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Chapter XXIV.
Disciplinary power of commanding officerAuthority; Policy; Effect of Errors--Punishments--Procedure--Appeals--Miscellaneous
- DISCIPLINARY POWER OF COMMANDING OFFICER--Authority; Policy; Effect of Errors.--For statutory basis of authority, see A.W. 104. Subject to the provisions of A.W. 104 and of this chapter, the commanding officer of any detachment, company, or higher command may, for minor offenses, without the intervention of a court-martial, impose disciplinary punishments upon persons of his command who are subject to military law, including officers. This authority of a commanding officer can not be delegated, but communications with respect thereto may be signed or transmitted by him personally or as provided for official communications in general.
Whether or not an offense may be considered as "minor " depends upon its nature, the time and place of its commission, and the person committing it. Generally speaking, the term includes derelictions not involving moral turpitude or any greater degree of criminality or seriousness than is involved in the average offense tried by summary court-martial. An offense for which the Articles of War prescribe a mandatory punishment or authorize the death penalty or penitentiary confinement is not a minor offense.
A.W. 104 and the provisions of this chapter do not apply to, include, or limit the use of those nonpunitive measures that a commanding officer is authorized and expected to use in order to further the efficiency of his command, such as administrative admonitions, reprimands, exhortations, disapprovals, criticisms, censures, reproofs, rebukes, etc., written or oral, not intended or imposed as a punishment for a military offense. The fact that admonition and reprimand are termed disciplinary punishments by A.W. 104 does not deprive a commanding officer of the power he had prior to the enactment of that article to make use of admonition and reprimand, not as a penalty but as a purely corrective measure, more analogous to instruction than to punishment, in the strict line of his duty to create and maintain efficiency. A commanding officer should resort to his power under A.W. 104 in every case where punishment is deemed necessary and where that article applies, unless it is clear that punishment under that article would not meet the ends of justice and
discipline. Superior commanders should restrain any tendency of a subordinate commander to resort unnecessarily to court-martial jurisdiction for the punishment of offenders.
Any failure to comply with the regulations in this chapter will not invalidate a punishment imposed under A. W. 104, except to the extent that may be required by a clear and affirmative showing of injury to a substantial right of the person on whom the punishment was imposed, which right was neither expressly nor impliedly waived.
- DISCIPLINARY POWER OF COMMANDING OFFICER--Punishments.--Authorized punishments include admonition, 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 or detention 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 A.W. 104, also impose upon an officer of his command below the grade of a major a forfeiture of not more than one-half of such officer's monthly pay for one month.
Except as otherwise prescribed, the immediate commanding officer of the accused is charged with the execution of punishment imposed pursuant to A.W. 104. He has power to suspend the execution of such punishment and to vacate such suspension.
Hard labor will not be imposed or enforced as a punishment against any person of actual, relative, or assimilated rank above that of a private, first class, in the Army, and no form of punishment is permitted which tends to degrade the rank of the person on whom such punishment is imposed. Punishments will be strictly enforced. Any failure in this respect has, if anything, a worse effect on discipline than an unwarranted condonation of the offense for which the punishment mas imposed.
- DISCIPLINARY POWER OF COMMANDING OFFICER--Procedure.--The commanding officer, after ascertaining to his satisfaction, by such investigation as he deems necessary, that an offense cognizable by him under A.W. 104 has been committed by a member of his command, will notify such member of the nature of such offense as clearly and concisely as may be, and inform him that he proposes to impose punishment under A.W. 104 as to such offense unless trial by court-martial for the same is demanded. The notification and information mill be by written communication through proper channels in the case of an officer and may be by such communication in any case. If the notification, etc., is in writing, the accused will be directed to acknowledge receipt of the communication by indorsement through
the proper channels and to include in the indorsement any demand for trial he wishes to make. If the notification, etc., is not in writing, the accused will be given a reasonable time to make up his mind.
With reference to each offense as to which no demand for trial by court-martial is made, the commanding officer may proceed to impose punishment. The accused will be notified of the punishment imposed as soon as practicable and at the same time will be informed of his right to appeal. (See 108.) If the original notification and information were in writing, the notification of the punishment imposed and any reprimand or admonition that may be included in such punishment, will be by indorsement on the communication carrying such original notification, etc., and the accused will be directed to acknowledge receipt by similar indorsement, and to include in his indorsement the date of such receipt, and any appeal (see 108) he may desire to make. If the notification of the punishment imposed is not in writing, the immediate commanding officer of the accused will be informed of the matter and given the necessary data for the record (see 109) of punishment.
- DISCIPLINARY POWER OF COMMANDING OFFICER--Appeals.--A person punished under authority of this article who deems his punishment unjust or disproportionate to the offense may, through proper channels, appeal to the next superior authority, but may in the meantime be required to undergo the punishment adjudged. (A.W. 104.) An appeal not made within a reasonable time may be rejected by the "next superior authority." An appeal will be in writing through proper channels (see 107 as to appeal by indorsement), and will include a brief signed statement of the reasons for regarding the punishment as unjust or disproportionate. The immediate commanding officer of the accused will when necessary include with the appeal a copy of the record (see 109) in the case. The superior will, in passing upon the appeal, ordinarily hear no witnesses. When justice requires such action, he will modify the punishment or set it aside, but will not increase it, and will in no case award a different kind of punishment. After having considered the appeal, he will return the papers through channels to the appellant, with a statement of the disposition of the case and with direction to return the papers to his (the appellant's) immediate commanding officer for file with the record in the case.
- DISCIPLINARY POWER OF COMMANDING OFFICER--Miscellaneous.--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. Applications for mitigation or remission and any action taken under this
authority will be in writing and subject to the regulations as to appeals as far as applicable.
As to each offense for which punishment is imposed under A.W. 104, the immediate commanding officer of the person on whom such punishment was imposed will cause a record to be made and filed in his office or other proper place, showing the offense, with date and place of commission; the punishment, with the authority that imposed it and the date the accused received the notice of the imposition of the punishment; the decision of higher authority on any appeal; any mitigation or remission of the punishment; and any remarks or additional data desired.
With reference to pleading punishment imposed under A.W. 104 in bar of trial, see 69. With reference to showing punishment under A.W. 104 in extenuation, see 79.
A demand for trial does not require the preferring, transmitting, or forwarding of charges. As to noting demand for trial where charges are preferred, transmitted, or forwarded, see 27, 33, and 34.
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