The adoption of the proposed amendments in subdivision (11) and (12) will insure that the armed forces will have jurisdiction over both leased areas and areas otherwise reserved or acquired for the use of the United States and it will also insure that such jurisdiction is subject to the limitations imposed in any treaty or agreement to which the United States is or may be a party.

A sectional analysis of the bill is as follows:

Article 1. Definitions

SECTION I

The definitions in this article pertain only to this code. In the interest of economy of draftsmanship certain words, such as "The Judge Advocate General", have been given special meanings.

For the purpose of this code, the Marine Corps and, when operating as part of the Navy, the Coast Guard are considered part of the naval armed forces. The term "armed force" includes all components.

A provision as to masculine and feminine gender is unnecessary in light of 1 U. S. C., section 1. The contents of this article are derived from article of war 1, Navy Courts and Boards, appendix B–73, and 1 U. S. C., section 1 (1946).

Article 2. Persons subject to the code

Paragraph (1) is an adaptation of AW 2 (a). The term "inductees" has been added to make the paragraph consistent with section 12 of Public Law 759, "the Selective Service Act of 1948", Eightieth Congress, second session (June 24, 1948), which provides:

No person shall be tried by court martial in any case arising under this title unless such person has been actually inducted for training and service prescribed under this title * * *

Paragraph (2) is an adaptation of AW 2 (b). See article 1 for definitions of "cadet" and "midshipman".

Paragraph (3) is adapted from 34 U. S. C., section 855, and, in its present form, represents a committee amendment. It should be noted that before Reserve personnel can be subject to this code they must voluntarily accept written orders for inactive duty training which orders specify that they are subject to the code.

Paragraph (4) retains existing jurisdiction over retired personnel of a Regular component who are entitled to receive pay. It is based on 10 U. S. C., section 1023 and 34 U. S. C., sections 389 and 853d.

Paragraph (5) represents a lessening of jurisdiction over retired personnel of a Reserve component. Under existing law, the Navy retains jurisdiction over retired Reserve personnel since such personnel are on the same retired list as members of a Regular component. The Army has no such jurisdiction since retirement benefits for nonRegular officers are administered by the Veterans' Administration. This paragraph relinquishes jurisdiction over its Reserve personnel except when they are receiving hospitalization from an armed force. This standardizes jurisdiction of the armed forces over Reserve personnel.

Paragraph (6) perpetuates existing law.

Paragraph (7) is a slight modification of AW 2 (e). It follows article 5 (a) of the proposed revision of the Articles for the Government of the Navy by limiting applicability to those persons who are in the custody of the armed forces.

Paragraph (8) is based on 33 U. S. C., section 855 and 42 U. S. C., section 217. It provides jurisdiction over certain groups when such groups are serving with the armed forces.

Paragraph (9) is consistent with articles 45 and 64 of the Geneva Convention on Prisoners of War, 47 Stat. 2046, 2052 (July 27, 1929), in that the prisoners of war are subject to this code and thereby have the same right of appeal as members of the armed forces.

Paragraph (10) is taken from AW 2 (d). The phrase "in the field" has been construed to refer to any place, whether on land or water, apart from permanent cantonments or fortifications, where military operations are being conducted. (See in re Berue, 54 F. Supp. 252, 255 (S. D. Ohio 1944).)

Paragraphs (11) and (12) are adapted from 34 U. S. C., section 1201, but are applicable in time of peace as well as war. Paragraph (11) is somewhat broader in scope than AW 2 (d) in that the code is made applicable to persons employed by or accompanying the armed forces as well as those serving with or accompanying the armed forces, and the Territorial limitations during peacetime have been reduced to include Territories where a civil court system is not readily available. Personnel of the Coast Guard are subject to this code at all times as members of an armed force. Under existing law, Coast Guard personnel, when serving with the Navy, are subject to the Articles for the Government of the Navy. When not serving with the Navy, Coast Guard personnel are subject to the disciplinary code of the Coast Guard for minor offenses and to trial in the Federal courts for more serious offenses. This is not a desirable arrangement. Under this bill, the Coast Guard, when not serving with the Navy, will conduct its own courts martial for all types of offenses in accordance with the provisions of this code. When serving with the Navy, Coast Guard personnel will be tried under the provisions of this code by the Navy.

