fense is conferred by the particular article which mentions it, and not by the general language of this article, providing for the trial and punishment of all offenses not capital, and all disorders, though not mentioned in the preceding articles. In re Carter (C. C. 1899), 97 Fed. 496. Double jeopardy.-An acquittal of a charge of murder in a state court, to which the accused was handed over for trial by the military authorities, is no bar to his subsequent trial by court-martial for conduct to the prejudice of good order and military discipline. In re Stubbs (C. C. 1905), 133 Fed. 1012; see also U. S. v. Maney (C. C. 1894), 61 Fed. 140; People v. Wendel (1908), 112 N. Y. Supp. 301. Sufficiency of charge.-A charge of assault with a rifle and the infliction of a mortal wound by accused upon a fellow soldier, with particulars of the time and place clearly stated, sufficiently alleged an offense within this article. In re Stubbs (C. C. 1905), 133 Fed. 1012. Punishment.- Where an officer of the Army has been found guilty by a court misappropriating martial of willfully money appropriated by Congress, such court has authority to impose a penalty both by fine and imprisonment. In re Carter (C. C. 1899), 97 Fed. 496; appeal dismissed (1900), 20 Sup. Ct. 713, 177 U. S. 496, 44 L. Ed. 861. Where the President has fixed a term of ten years as the maximum of imprisonment in cases prosecuted under this article, a court-martial, on convicting a soldier of conduct prejudicial to good order and military discipline in violation of this article, had jurisdiction to sentence accused to a term of five years' imprisonment, though such term extended beyond the term of military service for which he had enlisted. In re Stubbs (C. C. 1905), 133 Fed. 1012. The punishment of military offenses and irregularities termed "conduct prejudicial to good order and military discipline" is within the discretion of a court-martial; but this discretion, though unrestricted in terms, must be exercised within reasonable limits. Swaim v. U. S. (1893), 28 Ct. Cl. 173. IV. COURTS OF INQUIRY. Art. 97. When and by whom ordered.-A court of inquiry to examine into the nature of any transaction of or accusation or imputation against any officer or soldier may be ordered by the President or by any commanding officer; but a court of inquiry shall not be ordered by any commanding officer except upon the request of the officer or soldier whose conduct is to be inquired into. Same as in Code of 1916. Notes of Decisions. Nature of court of inquiry.-Courts of inquiry are inherently close courts, to which defendants generally, and auditors and spectators occasionally, have access by permission, and not of right. (1857) 8 Op. Atty. Gen. 337. Limitations.-There is by law no prescription of time limiting the scope of inquiry of courts of inquiry whether in the Navy or the Army. (1857) 8 Op. Atty. Gen. 337. The limitation of the eighty-eighth article of war (now embodied in article 39, ante), does not apply to courts of inquiry. (1853) 6 Op. Atty. Gen. 239. Action of court of inquiry.-The action of courts of inquiry, whether as to transactions or persons, is not decisive, but advice only for the information of the executive. (1857) 8 Op. Atty. Gen. 337. Ground for court of inquiry.-Where a military officer is charged by a citizen with fraudulent practices, the Secretary of War is justified in bringing the matter to the personal attention of the President, and the President in ordering a court of inquiry. Swaim v. U. S. (1893), 28 Ct. Cl. 173. Art. 98. Composition.-A court of inquiry shall consist of three or more officers. For each court of inquiry the authority appointing the court shall appoint a recorder. Same as in Code of 1916. Art 99. Challenges.-Members of a court of inquiry may be challenged by the party whose conduct is to be inquired into, but only for cause stated to the court. The court shall determine the relevancy and validity of any challenge, and shal not receive a challenge to more than one member at a time. The party whose conduct is being inquired into shall have the right to be represented before the court by counsel of his own selection if such counsel be reasonably available. Same as in Code of 1916. Art. 100. Oath of members and recorders.-The recorder of a court of injury shall administer to the members the following oath: "You, A. B., do swear 197 affirm) that you will well and truly examine and inquire, according to the e dence, into the matter now before you without partiality, favor, affection, pre judice, or hope of reward. So help you God." After which the president of the court shall administer to the recorder the following oath: “You, A. B., & swear (or affirm) that you will, according to your best abilities, accurately a impartially record the proceedings of the court and the evidence to be given t the case in hearing. So help you God." In case of affirmation the closing sentence of adjuration will be omitted. Same as in Code of 1916. Art. 101. Powers; procedure.-A court of inquiry and the recorder thereof shall have the same power to summon and examine witnesses as is given to courtmartial and the trial judge advocate thereof. Such witnesses shall take th same oath or affirmation that is taken by witnesses before courts-martial. A reporter or an interpreter for a court of inquiry shall, before entering upon his duties, take the oath or affirmation required of a reporter or an interpreter for court-martial. The party whose conduct is being inquired into or his counsel, if any, shall be permitted to examine and cross-examine witnesses so as fully to investigate the circumstances in question. Same as art. 101, Code of 1916, except that the word "trial" is inserted before the words "judge advocate". Art. 102. Opinion on merits of case.-A court of inquiry shall not give an opinion on the merits of the case inquired into unless specially ordered to do so. Same as in Code of 1916. Art. 103. Record of proceedings-How authenticated.