SECTION B Permissible additional punishments. If an accused be found guilty by the court of an offense or offenses for none of which dishonorable or bad conduct discharge is authorized, proof of five or more previous convictions will authorize bad conduct discharge and forfeiture of all pay and allowances due after the date of the order directing execution of the approved sentence and, if the confinement otherwise authorized is less than three months, confinement at hard labor for three months. See 79c as to limitations concerning evidence of previous convictions which may be considered.

If an accused be found guilty by a court of two or more offenses for none of which dishonorable or bad conduct discharge is authorized, the fact that the authorized confinement without substitution for such offenses is six months or more will authorize bad conduct discharge and forfeiture of all pay and allowances due after the order directing execution of the approved sentence. But see 11fb.

A fine may be adjudged against any enlisted person, in lieu of forfeitures, for any offense listed in the Table of Maximum Punishments for which dishonorable discharge is authorized, provided a dishonorable discharge is also adjudged in the case. A fine should not ordinarily be adjudged against an officer, warrant officer or enlisted person unless the accused was unjustly enriched by means of an offense of which he is convicted involving loss to the United States or violative of military directives.

If a soldier of other than the lowest enlisted grade is convicted by a courtmartial the court may, in its discretion, adjudge reduction to the lowest grade in addition to the punishments otherwise authorized. Reprimand or admonition may be adjudged in any case.

Chapter XXVII-Disciplinary Power of Commanding Officer

AUTHORITY; POLICY; EFFECT OF ERRORSPUNISHMENTS PROCEDURES

PEALS MISCELLANEOUS

AP

118. AUTHORITY; POLICY; EFFECT OF ERRORS. Under the provisions of Article 104 and of this chapter, the commanding officer of any detachment, company, or higher command may, for minor offenses, without the intervention of

a

court-martial, impose disciplinary punishments upon persons of his command who are subject to military law, including officers. This authority of a commanding officer can not be delegated, but communications with respect thereto may be signed or transmitted by him personally or as provided for official communications in general.

Whether an offense may be considered "minor" depends upon its nature, the time and place of its commission and the person committing it. Generally speaking, the term includes misconduct not involving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary court-martial. An offense for which the articles of war prescribe a mandatory punishment or authorize the death penalty or penitentiary confinement is not a minor offense. Offenses such as larceny, fraudulently making and uttering bad checks, and the like, involve moral turpitude and are not to be treated as minor. Escape from confinement, willful disobedience of noncommissioned officers, and threatening or assaulting sentinels are offenses which are more serious than the average offense tried by summary court-martial and should not ordinarily be treated as minor.

Article 104 and the provisions of this chapter do not apply to, include, or limit the use of those nonpunitive measures that a commanding officer is authorized and expected to use to further the efficiency of his command, such as administrative admonitions, reprimands, exhortations, disapprovals, criticisms, censures, reproofs and rebukes, written or oral, not intended or imposed as a punThe ishment for a military offense. fact that admonition and reprimand are termed disciplinary punishments by Article 104 does not deprive a commanding officer of the power he had prior to the enactment of that article to make use of admonition and reprimand, not as a penalty but as a purely corrective measure, more analogous to instruction than to punishment, in the strict line of his duty to create and maintain efficiency.

A commanding officer should resort to his power under Article 104 in every case in which punishment is deemed necessary and that article applies unless it is clear that punishment under that article would not meet the ends of justice and discipline. Superior commanders

should restrain any tendency of subordinate commanders to resort unnecessarily to court-martial jurisdiction for the punishment of offenders.

Any failure to comply with the regulations in this chapter will not invalidate a punishment imposed under Article 104, except to the extent that may be required by a clear and affirmative showing of injury to a substantial right of the person on whom the punishment was imposed, which right was neither expressly nor impliedly waived.

119. PUNISHMENTS-a. Enlisted persons other than noncommissioned officers. Authorized punishments include admonition or reprimand, withholding of privileges, extra fatigue, restriction to certain specified limits, hard labor without confinement, or any combination of these punishments for not exceeding seven consecutive calendar days from the date imposed, but shall not include forfeiture or detention of pay or confinement under guard (A. W. 104).

b. Noncommissioned officers. Persons of actual, relative or assimilated rank of noncommissioned officers may be punished under Article 104 to the same extent and subject to the same limitations as other enlisted persons except that hard labor or extra fatigue will not be imposed upon such persons. No punishment is permitted which tends to degrade the rank of the person on whom the punishment is imposed.

