Chapter 8.
Appointment and Jurisdiction of Courts-Martial

49. APPOINTMENT IN GENERAL. There are three classes of courts-martial: general, special, and summary (AW 3). Certain commanding officers are authorized by the Articles of War to appoint one or more of these classes of courts. The officer who has this power is called the "appointing authority." The power is not dependent upon rank, but upon command. An officer who is not so authorized under the Articles of War cannot appoint courts, whether he be a general officer or a second lieutenant. Officers authorized to appoint are enumerated in AW 8, 9, and 10, dealing, respectively, with general, special, and summary courts-martial.

50. WHO MAY APPOINT GENERAL COURTS-MARTIAL. A general court-martial can be appointed only by relatively few persons. AW 8 authorizes the President of the United States, the Superintendent of the Military Academy, the commanding officer of a territorial department or territorial division (e.g., the Department of Hawaii, the Department of Alaska) and the commanding officers of certain large tactical units--i.e., an army, a corps, a division, and a separate brigade--to appoint a general court-martial. It will be seen that this list does not include the commanding officers of many other organizations or installations, such as service commands, air forces, defense commands, ports of embarkation, etc. However, AW 8 permits the President to empower the commanding officer of any district or any force or body of troops to appoint a general court. Through General Orders,or other directive, of the War Department, the President has given that power to commanding officers of many such large organizations and installations. A commanding officer who has power to appoint a general court-martial is known as an "authority exercising general court-martial jurisdiction."

51. WHO MAY APPOINT SPECIAL COURTS-MARTIAL.

    1. Post, station, and regimental commanders. Any authority who can appoint a general court-martial can also appoint a special court-martial. In addition, the commanding officers enumerated in AW 9 have power to appoint such courts--i.e., "the commanding officer of a district, garrison, fort, camp, or other place where troops are on duty"--in short, an post or station

commander--and the commanding officer of a "brigade, regiment, detached battalion, or other detached command." Post and regimental commanders are typical examples of officers who have power to appoint a special court-martial.
2. Other commanding officers. Many types of organizations, it will be noted, are not expressly referred to in AW 9. No reference, for example, is made to squadrons, groups, and wings in the Air Force. Such units, however, correspond to battalions, regiments, and brigades, respectively, and so have the same power to appoint inferior courts. (See par. 2c, AR 95019, 27 July 1942.) Nor is there any express reference to the many varying special types of units which are not part of any division or regimental organization, such as antiaircraft battalions, supply, repair and replacement depots, service schools, etc. Most of these, however, are covered by the term "detached battalion or other detached command." If a unit is not subject to the immediate disciplinary control of a superior of the same branch of the service and its commanding officer is primarily responsible for the administration of discipline over the enlisted men in it, it is "detached." For example, independent units such as a quartermaster port battalion or a service school are "detached." So is an engineer battalion in an infantry division, since there is no intermediate command of the same branch of the service between it and division headquarters, and its commanding officer is directly responsible for discipline in the command. On the other hand, a battalion in an infantry regiment, while service as a part of the regiment, is not "detached" since it is merely a tactical unit subject for disciplinary purpose to the control of the regimental commander, a superior of the same branch of the service.

3. Reservation by superior authority of power to appoint. A commanding officer who has power under AW 9 to appoint special courts-martial is known as an "authority exercising special court-martial jurisdiction." His power to appoint such courts cannot, however, be exercised if "a competent superior deems it 'desirable' to reserve that power to himself and so notifies the subordinate" (par. 5b, MCM). By "superior" is meant higher authority in the same chain of command. For example, the commanding general of a division might reserve to himself the power to appoint special courts-martial for all or any nits in the division, and if he so notified the commander of each regiment or detached command in the division, they could not appoint special courts.
52. WHO MAY APPOINT SUMMARY COURTS-MARTIAL.

    1. General. Summary courts may be appointed by any officer who has power to appoint a general or special court-martial. Post and regimental commanders are typical examples of an authority exercising summary court-martial jurisdiction. The commanding officer of any "detached company, or other detachment" is also specifically authorized to appoint summary courts (AW 10). The term "detached" or "detachment" has the same meaning

as in AW 9--i.e., a body of troops separated from others and made an independent unit for disciplinary purposes. (See par. 51b, supra.) So that a small detachment may have the means of enforcing discipline through summary courts, AW 10 provides that "when but one officer is present with a command he shall be the summary court officer." In such case, he automatically assumed his duties as summary court officer without any order of appointment (par. 5c, MCM). Where more than one officer is present with a command, however, a subordinate officermust be appointed summary court partial (par. 5c, MCM).
53. COURTS APPOINTED BY "ACCUSER" OR "PROSECUTOR."

