CA 408 TITLE II.—Courts-Martial

Courts-martial classified.

Article 3

ART. 3. Courts-martial classified.—Courts-martial shall be of three kinds, namely: First, General Courts-Martial; Second, Special Courts-Martial; and Third, Summary Courts-Martial. A. COMPOSITION

Who may serve on courts-martial.

Article 4

ART. 4. Who may serve on courts-martial.—All officers in active duty in the Army shall be competent to serve on courts-martial for the trial of any person who may lawfully be brought before such courts for trial. When appointing courts-martial, the appointing authority shall detail as members thereof those officers of the command who, in his opinion, are best qualified for the duty by reason of age., training, experience, and judicial temper­ament ; and officers having less than two years' service shall not, if it can be avoided without manifest injury to the service, be appointed as members of courts-martial in excess of the minority membership thereof.

General Courts-Martial.

Article 5

ART. 5. General Courts-Martial.—General courts-martial may consist of any number of officers not less than five.

Special Courts-Martial.

Article 6

ART. 6. Special Courts-Martial.—Special courts-martial j may consist of any number of officers not less than three.

Summary Courts-Martial.

Article 7

ART. 7. Summary Courts-Martial.—A summary court-martial shall consist of one officer. B. BY WHOM APPOINTED

General Courts-Martial.

Article 8

ART. 8. General Courts-Martial.—The President of the Philippines, the Chief of Staff of the Philippine Army, and, when empowered by the President, the Provost Marshal General, the Commanding Officer of a Division, the District Commander, the Superintendent of the Military Academy, the Commanding Officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority, and no officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution or for the defense. The authority appointing a general court-martial shall detail as one of the members thereof a law member, who shall be an officer of the Judge Advocate Service, except that when an officer of that service is not-available for the purpose the appointing authority, shall detail instead an officer of some other branch of the service selected by the appointing authority as specially qualified to perform the duties of law member. The law member, in addition to his duties as a member, shall perform such other duties as the President may by regulations prescribe.

Special Courts-Martial.

Article 9

ART. 9. Special Courts-Martial.—The commanding officer of a district and when empowered by the President, the commanding officer of a garrison, fort, camp, brigade, regiment, detached battalion, or other detached command may appoint special courts-martial but when any such commanding officer is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior authority, and may in- any case be appointed by superior authority when, by the latter deemed desirable; and no officer shall-be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution or for-the defense.

Summary Courts-Martial.

Article 10

ART. 10. Summary Courts-Martial.—The commanding officer of a garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a regiment, detached battalion, detached company, or other detachment may appoint summary courts-martial; but such summary courts-martial may in any case be appointed by superior authority when by the latter deemed desirable: Provided, That when but one officer is present with a command he shall be the summary court-martial of that command and shall hear and determine cases brought before him.

Appointments of trial judge advocates and counsel.

Article 11

ART. 11. Appointments of trial judge advocates and counsel.—For each general or special courts-martial, the, authority appointing the court shall appoint a trial judge advocate and a defense counsel, and for each general courts-martial, one or more assistant trial judge advocates and one or more assistant defense counsel when necessary: Provided,. however, That no officer who has acted as member, trial judge advocate, assistant trial judge advocate, defense counsel, or assistant defense counsel in any case shall subsequently act as staff judge advocate to the reviewing or confirming authority upon the same case. C. JURISDICTION

General Courts-Martial.

Article 12

ART. 12. General Courts-Martial.—General courts-martial shall have power to try any person subject to military law for any crime or offense made punishable by these articles, and any other person who by the law of war is subject to trial by military tribunals: Provided, That no officer shall be brought"^ trial before a general courts-martial appointed by the Superintendent of the Military Academy: Provided, further, That the officer competent to appoint a general court-martial for the trial of any particular case may, when in his judgment the interest of the service' shall so require, cause any case to be tried by a special court-martial notwithstanding the limitations upon the jurisdiction of the special courts-martial as to offenses set out in article 13; but the limitations upon jurisdiction as to persons and upon punishing power set out in said article shall be observed.