-Each court of inqui shall keep a record of its proceedings, which shall be authenticated by the se nature of the president and the recorder thereof, and be forwarded to the o vening authority. In case the record can not be authenticated by the recorder, by reason of his death, disability, or absence, it shall be signed by the president and by one other member of the court. Same as in Code of 1916. V. MISCELLANEOUS PROVISIONS. Art. 104. Disciplinary powers of commanding officers.-Under such regulations as the President may prescribe, the commanding officer of any detachment, colle pany, or higher command may, for minor offenses impose disciplinary punishments upon persons of his command without the intervention of a court-martis!, unless the accused demands trial by court-martial. The disciplinary punishments authorized by this article may include adm-altion, reprimand, withholding of privileges for not exceeding one week, extra fatigue for not exceeding one week, restriction to certain specified limits fo not exceeding one week, and hard labor without confinement for not exceeding one week, but shall not include forfeiture of pay or confinement under guard; except that in time of war or grave public emergency a commanding officer of the grade of brigadier general or of higher grade may, under the provisions of this article also impose upon an officer of his command below the grade of major a forfeiture of not more than one-half of such officer's monthly pay for one month. A person punished under authority of this article, who deems his punishment unjust or disproportionate to the offense, may, through the proper channel, appeal to the next superior authority, but may in the meantime be required to undergo the punishment adjudged. The commanding officer who imposes the punishment, his successor in command, and superior authority shall have power to mitigate or remit any unexecuted portion of the punishment. The imposition and enforcement of disciplinary punishment under authority of this article for any act or omission shall not be a bar to trial by court-martial for a crime or offense growing out of the same act or omission; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty. This article omits matter which appeared in the first paragraph of art. 104, Code of 1916, as follows: After the words President may prescribe", the words "and which he may from time to time, revoke, alter or add to", and after the words "minor offenses the words "not denied by the accused." The first sentence of the second paiagraph of the former article read as follows: "The disciplinary punishments authorized by this article may include admonition, reprimand, withholding of privileges, extra fatigue, and restriction to certain specified limits, but shall not include forfeiture of pay or confinement under guard"; that portion of the said sentence, as it now stands, following the semicolon, is new; otherwise the paragraph is the same. Art. 105. Injuries to property-Redress of.-Whenever complaint is made to any commanding officer that damage has been done to the property of any person or that his property has been wrongfully taken by persons subject to military law, such complaint shall be investigated by a board consisting of any number of officers from one to three, which board shall be convened by the commanding officer and shall have, for the purpose of such investigation, power to summon witnesses and examine them upon oath or affirmation, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by such board shall be subject to the approval of the commanding officer, and in the amount approved by him shall be stopped against the pay of the offenders. And the order of such commanding officer directing stoppages herein authorized shall be conclusive on any disbursing officer for the payment by him to the injured parties of the stoppages so ordered. Where the offenders can not be ascertained, but the organization or detachment to which they belong is known, stoppages to the amount of damages inflicted may be made and assessed in such proportion as may be deemed just upon the individual members thereof who are shown to have been present with such organization or detachment at the time the damages complained of were inflicted as determined by the approved findings of the board. Same as art. 105, Code of 1916, except that the words “ person or were in the title of the former article, preceding the word “ property." Art. 106. Arrest of deserters by civil officials.-It shall be lawful for any civil officer having authority under the laws of the United States, or of any State, Territory, District, or possession of the United States, to arrest offenders, summarily to arrest a deserter from the military service of the United States and deliver him into the custody of the military authorities of the United States. Same as in Code of 1916. Notes of Decisions. Arrest without warrant.-A police officer of a State, or a private citizen, has no authority as such, without any warrant or military order, to arrest and detain a de serter from the Army. Kurtz r. Most (1885), 115 U. S. 487; In re Fair (C. C. 1900), 100 Fed. 149, 152; Kendall r. Scheve (1889), 3 Ohio C. C. 528. Art. 107. Soldiers to make good time lost.-Every soldier who in an existing or subsequent enlistment deserts the service of the United States or without proper authority absents himself from his organization, station, or duty for more than one day, or who is confined for more than one day under sentence, or while awaiting trial and disposition of his case, if the trial results in conviction, or through the intemperate use of drugs or alcoholic liquor, or through disease or injury the result of his own misconduct, renders himself unable for more than one day to perform duty, shall be liable to serve, after his return to a full-duty status, for such period as shall, with the time he may have served prior to such desertion, unauthorized absence, confinement, or inability to perform duty, amount to the full term of that part of his enlistment period which he is required to serve with his organization before being furloughed to the Army reserve. Same as in Code of 1916. The Regular Army Reserve was abolished by sec. 30, act of June 4, 1920, ante 2198. Art. 108. Soldiers-Separation from the service.