Article 3. Jurisdiction to try certain personnel

Subdivision (a) represents a committee amendment. Under existing law, the armed forces lose jurisdiction over military personnel who have been lawfully separated from service. This fact has been clearly established in the recent Federal court decision in the Hershberg case. Inasmuch as the Hershberg case involved an offense which was committed beyond the jurisdiction of our State and Federal courts, there is no tribunal which has any jurisdiction over the person or the offense. It is clearly apparent that some persons can escape trial by court martial by the mere lawful termination of service. This is not a desirable situation. On the other hand, it is desirable to place some limitations on continuing jurisdiction over persons who commit offenses while subject to military law and who terminate their military status before apprehension. In the opinion of the committee, the present provisions of this subdivision provide a desirable degree of continuing jurisdiction and at the same time place sufficient limitations on the continuing jurisdiction to prevent capricious actions on the part of military authorities.

Subdivision (b) is the statutory expression of the law as set out in the Manual for Courts Martial, paragraph 10, and Naval Courts and Boards, section 334. It differs from a similar provision in article 5 (a) of the proposed amendments to the Articles for the Government of the Navy in that it provides that a person who obtains a fraudulent dis

charge is not subject to this code for offenses committed during the period between the date of the fraudulent discharge and subsequent apprehension for trial by military authorities.

Subdivision (c) is prompted by Ex parte Drainier (65 F. Supp. 410 (ND Cal. 1946)), which held that a discharge from the naval service barred prosecution of a person for desertion from the Marine Corps prior to his enlistment in the Navy.

Article 4. Dismissed officer's right to trial by court martial

This article should be read in conjunction with the provisions being reenacted in section 10 of this bill. The right to trial will apply only in the case of a summary dismissal by order of the President in time of war (sec. 10 of this bill covers the provisions now found in AW 118 and AGN, article 36).

If the President fails to convene a court martial where there has been an application for trial, or if the court martial convened does not adjudge dismissal or death as a sentence, the procedure followed will be the same as that prescribed in article 75 (d), where a previously executed sentence of dismissal is not sustained on a new trial. This changes present statutory provisions. The change is made because of the doubt, expressed by Winthrop and other authorities on military law, as to the constitutionality of the present provision declaring that an order of dismissal, lawfully issued by the President, shall be void under certain circumstances. Under the proposed provision, it will be possible to achieve the same result-that of restoring the officer. No time limit has been set on when an application for trial must be submitted. The present statutory provision has been construed to require that the application be made within a reasonable time, which will vary according to circumstances. (See Winthrop, Military Law and Precedents, 1920 ed., p. 64; Digest of Opinions, Judge Advocate General of the Army, 1912-40, sec. 227.)

References: AGN, article 37; R. S., section 1230 (1875), 10 U. S. C., section 573 (1946).

Article 5. Territorial applicability of the code

This article reenacts the present Army provision. It is not in conflict with the provisions in article 2(11) and article 2(12) of this code, which make certain persons subject to the code only when they are outside the United States and also outside certain areas. The code is applicable in all places as to other persons subject to it. Previous restrictive provisions on this subject and the Articles for the Government of the Navy have given rise to jurisdictional problems which this language will correct.

Article 6. Judge advocates and legal officers

Subdivisions (a) and (b) are derived from AW 47a. There are no similar provisions in present Navy law. Subdivision (a) differs from AW 47a in order to make clear that the Judge Advocate General will not actually issue orders assigning judge advocates or law specialists but that the appropriate personnel divisions of the respective services will issue such orders in accordance with the recommendations of the Judge Advocate General.

The purpose of subdivision (a) is to place judge advocates and law specialists under the control of the Judge Advocate General. Subdivision (b) not only authorizes direct communication within military

justice channels, but also enhances the position of staff judge advocates. and law specialists by requiring direct communication between such officers and their commanding officers.

Subdivision (c), which is based on the sixth proviso of AW 11, is designed to secure review by an impartial staff judge advocate or legal officer.

Article 7. Apprehension

This article should be read in conjunction with articles 8-14, which codify and enact present practice as to apprehension and restraint of persons subject to the code.

Subdivisions (a) and (b) are new and relate in particular to military police. Subdivision (c) is derived from AW 68 and Naval Justice, chapter 6.

