Offenses com- ART. 23. All offenses committed by persons belonging to the Navy mitted on shore. while on shore shall be punished in the same manner as if they had been committed at sea. der. 17 July, 1862, s. 1, v. 12, p. 602, arts. 8 and 9. PUNISHMENT BY ORDER OF COMMANDER. ART. 24. No commander of a vessel shall inflict upon a commissioned Punishment by order of common or warrant officer any other punishment than private reprimand, suspension from duty, arrest, or confinement, and such suspension, arrest, or confinement shall not continue longer than ten days, unless a further period is necessary to bring the offender to trial by a court-martial; nor shall he inflict, or cause to be inflicted, upon any petty officer, or person of inferior rating, or marine, for a single offense, or at any one time, any other than one of the following punishments, namely: First. Reduction of any rating established by himself. Second. Confinement, with or without irons, single or double, not exceeding ten days, unless further confinement be necessary, in the case of a prisoner to be tried by court-martial. Third. Solitary confinement, on bread and water, not exceeding five days. Fourth. Solitary confinement not exceeding seven days. Sixth. Extra duties. No other punishment shall be permitted on board of vessels belonging to the Navy, except by sentence of a general or summary court-martial. All punishments inflicted by the commander, or by his order, except reprimands, shall be fully entered upon the ship's log. 17 July, 1862, s. 1, v. 12, p. 603, art. 10. Punishment by ART. 25. No officer who may command by accident, or in the absence officers tempora- of the commanding officer, except when such commanding officer is rily command- absent for a time by leave, shall inflict any other punishment than coning. finement. Summary 23 April, 1800, s. 1, v. 2, p. 49, art. 30. SUMMARY COURTS-MARTIAL. ART. 26. Summary courts-martial may be ordered upon petty officers court-martial. and persons of inferior ratings, by the commander of any vessel, or by the commandant of any navy-yard, naval station, or marine barracks to which they belong, for the trial of offenses which such officer may deem deserving of greater punishment than such commander or commandant is authorized to inflict, but not sufficient to require trial by a general court-martial. Constitution of 2 March, 1855, s. 4, v. p. 627. 10, 15 July, 1870, s. 14, v. 16, p. 334. ART. 27. A summary court-martial shall consist of three officers not summary courts. below the rank of ensign, as members, and of a recorder. The commartial. mander of a ship may order any officer under his command to act as such recorder. Oath of mem bers and recorder. Testimony. Punishments by 2 March, 1855, ss. 5, 6, v. 10, p. 628. ART. 28. Before proceeding to trial the members of a summary courtmartial shall take the following oath or affirmation, which shall be administered by the recorder: "I, A B, do swear (or affirm) that I will well and truly try, without prejudice or partiality, the case now depending, according to the evidence which shall be adduced, the laws for the government of the Navy, and my own conscience." After which the recorder of the court shall take the following oath or affirmation, which shall be administered by the senior member of the court: "I, A B, do swear (or affirm) that I will keep a true record of the evidence which shall be given before this court and of the proceedings thereof.” Id., s. 5. ART. 29. All testimony before a summary court-martial shall be given orally, upon oath or affirmation, administered by the senior member of the court. ART. 30. Summary courts-martial may sentence petty officers and summary courts. persons of inferior ratings to any one of the following punishments, namely: First. Discharge from the service with bad conduct discharge; but the sentence shall not be carried into effect in a foreign country. Second. Solitary confinement, not exceeding thirty days, in irons, single or double, on bread and water, or on diminished rations. Third. Solitary confinement in irons, single or double, not exceeding thirty days. Fourth. Solitary confinement not exceeding thirty days. Fifth. Confinement not exceeding two months. Sixth. Reduction to next inferior rating. Seventh. Deprivation of liberty on shore on foreign station. Eighth. Extra police duties, and loss of pay, not to exceed three months, may be added to any of the above-mentioned punishments. Ibid., s. 7. ART. 31. A summary court-martial may disrate any rated person for Disrating for incompetency. incompetency. 17 July, 1862, s. 1, art. 10, v. 12, p. 603. ART. 32. No sentence of a summary court-martial shall be carried into Execution execution until the proceedings and sentence have been approved by sentence of sumthe officer ordering the court and by the commander-in chief, or, in his mary court. absence, by the senior officer present. And no sentence of such court which involves loss of pay shall be carried into execution until the proceedings and sentence have been approved by the Secretary of the Navy. 2 March, 1855, s. 8, v. 10, p. 628. 