    1. General and special courts-martial. An accused may not be tried by a general or special court-martial appointed by the "accuser," that is, the one who originates, adopts, or becomes responsible for the charge, or the prosecutor," that is, the one who proposes or undertakes to have the charges tried, in the case. (See AW 8, 9) An officer who has himself signed and sworn to the charges is always an accuser (par. 60, MCM) and any officer who, because of his personal feeling or interest in charges preferred by another, adopts them as his own or undertakes to have them tried is an accuser or prosecutor (pars. 5, 60, MCM). The mere forwarding of charges with a formal recommendation as to their disposition does not make the forwarding officer either an accuser or prosecutor. Every officer exercising court-martial jurisdiction must make a recommendation as to the disposition of charges submitted to him before they are referred for trial. Mere fulfillment of this official duty does not disqualify him from acting as an appointing authority. If the officer who appointed a general or special court is the accuser or prosecutor in a particular case, the case cannot be tried by his court. For example, if a division commander has preferred charges, the accused could not be tried by a general or special court-martial appointed by him. The charges would have to be tried by a special or general court appointed by superior authority--e.g., the corps commander. The fact that an appointing authority is an accuser or prosecutor as to charges in one case does not, of course, mean that a general or special court appointed by him cannot try other cases in which he is not the accuser or prosecutor.

    2. Summary courts-martial. There is no prohibition against trying an accused before a summary court-martial appointed by the accuser or prosecutor in the case. It is generally desirable, however, where the officer who appointed the summary court is the accuser or prosecutor, to forward the charges to higher authority for reference to another summary court.

54. COMPOSITION OF COURT-MARTIAL.

    1. Who may serve as members. Only officer are competent to serve on courts-martial. By "officers" is meant "commissioned officers" (AW 1). Warrant officers and flight officers are not "officers" within this definition and may not be detailed as members, trial judge advocate, defense counsel, or as summary court officers. An officer who is the "accuser" in a particular case or who is "witness for the prosecution," i.e., one called as a witness by the prosecution at any stage of the proceedings (pars. 4, 5, 59, MCM; AW 9, 10), is ineligible to sit as a member in the trial of that case. If, therefore, a member of the court is called as a witness for the prosecution, he must, before qualifying as a witness, be excused from further duty as a member of the court in the case (par. 59, MCM). This disqualification does not apply to summary court officers. The summary court officer may be the accuser and chief witness for the prosecution but, in such a case, the charges, should, as a matter of policy, be referred to another summary court officer for trial, if possible.

    2. Number of members. Every general court-martial must have at least five members (AW 5) and every special court-martial at least three (AW 6). If less than the required number is present, a trial cannot proceed (par. 38c, MCM). Therefore, enough members over the bare minimum should be detailed in the order appointing the court so that if some members are absent or challenged, the court will not be reduced below the necessary quorum and become unable to function. Usually from seven to ten members are detailed on a general court and form five to eight on a special. One of the members of a general court-martial must be expressly designated as law member (AW 8). Failure to designate a law member renders the entire general court-martial illegal. A trial judge advocate and a defense counsel must be appointed for both general and special courts-martial (AW 11). In addition a general court-martial may also have one or more assistant trial judge advocates and assistant defense counsel when necessary (AW 11). The detail of assistant trial judge advocates or assistant defense counsel on special courts-martial is permissible, but is neither required nor customary. If so detailed, however, there should be as many assistant defense counsel as trial judge advocates. Defense counsel should be of at least equal rank with the trial judge advocate. The duties of the trial judge advocate, defense counsel, and members are discussed in chapters 10, 11, and 12, infra, respectively. A summary court consists of only one officer who combines the functions of member, trial judge advocate and defense counsel. His duties are discussed in chapter 9, infra.