Special Courts-Martial.

Article 13

ART. 13. Special Courts-Martial.—Special courts-martial shall have power to try any person subject to military-law for any crime or offense not capital made punishable by these articles: Provided, That the President may, by regulations, except from the jurisdiction of special courts-martial any class or classes of persons subject to Military Law. Special courts-martial shall not have power to adjudge' confinement in excess of six months, nor to adjudge forfeiture of more than two-thirds pay per month for a period of not exceeding six months.

Summary Courts-Martial.

Article 14

ART. 14. Summary Courts-Martial.—Summary courts-martial shall have power to try any person subject to military law, except an officer, a member of the Nurse Corps, a cadet, a flying cadet or probationary third lieutenant, for any crime or offense not capital made punishable by these articles: Provided, That non-commissioned officers shall not, if they object thereto, be brought to trial before a summary court-martial without the authority of the officer competent to bring them to trial before a general court-martial Provided, further, That the President may, by regulations, except from the jurisdiction of summary courts-martial any class or classes of persons subject to military law. Summary courts-martial shall not have power to adjudge confinement in excess of one month, restriction to limits for more than three months, or forfeiture or detention of more than two-thirds of one month's pay.

Jurisdiction not exclusive.

Article 15

ART. 15. Jurisdiction not exclusive.—The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military tribunals.

Officers, how triable.

Article 16

ART. 16. Officers, how triable.—Officers shall be triable ;only by general and special courts-martial, and in no case shall an officer, when it can be avoided, be tried by officers inferior to him in rank. D. PROCEDURE

Trial judge advocate to prosecute; counsel to defend.

Article 17

ART. 17. Trial judge advocate to prosecute; counsel to defend.—The trial judge advocate of a general or special .court-martial shall prosecute in the name of the People of the Philippines and shall, under the direction of the court, prepare the record of its proceedings. The accused shall have the right to be represented in his defense before the court by counsel of his own selection, civil counsel if he so provides, or military if such counsel be reasonably available, otherwise by the defense counsel duly appointed for the court pursuant to article eleven. Should the accused have counsel of his own selection, the defense counsel and assistant defense counsel, if any, of the court, shall, if the accused so desires, act as his associate counsel.

Challenges.

Article 18

ART. 18. Challenges.—Members of a general or special court-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not deceive a challenge to more than on member at a time Challenges by the trial judge advocate N&hall ordinarily be presented an decided before those by the-accused are offered.

Oaths.

Article 19

ART. 19. Oaths.—The trial judge advocate of a general" or special court-martial shall administer to the members of the court, before they proceed upon any trial, the following oath or affirmation: "You, A. B. do swear (or affirm) that you will well and truly try and determine, according to the evidence, the matter now before you, between the People, of the Philippines and the person to be tried, and that you will duly administer justice, without partiality, favor, or affection according to the provisions of the rules and articles for the government of the army of the Philippines, and if any doubt should arise, not explained by said rules and articles, then according to your conscience, the best of your understanding, and the custom of war in like cases and you do further swear (or affirm) that you will not divulge the findings or sentence of the court until they shall be published by the proper authority or duly announced by the court, except to the trial judge advocate and assistant trial judge advocate; neither will you disclose or discover the vote or opinion of any particular member of the court-martial upon a challenge or upon the findings or sentence, unless required to give evidence thereof as a witness by a court of justice in due course of law. So help you God." When the oath of affirmation has been administered to the members of a general or special court-martial, the president of the court shall administer to the trial judge advocate and to each assistant trial judge advocate, if any, an oath or affirmation in the following form: "You, A. B. dc swear (or affirm) that you will faithfully and impartially perform the duties of a trial judge advocate, and will not divulge the findings or sentence of the court to any but the proper authority until they shall be duly disclosed. So help you God." All persons who give evidence before a court-martial shall be examined on oath or affirmation in the following form: "You swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth and nothing but the truth. So help you God." Every reporter of the proceedings of a court-martial shall, before entering upon his duties, take oath or affirmation in the following form: "You swear (or affirm) that you will faithfully perform the duties of reporter to this court. So help you God." Every interpreter in the trial of any case before a court-martial shall, before entering upon his duties, take oath or affirmation in the following form: "You swear (or affirm) that you will truly interpret in the case now in hearing. So help you God." In case of affirmation the closing sentence of adjuration will be omitted.