2 March, 1867, s. 5, v. 14, p. 516. Remission of ART. 33. The officer ordering a summary court-martial shall have power to remit, in part or altogether, but not to commute, the sentence sentence. of the court. And it shall be his duty either to remit any part or the whole of any sentence, the execution of which would, in the opinion of the surgeon or senior medical officer on board, given in writing, produce serious injury to the health of the person sentenced; or to submit the case again, without delay, to the same or to another summary courtmartial, which shall have power, upon the testimony already taken, to remit the former punishment and to assign some other of the authorized punishments in the place thereof. 2 March, 1855, s. 8, v. 10, p. 628. ings. ART. 34. The proceedings of summary courts-martial shall be con- Manner of conducted with as much conciseness and precision as may be consistent with ducting proceedthe ends of justice, and under such forms and rules as may be prescribed by the Secretary of the Navy, with the approval of the President; and all such proceedings shall be transmitted, in the usual mode, to the Navy Department." Id., s. 9. ART. 35. Any punishment which a summary court-martial is authorized to inflict may be inflicted by a general court-martial. Same punishments by general court-martial. Id., s. 10. DISMISSAL OF OFFICERS. ART. 36. No officer shall be dismissed from the naval service except Dismissal of of by the order of the President or by sentence of a general court-martial; ficers. and in time of peace no officer shall be dismissed except in pursuance of the sentence of a general court-martial or in mitigation thereof. 13 July, 1866, s. 5, v. 14, p. 92. Officer dis President demand trial. may ART. 37. When any officer, dismissed by order of the President since 3d March, 1865, makes, in writing, an application for trial, setting missed by the forth, under oath that he has been wrongly dismissed, the President shall, as soon as the necessities of the service may permit, convene a court-martial to try such officer on the charges on which he shall have been dismissed. And if such court-martial shall not be convened within six months from the presentation of such application for trial, or if such court, being convened, shall not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void. [See under head of DISMISSAL. ] 3 March, 1865, s. 12, v. 13, p. 489. General courtsmartial, by whom convened. Constitution of. Oaths of mem GENERAL COURTS-MARTIAL.* ART. 38. General courts-inartial may be convened by the President, the Secretary of the Navy, or the commander-in-chief of a fleet or squadron; but no commander of a fleet or squadron in the waters of the United States shall convene such court without express authority from the President. 17 July, 1862, s. 1, art. 11 v. 12, p. 603. ART. 39. A general court-martial shall consist of not more than thirteen nor less than five commissioned officers as members; and as many officers, not exceeding thirteen, as can be convened without injury to the service, shall be summoned on every such court. But in no case, where it can be avoided without injury to the service, shall more than one-half, exclusive of the president, be junior to the officer to be tried. The senior officer shall always preside and the others shall take place according to their rank. Id., art. 11. NOTE. The minority of some of the members of a court-martial is not available as an objection to the validity of the proceedings.-Op. XVI, 550. ART. 40. The president of the general court-martial shall administer bers and judge- the following oath or affirmation to the judge-advocate or person officiating as such: advocate. "I, A B, do swear (or affirm) that I will keep a true record of the evidence given to and the proceedings of this court; that I will not divulge or by any means disclose the sentence of the court until it shall have been approved by the proper authority; and that I will not at any time divulge or disclose the vote or opinion of any particular member of the court, unless required so to do before a court of justice in due course of law." This oath or affirmation being duly administered, each member of the court, before proceeding to trial, shall take the following oath or affirmation, which shall be administered by the judge-advocate or person officiating as such: "I, A B, do swear (or affirm) that I will truly try without prejudice or partiality, the case now depending, according to the evidence which shall come before the court, the rules for the government of the Navy, and my own conscience; that I will not by any means divulge or disclose the sentence of the court until it shall have been approved by the proper authority; and that I will not at any time divulge or disclose the vote or opinion of any particular member of the court, unless required so to do before a court of justice in due course of law." Id., art. 12. ART. 41. An oath or affirmation in the following form, shall be administered to all witnesses, before any court-martial, by the president thereof: "You do solemnly swear (or affirm) that the evidence you shall give in the case now before this court shall be the truth, the whole truth, and nothing but the truth, and that you will state everything within your knowledge in relation to the charges. So help you God; (or ‘this you do under the pains and penalties of perjury.') Id., art. 14. ART. 42. Whenever any person refuses to give his evidence or to give it in the manner provided by these articles, or prevaricates, or behaves with contempt to the court, it shall be lawful for the court to imprison him for any time not exceeding two months. Id., art. 13. ART. 43. The person accused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; and no other charges than those so furnished shall be urged against him at the trial, unless it shall appear to the court that intelligence of such other charge had not reached the officer ordering the court when the accused was put under arrest, or that some witness material to the support of such charge was at that time absent and can be produced at *The proceedings of all general and summary courts-martial and courts of. inquiry, after action thereon by the reviewing officer, will be forwarded direct to the Judge-Advocate-General of the Navy, accompanied by a communica tion addressed to him. All communications pertaining to questions of law before such courts, requiring the action of the Department, must also be addressed to him.-General Order 250, June 20, 1880, And his the trial; in which case reasonable time shall be given to the accused 16 March, 1878. v. 20, p. 30. arrested. ART. 44. Every officer who is arrested for trial shall deliver up his Duty of officer sword to his commanding officer and confine himself to the limits assigned him, on pain of dismissal from the service. 17 July, 1862, art. 15, v. 12, p. 604. ART. 45. When the proceedings of any general court-martial have Suspension of commenced, they shall not be suspended or delayed on account of proceedings. the absence of any of the members, provided five or more are assembled; but the court is enjoined to sit from day to day, Sundays excepted, until sentence is given, unless temporarily adjourned by the authority which convened it. Id., art. 16. Absence of ART. 46. No member of a general court-martial shall, after the proceedings are begun, absent himself therefrom, except in case of sick- members. ness, or of an order to go on duty from a superior officer, on pain of being cashiered. Id., art. 16. ber. ART. 47. Whenever any member of a court-martial, from any legal Witnesses excause, is absent from the court after the commencement of a case, all amined in ab. the witnesses who have been examined during his absence must, when sence of a mem he is ready to resume his seat, be recalled by the court, and the recorded testimony of each witness so examined must be read over to him, and such witness must acknowledge the same to be correct and be subject to such further examination as the said member may require. Without a compliance with this rule, and an entry thereof upon the record, a member who shall have been absent during the examination of a witness shall not be allowed to sit again in that particular case. Id., art. 17. ART. 48. Whenever a court-martial sentences an officer to be sus- Suspension of pended, it may suspend his pay and emoluments for the whole or any pay. part of the time of his suspension. Id., art. 18. ART. 49. In no case shall punishment by flogging, or by branding, Flogging, brandmarking, or tattooing on the body be adjudged by any court-martial or ing, &c. be inflicted upon any person in the Navy. Id., art. 8. 6 June, 1872, s. 2, v. 17. p. 261. determined. ART. 50. No person shall be sentenced by a court-martial to suffer Sentences, how death, except by the concurrence of two-thirds of the members present, and in the cases where such punishment is expressly provided in these articles. All other sentences may be determined by a majority of votes. 17 July, 1862, s. 1, v. 12, p. 605, art. 19. ART. 51. It shall be the duty of a court-martial, in all cases of conviction, to adjudge a punishment adequate to the nature of the offense; but the members thereof may recommend the person convicted as deserving of clemency, and state, on the record, their reasons for so doing. [See Art. 35, SUMMARY COURTS-MARTIAL.] Id., art. 21. Adequate punishment: recom mendation to mercy. ART. 52. The judgment of every court-martial shall be authenticated Authentication by the signature of the president, and of every member who may be of judgment. present when said judgment is pronounced, and also of the judge-advo cate. Id., art. 22. ART. 53. No sentence of a court-martial, extending to the loss of life, Confirmation of or to the dismissal