-No enlisted man, lawfully inducted into the military service of the United States, shall be discharged from said service without a certificate of discharge, signed by a field officer of the regiment or other organization to which the enlisted man belongs or by the commanding officer when no such field officer is present; and no enlisted man shall be discharged from said service before his term of service has expired, except by order of the President, the Secretary of War, the commanding officer of a department, or by sentence of a general court-martial. Same as in Code of 1916. Notes of Decisions. What constitutes a discharge. The muster out of a volunteer soldier can not be viewed as in itself or by itself a discharge from service, and he is not to be regarded as discharged until he is released from military control and from subjection to the orders of his superior officers. (1870) 13 Op. Atty. Gen. 278. A furlough to the reserve is not the equivalent of a discharge. In re Markun (D. C. 1916), 232 Fed, 1018. Authority of President to discharge.The contract of a soldier of the United States, made by his enlistment and oath to serve for a definite term, "unless sooner discharged by proper authority," is one terminable by the Government at will, acting through an officer having proper authority, and this article confers such authority upon, or recognizes it as existing in, the President of the United States. Reid v. U. S. (D. C. 1908), 161 Fed. 469. Terms of discharge.-A certificate of discharge issued to a soldier of the United States on his muster out is legal evidence of the fact of such discharge. Adams County v. Mertz (1866), 27 Ind. 103. It is also evidence to show that a soldier was honorably discharged. Inhabitants of Fitchburg v. Inhabitants of Lunenburg (1869), 102 Mass. 358; Inhabitants of Hanson v. Inhabitants of South Scituate (1874), 115 Mass. 336. But a certificate of an officer of the United States Army, showing an honorable discharge from the Army and stating that the character of the person discharged was good, is inadmissible to show his good character for peaceableness. Taylor v. State (1904), 48 S. E. 361, 120 Ga. 857. Nor is a certificate of a discharge, containing a description of his physical characteristics, admissible in eridence to show the height of the soldier. Commonwealth v. Crowley (1904), 26 P Super. Ct. 124. The terms of a discharge given to a soldier by order of the President, not being prescribed by any statute, are discretionary with the President, and such discretion, exercised by directing a discharge "without honor," can not be reviewed by the courts. Reid v. U. S. (D. C. 1908), 161 Fed. 469. Regularly, an officer or soldier, upon his discharge from the military service, is entitled to an honorable discharge, unless he is under sentence of dishonorable dismissal, or unless he has been convicted of an infamous offense and is sentenced to punishment therefor during the remainder of his term of service, or of conduct reflecting upon his military career, such as cowardice, etc., with either of which conditions an honorable discharge would be incompatible. (1869) 13 Op. Atty. Gen. 16. Where a person entered the military service in August, 1862, as a volunteer, to serve for three years, and subsequently deserted, but afterwards voluntarily returned to service under the President's proclamation (of pardon) of Mar. 11, 1865, and was mustered out of service along with his company July 2, 1865, it was held that the time which elapsed between his desertion and his return should not be credited to him in a discharge or otherwise, but that he is entitled to have his actual service credited to him in an honorable discharge. (1886) 18 Op. Atty. Gen. 427. Correction of mistakes in discharge.-The War Department has power to correct mistakes made in granting discharges to soldiers. (1870) 13 Op. Atty. Gen. 201. Cancellation of discharge.-Where an honorable discharge from the military serv ice has in fact been received, and was given by competent authority, the subsequent cancellation of the discharge certificate, which is only evidence of such discharge, can not avoid the latter, nor make it capable of modification to the prejudice of the person discharged. (1869) 13 Op. Atty. Gen. 16. Suspension of enlistment.-The Secretary of War can release a soldier from his contract of enlistment by a discharge, but has no power to suspend it, even with the soldier's consent. (1877) 15 Op. Atty. Gen. 362. Alien enemy.-An alien in the military service who has only his first papers is not entitled to discharge therefrom on declaration of war with his country. Halpern v. Commanding Officer (D. C. 1918), 248 Fed. 1003. Discharge for disability.-The question whether a soldier shall be discharged from the Army because of physical disability is one solely for the military authorities. U. S. v. Bell (D. C. 1918), 248 Fed. 1002; In re Traina (D. C. 1918), 248 Fed. 1004. Furlough to reserve.-Unauthorized acts of a company commander can not operate as a discharge or furlough to the reserve. Ex parte Roach (D. C. 1917), 244 Fed. 625. Art. 109. Cath of enlistment.—At the time of his enlistment every soldier shall take the following oath or affirmation: "I, -, do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the Rules and Articles of War." This oath or affirmation may be taken before any officer. Same as in Code of 1916. Sec. 11, act of Aug. 3, 1861 (12 Stat. 289), conferred authority to administer the oath of allegiance to soldiers upon any commissioned officer of the Army. Notes of Decisions. Draft. This article applies only to voluntary enlistments, and one certified into the service under the selective service act of May 18, 1917, can not escape liability to military law because he had not taken the required oath. Franke v. Murray (C. C. A. 1918), 248 Fed. 865. Art. 110. Certain articles to be read and explained.-Articles 1, 2, and 29, 54 to 96, inclusive, and 104 to 109, inclusive, shall be read and explained to every soldier at the time of his enlistment or muster in, or within six days thereafter, and shall be read and explained once every six months to the soldiers of every garrison, regiment, or company in the service of the United States. Same as in Code of 1916. 146345°-21-VOL 2-37 1501 |