Chapter 19
Naval Law and Discipline

A. Introduction

19A1. Sources of naval law. Naval law is the body of rules prescribed by competent authority for the government and regulation of the naval forces. There are two general sources of naval law, written and unwritten.

The sources of written law are: (1) the Constitution of the United States; (2) statutory enactments of Congress; and (3) Navy Regulations, orders and instructions. The sources of unwritten law are: (1) decisions of courts; (2) decisions of the President and the Secretary of the Navy; (3) opinions of the Attorney General and Judge Advocate General of the Navy; (4) court-martial orders; and 95) customs and usages of the service.

19A2. Administration of naval law. The body of law which arises from the above sources is administered by a disciplinary system peculiar to the Navy, and by a system of legal constituted military courts known as courts-martial. The civil courts or authorities have no power to interfere with the functioning of military courts, but those persons amenable to military law do not become freed from their civil obligations. Any violations of the civil rights of the civilian population, or any act amounting to a crime according to the local criminal law, is taken care of in the ordinary civil and criminal courts. Arrests for such offenses ordinarily cannot be made within the areas under control of naval authorities, but if the offender is arrested outside such territory, or is surrendered for trial by the naval authorities, he may be tried like any other citizen. The jurisdiction of naval courts-martial is limited to offenses that are provided for in, or are within the purview of, the Articles for the Government of the Navy and other enactments of Congress. Their jurisdiction is exclusively criminal in character, being solely for the purpose of maintaining naval discipline.

19A3. Articles for the Government of the Navy. These Articles may be found in Navy Regulations, Chapter 1, and in Naval Courts and Boards, Appendix B. The matter contained in these articles represents the heart and core of the disciplinary system of the Navy. In general, they provide for the following:

  1. The naval penal code.
  2. The tribunals authorized to hear and determine criminal cases arising within the naval service.
  3. The means and methods by which naval tribunals may be convened.
  4. The review that shall be made of the proceedings of courts and boards.
  5. In limited detail, how the proceedings of naval tribunals shall be conducted.
  6. Those who shall be answerable to trial before naval tribunals.
  7. A schedule of limitations of punishments.

Of primary importance for the purposes of this chapter are the tribunals established for the purpose of dealing with offenders against naval discipline. In addition to the disciplinary powers of the Commanding Officer (exercised at mast) there are deck courts, summary courts-martial, and general courts-martial.

19A4. Present disciplinary policy. The Navy Department's policy on the administration of naval discipline during the present emergency is defined in an ALNAV of April 1942 as follows: In the interest of reducing paper work and better administration of naval justice, the Department directs that all commands utilize to a greater degree mast punishments rather than summary and deck courts-martial and trial by deck rather than summary courts-martial and by summary rather than general courts-martial in cases of infractions by enlisted men of the Navy, Marine Corps, and Coast Guard when such action will accomplish the ends

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of discipline. Also, utilize to full extent use of administrative reports or informal or one-man investigations in lieu of formal three-man boards of investigations.

19A5. Officer responsibilities. Every naval officer should have a general knowledge of the fundamentals of military law and naval discipline. At the most unexpected times in his naval career, he may be called upon to perform some function in the administration of naval justice. he may function as a prosecuting attorney, when ordered to act as recorder or judge advocate of a court-martial. he may be detailed or requested to act as counsel for an enlisted man who is being tried by court-martial. He may have to perform the dual duties of judge and jury, when ordered to act as a member of a court-martial. If ordered to serve on a board of investigation or a court of inquiry, he will find himself performing the duties of a grand jury in civil life.

Each officer and enlisted man is presumed to have knowledge of the contents of Navy Regulations and General Orders. Ignorance of them may be considered as an extenuation, but it does not relive the individual from the consequences of his acts.

B. Captain's Mast

19B1. Mast procedure. The procedure in handling infractions of discipline by enlisted men is generally as follows: When an offense is committed, the offender is brought before the officer of the deck or the duty officer by the petty officer making the charge. Both sides are given an impartial hearing by the officer of the deck. If that officer decides that the facts warrant further investigation, a written report is made out stating the name of the offender, the offense charged, the name of the petty officer making the charge, and the names of any witnesses. This report is then turned in to the ship's office. Here it is entered in the Rough Report Book. Reports made by officers may bed reported orally to the executive officer and dictated to the executive officer's yeoman for entry in the Report Book. Then, each morning the executive officer gives the Commanding Officer a list of the enlisted personnel who were reported for offenses during the preceding day. The Commanding Officer makes a careful inquiry into the facts in each case and gives both the accused and accuser an impartial hearing. In passing judgment, the Commanding Officer may dismiss the case if he considers the report unjustified; if the offense is a minor one, he may merely war the accused; if in his opinion the offense is serious enough to deserve punishment, he may administer sentence immediately. It should be emphasized that the Captain's Mast is used to try lesser offenses, and if the Commanding Officer should decide that the nature of the offense is such that it warrants a greater punishment than he is empowered to administer, the accused may be held for trial by a higher tribunal. The term Captain's Mast or merely Mast is derived from the fact that in early sailing days, the usual setting for this type of naval justice was on the weather deck at the foot of the ship's mainmast.

