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charges. All reasonably available documentary evidence (originals or admissible copies) will be forwarded with the charges unless, on account of the bulk of such evidence or for other good reason, it is inadvisable to do so. Any articles, weapons or bulky items which may be useful as exhibits should be properly marked, preserved and referred to in the letter of transmittal with a statement as to where they may be found.

33. ACTION BY COMMANDER EXERCISING IMMEDIATE JURISDICTION UNDER ARTICLE 104. If punishment under Article 104 is appropriate for any offense alleged, he will so dispose of it. Specifications and charges thus disposed of will be lined out and initialed. Charges not so disposed of should be carefully examined to insure that they are complete and correct in form and properly signed and sworn to by a person subject to military law, and to insure that they are supported by the summary of evidence supplied by the accuser. If charges or specifications have been disposed of under Article 104, the remaining charges and specifications will be renumbered, if appropriate.

As to offenses for which punishment was not imposed under Article 104, he will proceed as follows: He will attach to the charges any available admissible evidence of previous convictions (79c) which in the case of soldiers is usually in the form of an extract copy of the pertinent entries in the service record; enter on the form any required data that are missing, (App. 3); correct any errors in such data, initialing the corrections; and take appropriate action with respect to the restraint of the accused. See 19. He will make no corrections or changes on the charges themselves. He will make or cause to be made an investigation of the charges sufficient to enable him to take appropriate action. The report of such investigation will be informal or formal, depending on whether the case will probably be disposed of by the officer exercising summary court-martial jurisdiction. The report will accompany the charges. He may act under Article 104 after the investigation.

34. ACTION BY OFFICER EXERCISING COURT-MARTIAL JURISDICTION-a. General. He will act under Article 104 with reference to offenses for which such disposition is proper. Specifications and charges thus disposed of and specifications and charges which

are dismissed as trivial or for other reasons (see next subparagraph) will be lined out and initialed. The remaining charges and specifications will be renumbered, if appropriate.

b. Dismissal of charges. He may decide that all or some of the charges do not warrant further action because they are trivial, do not state offenses, are unsupported by available evidence, or because there are other sound reasons for not punishing the accused with respect to the acts alleged. If so, he may dismiss all or part of the charges. Dismissal of charges may be accomplished by return to the accuser of the charge sheet with appropriate notation, or by similar informal action.

c. Alterations. Charges forwarded or referred for trial and the accompanying papers should be free from defect of form or substance, but delays incident to the return of papers for correction of defects which are not substantial will be avoided. Obvious errors may be corrected and the charges may be redrafted over the signature of the accuser, provided the redraft does not involve any substantial change or include any person, offense, or matter not fairly included in the charges as preferred. Corrections and redrafts should be initialed by the officer making them. If a substantial change is made new charges should be signed and sworn to by an ac

cuser.

d. Investigations. He will make or cause to be made any necessary investigation but will not investigate charges signed by himself if another officer is available. If the charges were investigated pursuant to 35 and Article 46b before reaching him, another investigation need not be made unless there is reason to believe that further investigation would aid in the administration of justice. If as a result of an investigation a more serious or essentially different offense is charged, he should direct a new investigation to afford the accused an opportunity to exercise the privileges afforded him by 35a and Article 46b with respect to the new or different matters alleged. For example, if charges of absence without leave are changed to desertion, or charges of larceny to robbery, the amended charges will be investigated anew.

e. Policies generally applicable. With due regard to the policies of the Department of the Army and other superiors

and subject to jurisdictional limitations, charges, if tried at all, should be tried by the lowest court that has power to adjudge an appropriate and adequate punishment. In this connection see 14 as to the authority to cause a capital case to be tried by special court-martial. The objections to referring charges for a serious military offense, such as desertion, to an inferior court should be considered. Further, it should be observed that the retention in the Army of thieves and persons guilty of other offenses involving moral turpitude injuriously reflects upon the good name of the service and its self-respecting personnel. Ordinarily a specification as to which the statute of limitations apparently may be successfully pleaded should not be referred for trial.

f. Delays. Action will be taken promptly in every case. For the penalties for delay, see 26 and Article 70. When a person is held for trial by general court-martial the commanding officer will within eight days after the accused is arrested or confined, if practicable, forward the charges to the officer exercising general court-martial jurisdiction and furnish the accused a copy of such charges. If the same is not practicable, he will report to superior authority the reasons for delay (A. W. 46c).

g. Forwarding; reference for trial. Charges referred for investigation or trial or forwarded should be accompanied by the related papers and any available evidence of previous convictions. When charges are forwarded a recommendation as to disposition of the case, signed by the forwarding officer, will be included. A commanding officer should take into consideration the character and prior service of the accused in deciding upon his action or recommendation in desertion cases and in other cases involving offenses of a purely military nature. He should not hesitate in a proper case to recommend restoration to duty. The usual form of indorsement referring charges for trial is shown on the form of the charge sheet (App. 3). The signed indorsement referring charges will be on the original sheet and may include any proper instructions; for instance, a direction that the charges be tried with certain other charges against the accused, or in a common trial with other persons, or that a capital case for which the death penalty is not mandatory be treated as not capital (14 and A. W. 25).

h. Special and summary courts-martial. If a case involving an offense punishable by bad conduct discharge (117c) is referred for trial to a special courtmartial, the appointing authority may direct by his signed indorsement that it be tried without a reporter (46) if the interest of the service does not appear to require that a bad conduct discharge be adjudged. If the only officer present with a command decides to try the charges as a summary court-martial no indorsement is required.

i. Common trial. If two or more persons commit an offense or offenses which, although not jointly committed (27), are committed at the same time and place and are provable by the same evidence, the appointing authority may in his discretion direct a common trial for such offenses only. Offenses which are not closely related should not be tried in a common trial, notwithstanding the fact that some other offenses with which each accused is charged may be closely related. Thus where A and B are each charged with larcenies which were committed at the same time and place, and B is also charged with an assault with intent to rob alleged to have been committed several days later, the assault specification against B should not be tried in a common trial, although the charges of larceny may properly be tried at such a trial.

35. INVESTIGATION OF CHARGES; REFERENCE TO STAFF JUDGE ADVOCATE; SUSPECTED INSANITY-a. Investigation of charges-Introductory Statement. No charge will be referred to a general court-martial for trial until a thorough and impartial investigation thereof has been made in compliance with Article 46b. The officer appointed to make an investigation should be a mature officer, preferably a field officer or one with legal training and experience. Neither the accuser nor any officer who is expected to become a member of the prosecution or defense upon possible trial of the case will be designated as investigating officer.

In conducting the investigation, the investigating officer will comply with Articles 46b and 24.

The purpose of the investigation required by Article 46b is to inquire into the truth of the matters set forth in the charges, the form of the charges, and to secure information upon which to determine what disposition should be made of

the case. It is not the function of the investigating officer to perfect a case against the accused, but to ascertain and impartially weigh all available facts in arriving at his conclusions. He is required to conduct a thorough and impartial investigation, and is not limited to the examination of witnesses and documentary evidence listed on the charge sheet. He should extend his investigation as far as may be necessary to make it thorough. The investigation should be dignified and military, as brief as is consistent with thoroughness and fairness, and limited to the issues raised by the charges and to the proper disposition of the case. Any failure to comply substantially with the requirements of Article 46b which results in prejudice to the accused's substantial rights at the trial— such as a denial of a reasonable opportunity to secure material witnesses for use at the trial or of an opportunity to prepare his defense-may require a delay in disposition of the case or disapproval of the proceedings. See 70c. Similarly

a failure to comply with the provisions of Article 24 may result in a miscarriage of justice.

The remainder of this paragraph (35a) is intended primarily to indicate a proper procedure in the usual cases. Variations to meet the circumstances of other cases or exceptional or local conditions, or for any other good reasons, are not only permissible but should be adopted, provided the spirit and purpose of the statutory requirements referred to above are observed and carried out.

Instructions. At the outset of the investigation the accused will be informed of the following: The offense charged against him; the name of the accuser and of the witnesses against him as far as then known by the investigating officer; the fact that charges are about to be investigated; his right to have counsel represent him at the investigation if he so desires, as provided in Article 46b; his right to cross-examine witnesses if they are available and to present anything he may desire in his own behalf, either in defense or mitigation; his right to have the investigating officer examine available witnesses requested by him; his right to make a statement in any form, but that he is not required to make any statement regarding the offense of which he is accused or being investigated, and that any statement he may make may be used as evidence against him in a trial by court-martial.

If the accused requests to be represented by counsel, the investigating officer will promptly report the accused's request to the officer who referred the charges for investigation. The latter will take the following action:

(1) If the accused requests civilian counsel of his own selection, he will give the accused a reasonable opportunity to obtain such civilian counsel without unduly delaying the investigation, but such counsel will not be provided at government expense.

(2) If the accused desires military counsel of his own selection, and if such military counsel is reasonably available within the command, he will provide such military counsel. If such counsel is not under the command of the officer who referred the charges for investigation that officer will take prompt action to ascertain the availability of the requested counsel and, if available, to obtain his services without unduly delaying the investigation. See second subparagraph of 45a.

(3) If counsel is not provided as indicated in (1) or (2) above, and if the officer who ordered the investigation is the officer exercising general court-martial jurisdiction over the command, he will detail a qualified officer to represent the accused as counsel at the investigation; otherwise he will forward the accused's request directly and expeditiously to the officer exercising general court-martial jurisdiction over the command, who will promptly designate and provide such counsel.

If practicable, charges must be forwarded to the officer exercising general court-martial jurisdiction within eight days after an accused is arrested or confined (A. W. 46c). The investigation should be conducted promptly, while the events are fresh in the minds of witnesses. An investigation will not be delayed if the accused is unable to provide civilian counsel of his own selection within a reasonable time after having been given an opportunity to obtain such counsel.

The principles stated in the first, fourth, fifth, ninth and tenth subparagraphs of 45b apply equally to the counsel at the investigation. Whenever counsel is requested by accused the investigation will be conducted in the presence of such counsel unless the accused expressly excuses his counsel.

All available witnesses, including those requested by the accused, who appear to be reasonably necessary for a thorough and impartial investigation will be called and examined in the presence of the accused, and if counsel has been requested, in the presence of the accused and his counsel. Ordinarily application for the attendance of any witness subject to military law will be made to the immediate commanding officer of the witness. The decision of the officer exercising summary court-martial jurisdiction over the command to which the witness belongs is final as to availability. There is no provision for compelling the attendance of witnesses not subject to military law or the law of war, or for paying any witness. Although exceptions may be made by the investigating officer, he will ordinarily require witnesses who are examined during the investigation to sign and swear to the truth of the substance of their statements after they have been reduced to writing. If material witnesses on behalf of the accused or the prosecution are not reasonably available, and if it appears that they may not be available at the time of trial, the investigating officer should initiate action with a view toward obtaining necessary depositions. See 30, 106, and Article 25.

When the investigating officer makes known to the accused the substance of the testimony expected from a witness as ascertained from a written statement of the witness, interview with the witness, or other similar means, and the accused states that he does not desire to crossexamine such witness, the witness need not be called even if available. When a witness requested by the accused is available, such witness need not be called if the accused withdraws his request upon being informed that the testimony expected by the accused from such witness will be regarded as having been actually taken.

To the extent required by fairness to the Government and the accused, documentary evidence and statements of witnesses who are not available will be shown, or the substance thereof will be made known, to the accused and to his counsel if counsel has been requested.

Whenever it appears that the case may be disposed of by reference to a general court-martial for trial, a formal report of investigation will be made. For a form of report see Appendix 12. Although previously prepared forms may be used, special care should be exercised

to insure that the use of forms of report of investigation does not result in perfunctory or inaccurate certifications of compliance with the requirements of this paragraph (35a). Unless otherwise indicated by him, the submission of his report by an investigating officer will be regarded as a statement that to the best of his knowledge and belief the investigation of the matters set forth in the charges was made in substantial conformance with all requirements, the matters set forth in the charges as to which he recommends trial are true, and such charges are in proper form.

A formal report by indorsement or letter will include, or carry as inclosures or by reference to other papers returned or submitted by him with the report:

First: A statement of the name, organization, or address of counsel and information as to the presence or absence of counsel throughout the proceedings in all cases in which counsel has been requested by the accused.

