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and discipline, and such measures include the deprivation of one or more privileges, no limitation is to be imposed as to the number of persons who may be approved for the purpose of corresponding with a prisoner or upon the number of letters from authorized correspondents "except as necessary for security and control, prevention of unreasonable individual excesses, or to prevent delays in processing mail" (pars 8 and 12, SR 600–330–1, 8 May 1951). The following policy governing correspondence of prisoners has been approved by the Department of Defense: "Since the maintenance of wholesome and frequent contacts with their families and others genuinely interested in their welfare is a vital factor in rehabilitation of personnel in confinement, the right of prisoners te mail privileges will be limited only by security requirements and the facilities available" (Sec V, Department of the Army Bulletin No. 1, 16 January 1951). Held: The withholding of incoming mail from prisoners as an administrative disciplinary measure is not authorized under the pertinent regulations. The regulations and the Department of Defense policy statement suggest that prisoners' mail privileges are to be in a category separate from that of privileges generally, and are not within the provisions of par 15, AR 600-330, supra, relating to deprivation of one or more privileges as an administrative disciplinary measure. It appears to be the intent of the Department of the Army to permit no interference with the free flow of mail to prisoners, except in instances of extreme urgency. Of course, this is not to say that mail addressed to prisoners may never be withheld by prison authorities for any purpose, since a withholding may be effected where necessary for security and control, prevention of unreasonable individual excesses, and prevention of delays in processing mail. (Citing SPJGA 1944/9367, 16 Aug 1944; see SPJGA 1943/13574, 30 Sept 1943; CSJGA 1949/4109, 28 June 1949.) 1953/1836. 3 March 1953.

§ 71.1. Generally.

§ 71. Transportation and Transfer

JAGA

Right of general prisoner to travel pay to his home on release from confinement and substitution of general discharge for dishonorable discharge, see Op JAGAF 1953/36, PAY § 93.39.

IV. RELEASE OR DISCHARGE

§ 83. In General

§ 83.17. Hospital or medical treatment.

Military prisoners whose discharges have been executed, on parole from either the United States disciplinary barracks or a Federal penal institution, may not be furnished medical care at Army medical treatment facilities at government expense under current Army regulations. (Citing JAGA 1948/6645, 29 Sep 1948; CSJAGA 1949/3548. 12 May 1949; SPJGA 1945/13659, 17 Jan 1946; CSJAGA 1949/4499, 11 Jul 1949.) JAGA 1953/4000. 12 May 1953.

PRISONERS OF WAR

§ 1. Generally

Claims of former Japanese prisoners of war against the United States were completely extinguished by Art 19 of the Treaty of Peace with Japan of 28 April 1952 under which Japan waived any claims and debts arising in respect to Japanese prisoners of war and civilian internees in the hands of allied powers. The possession on the part of such former prisoners of military payment orders, certificates of credit or other indicia of indebtedness, are merely evidence of claims renounced on their behalf by the government of Japan and create no obligation against the United States. The only recourse available to former Japanese prisoners of war is to file claims directly with the Japanese government. (As to power of a state to waive a claim of its nationals, see JAGA 1952/8749, 17 Nov 1952.) JAGA 1953/7717. 29 September 1953.

PROVOKING SPEECHES OR GESTURES

§ 15. Evidence, Weight and Sufficiency

§ 15.11. Presence or knowledge of victims or others.

The accused was found guilty of wrongful use of provoking gestures toward his superior officer in violation of UCMJ, Art 117. The evidence indicated that the alleged gestures were made by the accused while standing behind the officer toward whom they were directed and were not known to such officer at the time but were observed by a witness who was present. UCMJ, Art 117 provides that any person subject to this Code who uses provoking or reproachful words or gestures towards any other person subject to this Code shall be punished as a court-martial may direct. Paragraph 196, MCM, 1951, provides that as used in Art 117, provoking and reproachful words and gestures are those which are used in the presence of the person to whom they are directed and which tend to induce breaches of the peace. Held: The evidence is sufficient to support the findings. The board cannot subscribe to the theory that the evidence is insufficient because for gestures to be provoking they must be such as to provoke the person toward whom directed and if he is unconscious of them they cannot fulfill that essential requirement. Although the word "presence" does not appear in UCMJ, Art 117, the board is of the opinion that the necessary implication of the word "towards" is that the person making the gestures have knowledge of the presence of his victim otherwise he could not knowingly direct such gestures toward him. However, nothing in par 196, MCM, 1951 limits "presence" to that which the victim can plainly see and if the gestures are seen by any companion of the victim or other witness they may as readily tend to induce breaches of the peace, not only because they arouse or incite the witnesses but also because the person toward whom the gestures are directed may not be relied upon to continue unaware of the provocative action behind his back. NCM 290, Hughens (1954) 14 CMR 509.