    3. Experience and qualifications of members. The proper functioning of the court-martial system is dependent upon the selection of qualified officers for detail to courts. For that reason, it is especially important that each general and special court have detailed one or more members with a background of military law. A summary court officer should

possess a like qualification and should be selected from field officers whenever practicable. (See par. 3v, AR 235-5, 15 May 1942.) Where possible, officers who are lawyers should be utilized for the three key positions of president, trial judge advocate, and defense counsel on general and special courts-martial, and for the additional key position of law member on general courts-martial. A general or special court to which charges against members of the Women's Army Corps is referred will include one or more commissioned officers of the Women's Army Corps, when available. (See WD Cir. 462, 1944.)
55. ORDERS APPOINTING COURTS.

    1. Preparation. After final selection of personnel for a court-martial has been made and approved by the commanding officer, the formal order must be prepared, mimeographed and published. Orders appointing general courts-martial are usually prepared under the supervision of the staff judge advocate, whereas orders appointing special and summary courts-martial are usually prepared by the adjutant of the organization appointing the court, e.g., regiment, detached battalion, etc. Forms for orders appointing general, special, and summary courts are set out in appendix 2, MCM. Examples of orders appointing special and summary courts-martial are contained in appendices 3 and 9 infra respectively. The order appointing the court is a special order and subject to the provisions of paragraph 4, AR 310-50, 1 December 1944, as to form contents, and abbreviations.

    2. Detail of members. The orders appointing general and special courts will name the members in order of rank, personnel of the prosecution, and the defense being named after the members of the court. The grade, name, serial number, and organization or arm of service, of each officer detailed should be stated, e.g., "MAJ WILFRED E KESSELRING, 0322618, 21st Inf." The appointing order should not designate a president, since the ranking member present at any particular sitting is automatically the president.

    3. Amending orders. When it becomes necessary to relive members or to add new ones, the appointing order may be amended. This should not be done by deleting certain names and inserting others--e.g., "par. 8, SO 31, this Hq. 31 Jan 1944, is amended by deleting the name of MAJ WILFRED E. KESSELRING, 0322618, 21st Inf, and inserting the name of CAPT RUDOLPH O MILSTEIN, 0847996, 21st Inf, in place thereof"--but by formally relieving the member and appointing his successor, viz, "CAPT RUDOLPH O MILSTEIN, 0847996, 21 Inf, is detailed as a member of the SCM aptd by par. 8, SO 31, this Hq, 31 Jan 1944, vice MAJ WILFRED E KESSELRING, 0322618, 21st Inf reld." Amending orders should be kept at a minimum. Frequently it is no more difficult to prepare an entire new detail than to prepare an amending order changing an existing detail. In any event, no more than two amending

orders should be issued. If it is necessary to make further changes, a new court should be appointed.
4. Dissolving court. In appointing a court, the old court should not be dissolved nor the order appointing the old court rescinded or revoked. Such action would prevent the reconvening of the old court for purposes of revision proceedings if that became necessary. A court-martial is dissolved only as a method of censure.

5. Withdrawing cases from old court. When a new court is appointed, care should be exercised to include in the appointing order a provision withdrawing from the old court charges previously referred to it and referring them to the new court--e.g.:

   "All unarraigned cases in the hands of the trial judge advocate of the SCM aptd by par. 8, SO 31, this Hq, 31 Jan 1944, are withdrawn from that court and are referred for trial to the trial judge advocate and the SCM herein aptd."

56. JURISDICTION IN GENERAL. In directing trial by inferior courts, consideration must be given to the jurisdictional limits of such courts with respect to persons, offenses, and punishments. A failure to recognize these limits may lead commanding officers to refer cases for trial by inferior courts-martial which the court is without power to try. In such cases the result is a void sentence which cannot be enforced.

57. JURISDICTION OF GENERAL COURTS-MARTIAL. General courts-martial have power to try any person subject to military law for any crime or offense made punishable by the Articles of War (AW 12) and upon conviction may, within certain limitations, punish such person at its discretion (par. 13, MCM). As to limitations on a court's discretion in imposing a sentence, see paragraphs 117 through 120, infra, and paragraphs 102 through 104, MCM.

58. JURISDICTION OF SPECIAL COURTS-MARTIAL.

    1. As to persons. Special courts-martial have power to try all persons subject to military law except "commissioned officers and persons of equivalent, relative or assimilated rank" (par. 14, MCM). Warrant officers, flight officers,and aviation cadets are, therefore, triable by special courts-martial. Both special and summary courts-martial have jurisdiction over civilians subject to military law, but that authority should not be exercised in this country without consent of the War Department.