Article 8. Apprehension of deserters

This article, giving the authority to civil officers to apprehend military deserters, is derived from AW 106, 35 Stat. 622 (1909), and 34 U. Š. C., section 1011 (1946).

Article 9. Imposition of restraint

Subdivision (a) clarifies the meaning of certain terms used by the armed forces. In present Army and Air Force practice, "arrest" refers both to apprehension and to a type of restraint. In Navy practice, "close arrest" would fall within the definition of confinement. Subdivisions (b), (c), and (d) incorporate present Army and Navy practice. (See art. 97 for offense of unlawful detention.)

Subdivision (e) is included to provide for custody of persons apprehended until proper authority is notified.

Article 10. Restraint of persons charged with offenses

This article is derived from AW 69 and 70, and conforms to present naval practice. It provides the basis and degree for arrest or confinement of persons subject to this code. The provision as to notification of the accused is new.

Article 11. Reports and receiving of prisoners

This article is derived from AW 71 and 72. (See arts. 95-97 dealing with restraint.)

Article 12. Confinement with enemy prisoners prohibited

Present AW 16 could be interpreted to prohibit the confinement of members of the armed forces in a brig or building which contains prisoners of war. Such construction would prohibit putting naval personnel in the brig of a ship if the brig contained prisoners from an enemy vessel, even though segregation within the brig were provided. This article is intended to permit confinement within the same confinement facilities, but would require segregation.

Article 13. Punishment prohibited before trial

This article is derived from AW 16. The reference to article 57 clarifies the relation of this article to the effective date of sentences. AW 16 has been interpreted to prohibit the enforcement of any sentence until after final approval, even though the accused is in confinement after the sentence is adjudged. It is felt that a person who has been sentenced by a court martial and is in confinement which counts

charge is not subject to this code for offenses committed during the period between the date of the fraudulent discharge and subsequent apprehension for trial by military authorities.

Subdivision (c) is prompted by Ex parte Drainier (65 F. Supp. 410 (ND Cal. 1946)), which held that a discharge from the naval service barred prosecution of a person for desertion from the Marine Corps prior to his enlistment in the Navy.

Article 4. Dismissed officer's right to trial by court martial

This article should be read in conjunction with the provisions being reenacted in section 10 of this bill. The right to trial will apply only in the case of a summary dismissal by order of the President in time of war (sec. 10 of this bill covers the provisions now found in AW 118 and AGN, article 36).

If the President fails to convene a court martial where there has been an application for trial, or if the court martial convened does not adjudge dismissal or death as a sentence, the procedure followed will be the same as that prescribed in article 75 (d), where a previously executed sentence of dismissal is not sustained on a new trial. This changes present statutory provisions. The change is made because of the doubt, expressed by Winthrop and other authorities on military law, as to the constitutionality of the present provision declaring that an order of dismissal, lawfully issued by the President, shall be void under certain circumstances. Under the proposed provision, it will be possible to achieve the same result-that of restoring the officer. No time limit has been set on when an application for trial must be submitted. The present statutory provision has been construed to require that the application be made within a reasonable time, which will vary according to circumstances. (See Winthrop, Military Law and Precedents, 1920 ed., p. 64; Digest of Opinions, Judge Advocate General of the Army, 1912-40, sec. 227.)

References: AGN, article 37; R. S., section 1230 (1875), 10 U. S. C., section 573 (1946).

Article 5. Territorial applicability of the code

This article reenacts the present Army provision. It is not in conflict with the provisions in article 2(11) and article 2(12) of this code, which make certain persons subject to the code only when they are outside the United States and also outside certain areas. The code is applicable in all places as to other persons subject to it. Previous restrictive provisions on this subject and the Articles for the Government of the Navy have given rise to jurisdictional problems which this language will correct.

Article 6. Judge advocates and legal officers

Subdivisions (a) and (b) are derived from AW 47a. There are no similar provisions in present Navy law. Subdivision (a) differs from AW 47a in order to make clear that the Judge Advocate General will not actually issue orders assigning judge advocates or law specialists but that the appropriate personnel divisions of the respective services will issue such orders in accordance with the recommendations of the Judge Advocate General.

The purpose of subdivision (a) is to place judge advocates and law specialists under the control of the Judge Advocate General. Subdivision (b) not only authorizes direct communication within military