and sentence by a court-martial in the same manner and to the same extent as if he had not been so discharged, dismissed, or dropped from the rolls. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 805); 10 U. S. C. 1566. Same as in Code of 1916, except that the last sentence is new. 453 (A. W. 95). Conduct unbecoming an officer and gentleman.—Any officer or cadet who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 806); 10 U. S. C. 1567. Same as in Code of 1916. 454 (A. W. 96). General article.-Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital, of which persons subject to military law may be guilty, shall be taken cognizance of by a general or special or summary court-martial, according to the nature and degree of the offense, and punished at the discretion of such court. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 806); 10 U. S. C. 1568. Same as in Code of 1916. For additional penalties prescribed by statute see 1061, post. IV. COURTS OF INQUIRY 455 (A. W. 97). When and by whom ordered.-A court of inquiry to examine into the nature of any transaction of or accusation or imputation against any officer or soldier may be ordered by the President or by any commanding officer; but a court of inquiry shall not be ordered by any commanding officer except upon the request of the officer or soldier whose conduct is to be inquired into. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 807); 10 U. S. C. 1569. Same as in Code of 1916. 456 (A. W. 98). Courts of inquiry; composition.-A court of inquiry shall consist of three or more officers. For each court of inquiry the authority appointing the court shall appoint a recorder. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 807); 10 U. S. C. 1570. Same as in Code of 1916. 457 (A. W. 99). Courts of inquiry; challenges.-Members of a court of inquiry may be challenged by the party whose conduct is to be inquired into, but only for cause stated to the court. The court shall determine the relevancy and validity of any challenge, and shall not receive a challenge to more than one member at a time. The party whose conduct is being inquired into shall have the right to be represented before the court by counsel of his own selection if such counsel be reasonably available. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 807); 10 U. S. C. 1571. Same as in Code of 1916. 458 (A. W. 100). Courts of inquiry; oath of members and recorders.-The recorder of a court of inquiry shall administer to the members the following oath: "You, A. B., do swear (or affirm) that you will well and truly examine and inquire, according to the evidence, into the matter now before you without partiality, favor, affection, prejudice, or hope of reward. So help you God." After which the president of the court shall administer to the recorder the following oath: “You, A. B., do swear (or affirm) that you will, according to your best abilities, accurately and impartially record the proceedings of the court and the evidence to be given in the case in hearing. So help you God." 1 In case of affirmation the closing sentence of adjuration will be omitted. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 807); 10 U. S. C. 1572. Same as in Code of 1916. 459 (A. W. 101). Courts of inquiry; powers; procedure.-A court of inquiry and the recorder thereof shall have the same power to summon and examine witnesses as is given to courts-martial and the trial judge advocate thereof. Such witnesses shall take the same oath or affirmation that is taken by witnesses before courts-martial. A reporter or an interpreter for a court of inquiry shall, before entering upon his duties, take the oath or affirmation required of a reporter or an interpreter for a court-martial. The party whose conduct is being inquired into or his counsel, if any, shall be permitted to examine and crossexamine witnesses so as fully to investigate the circumstances in question. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 807); 10 U. S. C. 1573. Same as art. 101, Code of 1916, except that the word "trial" is inserted before the words "judge advocate." For authority to summon witnesses, see A. W. 22, ante, 379. For oaths required of witnesses, reporters, and interpreters, see A. W. 19, ante, 376. 460 (A. W. 102). Courts of inquiry; opinion on merits of case. A court of inquiry shall not give an opinion on the merits of the case inquired into unless specially ordered to do so. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 807); 10 U. S. C. 1574. 461 (A. W. 103). Courts of inquiry; record of proceedings. Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signature of the president and the recorder thereof, and be forwarded to the convening authority. In case the record can not be authenticated by the recorder, by reason of his death, disability, or absence, it shall be signed by the president and by one other member of the court. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 807); 10 U. S. C. 1575. Same as in Code of 1916. '. V. MISCELLANEOUS PROVISIONS 462 (A. W. 104). Disciplinary powers of commanding officers.