A certificate by The Adjutant General, or one of his assistants, of any fact or event officially recorded in any book, record, paper, or document on file in the War Department or in any of its bureaus or branches, is prima facie evidence of such fact or event in any case in which The Adjutant General, or one of his assistants, shall certify that it is contrary to public policy to divulge the source of 'official knowledge of such fact or event or to divulge the text of the official record involved. Executive Order No. 9048, February 3, 1942, suspends the limitation upon punishments prescribed by M. C. M. 104c for violation of Articles of War 58, 59 and 86, relating, respectively, to desertion, aiding or advising another to desert, and misbehavior of sentinels. Executive Order No. 9267, November 9, 1942, suspends the limitations of punishment prescribed by M. C. M. 104c for absence without leave in violation of Article of War 61, effective December 1, 1942. The President, as

Commander-in-Chief, and under Article of War 38, appointed a military commission, consisting of seven general officers for the prosecution for offenses against the laws of war and the Articles of War of certain named persons, including Richard Quirin, and prescribed rules and regulations for the conduct thereof (F. R., July 7, 1942, page 5103). For procedure of military commissions, see Ex Parte Quirin, 317 U. S. 1, cited under Constitution, Amendment 6, ante.

Executive Order No. 9324, March 31, 1943, amended the Manual for Courts-Martial, U. S. Army, 1928, as follows:

Paragraph 14. The second paragraph is amended to read:

"Under the authority of A. W. 13 commissioned officers and persons of equivalent relative or assimilated rank are hereby excepted from the jurisdiction of special courts-martial."

Paragraph 85a. The last sentence in the second subparagraph is amended to read: "These notes may be destroyed after final disposition of the case under A. W. 48, 50%, or 51."

Paragraph 87b. By inserting the words "and privates first class" after the words "noncommissioned officers" in the seventh line of the second subparagraph. Paragraph 87c. By striking out the last sentence of the third subparagraph, and by changing the first subparagraph to read:

The rec

"c. Disposition of record and related matters.-General Court-Martial. ord, with the decisions and orders of the reviewing authority thereon, will be transmitted, ordinarily without letter of transmittal, direct to The Judge Advocate General of the Army. With the record will be forwarded the accompanying papers (see 85), six authenticated copies of the order, if there be any, promulgating the result of the trial, and two signed copies of the review of the staff judge advocate. In cases involving more than one accused an additional copy of the order of promulgation, if any, will be forwarded for each additional accused. This applies equally to cases in which the sentence is suspended under A. W. 51, but where action by a confirming authority other than the President is necessary, the record, etc., will be transmitted to such authority. Where the order of execution is withheld under A. W. 50%, the reviewing authority will, before forwarding the record, take therefrom the data necessary for drafting a general court-martial order, and when such order is issued the same number of copies thereof will be forwarded as in the case of an order not so withheld."

Paragraph 91. By striking out the last two sentences and inserting in lieu thereof the following:

"Special and summary court records shall be retained in the office of the staff judge advocate until notification is received that their destruction has been authorized under the provisions of the act of August 5, 1939, 53 Stat. 1219, or that The Judge Advocate General of the Army has authorized their storage elsewhere." Paragraph 94. By striking out the second subparagraph.

Paragraph 96. By striking out the second subparagraph and inserting in lieu thereof the following:

"Any officer of any component of the Army of the United States on active duty in Federal service commissioned in or assigned or detailed to duty with the Judge Advocate General's Department, any staff judge advocate or acting staff judge advocate, the President of a general or special court-martial, any summary courtmartial, the trial judge advocate or any assistant trial judge advocate of a general or special court-martial, the president or the recorder of a court of inquiry or of a military board, any officer designated to take a deposition, any officer detailed to conduct an investigation, and the adjutant, assistant adjutant, or personnel adjutant of any command shall have power to administer oaths for the purposes of the administration of military justice and for other purposes of military administration; and shall also have the general powers of a notary public in the

administration of oaths, the execution and acknowledgment of legal instruments, the attestation of documents and all other forms of notarial acts to be executed by persons subject to military law. (A. W. 114.)

"A warrant officer serving as assistant adjutant of any command has power to administer oaths for all purposes of military administration. (Sec. 4, act of Aug. 21, 1941, 55 Stat. 653.)"

