Helpful References to the Articles of War.

(Extracted from M.C.M. and Guide to the Articles of War—Waumbaugh's Lectures.)

Military Law is the body of rules that governs members of the army. Military Law is based upon the Articles of War approved by Congress, August 27, 1916, effective March 1, 1917. This body of rules defines:

  1. Punishable offenses of members of the army.
  2. The Method of determining guilt.
  3. Punishment.

The present Articles of War are revisions of those from the Revolution.

Article 1.

Definitions:

  1. The word "officer" shall be construed to refer to a commissioned officer (and no one else).
  2. The word "soldier" to include non-commissioned officer or any other enlisted man.

Article 2.

Persons Subject To Military Law:

  1. All officers and soldiers of the Regular Army.
  2. All volunteers in the service of the U.S.
  3. All other persons lawfully called, drafted or ordered into such service.
  4. West Point cadets.
  5. Officers and soldiers of the Marine Corps when detached for service with the army, by order of the President.
  6. All retainers to the camp, or accompanying or serving with the army in time of war, both within and without territorial jurisdiction of U.S.
  7. All persons under sentence by court-martial.

Articles 3-18.

Courts Martial Classified:

  1. General Courts Martial.
    1. President,
    2. Commanding officer of department or territorial division.
    3. Commanding officer of separate army division brigade.
    4. Commanding officer of district or force empowered by President.
  2. Appointed by
    1. Commanding officer of district, garrison, fort or camp.
    2. Commanding officer of brigade, detached battalion.
    3. No power to adjudge dishonorable discharge.
    4. No confinement in excess of six (6) months.
    5. No forfeiture of pay in excess of six (6) months.

  3. Jurisdiction.
    1. Commanding officer of garrison, fort, camp, etc.
    2. Commanding officer of regiment, detached battalion, etc.
      (N.B.) When but one (1) officer is present with command he shall be the summary court martial.
    3. Only privates holding no certificate of eligibility for promotion—and
    4. For crimes not capital.
    5. Confinement not over 3 months.
    6. No dishonorable discharge.
    7. No punishment over one (1) month without higher authority.
  4. Over all persons subject to Military Law as regards all offenses punishable by Military Law.
  5. Sentence.
  6. Everything.
  7. Special Courts Martials (3 to 5 officers inclusive).
  8. Appointed by

  9. Jurisdiction.
  10. Over any person subject to military law (except an officer), and for any crime not capital. (Only soldiers excluding those having certificate of eligibility for promotion.)
  11. Sentence.

  13. Summary Courts Martial (one (1) officer).
  14. Appointed by

  15. Jurisdiction.
  16. Sentence.

Method Of Entering A Charge Against A Man:

Example:

Charge: Violation of the —— Article of War.

Specification: In that (rank, name, organization) did at (place) on or about (date) etc. (brief description of offence committed).

Signed (Name)

(Rank and Branch of Service)

In cases where there are more than one charge the number of each A.W. is put down in the charge. A description of each offence is put down separately under Specification.

Note that double lines are drawn under Charge, single line under Specification.

General Remarks:

The three (3) Courts Martial are alike in the following:

  1. Composed only of officers of Army or Marine Corps on detached service with the Army by order of the President.
  2. Pass upon both law and fact.
  3. Criminal Courts only.
  4. Unable to promulgate any finding that does not require approval of appointing authority.

The three (3) Courts Martial differ in the following:

  1. Number of members.
  2. Appointing authority.
  3. Punishments.

Article 31.

Order Of Voting:

Members in General or Special Courts Martial shall vote from junior to senior.

Article 39.

Limitations Upon Prosecutions:

Military offences fall into three (3) groups:

  1. War desertion, mutiny, murder. Have no limitations.
  2. Burglary, etc. (A W. 93) and frauds against Government (A.W. 94). Prosecution limited to 3 years.
  3. All other offences. 2 years.

In some cases the Statute of Limitations is suspended (A.W. 39), especially in cases of absence from the United States.

The following Articles of War are the important ones for officers to be acquainted with in the ordinary course of his duties:

Article 54.

Fraudulent Enlistment:

Punishment: Court Martial.

"Any person procuring himself to be enlisted by means of willful misrepresentation or concealment as to his qualifications for enlistment and shall receive pay or allowance," ...

This offense requires two (2) steps:

  1. Misrepresentation or concealment.
  2. Receiving pay or allowances.

Article 58.

Desertion:

Punishment: (Wartime) Death or Court Martial. (Peacetime) Court Martial.

