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. S. 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

against the sentence should not draw full pay for the period between the date of sentence and the date of final approval.

The provision as to the rigor of restraint is derived from present Army and Navy practice. The article also makes clear that a person being held for trial may be punished for offenses not warranting trial by court martial.

References: AW 16, MCM, paragraph 19, and Naval Justice, page 78.

Article 14. Delivery of offenders to civil authorities

Subdivision (a) perpetuates present Navy practice. The present Army practice was adopted at a time when the Army did not have authority to try its personnel for civil offenses in time of peace, so that if a man were not delivered up he would not be tried at all. Since the armed forces now have such authority, the mandatory feature of AW 74 is felt to be unnecessary. Under the Navy practice, which has worked very satisfactorily, the Secretary of the Navy has given broad authority to commanding officers to effect delivery of enlisted personnel to civil authorities without reference to the Navy Department. (See Alnav 145, June 26, 1947.)

Subdivision (b) adopts present Army practice.

Attention is invited to the provisions in appendix C, Naval Courts and Boards, which deal with the procedure for delivering offenders, and related matters. It is contemplated that these matters will be governed by uniform regulations for the armed forces.

Article 15. Commanding officer's nonjudicial punishment

This article is a combination and revision of AW 104 and article 14 of the proposed amendments to the Articles for the Government of the Navy. The punishments authorized by these two provisions are combined in subdivision (a), while subdivision (b) empowers the secretary of the department to place limitations on their imposition. As originally drawn, this article would have permitted confinement for not to exceed 7 days or confinement on bread and water or diminished rations for not to exceed five consecutive days as punishment for disciplinary offenses. The committee is of the opinion that neither of these two types of punishment is appropriate disciplinary punishment ashore. On the other hand, it is recognized that the very nature of naval operations at sea may make these two types of punishment desirable. The committee has amended these provisions, (a) (2) (E) and (F), in accordance with this decision.

The bill originally provided for a forfeiture of an officer's pay of not to exceed 50 percent per month for 3 months, (a) (1) (C), and forfeiture of one-half of an enlisted person's pay for not exceeding 1 month. The committee is of the opinion that a 50 percent forfeiture for 3 months is an excessive penalty for disciplinary infractions by officers and has accordingly reduced the period from 3 months to 1 month. The committee is also of the opinion that the forfeiture of pay in any amount is improper and accordingly has stricken (a) (2) (G) from the bill. In view of these amendments, it is not considered likely that the Secretary of a Department will find it necessary to restrict the types of punishment which are authorized under this article.

Subdivision (b) also empowers the Secretary of the Department to permit members of the armed forces to elect trial by court martial in lieu of proceedings under this article. This recognizes a difference in

present practice among the armed forces. The Navy allows no election on the theory that the commanding officer's punishment relates entirely to discipline, not crime; furthermore, in the Navy the officer who has summary court-martial jurisdiction is the same officer who imposes punishment under this article, or his subordinate. Therefore, to grant an option to naval personnel would be meaningless where the commanding officer was also the summary court officer. In the event the commanding officer were not the summary court officer, it would result in granting a subordinate officer the authority to pass judgment upon his superior. This is not a desirable situation and has resulted in the revision of this subdivision which will permit the Secretary of the Navy to handle this situation by appropriate regulations. In the Army, on the other hand, a company commander with power under this article will not usually have summary court-martial jurisdiction. Almost without exception a summary court officer in the Army or Air Force will be superior in rank to the officer who adjudges disciplinary punishment.

Subdivision (c) permits the Secretary of a Department to authorize officers in charge to impose certain punishments under this article. The status and authority of officers in charge differs according to the command of which they are in charge, and likewise differs between the Navy and the Coast Guard. An "officer in charge" in the Navy is always a commissioned officer, usually in command of a small, isolated detachment. An "officer in charge" in the Coast Guard is construed to include noncommissioned officers as well as commissioned officers. The committee is fully cognizant of this diflerence, and it is intended. that the Coast Guard shall have full authority to extend limited. disciplinary authority under this article to noncommissioned officer under appropriate circumstances.

Subdivision (d) incorporates and strengthens the provision of AW 104 as to appeal and review. It is to be noted that any person punished under authority of this article may appeal to the next superior authority. This includes persons of all of the services. Appeals are to be promptly forwarded and decided. In addition, reviewing authorities are permitted not only to remit the unexecuted portion of the punishment, but also to restore all rights adversely affected by the punishment previously executed. This subdivision is new to the Navy and the Coast Guard.

Subdivision (e) is derived from AW 104. Under present Navy practice, punishment by a commanding officer is never

trial by court martial, although evidence of such punishment may be introduced in mitigation of a court-martial sentence which stems from the same offense.