-Under such regulations as the President may prescribe, the commanding officer of any detachment, company, or higher command may, for minor offenses impose disciplinary punishments upon persons of his command without the intervention of a court-martial, unless the accused demands trial by court-martial. The disciplinary punishments authorized by' this article may include admoni'tion, reprimand, withholding of privileges for not exceeding one week, extra fatigue for not exceeding one week, restriction to certain specified limits for not exceeding one week, and hard labor without confinement for not exceeding one week, but shall not include forfeiture of pay or confinement under guard; except that in time of war or grave public emergency a commanding officer of the grade of brigadier general or of higher grade may, under the provisions of this article also impose upon an officer of his command below the grade of major a forfeiture of not more than one-half of such officer's monthly pay for one month. A person punished under authority of this article, who deems his punishment unjust or disproportionate to the offense, may, through the proper channel, appeal to the next superior authority, but may in the meantime be required to undergo the punishment adjudged. The commanding officer who imposes the punishment, his successor in command, and superior authority shall have power to mitigate or remit any unexecuted portion of the punishment. The imposition and enforcement of disciplinary punishment under authority of this article for any act or omission shall not be a bar to trial by court-martial for a crime or offense growing out of the same act or omission; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 808); 10 U. S. C. 1576. This article omits matter which appeared in the first paragraph of art. 104, Code of 1916, as follows: After the words "President may prescribe," the words "and which he may from time to time revoke, alter, or add to," and after the words "minor offenses" the words "not denied by the accused." The first sentence of the second para graph of the former article read as follows: "The disciplinary punishments authorized by this article, may include admonition, reprimand, withholding of privileges, extra fatigue, and restriction to certain specified limits, but shall not include forfeiture of pay or confinement under guard"; that portion of the said sentence, as it now stands, following the semicolon, is new; otherwise the paragraph is the same. 463 (A. W. 105). Injuries to property; redress of. Whenever complaint is made to any commanding officer that damage has been done to the property of any person or that his property has been wrongfully taken by persons subject to military law, such complaint shall be investigated by a board consisting of any number of officers from one to three, which board shall be convened by the commanding officer and shall have, for the purpose of such investigation, power to summon witnesses and examine them upon oath or affirmation, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by such board shall be subject to the approval of the commanding officer, and in the amount approved by him shall be stopped against the pay of the offenders. And the order of such commanding officer directing stoppages herein authorized shall be conclusive on any disbursing officer for the payment by him to the injured parties of the stoppages so ordered. Where the offenders cannot be ascertained, but the organization or detachment to which they belong is known, stoppages to the amount of damages inflicted may be made and assessed in such proportion as may be deemed just upon the individual members thereof who are shown to have been present with such organization or detachment at the time the damages complained of were inflicted as determined by the approved findings of the board. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 808); 10 U. S. 0. 1577. 1 Same as art. 105, Code of 1916, except that the words "person or" were in the title of the former article, preceding the word "property." 464 (A. W. 106). Arrest of deserters by civil officials.-It shall be lawful for any civil officer having authority under the laws of the United States, or of any State, Territory, District, or possession of the United States, to arrest offenders, summarily to arrest a deserter from the military service of the United States and deliver him into the custody of the military authorities of the United States. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 808); 10 U. 8. C. 1578. Same as in Code of 1916. 465 (A. W. 107). Soldiers to make good time lost. Every soldier who in an existing or subsequent enlistment deserts the service of the United States or without proper authority absents himself from his organization, station, or duty for more than one day, or who is confined for more than one day under sentence, or while awaiting trial and disposition of his case, if the trial results in con viction, or through the intemperate use of drugs or alcoholic liquor, or through disease or injury the result of his own misconduct, renders himself unable for more than one day to perform duty, shall be liable to serve, after his return to a full-duty status, for such period as shall, with the time he may have served prior to such desertion, unauthorized absence, confinement or inability to perform duty, amount to the full term of that part of his enlistment period which he is required to serve with his organization before being furloughed to the Army reserve. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 809); 10 U. S. C. 1579. Same as in Code of 1916. Notes of Decisions along the road, injuring both men and thereby rendering them unable for more than one day to perform duty, the injuries sustained were not the result of their own misconduct. (1931) 36 Op. Atty. Gen. 478. Result of own misconduct.-Where enlisted | trol of the machine, which ran into a fence men had been absent on 24-hour passes and were returning to their station on a twoseated motorcycle belonging to one of them, several hours after expiration of the 24-hour period, when the lights of the motorcycle suddenly failed, causing owner to lose con 466 (A. W. 108). Soldiers; separation from the service.-No enlisted man, lawfully inducted into the military service of the United States shall be discharged from said service without a certificate of discharge, signed by a field officer of the regiment or other organization to which the enlisted man belongs or by the commanding officer when no such field officer is present; and no enlisted man shall be discharged from said service before his term of service has expired, except by order of the President, the Secretary of War, the commanding officer of a department, or by sentence of a general court-martial. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 809); 10 U. 8. C. 1580. Same as in Code of 1916. For form of discharge certificate to be issued to man enlisted under twenty-one years of age without the written consent of his parent or guardian and thereafter discharged at the request of the parent or guardian, see 231, ante. Notes of Decisions Character of discharge.-Demurrer to answer, in petition for mandamus alleging that the form of discharge granted a man duly inducted for military service but never entrained, due to cancelation of all calls on November 11, 1918, was a matter within the sound discretion of the Secretary of War, overruled. Story v. Dern, Sec'y of War, et al. (Oct., 1934); At law, No. 84,298, Dist. of Col. Supr. Ct. (No opinion.) The words "honorably discharged" in a certificate of discharge do not necessarily control where the War Department has ruled that a soldier having a certificate of discharge containing such words was nevertheless not honorably separated. Horylev v. New York State Bonus Commission (N. Y., 1927), 221 N. Y. Supp. 548. Discharge from draft.-Taxpayer, who had been ordered by his local draft board during war to enter military service and had reported to mobilization camp where he was discharged from draft because of physical unfitness, held not to have received an "honorable discharge" within constitutional provision exempting property of veterans to value of $1,000 from taxation (Const., art. 13, sec. 14, amended in 1932). Zearing v. Johnson (Cal., 1935), 52 P. (2d) 1019. Effect of honorable discharge.-"Honorable discharge" from army is formal and final judgment based by government upon military record of member of its armed forces, and declaration that such person has left service in a status of honor. Zearing v. Johnson (Cal., 1935), 52 P. (2d) 1019. 467 (A. W. 109). Oath of enlistment.-At the time of his enlistment every soldier shall take the following oath or affirmation: "I, -, do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the Rules and Articles of War." This oath or affirmation may be taken before any officer. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 809); 10 U. S. C. 1581. Same as in Code of 1916. Sec. 11, act of Aug. 3, 1861 (12 Stat. 289), conferred authority to administer the oath of allegiance to soldiers upon any commissioned officer of the Army. 468 (A. W. 110). Certain articles to be read and explained.—Articles 1, 2, and 29, 54 to 96, inclusive, and 104 to 109, inclusive, shall be read and explained to every soldier at the time of his enlistment or muster in, or within six days thereafter, and shall be read and explained once every six months to the soldiers of every garrison, regiment, or company in the service of the United States. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 809) ; 10 U, S. C. 1582. Same as in Code of 1916. 469 (A. W. 111). Copy of record of trial. Every person tried by a general court-martial shall, on demand therefor, made by himself or by any person in his behalf, be entitled to a copy of the record of the trial. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 809); 10 U. S. C. 1583. Same as in Code of 1916. 470 (A. W. 112). Effects of deceased persons; disposition.-In case of the death of any person subject to military law, the commanding officer of the place of command will permit the legal representative or widow of the deceased, if present, to take possession of all his effects then in camp or quarters; and if no legal representative or widow be present, the commanding officer shall direct a summary court to secure all such effects, and said summary court shall have authority to collect and receive any debts due decedent's estate by local debtors and to pay the undisputed local creditors of decedent in so far as any money belonging to the deceased which may come into said summary court's possession under this article will permit, taking receipts therefor for file with said court's final report upon its transactions to the War Department; and as soon as practicable after the collection of such effects said summary court shall transmit such effects and any money collected, through the Quartermaster Department, at Government expense, to the widow or legal representative of the deceased, if such be found by said court, or to the son, daughter, father, provided the father has not abandoned the support of his family, mother, brother, sister, or the next of kin in the order named, if such be found by said court, or the beneficiary named in the will of the deceased, if such be found by said court, and said court shall thereupon make to the War Department a full report of its transactions; but if there be none of the persons hereinabove named, or such persons or their addresses are not known to or readily ascertainable by said court, and the said court shall so find, said summary court shall have authority to convert into cash, by public or private sale, not earlier than thirty days after the death of the deceased, all effects of deceased except sabers, insignia, decorations, medals, watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes; and as soon as practicable after converting such effects into cash said summary court shall deposit with the proper officer, to be designated in regulations, any cash belonging to decedent's estate, and shall transmit a receipt for such deposits, any will or other papers of value belonging to the deceased, any sabers, insignia, decorations, medals, watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes, together with an inventory of the effects secured by said summary court, and a full account of its transactions, to the War Department for transmission to the Auditor for the War Department for action as authorized by law in the settlement of accounts of deceased officers and enlisted men of the Army. |