(b) The power to confirm or disapprove the whole or any part of the sentence. (c) The power to remand a case for rehearing, under the provisions of article 504.

Same as art. 49, Code of 1916, except for the addition of subdivision (c).

Art. 50. Mitigation or remission of sentences.-The power to order the execution of the sentence adjudged by a court-martial shall be held to include, inter alia, the power to mitigate or remit the whole or any part of the sentence.

Any unexecuted portion of a sentence adjudged by a court-martial may be mitigated or remitted by the military authority competent to appoint, for the command, exclusive of penitentiaries and the United States Disciplinary Barracks, in which the person under sentence is held, a court of the kind that imposed the sentence, and the same power may be exercised by superior military authority; but no sentence approved or confirmed by the President shall be remitted or mitigated by any other authority, and no approved sentence of loss of files by an officer shall be remitted or mitigated by any authority inferior to the President, except as provided in the fifty-second article.

When empowered by the President so to do, the commanding general of the Army in the field or the commanding general of the territorial department or division, may approve or confirm and commute (but not approve or confirm without commuting), mitigate, or remit and then order executed as commuted, mitigated, or remitted any sentence which under these articles requires the confirmation of the President before the same may be executed.

The power of remission or mitigation shall extend to all uncollected forfeitures adjudged by sentence of court-martial.

Same as art. 50, Code of 1916, as amended by the act of Feb. 28, 1919 (40 Stat. 1211), except that in the third paragraph the words "approve or confirm and commute but not approve or confirm without commuting)" have been inserted before the word "mitigate," the word "commuted" inserted before the word "mitigated," and the word " then inserted before the word "order"; and in the fourth paragraph the Code of 1916, as amended, read: "The power of remission and mitigation shall extend to all uncollected forfeitures adjudged by sentence of a court-martial."

Notes of Decisions.

Interpretation of terms.- -"Commutation" and "mitigation" defined and distinguished. Mullan v. U. S. (1909), 212 U. S. 516, 521.

Scope of authority of President and offcers. The President may not substitute another punishment for that decreed by the court, nor suspend the pay of an officer under sentence, whose pay was not suspended by the court. (1845) 4 Op. Atty. Gen. 444.

Pardon after confirmation. An officer who is authorized to order a general court-martial has no power under this section to pardon or mitigate the punishment adjudged by it after confirmation by him of the sentence. (1888) 19 Op. Atty. Gen. 106.

See, also, notes to art. 48, ante.

Form of pardon.-The form a pardon may assume is not important. It need not be addressed to the beneficiary. (1909) 27 Op. Atty. Gen. 179.

Time for pardon.-Where a lieutenant was sentenced by a court-martial to reduction of rank in his grade, and the sentence was carried into effect, and later the department commander remitted the sentence under the power to pardon conferred by this section, the punishment imposed by the sentence being a continuing one, the sentence could be remitted by the pardoning power, and the authority exercised by the department commander was in conformity to law. (1884) 17 Op. Atty. Gen. 656.

Effect of pardon or mitigation. The status of a soldier is not affected by a sentence of court-martial discharging him from service, subsequently set aside. In re Bird (D. C. 1871), Fed. Cas. No. 1,428.

The effect of a communication sent by The Adjutant General of the Army on Mar. 20, 1866, to the Governor of Kansas, asserting that by direction of the President of the United States the disabilities result

ing from the dismissal of A. H. C., formerly a captain in the Fourteenth Regiment Kansas Volunteer Cavalry, by sentence of a general court-martial, were thereby removed, and that the governor might recommission C. if he desired to do so, was to remove all disabilities consequent upon the offense and conviction. (1909) 27 Op. Atty. Gen. 179.

A pardon can not change an existing or accomplished fact, or operate as an honorable discharge from the Army, where, as matter of fact, the person pardoned was dishonorably discharged by the sentence of a court-martial.

Id.

Effect of honorable discharge after sentence. The honorable discharge of an officer after he has been sentenced by courtmartial to forfeit a month's pay and the sentence has been approved does not remit the sentence or entitle him to recover the pay forfeited. Lyon v. U. S. (1912), 48 Ct. Cl. 30.

Promotion while under charges. The promotion of an officer of the Navy while under charges awaiting trial by general court-martial does not operate as a constructive pardon of the offenses charged against him. (1919), 31 Op. Atty. Gen. 419.

Art. 50. Review; rehearing.-The Judge Advocate General shall constitute, in his office, a board of review consisting of not less than three officers of the Judge Advocate General's Department.