19B2. Mast punishments. Under Article 24 of Articles for the Government of the Navy, the Commanding Officer is restricted to certain definite punishments which he may administer at mast. These punishments consist of any one, or part of any one, of the following:

  1. Reduction of any rating established by himself.
  2. Confinement not exceeding 10 days, unless further confinement is necessary, in the case of a prisoner to be tried by court-martial.
  3. Solitary confinement, on bread and water, not exceeding 5 days.
  4. Solitary confinement not exceeding 7 days.
  5. Deprivation of liberty on shore.
  6. Extra duties.

None of these punishments is considered as a previous conviction to be considered by a court-martial at a subsequent time in connection with some other offense. it should further be remembered that under no circumstances should an offender be ordered to perform guard duty over personnel or material as punishment, whether serving ashore or afloat.

The action of the Commanding Officer at mast is entered in the Smooth Report Book, an official record, and in the man's service record, where it is authenticated by the Commanding Officer's signature.

Mast punishment is advocated by the Navy Department in every possible case where the ends of justice or naval discipline may be attained by its use. The proceedings are brief and direct and, most important, the punishment is prompt. This is far more conducive to good discipline than punishment deferred long after the offense.

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19B3. Other masts. There are two other masts: (1) request mast may be held by the executive officer at a scheduled time to listen to men's complaints or request for special privileges or special consideration; (2) meritorious mast may be held by the Commanding Officer to commend publicly the action of an enlisted man.

C. Deck and Summary Courts-Martial

19C1. Introduction. When the Commanding Officer is of the opinion that an offense merits a greater punishment than he is empowered to give, he may order that the person be tried by a deck court, a summary court-martial, or he may recommend a general court-martial.

19C2. Deck court. A deck court may be convened by the Commanding Officer of a ship or naval station, or by any officer of the Navy or Marine Corps who is authorized to order a summary court-martial or a general court-martial. The purpose of a deck court is to try enlisted personnel for minor offenses which, however, warrant greater punishment than the Commanding Officer is empowered to impose.

Composition. A deck court consists of one commissioned officer, called the deck-court officer, who must be of the rank of lieutenant in the Navy or captain in the Marine Corps or above, and has had at least 6 years' service in the Navy as a commissioned officer. In case no officer who meets these qualifications is attached to the vessel or station, the Commanding Officer (if a commissioned officer) may act as deck-court officer. Any officer who is empowered to order deck courts may, at his discretion, designate himself as deck-court officer, irrespective of his rank if he is a commissioned officer, and irrespective of the other officers attached to his command. The officer constituting the deck court is not sworn, as he performs his duties under the sanction of his oath of office.

Any person in the Navy under the command of the officer who orders the deck court may be detailed to act as recorder. Usually a competent enlisted man is assigned to that duty. The recorder is sworn to keep a true record of the proceedings of the court. The examination of the witnesses, who testify under oath, is conducted by the deck-court officer, who conducts the trial from beginning to end. The deck-court officer may not be a witness for either the prosecution or the defense.

An enlisted man who is brought before a deck court for trial must signify his willingness to be tried by such court by signing a statement to that effect in the record. If he objects to being tried by deck court, he is ordered to be tried by summary or general court-martial. Usually enlisted men do not object to trial by deck court because the limits of punishment awarded by such courts are less than those of higher tribunals.

A deck court is empowered to impose any one of the following punishments:

  1. Solitary confinement, not exceeding 20 days, on bread and water, or on diminished rations.
  2. Solitary confinement not exceeding 20 days.
  3. Confinement not exceeding 20 days.
  4. Reduction to next inferior rating.
  5. Deprivation of liberty on shore on foreign station.

Extra police duties, and loss of pay, not to exceed 20 days, may be added to any of the above-mentioned punishments.

Record. The record of a deck court is brief and concise. It must be written on a deck-court card (see Figure 19-1). The cards are available on all naval vessels and stations, and can be obtained from the office of the Judge Advocate General. All entries should be typewritten except the findings and the sentence, which must be in the handwriting of the deck-court officer. The testimony taken at the trial is not transcribed on the record card. Only the facts established by the testimony need be recorded. These are recorded on separate sheets which are submitted to the convening authority for his guidance. If the accused appeals his case to the Secretary of the Navy within 30 days, these sheets are forwarded with the appeal.

In the case of an acquittal, the accused is informed of this fact by the deck-court officer. In the case of a conviction, the findings and sentence, after being approved by the convening authority, are published, a transcript of the trial is entered in the ship's log, an entry made in the man's service record, and the deck-court card forwarded to the office of the Judge Advocate General.