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§ 23.21. Persons toward whom speeches or gestures were directed. The accused was found guilty of using provoking and reproachful words toward A., B., and D. However, the court had excepted the name of C. from the specification and substituted D.'s name. Held: Inclusion in the findings of an offense against D. resulted in the accused being found guilty of an offense of which he was not charged, and that much of the findings must be set aside, in view of the provision of par 74b(2), MCM, 1951, permitting a court in its findings to make exceptions and substitutions "provided that such action does not change the nature or identity of any offense charged in the specification." NCM 310, Robinette and Maxwell (1954) 15 CMR 565.

§ 1. Generally.

PUBLICATIONS

A post commander may prohibit the circulation on the post of a publication which he considers objectionable and he may insure compliance with regulations which require that statements as to the unofficial status of the publication be included in its masthead and which prohibit the use of Army insignia in such a manner as to imply that the publication is an authorized organ of the Army. There is no federal statute which specifically prohibits the use of such words as "Fort Wood," "Armored," or "Camp Crowder" in newspaper titles. However, the use of such words, together with certain Army insignia, would appear to convey the impression that the paper enjoyed an official or semiofficial status. In this connection it may be noted that subsec 5(a) of the Federal Trade Commission Act (38 Stat 719), as amended (15 USC 45, ML 1949, sec 110a), declares unfair methods of competition in commerce and unfair or deceptive acts in interstate commerce to be unlawful and directs the Federal Trade Commission to prevent such practices by other than certain excepted classes of persons, partnerships, and corporations. Whether the use of such titles and insignia is sufficient to establish a violation of the mentioned subsection is a matter to be determined in the first instance by the Federal Trade Commission. It is also to be noted that par 8 of the Army Regulations 600-90 permits the photographing and printing of insignia if such reproductions are not used to misrepresent the identification or status of an individual, organization, society, or other group of persons. Whether the matter should be presented to the Federal Trade Commission involves a question of policy. Accordingly, such matters should be referred to the Chief, Heraldic Branch, Research and Development Division, Office of the Quartermaster General. (Citing JAGA 1953/1287, 28 Jan 1953; JAGA 1952/746, 17 Nov 1952.) JAGA 1953/4399. 27 May 1953.

RAPE AND CARNAL KNOWLEDGE

I. IN GENERAL.

§ 9. Included Offenses.

II. NATURE AND ELEMENTS OF OFFENSE. § 25. Consent.

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On a trial for rape, the accused admitted intercourse but he insisted that it was with the consent of the woman involved. He was found guilty only of indecent assault. On review, a board of review set aside the findings on the ground that indecent assault was not a lesser offense of rape. Held: The board of review erred in setting aside the findings since indecent assault is a lesser included offense of rape. A rape offender necessarily commits an assault, indeed, a battery which includes an assault and considering the portions of the body necessarily involved, the assault is certainly indecent and constitutes, at the very least, the taking of indecent, lewd and lascivious liberties upon the person of the victim and finally the only possible intent of the offender is gratification of his lust or sexual desires, although in the offense of rape intent is of no importance. (Citing MCM, 1951, par 158; par 207a; Wigmore, Evidence, 3d Ed, sec 357(2)(b), page 266.) United States v. Headspeth (No. 1973), 2 USCMA 635, 10 CMR

133.

§ 9.11. Indecent liberties with child.

The accused was charged with the offense of carnal knowledge of a named female not his wife under the age of sixteen years in violation of UCMJ, Art 120. The court found him guilty of the offense of taking immoral liberties with the alleged female under the age of sixteen years with the intent to gratify his sexual desires in violation of UCMJ, Art 134. Held: The offense found by the court, taking immoral liberties with a female under the age of sixteen years with intent to gratify the sexual desires of the accused, is lesser included in the offense of carnal knowledge. (Citing MCM,

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