c. Officers and warrant officers. The types of punishment authorized in the cases of noncommissioned officers may be imposed upon officers and warrant officers by the commanding officer of any detachment, company or higher command which includes the accused, but it is customary to refer the matter to the officer exercising special courtmartial jurisdiction over the accused officer or warrant officer for his determination. In addition, any officer exercising general court-martial jurisdiction may, under the provisions of Article 104, impose upon a warrant officer or officer of his command below the rank of brigadier general a forfeiture of not more than one-half of his pay (as distinguished from pay and allowances) per month for three months.

d. Execution of punishment. Except as otherwise prescribed, the immediate commanding officer of the accused is charged with the execution of punish

ment imposed pursuant to Article 104. Punishments will be strictly enforced.

120. PROCEDURE. The commanding officer, after ascertaining to his satisfaction by such investigation as he deems necessary that an offense cognizable by him under Article 104 has been committed by a member of his command, will notify such member of the nature of the offense as clearly and concisely as may be possible, and will inform him that he proposes to impose punishment under Article 104 as to the offense unless trial by court-martial is demanded. He will also inform the accused that he may submit such matters as he desires in mitigation, extenuation or defense. In appropriate cases he will inform the accused that he is not required to make any statement, and that any statement he may make may be used against him. The notification and information will be by written communication through proper channels in the case of an officer or warrant officer and may be by written communication in any case. If the notification is in writing, the accused will be directed to acknowledge receipt of the communication by indorsement through the proper channels and to include in the indorsement any demand for trial he wishes to make and any matter in mitigation, extenuation or defense. See Appendix 15 for the suggested form of such correspondence. If the notification is not in writing the accused will be given a reasonable time to make up his mind.

With reference to each offense as to which no demand for trial is made, the commanding officer may proceed to impose punishment. The accused will be notified of the punishment imposed as soon as practicable and at the same time will be informed of his right to appeal. See 121. If the original communication was in writing, the notification of the punishment imposed and any reprimand or admonition that may be included in such punishment will be by indorsement on the communication carrying the original notification, and the accused will be directed to acknowledge receipt by similar indorsement and to include in his indorsement the date of such receipt and any appeal he may desire to make. If the notification of the punishment is not in writing, the immediate commanding officer of the accused will be informed of the matter and given the necessary

data for the record of punishment. See 122.

121. APPEALS. A person punished under the provisions of Article 104 who deems his punishment unjust or disproportionate to the offense may, through proper channels, appeal to the next superior authority, but may in the meantime be required to undergo the punishment adjudged. An appeal not made within a reasonable time may be rejected by the next superior authority. An appeal will be in writing through proper channels (see 120 as to appear by indorsement) and will include a brief signed statement of the reasons for regarding the punishment as unjust or disproportionate. The immediate commanding officer of the accused will when necessary include with the appeal the copy of the record (122) in the case. In passing upon the appeal the superior will ordinarily hear no witnesses. When justice requires such action, he will modify the punishment or set it aside, but will not increase it, and will in no case award a different kind of punishment. After having considered the appeal, he will return the papers through channels to the appellant, with a statement of the disposition of the case and with a direction to return the papers to the immediate commanding officer of the appellant for file with the record of the case.

122. MISCELLANEOUS. The officer who imposed the punishment, his successor in command, any higher authority, and any officer exercising general court-martial jurisdiction over a command which includes the accused, shall have power to suspend, mitigate, or remit any unexecuted portion of the punishment. Application for suspension, mitigation, or remission and any action taken under this authority will be in writing and subject to the regulations as to appeals as far as applicable.

As to each offense for which punishment is imposed under Article 104, the immediate commanding officer of the person on whom such punishment was imposed will cause a record to be made and filed in his office or other proper place, showing the offense, with date and place of commission; the punishment, with the authority that imposed it and the date the accused received the notice of the imposition of the punishment; the decision of higher authority on any appeal; any mitigation or remission of the

punishment; and any remarks or additional data desired. See Appendix 15b for the form of record. Where punishment is accomplished by written communication and indorsements, the written correspondence will constitute the record.

With reference to interposing punishment imposed under Article 104 in bar of trial, see 69c. With reference to showing punishment under Article 104 in extenuation, see 79e.

A demand for trial does not require preferring, transmitting, or forwarding of charges, but punishment may not be imposed under Article 104 while the demand is in effect.

Chapter XXVIII-Rules of Evidence 123. SYNOPSIS OF CHAPTER. Par.