Continuances.

Article 20

ART. 20. Continuances.—A court-martial may, for reasonable cause, grant a continuance to either party for such time and as often as may appear to be just.

Refusal or failure to plead.

Article 21

ART. 21. Refusal or failure to plead.—When an accused arraigned before a court-martial fails or refuses to plead, or answers foreign to the purpose, or after a plea of guilty makes a statement inconsistent with the plea, or when it appears to the court that he entered a plea of guilty improvidently or through lack of understanding of its meaning and effect, the court shall proceed to trial and judgment as if he had pleaded not guilty.

Process to obtain witnesses.

Article 22

ART. 22. Process to obtain witnesses.—Every trial judge advocate of a general or special court-martial and every summary court-martial shall have power to issue the like process to compel witnesses to appear and testify which courts of the Philippines, having criminal jurisdiction, may lawfully issue.

Refusal to appear or testify.

Article 23

ART. 23. Refusal to appear or testify.—Every person not subject to military law who, being duly subpoenaed to appear as a witness before any military court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to- be read in evidence before such court, commission, court of inquiry, or board, willfully neglects or refuses to appear, or refuses to qualify as a witness, or testify, or produce documentary evidence which such person may have been legally subpoenaed to produce, shall be deemed guilty of contempt, for which such person shall be punished on information in the Court of First Instance of the Province or city where the subpoena is issued, jurisdiction being hereby conferred upon such courts for such purpose and it shall be the duty of the city fiscal or city attorney or provincial fiscal, on the certification of the facts to him by the military court, commission, court of inquiry, or board, to file an information against and prosecute the person so offending in the manner provided in sections two hundred and thirty-three and following of Act Numbered One hundred and ninety, and the punishment of such person, on conviction, shall be that provided in sections two hundred and thirty-six and two hundred and thirty-seven of the aforesaid Act: Prowled, That reasonable traveling expenses be allowed to indigent witnesses, such amounts to be paid out of the appropriation of the Army.

Compulsory self-incrimination prohibited.

Article 24

ART. 24. Compulsory self-incrimination prohibited.—No witness before a military court, commission, court of inquiry, or board, or before any officer conducting an investigation, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry or board, or before an officer conducting an investigation, shall be compelled to incriminate himself, or to answer any question not material to the issue when such answer might tend to degrade him.

Depositions—When admissible.

Article 25

ART. 25. Depositions—When admissible.—A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, if such deposition be taken when the witness resides, is found, or is about to go outside of the Philippines, or beyond the distance of one hundred and fifty kilometers from the place of trial or hearing, and will probably continue absent when the testimony is required, or when it appears to the satisfaction of the court, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, imprisonment, or other reasonable cause, is unable to appear and testify in person at the place of trial or hearing: Provided, That testimony by deposition may be adduced for the defense in capital cases.

Depositions—Before whom taken.

Article 26

ART. 26. Depositions—Before whom taken.—Depositions -to be read in evidence before military courts, commissions, courts of inquiry, or military boards, or for other use in military administration, may be taken before and authenticated by any officer, military or civil, authorized by the laws of the Philippines or by the laws of the place where the deposition is taken to administer oaths.

Courts of inquiry—Records of, when admissible.