19C3. Summary courts-martial. A Commanding Officer may order (convene) a summary court-martial upon any petty officer or other enlisted man in the naval service under his command, for the trial of offenses which he may deem deserving of greater punishment than he is authorized to inflict, but not sufficient to require trial by a general court-martial. A summary court-martial is composed of 3 officers not below the

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rank of ensign, as members, and 1 officer recorder. The highest ranking officer on the court is called the Senior Member. The 3 members act as both judge and jury. As judge, they must decide on the admissibility of evidence, and determine the sentence if the accused is found guilty. As jury, they must weigh the evidence presented to the court and decide on the guilt or innocence of the accused. The recorder, usually an ensign, acts as prosecuting attorney and conducts the case for the Government.


Figure 19-1. Deck-court card.

19C4. Precept and specification. The first step in the proceedings of a summary court-martial is the preparation of the precept and the specification by the convening officer. The precept is the order convening the court. It is signed by the convening authority and addressed to the senior member of the court. It specifies the time and place of meeting and recites the composition of the court. No officer should be named as a member of a court to whom either the recorder or the accused can reasonably object when called upon

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to exercise the privilege of challenge. Any officer who is ordered to duty as a member of a court, and who knows or has reason to believe that he will be called as a material witness, should advise the convening authority who should then relive this officer from duty on the court. Also, no officer is competent to serve as a member of a summary court whose proceedings and sentence must later be reviewed and acted upon by him as convening authority.

In naval law, a specification sets forth the facts constituting an offense for which an man is to be tried. In simple and concise language a specification should set forth facts sufficient to constitute an offense, in such manner as to enable a person of usual understanding to know for what he is to be tried. The specification proper includes:

  1. The name and the rank or rate of the accused.
  2. The name of the ship or station to which he is attached.
  3. The time and place of commission of the offense.
  4. The facts constituting the offense.
  5. The intent with which the offense was committed.

A specification must on its face allege facts which constitute a violation of some law, regulation, or custom of the service. It is not sufficient that the accused be charged generally with having committed an offense, but the particular acts and circumstances attending a specific offense must be set forth.

The date of the specification must be later or the same as that of the precept. The original precept is prefixed to the record of the first case tried by the court. If more than one case is tried by the same court, a certified true copy of the original precept is prefixed to all subsequent records. The original specification is always prefixed to the record of each case.

19C5. The recorder. After a summary court-martial has been convened and the specification drawn up against an enlisted man, these papers are turned over to the recorder by the senior member. The recorder should first carefully examine the specification for any possible errors, and then send for the accused, to whom he delivers a copy of the specification after reading it to him and requiring him to sign a dated receipt.

Relation to the accused. The recorder should advise the accused that he has the right to plead guilty or not guilty, and that he is entitled to have counsel to prepare his defense and present it during trial. The recorder should scrupulously avoid advising the accused to plead guilty. If the accused states that he intends to plead guilty, the recorder should advise him that he is privileged to make a statement to the court as a plea for leniency. It is advisable to ask the accused for the substance of the statement which he may plan to make. From its context, the recorder may discover that the statement will be inconsistent with a plea of guilty, and therefore the accused may have the basis for a defense. If so, he should be advised to plead not guilty.

If during his conversation with the accused, it develops that the man has a good defense, the recorder should immediately cease discussion of the case with the accused and see that counsel is secured. The accused can select any counsel of his own choice, If he has no choice, a competent officer is appointed by the Commanding Officer to act as counsel for the accused. When the accused has counsel, all negotiations by the recorder must be conducted through the counsel.

Preparing for trial. The recorder should make a preliminary examination of the witnesses for the prosecution and systematize his plans for conducting the case. he should inform the accused as to the probable witnesses to be called by the prosecution, but it is not necessary to inform him of the testimony expected from them. After the exact time and place for the trial have been determined by the senior member, the recorder is responsible for summoning the witnesses. He should inform the members and the parties to the trial sufficiently in advance to enable them to be present at the specified time.

The usual seating arrangement for a summary court-martial is shown in the diagram below:

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It is the duty of the recorder to have the following persons and material ready at the place of the trial: (1) members of the court; (2) reporter and interpreter (if necessary); (3) orderly; (4) the accused; (5) counsel for the accused (if any); (6) witnesses; (7) precept conveying the court or a copy of it; (8) original and copies of the specification; (9) a Bible; (10) service record of the accused; (11) memorandum from the disbursing officer, showing the rate of pay of the accused in his present and next inferior rating; (12) a copy of Naval Courts and Boards and Naval Digest; and (13) scratch paper and pencils.

Duties during trial. The duets of the recorder during the trial are as follows: he executes all orders of the court. He reads the precept. He administers the oath to the members, reporter, and interpreter. He arraigns the accused. He examines the witnesses. He is responsible for keeping the record of the trial. He advises the court on all matters of form and law. if the accused has no counsel, the recorder protects the interests of the accused, bearing in mind his duties as prosecutor.

19C6. Procedure. The court is opened by the senior member announcing, "The Court is opened." At that time, no one connected with the case except the members of the court and the recorder should be in the courtroom. Then the orderly, accused, and reporter enter. The accused must then be asked if he desires counsel. If he has counsel, the counsel then enters. The next step is the reading of the precept creating or convening the court. After the precept has been read, the accused is asked if he objects to any member of the court. If he objects to any member, the accused must state the ground for his challenge and then the member may reply or be questioned by the court. If the court sustains the challenge and excuses the challenged member, the convening authority must appoint a new member.

When both the accused and the recorder have exercised their right of challenge, the members, the recorder, and the reporter are sworn. The next step is to ask the accused if he has received a copy of the specification preferred against him, and if he has any objection to make to the specification. After the accused has consented to be tried under the specification drawn against him, the court is cleared of all persons except the members of the court. They examine the specification, and if they find it to be in due form and technically correct, the court is opened and all parties to the trial enter. The accused is then asked if he is ready for trial. After the accused has stated that he is ready for trial, the specification is read before the court. Witnesses are to be examined apart from each other, and are not to be present during the reading of the specification.

Plea of guilty. The accused is then arraigned and asked whether he pleads guilty or not guilty. If he pleads guilty, he must be warned by the senior member that in pleading guilty he deprives himself of the right of a regular defense and that, after such a please of guilty, he cannot go on to prove that he was not guilty. Also, that in pleading guilty, he deprives himself of the right of introducing any evidence except in mitigation, in extenuation, or of previous good character. The record of the court must show definitely that the accused fully understood the meaning of this warning and persisted in his plea.

If the accused persists in his plea, he may then produce evidence in extenuation and/or make a statement. if the statement is in any way contrary to the plea of guilty, the court must direct the recorder to proceed with the trial as though the accused had pleaded not guilty to the specification. Usually the substance of the statement of an accused which consists of any more than a plea for clemency due to youth, inexperience, or previous good record, will prove to be inconsistent with a plea of guilty.

The record should show affirmatively that the accused did not desire to make a statement, if such was the case. After this step in the proceedings, the trial is finished. In the case of a plea of guilty, the court need not be cleared to deliberate on the findings which should be "proved by plea" and the accused found "guilty." The recorder then advises the court whether there is evidence of previous convictions, and if so, reads them to the court. He also informs the court of the resent rate of pay of the accused, and his monthly rate in the next inferior rating. The court must then be cleared for deliberation on the sentence.

Sentence. In arriving at a sentence, each member writes down and prescribes the measure of punishment which he thinks the accused should receive and hands his vote to the senior member. The senior member then reads all the votes aloud. The sentence must be determined by a majority of votes. If two members do not agree on the nature and degree of punishment, the senior member then proceeds in the following manner to obtain a decision. He begins with the mildest punishment proposed and after reading it aloud, asks the members successively, beginning with the junior in rank, "Shall this be the sentence of the court?" If a decision is not reached, the senior member then obtains a viva voce vote on the next more severe punishment in the same manner as before, until a sentence is decided upon.

Punishment. It is the duty of courts-martial to adjudge a punishment adequate to the offense. The court exceeds its powers if thoughts of clemency influence it in awarding sentence. The limit of punishment

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is strictly regulated by law and, in the case of summary courts-martial, is restricted to any one of the following punishments:
  1. Discharge from the service with a bad-conduct discharge; but the sentence shall not be carried into effect in a foreign country.
  2. Solitary confinement, not exceeding 30 days, on bread and water, or on diminished rations.
  3. Solitary confinement not exceeding 30 days.
  4. Confinement not exceeding 2 months.
  5. Reduction to next inferior rating.
  6. Deprivation of liberty on shore on foreign station.

Extra police duties, and loss of pay, not to exceed 3 months, may be added to any of the above mentioned punishments.

The findings and sentence of the court must be entered in the record in the handwriting of the recorder, without erasures or interlineations. Detailed instructions as to the proper manner or preparing records of courts-martials may be found in Naval Courts and Boards, Chapter V.

If mitigating circumstances have appeared during the trial, the members of the court may recommend the accused to clemency. This recommendation is recorded immediately after the signature following the sentence, and is signed by all members concurring in it as individuals and not as members of the court, except the recorder.

Review. After the record has been written up and signed by the members of the court and the recorder, it is forwarded to the convening officer for review and action. it is then transmitted to the immediate superior in command (the reviewing authority) for action. Upon the approval of the latter, the sentence of a summary court-martial can be executed immediately, except that the authority of the Navy Department is required before a bad-conduct discharge may be executed.

19C7. Procedure when plea is not guilty. In case the plea to the specification is not guilty, the prosecution begins immediately after that plea. The order for the introduction of evidence is as follows: (1) by the prosecution, 92) by the defense, (3) rebuttal by the prosecution, (4) surrebuttal by the defense.

The proper order for the examination of a witness is as follows: (1) direct examination by the party who calls him, (2) cross-examination by the opposite party, (3) redirect examination by the party who calls him, (4) recross-examination by the opposite party.