    2. As to offenses. Any offenses not capital may be tried by special court-martial. A capital offense is any offense which the Articles of War expressly provide may be punished by death (AW 43). Thus, a sentinel who sleeps on his post in time of war in violation of AE 86, commits a capital offense because that Article provides that he shall "suffer death or such other punishment as the court-martial may direct." Since the offense is one which is expressly made punishable by death

by the Article of War defining it, the offense is capital. The following offenses are capital: desertion in time of war (AW 58); advising or aiding another to desert in time of war (AW 59); assaulting or willfully disobeying a superior officer (AW 64); mutiny of sedition (AW 66, 67); misbehaviour before the enemy (AW 75); and other war offenses (AW 76-81, 81-82); misbehavior of a sentinel in time of war (AW 86), including sleeping on post, drunk on post, or leaving post before regularly relieved; and murder or rape (AW 92). These capital offenses, except murder, rape, and spying (par. 14, MCM), may be tried by special court-martial if, but only if, prior to trial the officer exercising general court-martial directs the particular case to be so tried (AW 12, 13). For example, the commanding officer of a regiment cannot refer charges of sleeping on post in time of war (AW 86) to a special court-martial without express authority from the officer exercising general court-martial jurisdiction, i.e., the division commander. If he believes the case should be tried by a special court-martial, he must forward the charges to division headquarters. In such case, the division commander could in his discretion either refer the case for trial to a general or special court-martial appointed by himself, or return the charges to the regimental commander with authorization to try them by special court-martial. In event of trial of a capital case by special court-martial, the punishment that may be imposed is limited by AW 13 (par. 14, MCM). No capital case therefore, should be referred to such a court for trial unless it is clear that the punishment it has jurisdiction to impose is adequate under the circumstances. Nor does the power to try a capital case give it jurisdiction over persons otherwise not subject to trial by special court-martial, e.g., officers (AW 12, par. 14, MCM).
3. As to punishments. Special courts-martial have power to adjudge confinement of not more than 6 months, and forfeiture of two-thirds pay per month for not more than 6 months (AW 13). They may adjudge restriction to the limits, detention of pay, and hard labor without confinement, for not more than 3 months. They may also adjudge a reprimand, admonition, and reduction of a noncommissioned officer or private first class. They cannot adjudge death, dishonorable discharge of an enlisted man, or dismissal of an officer (par. 15, MCM).
59. JURISDICTION OF SUMMARY COURTS-MARTIAL.

    1. As to persons. Summary courts do not have jurisdiction over commissioned officers, warrant or flight officers, aviation cadets, master sergeants, first sergeants, or technical sergeants under any circumstances. They have jurisdiction over privates, privates first class, and noncommissioned officers below the grade of technical sergeant. Such noncommissioned officers, however, cannot be tried by summary court if they object, unless the trial is authorized by the officer exercising general court-martial jurisdiction over them (par. 16, MCM). For example, a regimental commander

could not refer charges against a corporal in his command to a summary court-martial over the corporal's objection. In such a situation the division commander (who exercises general court-martial jurisdiction) might authorize trial by summary court-martial, after which the regimental commander could refer the charges to such court. It should be noted that technicians are noncommissioned officers. Privates and privates first class can be tried by summary courts regardless of their objection.
2. As to offenses. Summary courts-martial have jurisdiction to try any offense not capital. They have no power to try a capital offense under any circumstances. For a discussion of capital offenses, see paragraph 58b, supra.

3. As to punishments. Summary courts-martial have power to adjudge confinement of not more than 1 month, restriction to limits for not more than 3 months, and forfeiture or detention of two-thirds of 1 month's pay (AW 14). The maximum amount of confinement and forfeiture (or of confinement and detention) may be imposed together in one sentence. Since confinement and restriction to the limits are both forms of deprivation of liberty, only one of these may be imposed in the maximum, amount in any one sentence (par. 17, MCM). Summary courts have power also to impose a reprimand or admonition and to adjudge reduction of noncommissioned officers or privates first class (par. 103d and e, MCM). They cannot adjudge death, dishonorable discharge of an enlisted man or dismissal of an officer (par. 103b, MCM).

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