Article 27

ART. 27. Courts of inquiry—Records of, when admissible.—The records of the proceedings of a court of inquiry -may, with the consent of the accused, be read in evidence before any court-martial or military commission in any case not capital nor extending to the dismissal of an officer, and may also be read in evidence in any proceeding before a court of inquiry or a military board: Provided, That such evidence may be adduced by the defense in capital cases or cases extending to the dismissal of an officer.

Court to announce action.

Article 28

ART. 28. Court to announce action.—Whenever the court -has acquitted the accused upon all specifications and charges, the court shall at once announce such result in open court. Under such regulations as the President may prescribe, the findings and sentence in other cases may be similarly announced.

Closed sessions.

Article 29

ART. 29. Closed sessions.—Whenever a general or special court-martial shall sit in closed session, the trial judge advocate and the assistant trial judge advocate, if any, shall withdraw; and when their assistance in referring to the recorded evidence is required, it shall be obtained in open court, and in the presence of the accused and of his counsel, if there be any.

Method of voting.

Article 30

ART. 30. Method of voting.—Voting by members of a general or special court-martial upon question of challenge, on the findings, and on the sentence shall be -by secret written ballot. The junior member of the court shall in each case count the votes, which count shall be checked by the president who will forthwith- announce the result of the ballot to the members of the court. The law member of the court, if any, or if there be no law member of the court, then the president may rule in open court upon interlocutory questions,other than challenge, arising during the proceedings: Provided, That unless such ruling be made by the law member of the court if any member object thereto the court shall be cleared and closed and the question decided by a majority vote viva voce, beginning with the junior in rank: And provided,, further, That if any such Ruling be made by the law member of the court upon any interlocutory question other than an objection to the admissibility of evidence offered during the trial, and any member object to the ruling, the court shall likewise be cleared and closed and the question decided by a majority vote, viva voce, beginning with the junior in rank: Provided further, however, That the phrase, "objection to the admissibility of evidence offered during the trial," as used in the next preceding proviso hereof, shall not be construed to include questions 4s to the order of the introduction of witnesses or other evidence, nor of' the recall of witnesses for further examination, nor as to whether the expert witnesses shall be admitted or called upon any question, nor as to whether the court shall view the premises where an offense is alleged to have been committed, nor as to the competency of witnesses, as, for .instance, of children, witnesses alleged to be mentally incompetent, and the like, nor as to the insanity of accused, or whether the existence of mental disease or mental derangement on the part of the accused has become an issue in the trial, or accused required to submit to physical examination, nor whether any argument or statement of counsel for the accused or of the trial judge advocate is improper, nor any ruling in a case involving military strategy or tactics or correct military action; but, upon all these questions arising on the trial, if any member object to any ruling of the law member, the court shall be cleared and closed and the question decided by majority vote of the members in the manner aforesaid.

Contempts.

Article 31

ART. 31. Contempts.—A military tribunal may. punish as for contempt any person who disturbs its proceedings by any riot or disorder: Provided, That such punishment shall in no case exceed ten days' confinement, or a fine riot exceeding two hundred pesos, or both.

Records—General Courts-Martial.

Article 32

Art. 32. Records—General Courts-Martial.—Each general court-martial shall keep a separate record of its proceedings in the trial of each case brought before it, and such record shall be authenticated by the signature of the president and the trial judge advocate; but in case the record cannot be authenticated by the president and the trial judge advocate, by reason of the death, disability, or absence of either or both of them, it shall be signed by a member in lieu of the President and by an assistant trial judge advocate, if there be one, in lieu of the trial judge advocate; otherwise by another member of the court.

Records—Special and Sum?nary Courts-Martial.

Article 33

ART. 33. Records—Special and Sum?nary Courts-Martial.—Each special court-martial and each summary court-martial shall keep a record of its proceedings, separate for each case which record shall contain such matter and be authenticated in such manner as may be required by regulations which the President may from time to time prescribe.

Disposition of records—General and Special Courts-Martial.

