the general court-martial order to be published in the usual form. This will make unnecessary the return of the record. (c) The action of a reviewing authority upon a record of trial which is to be forwarded to this office for review before the execution of sentence should be entered in substantially the following form, the necessary changes being made to conform the action to the facts of each particular case: In the foregoing case of confinement is reduced to (Place and Date.) the sentence is approved (but the period of -). The execution of the sentence will be di rected in orders as of this date after the record of trial has been reviewed in the office of the Judge Advocate General, or a branch thereof, and its legality there determined. Jurisdiction is retained to take any additional or corrective action that may be found necessary prior to or at the time of the publication of the general court-martial order in this case. Commanding. (d) When the record of trial in any case is found legally insufficient to support the findings and sentence, the record will be returned for the necessary corrective action, which will be entered on the record in substantially the following form, the necessary changes being made to conform the action to the facts of the particular case: (Place and Date.) In the foregoing case of under the jurisdiction retained in the action dated the following corrective action is taken: (Action). is designated as As thus modified the sentence will be duly executed, the place of confinement (or such final order by way of disposing of the case as the action may require). Commanding. (e) When the additional or corrective action outlined above has been taken the necessary changes will be made in the general courtmartial order prior to the publication of the same. It is needless to say that any prior action which has been changed or nullified by subsequent action will not be included in the general court-martial order as published. (f) The letter of advice sent from this office will give in each case the court-martial record number given the record upon its receipt in this office. It is desired that the printed copy of the court-martial order be made to carry at the end thereof, in brackets, the number reported by this office, thus: [J. A. G. O. No.]. Five copies of the general court-martial order in each case will, when published, be forwarded to this office as promptly as possible. 3. The following suggestions are made with reference to the question of office administration. It is hoped they may be helpful and that their adoption will bring about greater uniformity in the administration of military justice: (a) Judge advocates should not recommend the reference of charges for trial by general courts-martial until thorough investigation has shown that the charges as laid can be substantiated by sufficient legal evidence. (b) They should endeavor in every proper manner to limit the number of trials by general courts-martial. No case should be so tried where the offense committed can be adequately punished by a minor court or by administrative punishments imposed under authority of the 104th Article of War. (c) They should also aim to prevent the trial of cases whenever it appears on investigation that the offender is lacking in mental responsibility. In all cases where it appears probable that the accused is lacking in physical, mental or moral equipment as an efficient fighting man, the psychiatrist assigned to duty with their commands should be called into consultation. Disposition of the case other than through trial by general court-martial should be made whenever full examination shows this to be proper. Judge advocates should realize, however, that the responsibility for decision in all cases rests upon them and not upon the psychiatrist who may be called into consultation. It should be the latter's duty to advise but not to decide. (d) As the discipline of the various commands improves it may be possible to reduce trials by general courts-martial to those cases in which it is determined by the methods hereinbefore indicated that the accused who is under general court-martial charges is not a desirable soldier and that his further retention in the service is a waste of time, effort and money. (e) When a record of trial by general court-martial has been received in the office of a judge advocate, it becomes his duty to thoroughly study the case and to recommend such punishment as should be approved. Where the accused has within him the elements of service, the following principles should govern in deciding upon the punishment to be awarded in time of war: I. Guard houses are breeding places for crime. They are not designed to foster self-respect. Men should be kept out of them in all cases except where restraint is necessary. II. Time spent in confinement is time lost from training. Our task is to turn out in the shortest possible time the greatest possible number of trained men. III. Whenever and wherever possible, men sentenced to undergo confinement or hard labor should be drilled with their organizations and required to serve punishment when other men are resting or off duty. (f) It is desired that judge advocates make every possible effort to bring offenders who must be tried by general court-martial to trial at the earliest practicable date, to the end that the period between arrest or confinement on the charges and the date of the trial may be reduced to the lowest possible limit. (g) Judge advocates will also expedite in every possible way the preparation of records of trial, their review of the same and action thereon by the reviewing authority. They will also endeavor to forward records to this office as nearly as possible on the date on which action is taken by the reviewing authority. [Signed] E. H. Crowder, Judge Advocate General. 5. DURATION OF ARREST OF SOLDIER AWAITING TRIAL Articles of War LXX, LXXI. February 25, 1918. From: The office of the Judge Advocate General. To: Department Judge Advocate, Headquarters, Southeastern Department, Charleston, S. C. Subject: Demand of Private John Williams, Company G, 51st Infantry, for release from confinement while awaiting trial for capital offense. 1. The question presented in your communication of February 14th, calls for a.construction of the 70th Article of War and arises thus: Private Williams was arrested October 23, 1917, and placed in confinement on the next day, charged with having deserted on the 13th of that month. It is assumed that he has been under arrest and in confinement since his apprehension. It does not appear when, if at all, a copy of the charges were served upon him. Charges were received at the office of the department judge advocate December 11, 1917; that is, more than a month and a half after the soldier was arrested and placed in confinement and these charges were referred out for trial on the same day. It is stated that the case has been set for trial three different times and each time continued by the court under the 20th Article of War (Comp. St. 1916, § 2308a). The trial now seems to be waiting on the recovery of a material witness ill and incapacitated for attendance upon court, because of burns from which he is suffering. On January 28, 1918, the prisoner in writing demanded that he be released from confinement under the provisions of the 70th Article of War. You inquire to what extent this article is to be regarded as mandatory and to what extent discretionary. 2. The 70th Article of War, reads: "Art. 70. Investigation of and action upon charges.