"Any person—who deserts or attempts to desert in time of War ... death or such other punishment as the court martial may direct ... any other time any punishment except death."

Essential features are:

  1. An intent not to return.
  2. An overt act of separation from duty.
  3. Drunkenness tends to show absence of the intent.
    Minority is no defense.
    Enlistment while in desertion does not remove the charge of desertion.

Article 61.

Absence Without Leave:

Punishment: Court Martial.

"Any person who fails to repair at the fixed time to duty, or goes from same without leave of absence, or absents himself from his command, guard, quarters, station or camp without proper leave...."

Does not require to prove intent, yet persons ignorant of military law, drunk or victims of mistake are dealt with gently.

Article 62.

Disrespect Toward President, Vice-president, Congress, Secretary Of War, Governors, Legislatures:

Punishment: (Officer) Dismissal from the service,
(Soldier) Court martial.

"Any officer who uses contemptuous or disrespectful words against the President, etc.... any other person subject to military law who so offends."

Contemptuous language is objectionable and liable to court martial whether

  1. Used in public or private.
  2. In official or private capacity.
  3. Written or spoken.
  4. True or untrue.

Article 63.

Disrespect Toward A Superior Officer:

Punishment: Court-martial.

"Any person subject to military law who behaves himself with disrespect toward his superior officer...."

Unlike Article 62, disrespect toward a superior officer requires no words—acting or neglecting to act (such as rudeness or failure to salute) are enough.

Article 64.

Assaulting Or Willfully Disobeying Superior Officer:

Punishment: Death or court-martial.

  1. "Any person subject to military law who on any pretense whatsoever, strikes his superior officer—lifts a weapon, or offers violence against him, being in the execution of his office."
  2. "Or willfully disobeys any lawful command of his superior officer."
    Drunkenness here tends to show absence of the essential willfullness.
    Self defense is not forbidden nor violence to suppress mutiny.

Article 65.

Insubordinate Conduct Toward A Non-commissioned Officer:

Punishment: Court-martial.

  1. "Any soldier who assaults or attempts or threatens to strike or assault."
  2. "Or willfully disobeys the lawful order of a non-commissioned officer while in the execution of his office."
  3. "Or uses threatening or insulting language."
  4. "Or behaves in an insubordinate or disrespectful manner."
    Drunkenness will not have the effect here of showing an absence of willfullness.

Article 68.

Disorders:

Punishment: Court-martial.

"All officers and non-commissioned officers have power to quell disorders and to order officers who take part in the same into arrest, and other persons into arrest or confinement.

Whosoever, being so ordered:

  1. Refuses to obey.
  2. Draws a weapon.
  3. Otherwise threatens or does violence shall be punished."

This is one instance (except a.w., 67, mutiny) where even a corporal might order a general into arrest.

This is the only instance:

  1. Where anyone other than a commissioned officer can put an officer under arrest.
  2. Where anyone other than an officer can order, arrest or confinement of a soldier except on power given by C.O.

Article 69.

Breaking Arrest:

Punishment: (Officer) Dismissal, (Soldier) Court-martial.

"Any officer charged with crime shall be placed in arrest by C.O.... in exceptional cases ... confined."

"A soldier charged with crime ... shall be placed in confinement ... when charged with minor offense placed in arrest."

"Any person placed in arrest ... shall be restricted to barracks, quarters, tent, unless limits are enlarged by proper authority."

"An officer or any other person breaking his arrest or who escapes from confinement before being set at liberty by proper authority shall be punished by...."

To break arrest is punishable even though a person is innocent of the charge or ought to have been released.

Article 75.

Misbehavior Before The Enemy:

Punishment: Death or court-martial.

"Any officer or soldier who:

  1. Misbehaves before the enemy—runs away, or shamefully abandons post.
  2. Or speaks words inducing others to do so.
  3. Or quits his post or colors to plunder or pillage.
  4. Occasions false alarms in camp or quarters shall suffer ...."

The word "enemy" implies "any hostile body" such as a mob or riot crowd.

Article 83.

Neglect Of Military Property:

Punishment: Make good the loss and court-martial.

"Any person subject to military law who willfully or through neglect suffers to be lost, damaged, or wrongfully disposed of, any military property belonging to United States of America—shall make good the loss and...."

Article 84.

Waste Or Unlawful Disposal Of Property Issued To Soldiers:

Punishment: Court-martial.

"Any soldier who sells or wrongfully disposes of any property issued for military service shall be punished...."

Article 85.