Article 34

ART. 34. Disposition of records—General and Special Courts-Martial.—The trial judge advocate of each/general or special court-martial shall, with such expedition as circumstances may permit, forward, to the appointing authority or to his successor in command the original record of the proceedings of such court in the trial ^of each case. All records of such proceedings shall; after having been acted upon, be transferred to the Judge Advocate General of the Army.

Article 35

ART. 35. Disposition of records—Summary Courts-Martial— After having been acted upon by the officer appointing the court, or by the officer commanding for the time being, a report of each trial by summary courts-martial shall be transmitted to such general headquarters as the President may designate in regulations, there to be filed in the office of the judge advocate. When no longer of use, records of summary courts-martial may be destroyed.

Irregularities—Effect of.

Article 36

ART. 36. Irregularities—Effect of.—The proceedings of a court-martial shall not be held invalid, nor the findings or sentence disapproved in any case on the ground of improper admission or rejection of evidence or for any error as to any matter of pleading or procedure unless in the opinion of the reviewing or confirming authority, after an examination of the entire proceedings, it shall appear that the error complained of has injuriously affected the substantial rights of an accused: Provided, That the act or omission upon which the accused has been tried constitutes an offense denounced and made punishable by one or more of these articles: Provided further, That the omission of the words "hard labor" in any sentence of a court-martial adjudging imprisonment or confinement shall not be construed as depriving the authorities executing such sentence of imprisonment or confinement of the power to require hard labor as a part of the punishment in any case where it is authorized by the Executive Order prescribing maximum punishments.

President may prescribe rules.

Article 37

ART. 37. President may prescribe rules.—The President may, by regulations, which he may modify from time to time, prescribe the procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions and other military tribunals, which regulations shall, in so far as he shall deem practicable, apply the rules of evidence generally recognized in the trial of criminal cases in the courts of justice of the Philippines: Provided, That nothing contrary to or inconsistent with these articles shall be so prescribed. E. LIMITATIONS UPON PROSECUTIONS

As to time.

Article 38

ART. 38. As to time.—Except for desertion or murder committed in time of war, or for mutiny, no person subject to military law shall be liable to be tried or punished by a court-martial for any crime or offense committed more than two years before the arraignment of such person: Provide, That for desertion in time of peace or for any crime or offense punishable under articles ninety-four and ninety-five of these articles, the period of limitations upon trial and punishment by courts-martial shall be three years: Provided further, That the period pi any absence of the accused/from the jurisdiction of the Philippines, and also any period during which by reason of some manifest impediment the" accused shall not have been amenable to military justice, shall be exclude in computing the aforesaid periods of limitation: And provided, further, That this article shall not have the effect to authorize the trial or punishment for any crime or offense barred by .the provisions of existing law.

As to number.

Article 39

ART. 39. As to number.—No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority shall have taken final action upon the case. No authority shall return a record of trial to any court-martial for reconsideration of— An acquittal; or A finding of not guilty of any specification; or A finding of not guilty of any charge, unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some Article of War; or The sentence originally imposed, with a view to increasing its severity, unless such sentence is less than the mandatory sentence fixed by law for the offense or offenses upon which a conviction has been had. And no court-martial in any proceedings on revision, shall reconsider its findings or sentence in any particular in which a return of the record of trial for such reconsideration is herein before prohibited. F. PUNISHMENTS

Cruel and unusual 'punishments prohibited.

Article 40

ART. 40. Cruel and unusual 'punishments prohibited.— " Cruel and unusual punishments of every kind are prohibited.

Place of confinement —When lawful.