of a commissioned or warrant officer, shall be carried sentence. into execution until confirmed by the President. All other sentences of a general court-martial may be carried into execution on confirmation of the commander of the fleet or officer ordering the court. tence. Remission and ART. 54. Every officer who is authorized to convene a general courtmitigation of sen- martial shall have power, on revision of its proceedings, to remit or mitigate, but not to commute, the sentence of any such court which he is authorized to approve and confirm. Courts of in Id., art. 20. NOTES. A milder punishment may be substituted by the President for dismissal. In mitigating, may substitute suspension without pay, which is an inferior degree of the same punishment. Mitigation must be of the punishment adjudged by reducing and modifying its severity, except in case of deathe where there is no inferior degree. The Executive cannot add to the punishment; cannot suspend pay or emoluments where they were not suspended by the court. Sentence of suspension merely does not deprive the party of pay or emoluments. Where forfeiture or loss of pay is made part of the sentence, in addition to confinement or suspension from duty, the former may be remitted by the proper authority, in whole or in part, without also remitting the latter.-Op. IV, 432, 444; V 45; VI, 200; XV, 175. It is well settled that it is beyond the power of the President to annul or revoke the sentence of a court-martial which has been approved and executed under a former President. The rule is not confined to cases in which the sentence is required to be approved by the President.-Op. X p., 64. Refers to Op. I, 486; IV, 170, 274; VI, 514, 369; VII, 98. Forfeiture or loss of pay, by confinement or suspension from duty, under a sentence of a court-martial, is not incurred unless the forfeiture or loss be imposed by the sentence.-Op. XV, 175 The action of an officer who ordered the court, on forwarding the proceedings with the indorsement "that the finding of the court is not sustained by the evidence," cannot be deemed to be a disapproval of the sentence of the court. Such disapproval should be distinctly expressed.-Op. XVI, 312. Notice by the Secretary of the Navy of the approval by the President of the sentence of a court-martial is sufficient evidence of approval and promulgation.-Op. XVI, 550; see also XV, 290. Sign-manual of the President not necessary. A disapproval of a sentence by the proper reviewing officer, release from confinement, and restoration to duty is tantamount to an acquittal by the court.Op. XIII, 459. When the sentence of a court-martial, lawfully confirmed, has been executed, the proceedings in the case are no longer subject to review by the President.— Op. XV, 290. In a note to this opinion, observations are submitted upon the authority of the President to appoint general courts martial in cases other than those in which he is expressly authorized to do so by Congress, and the conclusion reached that such authority is well established. A midshipman was nominated and confirmed as an ensign, subject to examination, but subsequently tried, never having been examined, and sentenced to be dismissed. Under the circumstances, was properly tried as a midshipman. Op. XVI, 550. Any person having an interest in the record of a naval court-martial is enti. tled to have an exemplified copy of it, after the proceedings are consummated by the proper authority.-Op. XI, 137. COURTS OF INQUIRY.t ART. 55. Courts of inquiry may be ordered by the President, the Secquiry, by whom retary of the Navy, or the commander of a fleet or squadron. 17 July, 1862, s. 1, v. 12, p. 605, art. 23. ordered. Constitution of. Powers of. ART. 56. A court of inquiry shall consist of not more than three commissioned officers as members, and of a judge-advocate, or person officiating as such. Id., art. 23. ART. 57. Courts of inquiry shall have power to summon witnesses, administer oaths, and punish contempts, in the same manner as courtsmartial; but they shall only state facts, and shall not give their opinion, unless expressly required so to do in the order for convening. Id., art. 23. Oath of mem- ART. 58. The judge-advocate, or person officiating as such, shall adbers and judge minister to the members the following oath or affirmation: "You do advocate. swear (or affirm) well and truly to examine and inquire, according to the evidence, into the matter now before you, without partiality." After which the president shall administer to the judge-advocate, or person officiating as such, the following oath or affirmation: "You do swear (or affirm) truly to record the proceedings of this court and the evidence to be given in the case in hearing." Id., art. 25. ART. 59. The party whose conduct shall be the subject of inquiry, or his attorney, shall have the right to cross-examine all the witnesses.* Id., art. 23. *See act of March 16, 1878, as noted under general courts-martials, article 43. |