Burden of proof. The prosecution must prove that the accused now before the court is the same person described in the specification, and that he performed the act charged in the specification. To do this, it is necessary to prove: (1) that the act charged was really committed, (2) that the accused committed it, and (3) that the accused had the requisite criminal intent at the time the act was committed.

It is the duty of the court and the recorder to see that the evidence is presented strictly in accordance with the established rules of evidence. As in civil cases, the law presumes every man to be innocent of crime. The prosecution has in each case the burden of overcoming this presumption, and proving to the court beyond reasonable doubt that the accused actually committed the offense charged. What constitutes reasonable doubt can briefly be defined as "an honest, substantial misgiving generated by insufficiency of proof." A reasonable doubt is a doubt based on reason, and reasonable in view of all evidence.

Witnesses and testimony. In weighing evidence, the court may consider: (1) the witness' manner of testifying, (2) the witness' intelligence, (3) the witness' means and opportunities of knowing the facts to which he testifies, (4) the probability or improbability of his testimony, (5) the witness' interest or lack of interest in the issues of the trial, (6) the witness' personal credibility as far as it legitimately bears upon the trial, (7) the number of witnesses, subject to consideration of their character, relation to the case, and circumstances under which their testimony was given.

The accused is allowed to testify in his own behalf, but only at his own request. The fact that the accused failed to request that he be allowed to testify cannot be be made the subject of any comment at any time, and cannot be used against him.

At the conclusion of the examination, a witness is advised by the senior member of the court that on taking the stand he swore to state everything within his knowledge of the charge, and that he is now privileged to make any further statement necessary to fulfill his oath. If he is not sure what the charges are, they may be explained to him. Upon leaving the stand, all witnesses, except a member of the court, the record, the accused or his counsel (should they be witnesses), are warned not to discuss their testimony of the trial with anybody, including those present in the courtroom.

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Statement of accused. After the last witness has been examined and withdrawn, the accused may, if he so desires, make a statement. This statement is not sworn to and cannot be a vehicle of evidence. It may operate as a plea for leniency, which may not be considered by the court except in recommending the accused to the clemency of the reviewing authority. At this point in the proceedings, it is proper for the recorder and the counsel for the accused to make their arguments (summing up their cases) to the court. After the arguments, the trial is finished. The deliberations of the court then proceed as in the case previously described in which a plea of guilty was entered.

D. General Courts-Martial

19D1. Convening authority. A general court-martial is the highest tribunal in naval law. It is convened for the trial of commissioned officers, petty officers, and nonrated men. The maximum punishments which such a court-martial may inflict are set forth in Naval Courts and Boards, Section 457. They may award any of the punishments that may be awarded by an inferior court plus the sentence of death, dismissal, dishonorable discharge, or confinement at hard labor in prison. General courts-martial may be convened by the President, the Secretary of the Navy, the Commander-in-Chief of a fleet or squadron, and the Commanding Officer of a naval station beyond the continental limits of the United States; and, when empowered by the Secretary of the Navy, buy the Commanding Officer of a squadron, division, flotilla, or large naval force afloat, and of a brigade or large force of the naval service beyond the continental limits of the United States; and, in time of war, if then so empowered by the Secretary of the Navy, by the Commandant of any navy yard or station, and by the Compounding Officer of a brigade or large force of the Navy or Marine Corps on shore not attached to a navy yard or naval station.

19D2. Complaint and investigation. When an officer or other person is reported to his immediate Commanding Officer for grave misconduct, the latter institutes careful inquiry into the circumstances on which the complaint is based. He calls for a written statement from the complainant, together with a list of his witnesses, mentioning where they may be found, and a memorandum of any documentary evidence bearing upon the case which may be obtainable.

The Commanding Officer also calls upon the accused for such counter-statement or explanation as he may wish to make, and for a list of the persons he desires to have questioned on his behalf. if the accused does not desire to submit a statement, he states that fact in writing.

Officers making complaints or reports should confine themselves exclusively to facts. Statements submitted in reply or explanation must be expressed in temperate language and relate specifically to the matter involved. Opinions must not be expressed, nor the motives of other impugned.

After the investigation of a report against an officer or other person in the Navy, if the Commanding Officer is satisfied that the charge is such as to call for judicial action, he may place the accused under suspension or in confinement, as the case may require, neither of which shall be considered as a punishment.

He then transmits to the Secretary of the Navy, or such superior officer as may be authorized to convene a general court-martial, a letter reporting fully and accurately in detail and in the order of their occurrence, the circumstances on which the charge may be founded.

Should the Secretary of the Navy, or other superior officer authorized to convene a general court-martial, decide that no trial is to take place, the accused is at once released and restored to duty. But if its decided that the accused should be brought to trial, the court is assembled for that purpose as soon as the interest of the public service will allow.

When the trial has been decided upon, the accused is furnished with a copy of the charges and specification, and at the same time placed formally under arrest for trial. When the trial is ordered, the judge advocate is furnished with all information available and necessary to the prosecution of the case.