Article 41

ART. 41. Place of confinement —When lawful.—Except for desertion in time of war, repeated desertion in time of peace, and mutiny, no person shall, under the sentence of a court-martial, be punished by confinement in a penitentiary unless an act or omission of which he is convicted is recognized as an offense of a civil nature and so punishable by penitentiary confinement for more than one year by some statute of the Philippines, or by way of commutation of a death sentence, and unless, also the period of confinement authorized and adjudged by such court-martial is more than one year: Provided, That when a sentence of confinement is adjudged by a court-martial upon conviction of two or more acts or omissions, any one of which is punishable under these articles by confinement in a penitentiary, the entire sentence of confinement may be executed in a penitentiary: Provided further, That penitentiary confinement hereby authorized may be served in any penitentiary under the jurisdiction of the Philippines: Provided, further, That persons sentenced to dishonorable discharge and to confinement, not in a penitentiary shall be confined in disciplinary barracks or elsewhere as the President or the reviewing authority may direct, but not in a penitentiary.

Article 42

ART. 42. Death sentence—When lawful—No person shall, by general court-martial, be convicted of any offense tor which the death penalty is made mandatory by law, nor sentenced to suffer death, except by the concurrence of all the members of said court-martial present at the time the vote is taken, and for an offense in these articles expressly made punishable by death; nor sentenced to life imprisonment, nor to confinement for more than ten years, except by the concurrence of three-fourths of all of the members present at the time the vote is taken. All other convictions and sentences, whether by general or special court-martial, may be determined by a two-thirds vote of those members present at the time the vote is taken. All other questions shall be determined by a majority vote.

Cowardice; fraud—Accessory penalty.

Article 43

ART. 43. Cowardice; fraud—Accessory penalty.—When an officer is dismissed from the service for cowardice or fraud, the crime, punishment, name, and place of abode of the delinquent shall be published in the newspapers in and about the camp and in the province or city from which the offender came or where he usually resides; and after such publication it shall be scandalous for an officer to associate with him.

Article 44

ART. 44. Maximum limits. Whenever the punishment for a crime or offense made punishable by these articles is left to the discretion of the court-martial, the punishment shall not exceed such limit or limits as the President may from time to time prescribe: Provided, That in time of peace the period of confinement in a penitentiary shall in no case exceed the maximum period prescribed by law which, under article forty-one of these articles, permits confinement in a penitentiary, unless in addition to the offense so punishable under such law the accused shall have been convicted at the same time of one or more other offenses. G. ACTION BY APPOINTING OR SUPERIOR AUTHORITY

Action by convening authority.

Article 45

ART. 45. Action by convening authority.—Under such regulations as may be prescribed by the President, every record of trial by general or special court-martial or military commission received by a reviewing or confirming authority shall be referred by him, before he acts hereon, to his staff judge advocate or to the Judge Advocate General. No sentence of a court-martial shall be carried into execution until the same shall have been approved by the officer appointing the court or by the officer commanding for the time being.

Powers incident to power to approve.

Article 46

ART. 46. Powers incident to power to approve.—The power to approve the sentence of a court-martial shall be held to include: The power to approve or disapprove a finding and to approve only so much of a finding of guilty of a particular offense as involves a finding of guilty of a lesser included offense when, in the opinion of the authority having power to approve, the evidence of record requires a finding of only the lesser degree of guilt; and The power to approve or disapprove the whole or any part of the sentence. The power to remand a case for rehearing, under the provisions of article fifty.

Confirmation—When required.

Article 47

ART. 47. Confirmation—When required.—In addition to the approval required lay article forty-five, confirmation by the President is required in the following cases before the sentence of a court-martial is carried into execution, namely: Any sentence respecting a general officer; Any sentence extending to the dismissal of an officer, except that in time of .war a sentence extending to the dismissal of an officer below the grade of "brigadier general may be carried into execution upon confirmation by the commanding general of the Army in the field. Any sentence extending to the suspension or dismissal of a cadet, flying cadet, probationary third lieutenant, and Any sentence of death, except in the cases of person's convicted in time of war, of murder, mutiny, desertion, or as spies, and in such excepted cases a sentence of death may be carried into execution, subject to the provisions of article 50, upon confirmation by the commanding general of the Army in the field. When the authority competent to confirm the sentence has already acted as the approving authority no additional confirmation by him is necessary.