Paragraph 103d. By inserting the words "or private first class" after the words "noncommissioned officer" and before the comma in the third line, and after the words "noncommissioned officer" in the seventh line.

Paragraph 125. By adding to the fourth subparagraph the words "the seal of The Adjutant General's Office;", and by inserting the following subparagraph after the ninth subparagraph thereof:

"The seal of The Adjutant General's Office on a certificate is prima facie evidence that the signature thereon is that of The Adjutant General or one of his assistants."

Paragraph 129.

By deleting from the fourth subparagraph of the subparagraph entitled "Proof" the sentence reading "As to who are such assistants reference may be had to the Army List and Directory."

Paragraph 155. By striking out the words "The Adjutant General" in the third line and inserting in lieu thereof the words "The Judge Advocate General."

Appendix 4. By inserting "(per os) (per annum)" immediately after the word "connection" in the third line of Form 98.

Appendix 10, paragraph a. By inserting the words "in violation of Article of War 61," immediately after the comma before the words "is approved" in the third line of Form 4, and by inserting the words "and will be duly executed" after the word "approved" and before the comma in the first line of Form 6.

That the defense of entrapment does not go to the jurisdiction of a court-martial, see Romero v. Squier, 133 F. (2d) 528, cited under Constitution, Amendment 6, ante.

396. (A. W. 39). Limitation as to time.

The act of August 4, 1939 (53 Stat. 1198), provides that an indictment for any offense punishable by death may be found at any time without regard to any statute of limitations. The act of December 20, 1943 (57 Stat. 605) extends the period of limitations for six months, effective as of December 7, 1943, in regard to offenses which may have been committed in connection "with the Pearl Harbor catastrophe of December 7, 1941, or involved in any other possible or apparent dereliction of duty". The act of June 13, 1944 (58 Stat. 276), extends for an additional six months the period of limitations and directs the Secretary of War and the Secretary of the Navy to make an investigation and to institute "such proceedings against such persons as the facts may justify". The act of December 15, 1944 (58 Stat. 808), extends the period of limitations for an additional six months.

397 (A. W. 40). As to number.

Notes of Decisions

person shall, without his consent, be tried a second time, for the same offense, a first complete trial, and not a justly or unavoidA. W. 40. ably interrupted one, is meant.

Jurisdiction of court. In a court-martial, former conviction is a defense to be heard in exercise of jurisdiction, and not a fact destroying jurisdiction, and such defense must be claimed and is "waived" by not asserting it, and when claimed and adversely determined there is an "adjudication" which, by a court-martial in

Id.

Where accused was sentenced to death

1918, and command

if not reviewed, is conclusive, which would ing general forwarded sentence to President

be

said

to

true though jurisdiction were depend on it, since a court can conclusively adjudge its own jurisdiction upon an actual contest of it. Sanford, Warden v. Robbins (C. C. A. 5, 1940), 115 F. (2d) 435; certiorari denied (1941), 312 U. S. 697.

A court-martial which opened more than 24 hours after two counsel were appointed to represent 16 accused, and which granted a recess for 24 hours after hearing evidence for prosecution, did not proceed with such haste and with such want of counsel as to extinguish its jurisdiction as a court. A. W. 40. Id.

Under Article of War providing that no

for

and confirmation, President, although accused had not requested a new trial, made an order granting a new trial before another court by reason of errors, jurisdictional and fundamental, committed during first trial, accused could not plead former conviction in bar of further prosecution for same offense before a second court-martial, and second trial did not put accused in "jeopardy" a second time without accused's consent and in violation of accused's constitutional rights, notwithstanding that first court-martial did not proceed in such manner as to extinguish its jurisdiction as a court. A. W. 40; A. W. 50; A. W. 48; A. W. 50%. Const. Amend. 5. Id.

399 (A. W. 42). Places of confinement; when lawful.

By act of June 14, 1941 (55 Stat. 252), the Attorney General of the United States was authorized to designate the places of confinement of all prisoners in his custody, and to transfer any person held under authority of any United States statute from one institution to another.

400 (A. W. 43). Death sentence; when lawful.

For applicability of the provisions of this section to military commissions, see Ex Parte Quirin, 317 U. S. 1, cited under Constitution, Amendment 6, ante.

402 (A. W. 45). Maximum limits of punishment.