19D3. Composition of a general court-martial. A general court-martial is composed of 5 to 13 commissioned officers and a judge advocate. The judge advocate is the prosecutor, and his duties correspond to those of the recorder of a summary court-martial. Except in cases where officers of the rank of lieutenant in the Navy and captain in the Marine Corps are not available, no officer shall be ordered as a member of a general court-martial who is below the rank of lieutenant in the Navy. In case an officer is to be tried, at least one-half the members must be senior to the accused, except when this cannot be accomplished without injury to the service. As a matter of policy, all should be senior. It is the policy of the Navy Department that the president be a line officer. In detailing officers for the trial of a staff or Marine Corps officer, it is proper, if the exigencies of the service permit, that at least one-third of the court be composed of officers

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of the same corps and senior to the officer to be tried. When an officer of the regular Navy is tried by court-martial, the majority of the members of the court will be regular Navy officers.

19D4. Proceedings. The proceedings of a general court-martial follow closely those of a summary court-martial. These proceedings are outlined in detail in Naval Courts and Boards, Chapter VI.

A general court-martial has authority to compel attendance of civilian witnesses and to imprison witnesses for contempt of court.

19D5. Review. Records of courts-martial are forwarded to the office of the Judge Advocate General, where they are reviewed to see if they are legally correct and exceptions noted. Then the records are sent to the Chief of Naval Personnel. Here they are reviewed to see that they comply with the policy as laid down by the Chief of Naval Personnel, the Secretary of the Navy, or the President. If they disagree, correction is made by administrative action or by letter to the convening authority. If the action requires approval of the President, the record with the recommendation of the Chief of Naval Personnel, is sent to the Secretary of the Navy. The Secretary may take independent action to reduce the sentence, or may send the record to the President with the recommendation that it be executed. The President can remit the sentence or approve it. In fact, he may even approve it, and then immediately pardon the offender. The records are finally returned to the office of the Judge Advocate General, and kept permanently in that office for reference.

E. Courts of Inquiry and Investigations

19E1. Fact-finding bodies. Courts of inquiry and investigation are primarily fact-finding bodies. These bodies should confine themselves to finding of facts unless specifically directed by the convening authority to express opinions or make recommendations.

The proceedings of inquiries and investigations are in no sense a trial of an issue or of an accused person. They perform no judicial function. They are ordered for the purpose of informing the convening authority in a preliminary way of the facts involved.

A court of inquiry has the power to compel the attendance of civilian witnesses, and should be convened when the testimony of civilians is likely to be desired. The testimony before a court of inquiry is under oath, and my under certain conditions, be used as evidence before a court-martial. If the testimony before an investigation is under oath, it must be so ordered in the precept. Whether a court of inquiry or an investigation is ordered, depends entirely upon the discretion of the officer empowered to order these bodies. As a rule, the seriousness of the matter to be investigated determines the means of collecting and sifting the information for the convening officer.

Courts of inquiry may be ordered by the President, the Secretary of the Navy, the Commander of a fleet or squadron, or by any officer of the naval service authorized to convene general courts-martial. Boards of investigation and investigations may be ordered by any officer empowered to convene a court of inquiry, by the Commander of a division or a large force afloat, and by the senior officer present afloat or ashore.

The composition of a court of inquiry or a board of investigation, both in regard to the rank of the members and the corps to which they belong, should be regulated by the circumstances to be investigated. A court of inquiry consists of not more than 3 officers as members, and a judge advocate. A board of investigation ordinarily consists of 3 officers as members. A separate recorder may be appointed. if this is not done, however, the junior member serves in a dual capacity both as recorder and member. An investigation is composed of 1 officer.

A complete administrative report is fully as satisfactory as the record of a court of inquiry, or of an investigation, if there is no doubt as to the facts of any particular incident, and no reason why sworn testimony should be preserved. As a rule, because of legal sequels, it is advisable to convene courts of inquiry in connection with the following occurrences:

  1. Loss of life from accident or under peculiar or doubtful circumstances.
  2. Serious casualties to or deficiencies in ships.
  3. Loss or stranding of a ship of the Navy.
  4. Collision with a merchant ship.

It is advisable to have a medical officer on the court or board conducting the investigation in the case of loss of life. In such cases it must be determined, if possible, whether the death was caused in any manner by the intent, fault, negligence, or inefficiency of any person in the naval service. When the deceased is in the naval service, the court or board is required to give its opinion as to whether the death was in the line of duty or due to misconduct. It should also find and record the facts concerning the status of the deceased

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as to duty, authorized liberty, or otherwise. The court or board will perform the duties of an inquest unless the body has been lost.

For an example of the "Finding of Facts, Opinion, and Recommendations" of a Court of Inquiry, see that for the ammunition explosion at the Port Chicago Naval Ammunition Depot.