Power incident to power to confirm.

Article 48

ART. 48. Power incident to power to confirm.—The power to confirm the sentence of a court-martial shall be held to include: The power to confirm or disapprove a finding, and to confirm so much only of a finding of guilty of a par­ticular offense as involves a finding of guilty of a lesser included offense when, in the opinion of the authority having power to confirm, the evidence of record requires a finding of only the lesser degree of guilt; The power to confirm or disapprove the whole or any part of the sentence: and The power to remand a case for rehearing, under the provisions of article 50.

Mitigation or remission of sentence.

Article 49

ART. 49. Mitigation or remission of sentence.—The power to order the execution of the sentence adjudged by a court-martial shall be held to include, inter alia, the power to mitigate or remit the whole or any part of the sentence. Any unexecuted portion of a sentence adjudged by a court-martial may be mitigated or remitted by the military authority competent to appoint, for the command, exclusive of penitentiaries and Philippine Army Disciplinary Barracks, in which the person under sentence is held, a court of the kind that imposed the sentence, and the same power may be exercised by superior military authority; but no sentence approved or confirmed by the President shall be remitted or mitigated by any other authority, and no approved sentence of loss of files by an officer shall be remitted or mitigated by any authority inferior to the President, except as provided in article 52. When empowered by the President so to do, the commanding general of the Army in the field or the district commander may approve or confirm and commute (but not approve or confirm without commuting), mitigate, or remit and then order executed as commuted, mitigated, or remitted any sentence which under these articles requires the confirmation of the President before the same may be executed.

Review—Rehearing.

Article 50

ART. 50. Review—Rehearing.—The Judge Advocate General shall constitute, in his office, a board of review consisting of one or more officers of the Judge Advocate Service. Before any record of trial in which there has been adjudged a sentence requiring approval or confirmation by the President under the provisions of article 45, article 47 or article 51, is submitted to the President, such record shall be examined by the board of review. The board shall submit its opinion in writing to the Judge Advocate General, who shall, except as herein otherwise provided, transmit the record and the board's opinion, with his recommendations, to the Chief of Staff for the action of the President. Except as herein provided, no authority shall order the execution of any other sentence of a general court-martial involving the penalty of death, dismissal not suspended, dishonorable discharge not suspended, or confinement in a penitentiary, unless and until the board of review shall, with the approval of the Judge Advocate General, have held the record of trial upon which such sentence is based legally sufficient to support the sentence; except that the proper reviewing or confirming authority may upon his approval of a sentence involving dishonorable discharge or confinement in a penitentiary order its execution if it is based solely upon findings of guilty of a charge or charges and a specification or specifications to which the accused has pleaded guilty. When the board of review, with the approval of the Judge Advocate General, holds the record in a case in which the order of execution has been withheld under the provisions of this paragraph legally sufficient to support the findings and sentence, the Judge Advocate General shall so advise the reviewing or confirming authority from whom the record was received, who may thereupon order the execution of the sentence. When in a case . in which the order of execution has been withheld under the provisions of this paragraph, the board of review holds the record of trial legally insufficient to support the finding or sentence, either in/whole or in part, or that errors of law have been committed injuriously affecting the substantial rights of the accused, and the Judge Advocate General concurs in such holding of the board of review, such findings and sentence shall be vacated in whole or in part in accord with such holding and the recommendations of the Judge Advocate General thereon, and the record shall be transmitted through the proper channels to the convening authority for a rehearing or such other action as may be proper. In the event that the Judge Advocate General shall not concur in the holding of the board of review, the Judge Advocate General shall forward all the papers in the case, including the opinion of the board of review and his own dissent therefrom, directly to the Chief of Staff for the Action of the President, who may confirm the action of the reviewing authority or confirming authority below, in whole or in part, with or without remission, mitigation, or commutation, or may disapprove, in whole or in part, any finding of guilty, and may disapprove or vacate the sentence, in whole or in part. When the President or any reviewing or confirming authority disapproves or vacates a sentence the execution of which has not heretofore been duly ordered, he may authorize or direct a rehearing. Such rehearing shall take place before a court composed of officers not members of the court which first heard the case. Upon such rehearing the accused shall not be tried for any offense of which he was found not guilty by the first court, and no sentence in excess of or more severe than the original sentence shall be enforced unless the sentence be based upon a finding of guilty of an offense not considered upon the merits in the original proceeding: Provided, That such rehearing shall be had in all cases where a finding and sentence have been vacated by reason of the action of the board of review approved by the Judge Advocate General holding the record of trial legally insufficient to support the findings or sentence or errors of law have been committed injuriously affecting the substantial rights of the accused, unless in accord with such action, and the rec­ommendations of the Judge Advocate General thereon, the findings or sentence are approved in part only, or the record is returned for revision, or unless the case is dismissed' by order of the reviewing or confirming authority. After any such rehearing had on the order of the President, the record of trial shall, after examination by the board of review, be transmitted by the Judge Advocate General, with the board's opinion and his recommendations, to the Chief of Staff for the action of the President. Every record of trial by general court-martial, examination of which by the board of review is not herein before in this article provided for, shall nevertheless be examined in the Judge Advocate General's Office; and if found legally insufficient to support the findings and sentence, in whole or in part, shall be examined by the board of review, and the board, if it also finds that such record is legally insufficient to support the findings and sentence, in whole or in part, shall, in writing, submit its opinion to the Judge Advocate General, who shall transmit the record and the board's opinion, with his recommendation, to the Chief of Staff for the action of the President. In any such case the President may approve, disapprove or vacate in whole or in part, any findings of guilty, or confirm, mitigate, commute, remit, or vacate any sentence, in whole or in part, and direct the execution of the sentence as confirmed or modified, and he may restore, the accused to all rights affected by the findings and sentence, or part thereof held to be invalid; and the President's necessary orders to this end shall be binding upon all departments and officers of the Government. Whenever necessary, the Judge Advocate General may constitute two or more boards of review in his office, with equal powers and duties.