Drunk On Duty:

Punishment: (War time) dismissal and court-martial, (Peace time) court-martial.

"Any officer ... drunk on duty shall ... in time of war be dismissed ... and

Any other person subject to military law, drunk on duty ... shall be punished...."

Article 86.

Misbehavior Of A Sentinel:

Punishment: (War time) death or court-martial, (Peace time) court-martial.

"Any sentinel found:

  1. Drunk.
  2. Asleep.
  3. Or who leaves before being regularly relieved shall be punished...."

Article 92.

Murder Or Rape:

Punishment: Death or life imprisonment.

"Any person who commits murder or rape shall suffer death or life imprisonment as the court-martial may direct."

No person shall be tried for murder or rape committed in the limits of the U.S.A. in time of peace. This is left to civil courts.

Article 93.

Various Crimes:

Punishment: Court-martial.

"Any person who commits

  1. Manslaughter,
  2. Mayhem (cutting),
  3. Arson,
  4. Burglary,
  5. Larceny,
  6. Embezzlement,
  7. Perjury,
  8. Assault with intent to commit any felony.
  9. Assault with intent to do bodily harm. shall be punished...."

Definition of these crimes is left to local law.

Article 94.

Frauds Against The Government:

Punishment: Court-martial.

Article of War No. 94 is equivalent to prohibiting any person subject to military law from defrauding or attempting, or conspiring to defraud the Government of the U.S.A.—also from stealing, embezzling any Government property.

Article 95.

Conduct Unbecoming An Officer And A Gentleman:

Punishment: Dismissal.

"Any officer or cadet convicted of unbecoming conduct shall be dismissed...."

Misconduct may be official or unofficial.

Article 96.

General Article, The Catch All:

Punishment: Court-martial.

"... all disorders and neglects to the prejudice of good military discipline.

All conduct of a nature to bring discredit upon the military service.

All crimes and offences not capital shall be taken cognizance of by

  1. General,
  2. Special,
  3. Summary court-martials according to the nature and degree of the offense and punished....

Article of War 96 covers all crimes and is handy when no other Article of War fits. It is wise, however, to use this Article sparingly on Charges, finding if possible the exact Article necessary to cover the case at hand.

Examples.

Problem 1:

Charge.—Violation of —— Article of War.

Specification.—In that Private John Doe, Company C. 301st Regiment Infantry, did at Albany, New York, on or about September 15th, 1917, dress himself in the uniform of a 1st Lieutenant and attend a dance at Odd Fellows Hall.

(Signed) John Hancock,
Captain, 301st Infantry.

Under what article of war, if any, does this belong?

Problem 2:

Charge.—Violation of —— and —— Articles of War.

Specification.—In that Sergeant James Hopkins, Company H, 205th Infantry, did at Franconia, N.H., on or about July 4th return to barracks intoxicated.

In that Sergeant James Hopkins, moreover, refused to appear at reveille July 5th.

(Signed) William Hitchcock,
Captain, 205th Infantry.

Under what articles of war do these offenses belong?

What kind of court-martial required?

Problem 3:

Charge.—Violation of —— Article of War.

Specification.—In that Captain George Jones, 125th Infantry did at Laconia, Maine, on or about August 20, 1917, make a speech in which he stated that the Reichstag of Germany was a more efficient and democratic body than the United States Congress.

(Signed) Albert Smith,
Major, 125th Infantry.

Under what article of war does this offense belong?

No.Articles Of War.Punishment.
54. Fraudulent enlistment Court martial
58. Desertion{ War: Death or court martial
Peace: Except death
61. Absence without leave Court martial
62. Disrespect to Presidents Vice-President,
Secretary of War, Congress, etc.		{ Officer: Dismissal
Soldier: Court martial
63. Disrespect to superior officer Court martial
64. Assaulting or disobeying superior officer Death or court martial
65. Insubordination to a non-commissioned officer Court martial
69. Arrest or confinement of accused persons{ Officer: Dismissal
Soldier: Court martial
75. Misbehavior before the enemy Death or court martial
83. Loss, etc., military property Make good the loss and court martial
84. Loss of military property issued to soldiers Court martial
85. Drunk on duty{
{		 Officers—
War: Dismissal
Peace: Court martial
Soldiers: Court martial
86. Misbehavior of sentinel{ War: Death or
Peace: Court martial (except death)
93. Various crimes Court martial
94. Frauds against the Government Court martial
95. Conduct unbecoming an officer Dismissal
96. General article{ Court martial
(General or special)

CHAPTER 7.

[ToC]