F. Discipline Aboard Ship

19F1. Discipline versus punishment. Discipline may be defined as training or a course of training that molds, corrects, strengthens, or perfects. Punishment, on the other hand, is the infliction of a penalty by one in authority for the violation of certain rules, laws, or orders issued by competent authority. When discipline succeeds, the needs for punishment vanishes. Discipline is promoted only when personnel have confidence in their leader. The officer must conduct himself in such manner that his men are proud of him, and proud to maintain the correct disciplinary standards set. A maximum of efficiency and contentment, combined with a minimum of punishment, constitute the ideal state in a ship's company.

19F2. The division officer. As a division officer on board ship, it is your obligation to your men to attend mast when they are offenders. If you are not present, and injustice may be done because of incomplete knowledge of the man, presence of extenuating circumstances, or lack of familiarity with the man's record, which may be such that he should be given another chance. At any rate, the average bluejacket will respond wholeheartedly if he know that your are interested in him, and your work in his favor may prevent further violations on his part.

Your ability to manage men and instill in them the sense of responsibility and discipline required in a smart ship is reflected by the number at mast. Give your men credit for a piece of work well done. Commend publicly. If its is necessary to criticize or reprove, such action should be taken privately. Respect or good feeling never results from public reprimand.

G. Suggestions On Legal Procedure For Newly Commissioned Officers

19G1. General. The following suggestions are made on the basis that newly commissioned ensigns will probably become recorders of summary courts. It is assumed that their function as legal advisor to the court will be largely a theoretical function only, since the members will most likely be officers with more court-martial experience than the recorder. It is unlikely that the newly commissioned ensign will have anything to do with a general court-martial until such times as he will have sufficient experience to know where to look for further information when needed. The points given below were suggested by a naval officer with many years of experience in the conduct of courts-martial, and contain excellent advice for the inexperienced officer.

19G2. Advice to the recorder. 1. Do not hesitate to take your problems, preferably anticipated, to officers with more experience in court-martial work than yourself, but not to a member of the court. You will find most officers glad to advise you in any way they can on subjects not calling for research on their part; and if they do not know offhand the answer to your questions, they can probably suggest a place for you to look up the answer.

2. Since the first information you get that you are to try a man may very well be the specification, you may be at a loss as to how to commence the preparation of your case. Consult the Mast Report Book in the Captain's or executive officer's office, find out who put the man on the report, and the names of any witnesses who appeared against him at the mast. Interview those persons, and through them you may obtain the names of others who have even more knowledge than they, concerning the alleged offense. Line up just enough witnesses to make sure you can prove your case. It is not good practice to extend the trial interminably by the repetition of the same story over and over by many witnesses. They number of witnesses you will need to make sure that the court is convinced beyond a reasonable doubt, depends upon several factors. Like arguments, no hard and fast rules can be laid down.

3. Get the best reporter you can, but explain to him or her that it is very important that every word be recorded. The reporter must not hesitate to slow down any witness or any other person who speaks too fast. It is well to have the reporter include in the shorthand notes all interlocutory arguments--arguments on motions, objections, and other points that arise during the course of trial--although such arguments are not written into the finished record. You will probably find some courts, who, in order to expedite the proceedings, wait to ask questions "off the record." You are justified, in fact are under obligation, to object strenuously to this procedure, since you are under a solemn oath to keep a true record of the proceedings.

4. The recorder's interview with the accused before the trial is very important. if the accused insists that he does not desire counsel, it is well to explain to him in detail the exact steps of the trial, what the

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court will say to him: (a) when he states that he does not desire counsel, (b) when he pleads guilty, (c) when he makes a statement, of he does, etc. If the accused even wishes to make a statement, it is well to insist that he have counsel. In fact, if there are sufficient officers available, the accused should have counsel, even if the counsel does nothing but sit in the courtroom with the accused. And, if the accused intends to plead guilty, or if there is any likelihood that he will make a statement which calls for the rejection of his plea of guilty, then the recorder will save himself much trouble if he insists in advance that the accused have counsel, even though all officers available to act as counsel may be very busy at their regular jobs.

5. Assuming that the accused has counsel, do not hesitate to discuss freely all details of the case with the counsel, except in unusual cases. In most cases, the trial will proceed in a more orderly manner if both recorder and counsel know what the other side expects to bring forward in the way of evidence. It frequently happens that the recorder or the counsel expects to offer evidence which the other thinks is inadmissible. If they can decide between themselves on its admissibility before it is offered, they will save an objection during the course of the trial and consequent delays. If they cannot agree between themselves, each will have had an opportunity to look up the law and have citations available to support his argument on the admissibility of the evidence offered. It is true as a general rule that a case for the prosecution which depends for its success on surprising the defense, is not too good a case in any event.

6. In a preliminary interview with witnesses, explain to them that they will be under oath the entire time they are on the stand. Tell them that you do not intend this interview to persuade them to testify anything which is not the exact truth in accordance with their oath, and that they are not to discuss with any person (other than the accused or his counsel) any testimony which they might give, either before or after testifying. Point out that their oath will be to state everything within their knowledge in relation to the offenses for which the accused is on trial, and therefore, tell them what the offenses are. Explain to them that after examination, cross-examination and examination by the court, the court will remind them of their oath to "state everything," and will give them an opportunity to make any further statement to fulfill that oath, provided the examination has not brought out all to their knowledge. Point out that this is a step which the court must take, but that ordinarily it is a mere formality, since the witness will have told the whole story on examination.