Suspension of sentence of dismissal or death.

Article 51

ART. 51. Suspension of sentence of dismissal or death.— The authority competent to order the execution of a sentence of dismissal of an officer or a sentence of death may suspend such sentence until the pleasure of the President be known, and in case of such suspension a copy of the order of suspension, together with a copy of the record of trial, shall immediately be transmitted to the President.

Suspension of sentence.

Article 52

ART. 52. Suspension of sentence.—The authority competent to order the execution of the sentence of a court-martial may, at the time of the approval of such sentence, suspend the execution, in whole or in part, of any such sentence as does not extend to death, and may restore the person under sentence to duty during such suspension; and the Chief of Staff or the commanding officer holding general court-martial jurisdiction over any such offender, may at any time thereafter, while the sentence is being served, suspend the execution, in whole or in part, of the balance of such sentence and restore the person under sentence to duty during such suspension. A sentence, or any part thereof, which has been so suspended may be remitted, in whole or in part, by the officer who suspended the same except in cases of person confined in the penitentiaries, by his successor in office, or by any officer exercising appropriate court-martial jurisdiction over the command in which the person under sentence may be serving at the time, and subject to the foregoing exceptions, the same authority" may vacate the order of suspension at any time and offer the execution of the sentence or the suspended pair thereof in so far as the same shall not have been previously remitted, subject to like power of suspension. 5The death or honorable discharge of a person under a suspended sentence shall operate as a complete remission of any unexecuted or unremitted part of such sentence.

Execution or remission—Confinement in penitentiaries.

Article 53

ART. 53. Execution or remission—Confinement in penitentiaries.—When a sentence of dishonorable discharge has been suspended until the soldier's release from confinement, the execution or remission of any part of his sentence shall, if the soldier be confined in the penitentiaries, or any branch thereof, be directed by the President.