[C. M. O. 6—1917]

[P. 14] ACTION OF THE SECRETARY OF THE NAVY

The Department fully concurs in the recommendations of the Judge Advocate General, the Chief of the Bureau of Navigation, and the Chief of Naval Operations. The proceedings in the foregoing case of Lieutenant Walter B. Decker, U. S. Navy, and the findings on the second charge and the specifications thereunder and the acquittal are approved, and, in order that the interests of justice and discipline may be conserved as far as practicable, the findings on the first charge and the specification thereunder and the acquittal are disapproved. He will be released from arrest and restored to duty.

C. M. O. 6-1917

[P. 1] Lieutenant Edward L. McSheehy, United States Navy, was tried by general court martial on September 21, 1916, at the Navy Yard, Boston, Mass., by order of the Secretary of the Navy, and found guilty of the following charge: Charge. Conduct to the prejudice of good order and discipline (one specification alleging that the accused did, in reference to a disagreement between himself and another officer of the Navy in regard to a disputed claim, "write, send, and publish, or cause to be sent and published, without justifiable cause," to the father of said other officer, and to a law firm, and to the Navy Department, a letter containing "threatening abusive, and defamatory" language of and about said officer).

SENTENCE

"The court, therefore, sentences him, Lieutenant Edward L. McSheehy, U. S. Navy, to lose ten (10) numbers in his grade."

RECOMMENDATION OF CHIEF OF NAVAL OPERATIONS

"The Chief of Naval Operations has carefully considered the court martial proceedings in the case of Lieutenant E. L. McSheehy, U. S. Navy, together with that of Lieutenant W. B. Decker, U. S. Navy, the other party to the controversy out of which arose the trials of these two officers.

"That two naval officers who have attained the rank of Lieutenant could so far forget themselves as to permit a petty disagreement, such as that upon which this controversy was based, to magnify itself to such an extent as to become the subject of a general court martial, is a reflection upon the best traditions of the naval service.

"Inasmuch as Lieutenant Decker will receive no punishment for his reprehensible acts in connection with this affair, the Chief of Naval Operations recommends that the loss of numbers adjudged in the case of Lieutenant McSheehy be remitted."

RECOMMENDATION OF CHIEF OF BUREAU OF NAVIGATION

The Chief of the Bureau of Navigation placed upon the record an indorsement "recommending that the findings and sentence of the general court martial be approved but the loss of numbers be remitted."

ACTION OF THE SECRETARY OF THE NAVY

The proceedings, findings, and sentence of the general court martial in the foregoing case of Lieutenant Edward L. McSheehy, U. S. Navy, are approved, but, in accordance with the [P. 2] recommendation of the Chief of Naval Operations, concurred in by the Chief of the Bureau of Navigation, and in order to prevent the injustice of requiring Lieutenant McSheehy to undergo substantial punishment for his part in the controversy in question while the other party to the controversy escapes punishment for his reprehensible conduct, and not as an exercise of clemency, the loss of numbers is set aside. Lieutenant McSheehy will be released from arrest and restored to duty.

494611-42-Vol. 1

C. M. O. 7-1917

[P. 1] Captain Edward L. Beach, United States Navy, was tried by general court martial on December 21, 1916, at the Navy Yard, Philadelphia, Pa., by order of the Secretary of the Navy, upon the following charges:

Charge I-Improperly hazarding the vessel under his command, in consequence of which she was cast upon the shore (one specification).

Charge II-Through inattention and negligence suffering a vessel of the Navy to be stranded (three specifications).

Charge III-Culpable inefficiency in the performance of duty (three specifications).

FINDINGS

The court found the accused guilty of the first charge and of second charge (one specification) and acquitted him of the third charge.

SENTENCE

"The court, therefore sentences him, Captain Edward L. Beach, United States Navy, to be placed at the foot of the Captains' list of present date and to there remain until he shall have lost twenty numbers in his grade."

RECOMMENDATION TO CLEMENCY

The members of the court spread upon the record the following unanimous recommendation to clemency:

"In view of his previous excellent record; and in view of the fact that be took extra precautions which in his judgment would have met the requirements of any contingency; and in view of the fact that the extraordinary conditions that arose so quickly were not only unprecedented but could not be foreseen and came with only slight warning; that apart from the fact that he did not have steam in sufficient boilers to get underway immediately he took every measure which could be taken to ensure the safety of his vessel, we recommend the accused in this case to the clemency of the revising authority."

ACTION OF THE SECRETARY OF THE NAVY

The Department has given careful consideration not only to the record of the foregoing trial of Captain Edward L. Beach, United States Navy, but also to the unusual circumstances out [P. 2] of which this trial arose (the wrecking of the U. S. S. Memphis off Santo Domingo City on August 29, 1916).

The only portion of the specifications found proved by the court consists of the allegation that Captain Beach failed to keep sufficient steam on his vessel to get underway "on short notice."