Before any record of trial in which there has been adjudged a sentence requiring approval or confirmation by the President under the provisions of article 46, article 48, or article 51 is submitted to the President, such record shall be examined by the board of review. The board shall submit its opinion, in writing, to the Judge Advocate General, who shall, except as herein otherwise provided, transmit the record and the board's opinion, with his recommendations, directly to the Secretary of War for the action of the President. Except as herein provided, no authority shall order the execution of any other sentence of a general court-martial involving the penalty of death, dismissal not suspended, dishonorable discharge not suspended, or confinement in a penitentiary, unless and until the board of review shall, with the approval of the Judge Advocate General, have held the record of trial upon which such sentence is based legally sufficient to support the sentence; except that the proper reviewing or confirming authority may upon his approval of a sentence involving dishonorable discharge or confinement in a penitentiary order its execution if it is based solely upon findings of guilty of a charge or charges and a specification or specifications to which the accused has pleaded guilty. When the board of review, with the approval of the Judge Advocate General, holds the record in a case in which the order of execution has been withheld under the provisions of this paragraph legally sufficient to support the findings and sentence, the Judge Advocate General shall so advise the reviewing or confirming authority from whom the record was received, who may thereupon order the execution of the sentence. When in a case in which the order of execution has been withheld under the provisions of this paragraph, the board of review holds the record of trial legally insufficient to support the findings or sentence, either in whole or in part, or that errors of law have been committed injuriously affecting the substantial rights of the accused, and the Judge Advocate General concurs in such holding of the board of review, such findings and sentence shall be vacated in whole or in part in accord with such holding and the recommendations of the Judge Advocate General thereon, and the record shall be transmitted through the proper channels to the convening authority for a rehearing or such other action as may be proper. In the event that the Judge Advocate General shall not concur in the holding of the board of review, the Judge Advocate General shall forward all the papers in the case, including the opinion of the board of review and his own dissent there

from, directly to the Secretary of War for the action of the President, who may confirm the action of the reviewing authority or confirming authority below, in whole or in part, with or without remission, mitigation, or commutation, or may disapprove, in whole or in part, any finding of guilty, and may disapprove or vacate the sentence, in whole or in part.

When the President or any reviewing or confirming authority disapproves or vacates a sentence the execution of which has not theretofore been duly ordered, he may authorize or direct a rehearing. Such rehearing shall take place before a court composed of officers not members of the court which first heard the case. Upon such rehearing the accused shall not be tried for any offense of which he was found not guilty by the first court, and no sentence in excess of or more severe than the original sentence shall be enforced unless the sentence be based upon a finding of guilty of an offense not considered upon the merits in the original proceeding: Provided, That such rehearing shall be had in all cases where a finding and sentence have been vacated by reason of the action of the board of review approved by the Judge Advocate General holding the record of trial legally insufficient to support the findings or sentence or that errors of law have been committed injuriously affecting the substantial rights of the accused, unless, in accord with such action, and the recommendations of the Judge Advocate General thereon, the findings or sentence are approved in part only, or the record is returned for revision, or unless the case is dismissed by order of the reviewing or confirming authority. After any such rehearing had on the order of the President, the record of trial shall, after examination by the board of review, be transmitted by the Judge Advocate General, with the board's opinion and his recommendations, directly to the Secretary of War for the action of the President.

Every record of trial by general court-martial, examination of which by the board of review is not hereinbefore in this article provided for, shall nevertheless be examined in the Judge Advocate General's Office; and if found legally insufficient to support the findings and sentence, in whole or in part, shall be examined by the board of review, and the board, if it also finds that such record is legally insufficient to support the findings and sentence, in whole or in part, shall, in writing, submit its opinion to the Judge Advocate General, who shall transmit the record and the board's opinion, with his recommendations, directly to the Secretary of War for the action of the President. In any such case the President may approve, disapprove, or vacate, in whole or in part, any findings of guilty, or confirm, mitigate, commute, remit, or vacate any sentence, in whole or in part, and direct the execution of the sentence as confirmed or modified, and he may restore the accused to all rights affected by the findings and sentence, or part thereof, held to be invalid; and the President's necessary orders to this end shall be binding upon all departments and officers of the Government.

Whenever necessary, the Judge Advocate General may constitute two or more boards of review in his office, with equal powers and duties.

Whenever the President deems such action necessary, he may direct the Judge Advocate General to establish a branch of his office, under an Assistant Judge Advocate General, with any distant command, and to establish in such branch office a board of review, or more than one. Such Assistant Judge Advocate General and such board or boards of review shall be empowered to perform for that command, under the general supervision of the Judge Ad

vocate General, the duties which the Judge Advocate General and the board or boards of review in his office would otherwise be required to perform in respet of all cases involving sentences not requiring approval or confirmation by the President.

This article is new.

Art. 51. Suspension of sentences of dismissal or death.-The authority come tent to order the execution of a sentence of dismissal of an officer or a sentenc of death may suspend such sentence until the pleasure of the President be known, and in case of such suspension a copy of the order of suspension, te gether with a copy of the record of trial, shall immediately be transmitted to the President.

Same as in Code of 1916.

Notes of Decisions.

Commutation of sentence.-A general commanding the forces of the United States in the field does not possess power to commute the sentence of cashiering pronounced

by a court-martial, but only the power to execute the sentence, or to suspend it and take the direction of the President. (1823) 6 Op. Atty. Gen. 123. But see art. 50, ante.

