Chapter 6.
Action Upon Charges
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IN GENERAL. The charges and allied papers are forwarded to the
officer exercising summary court-martial jurisdiction over the organization--for
example, the regimental or post commander--who will be
referred to in this chapter as the "commanding officer." It is his task to
see that the charges are properly disposed of. The various types of
action he can take are discussed in the following paragraphs.
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DISMISSAL OF CHARGES AND ACTION UNDER AW 104.
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Dismissal. Upon examination of the charges, he may decide that all or some of them
do not warrant further action because they are trivial, do not constitute
any offense or because there are sound reasons for not punishing the accused
for such offenses. If so, he may dismiss all or part of the charges.
If he wishes to dismiss all of the charges, he normally will return the
charge sheet and allied papers to the accuser by indorsement on the letter
of transmittal (if any) or by separate communication, stating that no
action appears warranted. If he wishes to dismiss only some of the specifications
or charges, he will draw lines through such specifications or
charges and initial them.
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Action under AW 104. He has the same obligation and authority
as the immediate commanding officer of the accused to make use of disciplinary
punishment under AW 104
if such punishment is appropriate.
If, therefore, any of the offenses charged are "minor" offenses which can
be adequately punished under that article, he will, unless trial is demanded,
line out the specification or charge alleging that offense and have appropriate
disciplinary punishment imposed. Although he may himself impose
the punishment, normally the matter should be referred back to the
immediate commanding officer of the accused for action. The procedure
to be followed in imposing disciplinary punishment under
AW 104 is
in chapter 3, supra.
Of course, if the accused demands trial, disciplinary
punishment cannot be imposed. In such case the charge must
be either dismissed or tried.
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Renumbering of charges and specifications. Where some charges
and specifications are dismissed or disposed of under
AW 104, the remaining
charges and specifications may require renumbering. Thus, if there
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were two charges, with one specification under Charge I and three specifications
under Charge II, and the commanding officer struck out Charge I
and its specifications and also Specification 1 of Charge II, all that would
be left would be a single charge with two specifications under it. Therefore,
the Numeral II should be stricken out after the Charge and the
specifications should be renumbered 1 and 2. In such case it would be
necessary to change the numerical designations of the charge and specifications
appearing in the affidavit on the charge sheet to correspond to this renumbering.
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MAKING CHANGES AND CORRECTIONS IN CHARGES. If the commanding
officer decides that trial by court-martial is necessary on all or
some of the charges, he should, before referring them to trial, have the
charges carefully examined to determine that they are properly signed
and sworn to, free from defects of form or substance, and that they properly
set out an offense under the Article of War alleged. If any errors or
omissions are discovered in the charge sheet or allied papers, relating to
formal matters, such as data as to service, previous convictions, etc., corrections
should be made or the missing data supplied. If the charges and
specifications themselves contain obvious errors, corrections may be made,
or the charges and specifications may be redrafted without sending the
charges back to the accuser, provided that the correction or redraft does
not involve any substantial change or include matters not already fairly
included. Where corrections or changes are made, they must be initialed
by the officer making them. If a specification sets out all the elements
of an offense, but is carelessly drawn, its wording can be changed to
conform to the appropriate form in
appendix 4, MCM. Or if, for example,
a specification and charge allege larceny in violation of
AW 93,
the specification can be redrafted to allege wrongful taking, and the charge
changed to allege a violation of
AW 96, since that offense is fairly
included in the original charge. This change can be made by striking out
the necessary words and figures and substituting new ones, or by retyping
the entire specification and charge. However, the specification could not
be redrafted over the accuser's signature to allege larceny of different or
additional property, or to charge embezzlement rather than larceny.
Such redrafting would result in charging new matters to which the
accuser has never sworn. If such a change is necessary, new charges must
be prepared and signed and sworn to either by the original accuser or
some other authorized person.
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REFERENCE TO TRIAL BY INFERIOR COURT.
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Policy. Having determined
that trial by court-martial is warranted, the commanding officer
must decide to what type of court-martial the charges should be referred.
The Manual for Courts-Martial provides that "charges, if tried at all,
should be tried by the lowest court that has power to adjudge an appropriate
and adequate punishment"
(par. 34, MCM). The first question
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to be determined then is whether a summary court has jurisdiction to
try the accused and the offense in question, and if so, whether the punishment
it has power to impose is adequate and appropriate for the offense.
If the case cannot adequately be disposed of by summary court, then
consideration must be given to referring it to a special court-martial.
In this connection, the jurisdictional limits of summary and special courts-martial,
discussed in chapter 8, infra,
should be considered. Trial by
general court-martial should be the exception, not the rule. Charges
against an enlisted man should not be referred to general court-martial
unless the offense is so serious that only a general court-martial has power
to adjudge an adequate sentence or unless the accused should be dishonorably
separated from the service because he is unsuitable to associate
with other enlisted men.
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Procedure. If the charges are to be referred to a summary or special
court-martial the 1st indorsement on page 3 of the charge sheet
should be completed and signed by the adjutant on each of the three
copies. The charge sheets, together with the allied papers, will then be
transmitted to the summary court officer or trial judge advocate of the
special court-martial as the case may be.
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FORWARDING CHARGES TO AUTHORITY HAVING GENERAL COURT-MARTIAL
JURISDICTION.
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Reference to investigating officer. If the
commanding officer decides that trial by general court-martial is required,
the charges must be formally investigated in compliance with
AW 70
before being forwarded to superior authority
(par. 30c, MCM). A
formal investigation under AW 70
is not required before charges are
referred to inferior courts-martial for trial
(AW 70;
par 30c, MCM),
although the commanding officer may have any charges investigated
before deciding how to dispose of them. Such action would be proper
if he were doubtful as to the nature of the offense, the appropriateness
of the charges or the type of inferior court to which they should be
referred. However, he should not unduly delay trial by requiring investigations
in the usual case of minor offenses. The purpose and procedure
of an investigation under AW 70
is discussed in chapter 7, infra.