The records of the Department show that Captain Beach has served in the Navy for over thirty-two years, during which time he has maintained a spotless record. His reports on fitness are conspicuous on account of the zeal and careful and efficient manner in which he has always performed his duty. The efficient manner in which he has done so has always met the highest approval of the various distinguished officers under whom he has served.

As shown by the recommendation to clemency, his actions on the occasion of the disaster were sufficient to impress the members of the court martial which tried him and inspire them to spread upon the record the above quoted impelling and unanimous recommendation for clemency.

The proceedings, findings, and sentence in the foregoing case of Captain Edward L. Beach, United States Navy, are approved, but in view of the recommendation to clemency and the previous excellent record of Captain Beach, the loss of numbers is reduced to the loss of five numbers in his grade.

C. M. O. 11-1917

[P. 1] Lieutenant (junior grade) Herbert A. Ellis, United States Navy, was tried by general court martial on board the U. S. S. New Jersey, at the Navy Yard, New York, N. Y., on January 30, 1917, by order of the Commander, Reserve Force, U. S. Atlantic Fleet, and found guilty of the following charge, the specification of which was "proved by plea":

Charge.-Drunkeness (one specification).

SENTENCE

"The court, therefore, sentences him, Lieutenant (J. g.) Herbert A. Ellis, U. S. Navy, to lose three (3) numbers in his grade."

RETURNED FOR REVISION

The convening authority, on February 7, 1917, returned the record to the court for a reconsideration of its sentence, which, in his opinion, was wholly inadequate for the offense found proved.

SENTENCE IN REVISION

The court decided to revoke its former sentence and to substitute therefor the following:

"The court, therefore, sentences him, Lieutenant (j. g.) Herbert A. Ellis, U. S. Navy, to lose five (5) numbers in his grade."

ACTION OF THE CONVENING AUTHORITY

The convening authority, subject to the remark that the sentence in revision was still inadequate, and in order that the accused might not wholly escape punishment, on February 11, 1917, approved the proceedings and finding, and the proceedings and sentence in revision in the foregoing case of Lieutenant (Junior grade) Herbert A. Ellis, U. S. Navy, and directed that he be released from arrest and restored to duty.

[P.2] In reviewing the foregoing record the Department fully concurs in the attitude of the convening authority in considering the sentence inadequate and approves his efforts to convey to the court a proper appreciation of their duties by reconvening the court for a reconsideration of the sentence. It is surprising and deeply regretted that a court of experienced officers should have so light a regard for the discipline of the service as to impose even in revision so totally an inadequate sentence, and the Department concurs with the opinion of the convening authority that the only ground for the approval of the sentence of the court is in order that the accused may not wholly escape punishment.

C. M. O. 12-1917

[P. 1] EXPERT TESTIMONY: IMPROPERLY INTRODUCED.

Pay Clerk Walter R. Lowther, United States Navy, was tried by general court martial on February 1, 1917, on board the U. S. S. New York, at Guantanamo, Cuba, by order of the Commander in Chief, U. S. Atlantic Fleet, and was acquitted of the following charge:

Charge. Conduct to the prejudice of good order and discipline (one specification alleging incapacity for the proper performance of duty by reason of his own intemperate use of alcoholic liquors).

ACTION OF THE CONVENING AUTHORITY

"The proceedings of the general court martial in the foregoing case of Walter R. Lowther, Pay Clerk, U. S. Navy, are approved. While the evidence clearly showed that the accused was, on December 28, 1916, suffering from alcoholic or other poisoning to such an extent as to be utterly incapacitated for duty, the court evidently entertained a reasonable doubt that his incapacity was the result

[C. M. O. 15-1917]

of his own intemperate use of alcoholic liquors. From the statement of the accused upon the stand, it appears that during the space of five hours on December 27, 1916, he consumed five drinks of whiskey, partaking of the last in a saloon of such a character as should cause a respectable man to hesitate before entering. All of these actions on his part were entirely voluntary and the situation in which he subsequently found himself was thus entirely one of his own creation. It is trusted that this experience may prove such a lesson to Pay Clerk Lowther, that in the future his conduct may be above suspicion.

"Subject to the foregoing remarks, the finding and acquittal of the general court martial in the foregoing' case of Pay Clerk Walter R. Lowther, U. S. Navy, are approved.

"Pay Clerk Walter R. Lowther, U. S. Navy, will be released from arrest and restored to duty."

REMARKS

It was noted in the record of the above case that a medical officer of the Navy was called as a witness by the defense. At the outset of his testimony said medical officer stated, in effect, that he had never seen the accused before. Thereupon counsel for the accused immediately began a highly technical examination of the witness, based largely upon hypothetical questions, during which it was apparent that the witness was being examined as an "expert."