7. In your capacity as legal advisor to the court, be particularly careful not to advise erroneously on a point of law. Cases have been disapproved or set aside for this reason.

8. The court, although it exercises the functions of a jury, as well as those of a judge, is not the usual civilian jury. Generally speaking the court-martial would not be favorably impressed by an emotional appeal in the course of an argument, either for the prosecution or the defense. The question of whether to make an argument, how long or how detailed an argument should be, and what to include in it, is one to which it would be difficult to make an answer. That knowledge comes better from experience than from any instruction.

9. Various instructions advise the recorder to study carefully just what are the essential points in the specification to be proved. It is almost as easy, and much safer, to prove every word of the specification. It is a good practice for the recorder, just before the prosecution rests, to read the specification to himself, to see if any word has not been proved. Matters of which judicial notice can be taken need not be proved. In most specifications, this is only the statement "the United States then being in a state of war." It is permissible to arrange in advance with the counsel to have the accused admit his name, rate, and the ship in which he was serving at the time of the offense and at the time of the trial. This can be done by counsel, but if so, the statement must immediately follow that "the accused stated that this admission was made by his authority." This is true of any admission made by counsel, and it is an important entry to include in the record.

10. It is important to follow exactly the forms of sentences given in Naval Courts and Boards. To omit or add a word may not invalidate the sentence, but it is just as easy and certainly safer to follow the form in the book.

11. Finally, the recorder should never forget that however routine the performance of his duty as recorder might become through constant repetition, it is not a perfunctory matter for the accused himself. The recorder should do everything he can to make the trial a dignified and impressive procedure.

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Comparative Table of Naval Tribunals

Name of Court Mast Deck Court Summary Court-Martial General Court-Martial
Convening
Authority
Commanding
Officer
Commanding Officer or any officer empowered to convene a summary or general court-martial. Same as deck court. President, Secretary of Navy, the Commander-in-Chief of a fleet or squadron, and the Commanding Officer of a naval station beyond the continental limits of the U.S.; and Commanding Officers specifically authorized by the Secretary of the Navy.
Personnel Commanding
Officer
One commissioned officer of the rank of lieutenant in the Navy or captain in the Marine Corps or above, and of six years' service, or the Commanding Officer. Also recorder (enlisted man). Three officers not below the rank of ensign as members and an officer recorder, one member to possess qualifications of member of general court-martial. 3 to 13 members with rank of lieutenant in the Navy or captain in the Marine Corps or above and a judge advocate. (1/2 of members senior to accused.)
Jurisdiction
To try
what cases?
Lesser offenses
(enlisted men)
Minor offenses (enlisted men) meriting greater punishment than Commanding Officer is empowered to adjudge. Offenses deserving greater punishment than Commanding officer is authorized to inflict but not sufficient to require trial by general court-martial. (enlisted men.) Offenses of a serious nature. (Both officers and enlisted men.)
Punishments
  1. Reduction of any rating established by himself.
  2. Confinement not exceeding ten days, unless further confinement be necessary, in the case of a prisoner to be tried by court-martial.
  3. Solitary-confinement on bread and water, not exceeding five days.
  4. Solitary confinement not exceeding seven days.
  5. Deprivation of liberty on shore.
  6. Extra duties.
  1. Solitary confinement, not exceeding twenty days, on bread and water or on diminished rations.
  2. Solitary confinement not exceeding twenty days.
  3. Confinement not exceeding twenty days.
  4. Reduction to next inferior rating.
  5. Deprivation of liberty on shore on foreign station.
  6. Extra police duties and loss of pay, not to exceed twenty days, may be added to any of the above punishments.
  1. Bad-conduct discharge from service, but not carried into effect in foreign country.
  2. Solitary confinement not exceeding thirty days, on bread and water or on diminished rations.
  3. Solitary confinement not exceeding thirty days.
  4. Confinement not exceeding two months.
  5. Reduction to next inferior rating.
  6. Deprivation of liberty on shore on foreign station.
  7. Extra police duties, and loss of pay, not to exceed three months, may be added to any of the above punishments.
Any of the punishments that may be awarded by an inferior court plus death, dishonorable discharge, confinement at hard labor in a prison or such other punishment as the court may direct.

Punishments forbidden: flogging, branding, marking, or tattooing on the body.

Reviewing
Authority
No Review.
  1. Commanding Officer or other convening authority.
  1. Convening authority.
  2. Immediate superior of convening authority.
  1. Convening authority.
  2. Judge Advocate General.
  3. Chief of Naval Personnel.
  4. Secretary of Navy.
  5. President of United States.
    (Death sentence or dismissal of commissioned or warrant officer.)

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