-No person put in arrest shall be continued in confinement more than eight days, or until such time as a court-martial can be assembled. When any person is put in arrest for the purpose of trial, except at remote military posts or stations, the officer by whose order he is arrested shall see that a copy of the charges on which he is to be tried is served upon him within eight days after his arrest, and that he is brought to trial within ten days thereafter, unless the necessities of the service prevent such trial; and then he shall be brought to trial within thirty days after the expiration of said ten days. If a copy of the charges be not served, or the arrested person be not brought to trial, as herein required, the arrest shall cease. But persons released from arrest, under the provisions of this article, may be tried, whenever the exigencies of the service shall permit, within twelve months after such release from arrest; Provided, That in time of peace no person shall, against his objection, be brought to trial before a general court-martial within a period of five days subsequent to the service of charges upon him." This article in its present form is substantially a reenactment of the old 70th and 71st Articles of War, modified to the extent that its provisions are made applicable alike to officers and enlisted men. The first sentence provides that "no person put in arrest shall be continued in confinement more than eight days or until such time as a court-martial can be assembled." If this provision stood alone the limitation made here upon the period of confinement would be modified and extended by the clause "until such time as a court-martial can be assembled," which would mean when a court-martial could "practicably or reasonably be assembled; i. e., as soon as the exigencies of the service may permit." Winthrop, vol. 1, p. 165. The succeeding provisions, however, place a clear limitation upon the time during which a person may be held in arrest upon charges pending for trial before a court-martial, except at remote military posts or stations. These require that a copy of the charges shall be served upon the prisoner within eight days after his arrest, and that he be brought to trial within ten days thereafter, "unless the necessities of the service prevent such trial; and then he shall be brought to trial within thirty days after the expiration of said ten days." The phrase "within ten days thereafter" means ten days after the date of the arrest and not ten days after the expiration of the eight days within which charges shall be served. C. 15659. Discussing the old articles seventy and seventy-one, the provisions of which, as heretofore noted, were reenacted in the present 70th Article and made applicable alike to officers and enlisted men, Mr. Winthrop said: "The effect of the article (old Article No. 70) as to officers thus is that officers in close arrest may not be retained in such arrest for a longer period than eight days, unless a court-martial cannot with reasonable diligence be assembled within that time. How much longer they may be held, if a court cannot thus convene, is left indefinite. "But here intervenes Article 71, which provides (among other things) that, 'except at remote military posts and stations' (i. e., those on the frontier or which are distant because of the absence of facilities or communication therewith), officers of the Army shall not be held in arrest for a longer period than forty days. Construing this article with the former, the result is that, as to excepted cases, Article 70 is left to apply without qualification, while as to other cases it cannot be held to authorize, under any circumstances, a confinement before trial longer than forty days." Winthrop, vol. 1, p. 165. In an opinion under date of February 16, 1905, this office used this language with reference to the old 70th and 71st Articles of War: "Two Articles of War, the 70th and 71st, are applicable to the cases of an officer in arrest; but the requirements of both are addressed to the period in which an ocer may be kept in arrest previous to trial, and both cease to be operative as remedial agencies after the trial has begun. This for the reason that it is impossible to lay down any rules respecting the time that shall be consumed in the trial of the case." C. 16131. The former opinions of this office give effect to the manifest purpose of the statute and it is now held that when any person subject to military law is arrested a copy of the charges upon which he is to be tried shall be served upon him within eight days after his arrest; that he shall be brought to trial within ten days after his arrest unless the necessities of the service prevent the trial within that time, and that in any event he shall be brought to trial within thirty days after the expiration of said ten days period or within forty days after his arrest. 3. The question then naturally arises what is the effect of the failure to comply with these statutory requirements. That question is answered in the following language found in Article 70: "If a copy of the charges be not served, or the arrested person be not brought to trial as herein required, the arrest shall cease. But persons released from arrest under the provisions of this article may be tried whenever the exigencies of the service shall permit within twelve months after such release from arrest." In an opinion of this office under date of January 21, 1918, in the case of Captain Smedberg, this language was used: "According to the facts stated in the complaint and the indorsement, Captain Smedberg was arrested on December 12, 1917, a copy of the charges against him were not served as required under the provisions of the 70th Article of War, and his arrest ceased to be operative by law on the 20th day of December." 4. In the instant case, Private Williams was entitled to be released from arrest on the expiration of eight days thereafter if charges were not served upon him, and if charges were served upon him within that time and he was not brought to trial, that is, if the trial was not actually begun within forty days after his arrest, he was entitled, by operation of law, to release from arrest and confinement. He may, of course, be tried at any time within twelve months after his release from arrest whenever the exigencies of the service will permit. [Signed] E. H. Crowder, Judge Advocate General. 6. INTERIM INVESTIGATION BY COMMANDING OFFICER Discipline XVI E. February 28, 1918. From: The Office of the Judge Advocate General. 1. In your monthly report you make inquiry as to the necessity of sending to the officer immediately exercising summary court-martial jurisdiction over the command to which the accused belongs, charges which have been directed to be made by the Commanding General. Paragraph 76 of the Courts-Martial Manual requires the officer immediately exercising court-martial jurisdiction over the command to which the accused belongs to investigate or cause to be investigated the charges against the accused. This provision applies only to such charges as would ordinarily pass through the officer so immediately. exercising summary court-martial jurisdiction. Where charges are prepared at the direction of superior authority it is not necessary for them to be referred to a subordinate officer for investigation. Consequently, where the Commanding General directs charges to be made. concerning offenses of officers and enlisted men, those charges need. not be sent to the officer immediately exercising summary court-mar |