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Action after investigation. On the basis of the investigating officer's
report, the commanding officer may conclude that his initial decision
to recommend trial by general court-martial was not sound and that it
would be better to dismiss the charges, dispose of them under
AW 104
or refer them to an inferior court. He would accordingly take such of
those actions as was indicated. If, however, he still believes that trial
by general court-martial is warranted, he will forward the charges, allied
papers and the investigating officer's report to the authority having
general court-martial jurisdiction over the command. Unless he has
been otherwise directed, all three copies of the charge sheet and other
papers will be forwarded. Usually he will forward the charges by
indorsement on the letter of transmittal. He must include in the indorsement,
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or other communication, his recommendation as to trial. The
indorsement or letter should be personally signed by the commanding
officer and not by his adjutant. (See
app. 2, p. 179 infra.)
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Forwarding charges where general court-martial not recommended.
The commanding officer may believe that trial by an inferior court is
adequate, but he may have no power to refer the charges to such a
court. For example, he is without authority to refer a capital case to
a special court-martial (par. 58b, infra),
or to refer charges against a
noncommissioned officer to a summary court over his objection. (See
par. 59a, infra.)
In such cases trial by the inferior court in question
can be authorized only by the authority having general court-martial
jurisdiction. The commanding officer, therefore, would forward the
charges to the authority having general court-martial jurisdiction, recommending
trial by special or summary court, as the case may be.
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Action by officer exercising general court-martial jurisdiction.
AW 70 and
paragraph 35b, MCM,
require the authority having general
court-martial jurisdiction to consider the advice of his staff judge advocate,
based on all the information relating to the case which is reasonably
available, before he orders trial by general court-martial. This
requirement for examination of the charges by a trained military lawyer
safeguards the substantial rights of the accused and protects him against
trial on unfounded or relatively minor offenses by a general court-martial
and insures adequate preparation and investigation of each case. The
staff judge advocate rechecks the charges and accompanying papers to
ascertain that all necessary data appear on their face, that they have
been properly investigated and that there is sufficient evidence to warrant
trial. Just as the "commanding officer" may correct errors and
redraft charges and specifications over the signature of the accuser,
provided no substantial change is made and no matter not fairly included
in the original charges is added (par. 36, supra), so the staff judge advocate
may make similar corrections and changes. If the investigation
has been inadequate or is incomplete, he may recommend that the charges
be sent back for further investigation. He must make a written report
to the officer exercising general court-martial jurisdiction as to the kind
of trial, if any, which should be had, taking into account the nature of
the offenses charged, the circumstance surrounding them, the age, character,
length of service, and former convictions of the accused, and policies as
to trial by inferior court. (See app. 2, p. 178
infra for an example of such
a report.) In addition to reference to a general court-martial for trial,
he may recommend, and the appointing authority may take, any of the
actions which the commanding officer could have taken--e.g. dismissal
of any charge or specification, disposition under
AW 104, or reference
to an inferior court. Normally if disposition under
AW 104 or trial
by an inferior court is deemed proper, the charges will be returned to the
commanding officer who forwarded them, with directions to take such
action. If trial by general court-martial is decided upon, the charges
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will be referred to the trial judge advocate of that court by completion
of the first indorsement on the charge sheet.
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SUSPECTED INSANITY. If there is reason to believe that the accused
is mentally defective or was so at the time the offense was committed,
steps should be taken to settle the question before charges are referred
to trial. The matter should be referred to a board of one or more
medical officers for its opinion on three questions: (1)whether both at
the present time and at the time the offense was committed the accused
knew the difference between right and wrong, 92) whether he had the
capacity to keep from doing wrong, and (3) whether at the present
time he has the mental ability to understand the nature of the proceedings
against him and to do what is necessary to present his defense. To
determine these questions the board should place the accused under observation,
examine him and conduct such further investigation as it thinks
necessary. Its report, in an nontechnical language as possible, should
state its opinion specifically on these questions. On the basis of this
report, further action on the charges may be suspended or the charges
dismissed, proceedings may be taken to discharge the accused from the
service on the ground of mental disability,or the charges may be referred
to trial. Both the commanding officer who first received charges
and higher authority to whom the charges are forwarded have authority
to have the accused examined by a board of medical officers.
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SUGGESTED TIME STANDARD FOR DISPOSITION OF CHARGES. There
is no prescribed period of time within which charges must be preferred
and the various steps in the trial of a case taken and completed. Normally,
however, the following time periods can be observed without any
sacrifice of thoroughness or fairness. In most cases it should be possible
to prefer charges within 48 hours after an offense is known to have been
committed. If such charges are to be tried by a summary court, the
case should be tried and completed within 3 days after the charges are
preferred. In special court-martial cases, the charges should be referred
for trial, the trial had and the record completed within 7 days after the
charges are preferred. In general court-martial cases, the charges should
be investigated within 48 hours after they are preferred, should be sent
to the officer exercising general court-martial jurisdiction within 24 hours
after completion of the investigation and should be referred for trial
within 48 hours after receipt by the officer exercising general court-martial
jurisdiction. After being so referred they should promptly be
served on the accused, but, except where military necessity demands it,
the accused should not be brought to trial on those charges before a
general court-martial within 5 days after such service unless he consents
thereto. There will, of course, be many cases in which for good reasons
compliance with this suggested standard will not be possible. However,
this standard should be the rule, and departure from it the exception.
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