Article 16. Courts martial classified

Under present law, there are three types of courts martial in each, Army, Navy, and Air Force. In the Army and Air Force, they are designated as summary courts martial, special courts martial, and general courts martial. In the Navy, they are designated as deck courts, summary courts martial, and general courts martial. While the general courts martial in each of the services have equivalent authority, the Navy summary court has considerably less jurisdiction than an Army special court, and the same is true of the Navy deck court as contrasted to the Army summary court. This article con

solidates provisions as to types of courts martial and number of members. Army and Air Force terminology has been adopted and designated the three types of courts. The maximum limits of the number of members is believed unnecessary. The law officer of a general court martial replaces the law member under the present Articles of War. The law officer is specified in paragraph (1) to show that he is not a member.

Article 17. Jurisdiction of courts martial in general

Subdivision (a) authorizes reciprocal jurisdiction among the armed forces, but makes the exercise of such jurisdiction by any force subject to regulations prescribed by the President. Such regulations will enumerate those situations in which one armed force may try personnel of another armed force. This method of providing for the exercise of reciprocal jurisdiction permits flexibility, in that new situations for which the exercise of such jurisdiction may be desirable, can be provided for as they arise.

The provision in subdivision (b) is particularly applicable to cases where reciprocal jurisdiction has been exercised and is therefore placed in this article. The same practice will be followed in all court-martial cases, however. The disposition of records under article 65 is controlled by this subdivision.

Article 18. Jurisdiction of general courts martial.

This article is derived from AW 12. The punishments which may be adjudged are changed from those "authorized by law or the customs of the service" to those "not forbidden by this code" because the law and customs of each of the services differ. Cruel and unusual punishments are forbidden in the code; other punishments which may be adjudged will be made uniform by the regulations prescribed by the President under article 56.

It will be noted in the punitive articles, articles 77-134, that the death penalty can be adjudged only when specifically authorized for the violation of a specific punitive article.

Article 19. Jurisdiction of special courts martial

This article is derived from AW 13. Special courts martial are given the authority to try capital cases under such regulations as the President may prescribe instead of when the officer with general courtmartial jurisdiction over the case authorizes. The Navy proposes this procedure so that prior blanket authority may be obtained for capital offenses to be tried by special courts aboard ship where circumstances make it desirable, since it is not practicable to refer such a case to the officer with general court-martial jurisdiction. Death is added to the list of punishments which a special court martial may not adjudge, to cover the cases which a special court tries which would otherwise be capital cases. Other restrictions on punishment. are adopted from AW 13. It is intended that special courts martial shall not have jurisdiction to try offenses for which a mandatory punishment has been prescribed by this code.

The provision in AW 13 that a bad-conduct discharge adjudged by a special court martial is subject to approval by an officer with general court martial jurisdiction has been deleted from this article. The review of special courts-martial records and the execution of sentences are covered in articles 65, 66, and 71 of this code.

References: AW 13 and proposed AGN, articles 17 and 20.

Article 20. Jurisdiction of summary courts martial

The right to refuse trial by summary court martial is made absolute, except for the case where a person has been permitted to refuse punishment under article 15.

References: AW 14 and proposed AGN, articles 15 and 16.

Article 21. Jurisdiction of courts martial not exclusive

This article preserves existing Army and Air Force law which gives concurrent jurisdiction to military tribunals other than courts martial. The language of AW 15 has been preserved because it has been construed by the Supreme Court (Ex Parte Quirin, 317 U. S. 1 (1942)). References: AW 15; proposed AGN, article 5 (f).

Article 22. Who may convene general courts martial

This article is derived from AW 8. Provisions for Navy, Air Force, and Coast Guard convening authorities are added. Paragraphs (6) and (7) permit the President and the Secretaries of the Army, Navy, Air Force, and Treasury (for the Coast Guard when not serving with the Navy) to empower other commanding officers to convene general courts martial. See article 1 for definition of "Department."

Subdivision (b) is derived from AW 8. The word "accuser" is used in place of "accuser or prosecutor," and "accuser" is defined in article 1 in order to clarify its meaning.

References: AW 8; AGN, article 38.

Article 23. Who may convene special courts martial

This article is derived from AW 9. Provisions for all the armed forces have been added. An "officer in charge" is an officer of the naval service or Coast Guard who is not known by the title of "commanding officer" but exercises similar authority. Subdivision (b) conforms to article 22.

References: AW 9; AGN, article 26.

Article 24. Who may convene summary courts martial This article is derived from AW 10. Provisions for all the armed forces have been added. It is felt appropriate that all persons empowered to convene superior courts martial should also have power to convene inferior courts martial.

References: AW 10; AGN, article 64; proposed AGN, article 15. Article 25. Who may serve on courts martial

Subdivisions (a), (b), and (c) make officers, warrant officers, and enlisted persons competent to sit as members of courts martial of any armed force, without regard to whether they are members of the same armed force as the convening authority, or of the same armed force as the accused. Placing no limitation on competency in this respect will give the convening authority a maximum number of persons to draw on for membership of a court martial in a situation. where he is in command of several small units of different armed forces, or will permit the appointment to a court of persons belonging to the same armed force as the accused in a case in which reciprocal Jurisdiction is being exercised. In such cases it is contemplated that the President's regulations on reciprocal jurisdiction will specify what percentage of members will be from the same armed force as

H. Rept. 491, 81-1