Second: A statement of the substance of the testimony taken on both sides, including any stipulated testimony, e. g., where accused withdraws a request for a witness upon being told that the testimony expected would be regarded as taken.

Third: Any other statements, documents, or matters considered by him in reaching his conclusions or making his recommendations, or recitals of the substance or nature of such items.

Fourth: A statement of any reasonable ground for the belief that the accused is or was at the time of an offense mentally defective, deranged, or abnormal. The recommendation of the investigating officer as to what disposition should be made of the case.

An informal report according to circumstances or instructions of superior authority made in cases in which it does not appear that the case will be disposed of by reference for trial by general court-martial, may be made orally or by a brief memorandum indorsement, notations on the charge sheet, or other suitable means, and, however made, need include in abbreviated form only the first, second, and fourth items of the formal report, but the sources of any material evidence for either side which were not shown in the papers received by the investigating officer should be reported.

b. Reference to staff judge advocate. Before directing the trial of any charge by general court-martial the convening authority will refer it to his staff judge advocate for consideration and advice; and no charge will be referred to a general court-martial for trial unless it has been found that a thorough and impartial investigation thereof has been made as prescribed in Article 46b, that such charge is legally sufficient to allege an offense under the Articles of War, and is sustained by evidence indicated in the report of investigation (A. W. 47b).

Subject to the provisions of this paragraph (35b), reference to a staff judge advocate will be made and his advice submitted in such manner and form as the appointing authority may direct; but the appointing authority will at all times communicate directly with the staff judge advocate in matters relating to the administration of military justice (A. W. 47a).

The advice of the staff judge advocate shall include a written and signed statement as to his findings with respect to substantial compliance with the provisions of Article 46b, the legal sufficiency of the charge under the Articles of War, whether the charge is sustained by evidence indicated in the report of investigation, and shall include a signed recommendation of the action to be taken by the appointing authority. Such recommendation will accompany the charges if referred for trial. See 41d.

c. Suspected insanity. For action to be taken when it is suspected that accused lacks mental capacity or that he was not mentally responsible at the time of the offense charged see 111.

Chapter VIII-Members of CourtsMartial

APPOINTMENT CHANGES IN PERSONNELMEMBERS-PRESIDENT-LAW MEMBER

36. APPOINTMENT. See 4-6, inclusive, for various matters relating to the appointment of courts-martial, including the detail of a law member, and the appointment of a trial judge advocate, defense counsel, and assistants.

For forms of appointing orders see Appendix 2.

37. CHANGES IN PERSONNEL. It is within the discretion of the appointing authority to make changes in the personnel appointed or detailed by him; for in

stance, he may detail new members or a new trial judge advocate. These changes are usually accomplished by promulgation of formal written amending orders. If the need arises for a change by oral order, the oral order should be confirmed by written orders. For forms of amending orders see Appendix 2. Amending orders should be kept to a minimum.

In appointing a new court, the old court should not be dissolved nor the order appointing the old court rescinded or revoked for the reason that it may be necessary that the old court be reconvened.

When a general court-martial is appointed to sit at a post, camp, station or subordinate command at a distance from the officer exercising general courtmartial jurisdiction, and the personnel of the court are selected from such post, camp, station or subordinate command, the commanding officer of the installation or subordinate command should transmit timely recommendations to the appointing authority as to the availability of members of his command (as affected by leave, reassignment, relief from active duty, or other matters) to act as personnel of any court to which they have been or may be detailed.

38. MEMBERS-a. Duties in general; oath. Members of courts-martial hear the evidence, determine the guilt or innocence of the accused and, if the accused is found guilty, adjudge a proper sentence. See in this connection 78, 80, 81. Each member of the court is sworn to determine the case "according to the evidence" and "without partiality, favor or affection" (A. W. 19). See 103 and Article 19 as to oath of members.

If before trial it appears to a member that he should not sit on the court, either at all or in a particular case, for reasons enumerated in 58e or for other reasons that might not otherwise come to the timely attention of the appointing authority, he will take appropriate steps to bring the matter to the attention of the appointing authority.

Each member has an equal voice and vote with other members in deliberating upon and deciding all questions submitted to a vote or ballot, neither the president nor the law member having any greater rights in such matters than any other member.

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