[P. 2] The court erred in not requiring that the witness be qualified as an expert before receiving the above testimony. The matter of expert testimony, its scope, the rules governing, and the qualification of witness to so testify has been previously covered in court martial orders and no repetition thereof is deemed necessary. (See C. M. O. 24, 1914, 22; 51, 1914, 6-8; 19, 1915, 5.)

C. M. O. 15-1917

[P. 8] COURTS, EXCEPTIONAL MILITARY: CONDUCT OF SAME WHEN HELD BY NAVAL AUTHORITY.

Since a naval court martial is a court of limited jurisdiction, restricted by law to the trial of officers and men of the naval service, it sometimes becomes necessary for the naval establishment, when its duty is such as to place under it the wider jurisdiction conferred by the exercise of military government, to employ tribunals other than courts martial and which have been referred to as exceptional military courts. (See C. M. O. 13, 1916, 6.) These exceptional military courts, unlike the court martial, derive their sanction from the laws of war and not from the enactments of Congress. Among such exceptional military courts are included the military commission, the superior provost court, and the provost court. While the military commander of occupying forces is, by the laws of war, charged with the administration of the occupied territory and is, therefore, not to be unduly restricted in the measures to be employed in such administration, the following is laid down, supplementary to the instructions contained in C. M. O. 13, 1916, 6, on this subject, as a guide in respect to the above-mentioned military courts:

A military commission should, in general, correspond to a general court martial both as to its constitution and as to its proceedings. Except in a case where the convening authority may, for military reasons, direct otherwise, all evidence taken before such commission shall be recorded as in general courts martial. A military commission should be limited in the punishments which it may adjudge only to such an extent as the convening authority may deem proper.

A superior provost court should, in general, correspond to a summary court martial both as to its constitution and as to its proceedings. Except where the convening authority may, for military reasons, direct otherwise, evidence introduced before such court shall be recorded. A superior provost court ordinarily should not be granted authority to impose sentences involving confinement for more than five years nor fines of more than $3,000.

A provost court should, in general, correspond to a deck court both as to its constitution and as to its proceedings. Evidence taken before such court need not ordinarily be recorded. A provost court ordinarily should not be granted authority to impose sentences involving confinement for more than six months, nor fines of more than $300.

[C. M. O. 15—1917]

[P. 9] The authority to convene the above-mentioned exceptional military courts vests only in the military commander or military governor of an occupied territory, and all such courts may be ordered only in the name of such commander or governor. When a military commander or governor desires to authorize an officer under his command to convene any of the above courts, he may delegate such authority to a subordinate, but the latter may so act only as a representative and in the name of the military commander or governor. When so acting, such subordinate officer may, subject to any action in remission or mitigation he may see fit to take, upon his own approval, put into immediate execution the sentences of such exceptional military courts as the military commander or governor has empowered him to convene. But in all cases the records of such courts shall be forwarded to the military commander or governor, who shall review all such records, and who may set aside the proceedings, or remit or mitigate, in whole or in part, the sentence imposed by any military commission, superior provost court, provost court, or other exceptional military court convened by his order or by that of his predecessor in command, or by that of any officer under his command or the predecessor of any such officer. Also, nothing herein shall be taken to modify the limitation prescribed in C. M. O. 13, 1916, 6, in regard to the execution of a death sentence.

Insofar as practicable, the employment of exceptional military courts should, as a general rule, be restricted to the trial of offenses in breach of the peace, in violation of military orders or regulations, or otherwise in interference with the exercise of military authority.

Inasmuch as the most frequent offenses are the minor offenses which should be tried by the provost court, the following form is given to guide in such cases:

PRECEPT

Place and date

Captain A----- B------, U. S. Marine Corps, is hereby ordered as provost court for the district of (or otherwise describe the locality) for the trial of such of the inhabitants or sojourners therein-not including members of the military services of the United States (and other exceptions if desired)—as may commit offenses not deemed to warrant punishment exceeding confinement, with or without hard labor, for thirty days and fines not exceeding $100 (and any other restrictions upon the offenses coming under the jurisdiction of this court which may be desired).

All cases brought before this court which the court shall deem deserving of a greater punishment than that above prescribed shall be certified to the superior provost court for the district of and the offenders shall be ordered kept in confinement awaiting the [P. 10] action of such superior court (or shall be reported to the undersigned for other disposition of their cases). Reports of cases tried and dispositions therof shall be rendered daily to the undersigned.

(When the authority to convene such courts has been delegated by the military commander to a subordinate, the precept should so state. Thus, the above should read:

In accordance with the authority delegated to me by Rear Admiral C-----D______, U. S. Navy, Commanding the U. S. Forces Occupying ------, under date of Captain A----- B_. -‒‒‒‒‒, U. S. Marine Corps, is hereby ordered,

etc.)

RECORD OF PROCEEDINGS

Proceedings of provost court held for the district of

of (name and office of the convening authority) under date of The court met at 10 a. m.

(Place and date) by the authority

was arraigned on the charge of

and pleaded as

follows:

Witnesses for prosecution: