DEPOSITED BY THE UNITED STATES OF AMERICA

SEP 19 '49

COURT-MARTIAL ORDER NO. 5-1949

MAY 1949

A charge specifically delineating an offense should be preferred rather than a general charge.

In cases involving confinement at hard labor, accused is to be reduced to lowest rating of that branch of the service to which he belongs.

A general court martial convicted a steward apprentice of the charges of (I) "Unauthorized absence" (specification proved by plea); and (II) "Conduct to the prejudice of good order and discipline" (three specifications proved by plea). He was sentenced to reduction to the rating of seaman recruit, confinement for 24 months, a dishonorable discharge and accessories. The convening authority subject to remarks, approved the proceedings, findings and sentence, but reduced the period of confinement with corresponding accessories to 18 months and mitigated the dishonorable discharge to a bad conduct discharge.

The first specification under Charge II, "Conduct to the prejudice of good order and discipline," alleges that the accused "* * did wilfully, maliciously, and without justifiable cause, strike and bite one * stewardsman, U. S. Navy, and did therein and thereby then and there inflict * * * a wound about one inch and a half in length."

Inasmuch as the first specification under Charge II supports the specific charge, "Striking another person in the Navy" (N. C. & B., sec. 61), it should have been pleaded under that charge rather than under the general charge, "Conduct to the prejudice of good order and discipline." Since no objection was raised to the charge at the time of the trial, and the specification stated an offense which supported more properly another charge, set forth above, the substantial rights of the accused were not prejudiced by the failure to prefer the specification under the proper charge (N. C. & B., sec. 472; C. M. O. 3, 1947, 54).

The second specification under Charge II alleges that the accused * * did * wilfully, maliciously, and without justifiable cause, assault with a dangerous weapon, to wit, a butcher knife, stewardsman, U. S. Navy

one

*

The second specification under Charge II supports the specific charge, "Assaulting another person in the Navy" (N. C. & B., sec. 61) and should have been pleaded under that charge rather than under the general charge, "Conduct to the prejudice of good order and discipline." The same considerations that apply to the first specification under Charge II apply to the second specification. Conse quently, the substantial rights of the accused were not prejudiced by the failure to prefer the specification under the proper charge.

In addition to the foregoing, it is noted that the court, in its sentence, reduced the accused, who was a steward apprentice, to the rating of seaman recruit. In all cases involving confinement at hard labor, the accused is to be reduced to the lowest rating of that branch of the service to which he belongs (N. C. & B., sec. 622). The lowest rating of the branch of the service to which the accused belongs is steward recruit (Instructions for the Navy Personnel Accounting System (NavPers 15, 642, revised March 1946) and changes thereto; cf. C. M. O. 1, 1946, 22). Accordingly, so much of the sentence as involves reduction to the rating of seaman recruit was set aside. (File: MM-Grady, Ernest (n)/A17-20, 28 January 1949.)

A convening authority of a general court martial is without power to remit a summary court martial sentence he had previously approved as imme diate superior in command.

A general court martial convicted an accused of the charges of (I) "Breaking arrest" (specification proved by plea), and (II) "Desertion." He was sentenced to reduction to the rating of seaman recruit, confinement for a period of four and two-twelfths years, a dishonorable discharge and accessories. The convening authority set aside the findings on Charge I and the specification thereunder, and approved the proceedings, findings on Charge II and the specification thereunder, and the sentence, but reduced the period of confinement with corresponding accessories to 26 months.

One paragraph of the action of the convening authority is as follows:

The bad-conduct discharge awarded as a portion of the sentence of the summary court martial tried 28 May 1948, and approved by the Immediate Superior in Command 22 June 1948, is remitted. The record of proceedings of the summary court martial to which the convening authority of the instant case refers indicates that the convening authority of the summary court martial took his action on the record on June 17, 1948, and that the reviewing authority (immediate superior in command) acted on 22 June 1948. It is noted, moreover, that the convening authority in the instant case acted in the capacity of immediate superior in command with respect to the trial of the accused by summary court martial.

The convening authority in the instant case, although actually the same officer as the immediate superior in command with respect to

the prior summary court martial, was without power to remit in whole or in part the sentence of the summary court martial which he had previously approved. The Secretary of the Navy, however, as final reviewing authority may properly remit or mitigate the sentence should he deem such action advisable. Inasmuch as the convening authority of the general court martial has indicated the desirability of remitting the bad conduct discharge previously adjudged by summary court martial, his action was construed as a recommendation to that effect (C. M. O. 7, 1933, 11). (File: MM-Brenizer, James Louis/A17-20, 7 January 1949.)

Acknowledgment on transfer orders, which contain warning concerning consequences of non-compliance, does not establish that subsequent noncompliance was wilful.

A general court martial convicted an accused of the charges of (I) "Unauthorized absence" (two specifications, specification 1 proved by plea), and (II) "Conduct to the prejudice of good order and discipline." He was sentenced to reduction to the rating of seaman recruit, confinement for 18 months, a bad conduct discharge and accessories. The convening authority, subject to remarks, approved the proceedings, findings and sentence, but reduced the period of confinement with corresponding accessories, to 161⁄2 months.

The single specification under Charge II, "Conduct to the prejudice of good order and discipline," alleges that the accused received written orders at Great Lakes, Illinois, to proceed in a disciplinary status and in his own custody and to report not later than 1800, 8 October 1948, to his ship at Little Creek, Virginia, for duty and disciplinary action, and that the orders warned the accused that failure to comply therewith would constitute a charge of "Deliberate Disobedience of Orders and further Unauthorized Absence" and further that the accused failed to proceed and report as ordered and did therein and thereby wilfully disobey the said lawful order."

The evidence introduced by the prosecution to prove the specification set forth above consisted of the fact of unauthorized absence for a period of 18 hours and 20 minutes and the standard transfer order issued to the accused which contained the warning stated above and the written acknowledgement of the accused of the receipt of the orders and the warning. The accused took the stand in his own defense and testified that he did not intend to disobey the orders; that he missed train connections in Cincinnati through confusion and the erroneous advice of a conductor; that he attempted to turn in to the recruiting station in that city but found no one there that night; that he took the next train to Norfolk, Virginia, which was on his prescribed route; and that he turned in to the shore patrol immediately upon his arrival in Norfolk.

The evidence adduced by the prosecution failed to establish that the accused's non-compliance with his written orders was wilful, an essential element of the offense (N. C. & B., sec. 47). While the accused's acknowledgment on his orders amounted to a warning as to the possible consequences of non-compliance, it did not establish that the subsequent non-compliance was wilful (C. M. O. 8, 1948, 238). In addition, the uncontroverted evidence in this case shows that the accused's absence was of short duration; that he surrendered voluntarily; and that he was on his prescribed route at the time of surrender. Accordingly, the findings on Charge II and the specification thereunder, and the action of the convening authority thereon, were set aside.

Since the accused stands convicted of two specifications under Charge I, the sentence as mitigated by the convening authority, in view of the foregoing action, is in excess of the maximum punishment prescribed by Naval Courts and Boards, section 457. Accordingly, so much of the confinement, with corresponding accessories, as exceeds twelve months and twenty-one days, and the action of the convening authority thereon, were set aside. (File: MM-Hollen, Robert Lear/ A17-20, 3 March 1949.)

Although a precept for a general court martial appoints two judge advocates, only one may act as such at any one time.

In a general court martial case it was noted by this office that the precept named First Lieutenant C A. R- U. S. Marine Corps, and Lieutenant (junior grade) F- O. M- Supply Corps, U. S. Navy, as judge advocates. The record of proceedings indicates that both of these officers acted and signed the record as judge advocate. The convening authority may appoint one or more judge advocates, either of whom is authorized to act as such (N. C. & B., sec. 542, n. 12). Where it is deemed advisable that a judge advocate be afforded assistance in the conduct of a case, Sections 355, 385, and 548 of Naval Courts and Boards provide that counsel may be appointed by the convening authority, but it is not contemplated in general court martial proceedings that there be more than one judge advocate to act at any one time (C. M. O.'s 3, 1944, 439; 2, 1925, 9). Since a properly designated judge advocate acted in the case and no objection was raised to this irregular procedure, the rights of the accused were not prejudiced. (File: MM-Barbrick, Howard C./A17-20, 12 January 1949.)

An additional charge is to be preferred only when intelligence of the offense contained therein had not reached the convening authority at the time the original charge and specification were preferred.

The record of proceedings in a general court martial case shows that an accused was acquitted of "Theft," and convicted of the

Additional Charge, “Unauthorized use of a vehicle of another." He was sentenced to reduction to the rank of private, confinement for a period of 12 months, a bad conduct discharge and accessories. The convening authority, subject to remarks, approved the proceedings, findings and sentence, but reduced the period of confinement with corresponding accessories to eight months and six days.

The charge of "Theft" was preferred on 16 June 1948 and the additional charge on 16 July 1948 prior to the commencement of the trial. In the order preferring the additional charge and specification, the convening authority did not state that intelligence of the additional offense did not reach him until after the preferring of the original charge and specification (see Art. 43, A. G. N., and N. C. & B., sec. 552). It is apparent from the face of the pleadings that the offense alleged in the single specification of the original charge and that alleged in the single specification of the additional charge arose out of the same set of circumstances, to wit, the taking and use by the accused of a motorcycle belonging to another without the consent of the owner (see C. M. O. 7, 1945, 295).

Counsel for the accused objected to the additional charge and the specification thereunder on the ground that the convening authority had knowledge of the additional offense at the time he preferred the original charge, and consequently was barred from ordering trial on the additional charge by Naval Courts and Boards, section 21, and applicable Court Martial Orders, citing particularly Court Martial Order No. 1, 1942, page 73. The court overruled the objection. Article 43, Articles for the Government of the Navy, provides:

The person accused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; and no other charges than those so furnished shall be urged against him at the trial, unless it shall appear to the court that intelligence of such other charge had not reached the officer ordering the court when the accused was put under arrest

It is obvious, from the pleadings as well as the failure of the convening authority to state in his order for trial on the additional charge and specification that he did not have knowledge of the additional offense at the time he preferred the original charge and specification, that he did have such knowledge. The court, therefore, erroneously overruled the objection of the accused (C. M. O.'s 11, 1947, 357; 5, 1947, 93; 7, 1945, 295). Under the circumstances of this case, there was no authority for preferring the additional charge and specification. Accordingly, the findings on the additional charge and the specification thereunder, and, in view of the acquittal on the original charge, the sentence, and the action of the convening authority