Executive Order No. 8727, April 1, 1941, amended paragraph 104b, Manual for CourtsMartial, U. S. Army, 1928, by adding thereto the following paragraph:

In the execution of a single sentence not including dishonorable discharge, and in the execution of two or more concurrent sentences against the same accused, none of which includes dishonorable discharge, any forfeiture or forfeitures of pay included in the sentence or sentences shall be applied, together with other authorized stoppages or deductions, if any, excepting such as are made at the request of the accused, so as not to deprive the accused of more than two-thirds of his pay for any month. and paragraph 104c by changing the second sentence of the fourth subparagraph to read:

The term "base pay" comprehends no element of pay other than the minimum base pay of the grade or class within grade as fixed by statute and does not include specialists' pay or extra pay for any special qualification in the use of arms or incident to an award of a decoration of honor.

Executive Order No. 9048, February 3, 1942, suspends the limitation upon punishments for violation of Articles of War 58, 59 and 86, relating, respectively, to desertion, aiding or advising another to desert, and misbehavior of sentinels.

Executive Order No. 9267, November 9, 1942, suspends the maximum limitations of punishment for absence without leave in violation of Article of War 61, effective December 1, 1942.

Notes of Decisions

Several offenses. Where a soldier was tried and convicted of several offenses by courtsmartial, sentences were governed by military rather than the common or statutory law. Mocher v. Hudspeth (C. C. A. 10, 1941), 103 F. (2d) 401; certiorari denied (1942), 62 Sup. Ct. 1039.

martial, and board of clemency recommended that so much of life sentence as exceeded 30 years should be remitted, soldier could not successfully contend that board intended that 30-year sentence was to be the total sentence to be served under judgments of both courts-martial, especially where board's report showed that it was cognizant of fact that soldier was serving a life sentence and a 15-year sentence, and President had ap

Where a soldier was sentenced by a courtmartial to life imprisonment for murder and thereafter to 15-years' imprisonment for escape and robbery by a second court- proved board's recommendation. Id.

403 (A. W. 46). Action by convening authority.

For delegation to the Assistant Judge Advocate General in charge of military justice matters of certain functions, duties, and powers conferred upon The Judge Advocate General by this section, see Executive Order No. 9363, July 23, 1943, set out at length under 408 (A. W. 50%), post.

For applicability of the provisions of this section to military commissions, see Ex Parte Quirin, 317 U. S. 1, cited under Constitution, Amendment 6, ante.

405 (A. W. 48). Confirmation; when required.

That failure to forward exhibits does not affect the President's power of confirmation, see Romero v. Squier, 133 F. (2d) 528, cited under Constitution, Amendment 6, ante.

Notes of Decisions

In general.-Where accused was sentenced | requested and consented to the granting of to death by a court-martial, and commanding general approved sentence and forwarded it to President for confirmation, and accused made no express request to President for a new trial, accused would be presumed to have

a new trial by the President. A. W. 40, 48, 50. Sanford, Warden, v. Robbins (C. C. A. 5, 1940), 115 F. (2d) 435; certiorari denied (1941), 312 U. S. 697.

408 (A. W. 50%). Review; rehearing.—The Judge Advocate General shall constitute, in his office, a board of review consisting of not less than three officers of the Judge Advocate General's Department.

Before any record of trial in which there has been adjudged a sentence requiring approval or confirmation by the President under the provisions of article 46, article 48, or article 51 is submitted to the President, such record shall be examined by the board of review. The board shall submit its opinion, in writing, to the Judge Advocate General, who shall, except as herein otherwise provided, transmit the record and the board's opinion, with his recomendations, directly to the Secretary of War for the action of the President.

Except as herein provided, no authority shall order the execution of any other sentence of a general court-martial involving the penalty of death, dismissal, not suspended, dishonorable discharge, not suspended, or confinement in a penitentiary, unless and until the board of review shall, with the approval of the Judge Advocate General, have held the record of trial upon which such sentence is based legally sufficient to support the sentence; except that the proper reviewing or confirming authority may upon his approval of a sentence involving dishonorable discharge or confinement in a penitentiary order its execution if it is based solely upon findings of guilty of a charge or charges and a specification or specifications to which the accused has pleaded guilty. When the board of review, with the approval of the Judge Advocate General, holds the record in a case in which the order of execution has been withheld under the provisions of this paragraph legally sufficient to support the findings and sentence, the Judge Advocate General shall so advise the reviewing or confirming authority from whom the record was received, who may thereupon order the execution of the sentence. When in a case in which the order of execution has been withheld under the provisions of this paragraph, the board of review holds the record of trial legally insufficient to support the findings or sentence, either in whole or in part, or that errors of law have been committed injuriously affecting the substantial rights of the accused, and the Judge Advocate General concurs in such holding of the board of review, such findings and sentence shall be vacated in whole or in part in accord with such holding and the recommendations of the Judge Advocate General thereon, and the record shall be transmitted through the proper channels to the convening authority for a rehearing or such other action as may be proper. In the event that the Judge Advocate General shall not concur in the holding of the board of review, the Judge Advocate General shall forward all the papers in the case, including the opinion of the board of review and his own dissent therefrom, directly to the Secretary of War for the action of the President, who may confirm the action of the reviewing authority or confirming authority below, in whole or in part, with or without remission, mitigation, or commutation, or may disapprove, in whole or in part, any finding of guilty, and may disapprove or vacate the sentence, in whole or in part: Provided, That the functions prescribed in this paragraph to be performed by the President may be performed by the Secretary of War or Acting Secretary of War: Provided further, That whenever a branch of the office of the Judge Advocate General is established, under the provisions of the last paragraph of this article, with a distant command, such functions may be performed by the commanding general of such distant command in all cases in which the board of review in such branch office is empowered to act and in which the commanding general of such distant command is not the appointing or confirming authority.

When the President or any reviewing or confirming authority disapproves or vacates a sentence the execution of which has not theretofore been duly ordered, he may authorize or direct a rehearing. Such rehearing shall take place before a court composed of officers not members of the court which first heard the case. Upon such rehearing the accused shall not be tried for any offense of which he was found not guilty by the first court, and no sentence in excess of or more severe than the original sentence shall be enforced unless the sentence be based upon a finding of guilty of an offense not considered upon the merits in the original proceeding: Provided, That such rehearing shall be had in all cases where a finding and sentence have been vacated by reason of the action of the board of review approved by the Judge Advocate General holding the record of trial legally insufficient to support the findings or sentence or that errors of law have been committed injuriously affecting the substantial rights of the accused, unless, in accord with such action and the recommendations of the Judge Advocate General thereon, the findings or sentence are approved in part only, or the record is returned for revision, or unless the case is dismissed by order of the reviewing or confirming authority. After any such rehearing had on the order of the President, the record of trial shall, after examination by the board of review, be transmitted by the Judge Advocate General, with the board's opinion and his recommendations, directly to the Secretary of War for the action of the President.

Every record of trial by general court-martial, examination of which by the board of review is not hereinbefore in this article provided for, shall nevertheless be examined in the Judge Advocate General's Office; and if found legally insufficient to support the findings and sentence, in whole or in part, shall be examined by the board of review, and the board, if it also finds that such record is legally insufficient to support the findings and sentence, in whole or in part, shall, in writing, submit its opinion to the Judge Advocate General, who shall transmit the record and the board's opinion, with his recommendations, directly to the Secretary of War for the action of the President. In any such case the President may approve, disapprove, or vacate, in whole or in part, any findings of guilty, or confirm, mitigate, commute, remit, or vacate any sentence, in whole or in part, and direct the execution of the sentence as confirmed or modified, and he may restore the accused to all rights affected by the findings and sentence or part thereof, held to be invalid; and the President's necessary orders to this end shall be binding upon all departments and officers of the Government: Provided, That the functions prescribed in this paragraph to be performed by the President. may be performed by the Secretary of War or Acting Secretary of War. Provided further, That whenever a branch of the office of the Judge Advocate General is established, under the provisions of the last paragraph of this article, with a distant command, such functions may be performed by the commanding general of such distant command in all cases in which the board of review in such branch office is empowered to act and in which the commanding general of such distant command is not the appointing or confirming authority.

Whenever necessary, the Judge Advocate General may constitute two. or more boards of review in his office, with equal powers and duties.

Whenever the President deems such action necessary, he may direct the Judge Advocate General to establish a branch of his office, under an Assistant Judge Advocate General, with any distant command, and to establish in such branch office a board of review, or more than one. Such Assistant Judge Advocate General and such board or boards of review shall be empowered