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absence alleged in the third specification of Charge I depended upon proof that the accused in fact failed to report as required by the travel orders issued to him which are referred to in the specification under Charge III, it follows that failure of proof that he did not report as required also constitutes a failure of proof that he was absent without authority as alleged in the third specification of Charge I. Accordingly, the finding on specification 3 of Charge I, and the action of the convening authority thereon, were set aside. (File: MM-Domback, Raymond S./A17–20, 14 March 1949.)

WASHINGTON, D. C., 14 July 1949.

DAN A. KIMBALL Acting Secretary of the Navy.

INDEX

Absence:

Page

Unauthorized: failure of proof that accused did not comply
with travel orders constitutes failure of proof that he was
absent without authority-

122

Accused:

Counsel for. (See Counsel for accused.)

Interests substantially prejudiced: statement inconsistent
with plea of guilty: new trial offered.

107

Rights of: not prejudiced by failure to prefer specification
under more appropriate charge..........

99

107

Statement in extenuation: question of self-defense raised:
inconsistent with plea of guilty: proper procedure_ - - - -
Additional charges:

Preferred only when intelligence of offense had not reached
convening authority when original charges preferred____

Alcoholic liquor:

See Intoxicating liquor.

Assault and battery:

102

"Striking another person in the Navy": specific charge to
be preferred rather than general charge----

99

"Assaulting another person in the Navy": specific charge
to be preferred rather than general charge...

99

Assaulting another person in the Navy:

Specific charge, specification supporting: to be preferred
rather than general charge----

99

Assault with intent to commit sodomy:

Lesser included offense: "Scandalous conduct tending to the

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"Gross negligence", defined in respect to charge of......---
Negligence or carelessness, degree of, required to impose
criminal liability: same as required in "Involuntary
manslaughter”.

112

112

Carlessness:

See Negligence.

Charges and specifications:

See also specific offense.

Additional charges: preferred only when intelligence of
offense had not reached convening authority when
original charges preferred..

Page

102

Allegations necessary to establish legal efficacy of written
instrument in forgery case, enumerated___
Charge:

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General charges, use of: not to be preferred if specifica-
tion supports a specific charge.........
Specification to be laid under specific charge provided:
"Assaulting another person in the Navy" rather
than "Conduct to the prejudice of good order
and discipline"...

"Striking another person in the Navy", rather
than "Conduct to the prejudice of good order
and discipline"----

Consolidation of: to avoid multiplicity of trials.
Duplication. (See specific offense.)

Duplication of:

"Assault with intent to commit sodomy"; "Scandalous
conduct tending to the destruction of good morals"
(same act constituting assault)___

Limitation of punishment where both found proved__
"Scandalous conduct tending to the destruction of
good morals, and "Assault with intent to commit
sodomy".

General charges, use of: not to be preferred if specification
supports a specific charge...
Multiplicity:

Embezzlement: conviction of three offenses, each re-
lating to same funds: findings on latter two specifica-
tions set aside.___.

109

109

109

99

104

Limitation of punishment where more than one found
proved...

109

"Neglect of duty": failure safely to keep certain
money: gravamen is same act charged under "Em-
bezzling money of the United States intended for
the naval service thereof”....

104

Offenses in violation of local laws, orders, regulations, etc:
necessity for setting forth such local order in specification.
Specific charge to be used when one provided:

"Assaulting another person in the Navy".
"Striking another person in the Navy".

115

99

99

Charges and specifications Continued

Specification:

To be laid under specific charge provided:

"Assaulting another person in the Navy" rather
than "Conduct to the prejudice of good order
and discipline".

"Striking another person in the Navy" rather than
"Conduct to the prejudice of good order and
discipline".

Specification defective:

All elements of offense of "Forgery" not set forth____
Essential allegations omitted: violation of local order:
out of uniform: failure to set forth such order...............
"Forgery": portion of instrument which forms gist of
offense: to be set out verbatim..........
Laid under wrong charge:

"Conduct to the prejudice of good order and dis-
cipline" rather than:

“Assaulting another person in the Navy”.
"Striking another person in the Navy"..

"Conduct unbecoming an officer and a gentleman"
rather than:

"Conduct to the prejudice of good order and
discipline":

Adding names of duty section to official

liberty list_---

Aiding enlisted man to escape consequences of unauthorized absence.____ "Executing a fraud in violation of Article 14 of the Articles for the Government of the Navy" rather than "Executing a fraud in violation of Article 8 of the Articles for the Government of the Navy"

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Not cured by: findings: no evidence of actual or constructive knowledge of local order............ Offenses in violation of local laws, orders, regulations, etc: pertinent part of order to be set forth.................. Variance between allegations and proof:

115

115

Acknowledgement on orders does not establish that
non-compliance was wilful_._.

101

Government suffered no loss under charge of "Ex-
ecuting a fraud in violation of Article 14 of the
Articles for the Government of the Navy”.

117

Failure of proof that accused did not comply with

travel orders constitutes failure of proof that he was
absent without authority....

122

Charges and specifications Continued

Variance between allegations and proof-Continued

No evidence possession of alcoholic liquor on board
ship was not for authorized medicinal purposes.____
No evidence possession of alcoholic liquor on board
ship without proper authority - - - .

Conduct to the prejudice of good order and discipline:

Adding names of duty section to official liberty list...-----
Aiding enlisted man to escape consequences of unauthorized
absence....

Alcoholic liquor, possession of: evidence required to support
conviction of offense under charge of...
Disobedience of orders: non-compliance must be wilful..........
Evidence required to support conviction of offense of pos-
session of alcoholic liquor on board ship under charge of.
Non-compliance with written orders: wilful disobedience,
an essential element..........

Not to be used if specification supports specific charge
"Striking another person in the Navy".
Use of general charges:

Specification supporting specific charge:

"Assaulting another person in the Navy," should
be used.....

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"Striking another person in the Navy," should
be used.....

99

Violation of lawful station regulation:

Publication of, to be proved to charge accused with
actual or constructive knowledge thereof._----

111

Violation of local Naval District uniform order:

Defective specification not cured: no evidence that
accused had actual or constructive knowledge of
order...

Specification fails to set forth order and to allege
that order was "duly promulgated”.......

Conduct unbecoming an officer and a gentleman:
Basis of charge: conduct that is morally reprehensible____
"Conduct to the prejudice of good order and discipline",
the proper charge:

Adding names of duty section to official liberty list...
Aiding enlisted man to escape consequences of un-
authorized absence..

115

115

105

105

105

Consolidation:

See Trials.

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