Military Justice Review Process Explained
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EsLebeDeutschlandMilitary Justice Review Process Explained
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EsLebeDeutschlandESTABLISHMENT OF MILITARY JUSTICE .
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the hoard of review, as approved by the Judge Advocate General or the actin g
Judge Advocate General, have been overruled by the War Department o n
questions of law in but two cases . So far as recommendations for the com-
mutation of punishment are concerned I only recall six cases where th e
Secretary of War did not concur in the recommendation of the Judge Advocat e
General ' s Office, and in three of those the President followed the recommenda-
tion of the Judge Advocate General's Department instead of that of the Secre-
tary of War . In cases where the commanding general of a territorial depart -
ment, camp, or tactical division has had the power under the Articles of Wa r
to carry the sentences into execution, the recommendations of the Judge Advo-
cate General's Department, so far as I know, have been followed in practicall y
all cases. I only recall three casesthere may be more but I don't think ther e
are many morewhere the recommendations were not followed .
Q. You refer now to the review of those cases here?A . Yes, sir. The great
significance of the fact that the recommendations of the Judge Advocat e
General's Department have been followed in practically all cases is this, tha t
although under the law the Judge Advocate General has not the power to ac t
by way of disapproval of findings and the reduction of sentences, yet practi-
cally the views of his office have been carried into effect. Where the sentenc e
imposed by court-martial has involved death or the dismissal of an officer ,
or penitentiary confinement of either an officer or an enlisted man, the revie w
of the record of trial in the office of the Judge Advocate General, since th e
creation of the board of review, is, in my opinion, as thorough as that ordi-
narily accorded the record of trial in a civil appellate court . To be exact, th e
character of the review- is substantially this : The record of trial is assigned to
a judge advocate, whose duty it is to read and study the record, considerin g
both questions of law and also the question as to whether or not the evidenc e
is sufficient to support the finding . After he has thus studied the record he pre-
pares what is known as an original report, which is in the form of an opinion .
such as is written by an ordinary appellate .court. This report and the record
are then studied by the immediate superior of the officer who prepared th e
report. The second officer, after such study, expresses his opinion as t o
whether the report prepared by the first officer is correct . After this has been
done the record of trial, with the report prepared by the first officer and th e
opinion thereon by the second officer, goes to the hoard of review, where it i s
carefully studied by three officers acting in practically the same capacity as an
appellate court. After the board of review has determined on what in thei r
opinion is the proper disposition of the case and has prepared or had prepare d
the complete review of the record, this review and the record are then presente d
to the head of the Military Justice Division, who expresses his opinion thereon .
The record of trial and the review then go to the Judge Advocate General o r
the Acting Judge Advocate General for his consideration . Since the Judge
Advocate General has returned to duty in many instances the opinion of th e
former Acting Judge Advocate General has been secured by the Judge Advocat e
General . If the record of trial is one which requires the action of the Presi-
dent, the record of the trial, with the review thereon, is sent to the Secretar y
of War for his opinion ; afterwards to the President . If the record of trial
is one to be acted upon by the commanding general of a department, camp, o r
tactical division, the Judge Advocate General communicates his opinion wit h
the proper recommendation to such commanding officer, and, as has beeen sai d
above and may be appropriately repeated here, the recommendations of th e
Judge Advocate General have been in practically all cases carried into effec t
by the particular official whose power it is, under the Articles of War, t o
carry sentences of general court-martial into final execution . During m y
service in the office of the Judge Advocate General I have been im'pressed' b y
the fact that both the Judge Advocate General and the Acting Judge Advocat e
General have constantly had in mind the proper administration of the militar y
law . So far as has come to my notice both of these officers have striven t o
secure an administration of the military law that will produce real justice, an d
in my opinion this result has been substantially accomplished, at least so fa r
as the cases which have come under my observation are concerned .
Q . What apparent effect, if any, has this controversy had upon the questio n
of coordination and teamwork in the Military Justice Division of the office?
A . In my opinion the morale of the office has been very little affected . O f
course it is natural that there should be a certain amount of discussiontha t
is inevitablebut I am unable to see that the real work of the office has been
impaired to any appreciable amount . The head of the Military Justice Divi-