than is provided by the Manual."

We have further suggested before Congress that the present Manual should be replaced by a new one. We have not been convinced otherwise by anything brought to our attention. Indeed, we have been, we believe, entirely justified in our previous statements by the information gained upon additional research. We have gathered a number of the instances where the Manual is inconsistent with the Code-in some cases to the point of vitiating or nullifying the provisions of the latter-instances of obviously erroneous definitions of the intent of a particular Article of the Code. In fact, the Manual is a document which sets forth concepts at variance with the spirit and letter of the Code, and at variance with the intent of Congress and the American people. (See Appendix "D”.)

We therefore conclude that the present Manual for Courts Martial should be rewritten with a different concept in mind from that of its authors. It should be written from the standpoint of a person sympathetic to the Code, and the principles of American justice but who, at the same time, desires to maintain a strong, vigorous and capable military establishment.

We recommend that legislation be enacted directing rewriting of the Manual and in that regard Articles 36 and 56 should be amended so as to direct that no rules of or concerning substantive law or evidence, no definitions of crimes or elenents of a crime, except military offenses, should be included therein. The statute uld affirmatively direct that in cases other than those involving military of