Art. 52. Suspension of sentences.-The authority competent to order the execu tion of the sentence of a court-martial may, at the time of the approval of such sentence, suspend the execution, in whole or in part, of any such sentence as does not extend to death, and may restore the person under sentence to duty during such suspension; and the Secretary of War or the commanding officer holding general court-martial jurisdiction over any such offender, may at any time thereafter, while the sentence is being served, suspend the execution, in whole or in part, of the balance of such sentence and restore the person under sentence to duty during such suspension. A sentence, or any part thereof. which has been so suspended may be remitted, in whole or in part, except in cases of persons confined in the United States Disciplinary Barracks or its branches, by the officer who suspended the same, by his successor in office, or by any officer exercising appropriate court-martial jurisdiction over the command in which the person under sentence may be serving at the time, and, subject to the foregoing exceptions, the same authority may vacate the order of suspen sion at any time and order the execution of the sentence or the suspended part thereof in so far as the same shall not have been previously remitted, subject to like power of suspension. The death or honorable discharge of a person under a suspended sentence shall operate as a complete remission of any unexecuted or unremitted part of such sentence.

The last part of the first sentence beginning with the words "and the Secretary of War" is new, as are the words "subject to like power of suspension" at the end of the second sentence; otherwise the same as art. 52, Code of 1916, as amended by the act of July 9, 1918 (40 Stat. 882).

Art. 53. Execution or remission-Confinement in disciplinary barracks.-When a sentence of dishonorable discharge has been suspended until the soldier's release from confinement, the execution or remission of any part of his sentence shall, if the soldier be confined in the United States Disciplinary Barracks, or any branch thereof, be directed by the Secretary of War.

Same as in Code of 1916 as amended by the act of July 9, 1918 (40 Stat. 882).

III. PUNITIVE ARTICLES.

A. ENLISTMENT; MUSTER; RETURNS.

Art. 54. Fraudulent enlistment.-Any person who shall procure himself to be enlisted in the military service of the United States by means of willful misrepresentation or concealment as to his qualifications for enlistment, and shall receive pay or allowances under such enlistment, shall be punished as a courtmartial may direct.

Same as in Code of 1916.

Notes of Decisions.

Minors.--Minor held punishable if fraudulently enlisting in violation of Sixty-second (now Ninety-sixth) Article of War. U. S. v. Williford (C. C. A. 1915), 220 Fed. 291.

See Ex parte Lewkowitz (C. C. 1908), 163 Fed. 646, overruling In re Carver (C. C. 1900), 103 Fed. 624.

A military tribunal has jurisdiction to try offender under military age for offenses committed before his father's election to terminate his enlistment, though he was

not taken into custody until after such election. U. S. v. Brown (D. C. 1917), 242 Fed. 983; Ex parte Foley (D. C. 1917), 243 Fed. 470.

On habeas corpus an enlisted minor was remanded to custody of military authorities for trial for alleged offenses and service of any sentence imposed, but thereafter to be released from such custody. Id.

For enlistment of minors in general, sea 2168, 2169, ante, and notes thereunder.

Art. 55. Officer making unlawful enlistment.-Any officer who knowingly enlists or musters into the military service any person whose enlistment or muster in is prohibited by law, regulations, or orders shall be dismissed from the service or suffer such other punishment as a court-martial may direct.

Same as in Code of 1916.

For classes of persons whose enlistment is prohibited by statute, see 2168, 2169, ante, and by regulations, see par. 849, Army Regulations, 1913.

Art. 56. False muster.-Any officer who knowingly makes a false muster of man or animal, or who signs or directs or allows the signing of any muster roll knowing the same to contain a false muster or false statement as to the absence or pay of an officer or soldier, or who wrongfully takes money or other consideration on mustering in a regiment, company, or other organization, or on signing muster rolls, or who knowingly musters as an officer or soldier a person who is not such officer or soldier, shall be dismissed from the service and suffer such other punishment as a court-martial may direct.

This article is the same as the last sentence of art. 56, Code of 1916. The portion of the former article not retained read as follows:

“ART. 56. MUSTER ROLLS-FALSE MUSTER.-At every muster of a regiment, troop, battery, or company the commanding officer thereof shall give to the mustering officer certificates, signed by himself, stating how long absent officers have been absent and the reasons of their absence. And the commanding officer of every troop, battery, or company shall give like certificates, stating how long absent noncommissioned officers and private soldiers have been absent and the reasons of their absence. Such reasons and time of absence shall be inserted in the muster rolls opposite the names of the respective absent officers and soldiers, and the certificates, together with the muster rolls, shall be transmitted by the mustering officer to the Department of War as speedily as the distance of the place and muster will admit."

Notes of Decisions.

Muster roll as evidence.-A copy of a copy of a muster roll is not competent evidence to show that a man enrolled therein

is a United States soldier. People v. Riley (1860), 15 Cal. 48.