held that, unless the court could be reconvened and a new record could be made out from extant original notes, the proceedings, inasmuch as they could not be intelligently reviewed or formally approved, should properly be considered as inoperative and the sentence of no effect. VI, 582, December, 1864. Where the record of the trial of a deserter was destroyed by fire before it could be acted upon, and he was thereupon restored to duty, held, that the destruction of the record before action thereon had in the particular case, the legal effect of an acquittal and relieved the deserter from the forfeiture of pay due at date of desertion. 55, 181, August, 1892; 65, 338, June, 1894. 2140. The legal record of a court martial is that record which is finally approved and adopted by the court as a body, and authenticated by its president and judge-advocate. The court as a whole is responsible for the record; and the instrument which it approves as such is its record, however the same may have been made up. It is immaterial to the sufficiency of a record whether the same was kept or written by the judge-advocate or a clerk. So where a clerk or reporter, appointed and sworn to keep the record, did not act, but the record was prepared by the judge-advocate or some other person employed by him to assist him, held that this circumstance did not affect the validity of the record as finally approved by the court. XLIII, 346, June, 1880. 2141. The record of a trial by court martial should include a record of meetings where no business is transacted, together with a statement of the reason why none was transacted. XLVIII, 209, January, 1884. 2142. It is not essential that the record of the court should show that the judge-advocate called the attention of the accused to the fact of his privilege of testifying in his own behalf. G. O. 75 of 1887 the proceedings where there remains enough in the record fairly to warrant the presumption that the legal requirements have been complied with, or where the reviewing authority can supply the defect from his own official knowledge, or from current orders or other satisfactory evidence readily available to him. Thus where no copy of the convening order accompanies the proceedings, but the reviewing authority, from the fact of having issued it himself or from the records of the command or otherwise, is officially apprised that the court was duly convened, the proceedings are not to be treated as fatally defective, but—the court appearing in fact to have been constituted and to have acted pursuant to the order,—may be regarded as valid in law though imperfectly recorded. Where indeed the record discloses in the proceedings of a general court martial, an irremediable defect in a vital particular, as the fact that the court was composed of but four members, the proceedings and sentence, if any, must be held inoperative, since the statute law-Art. 75-has fixed five members as the legal minimum for such a court. But where the defect occurs in a less material feature, or is one of form only, the same, while it may, if of a grave character, properly warrant a disapproval of the proceedings-in case it cannot be removed by a revision by the court on being reassembled for the purpose,-will not in general, it is held, justify the reviewing authority in pronouncing the proceedings to be void, or in treating them as necessarily without legal effect. requires only that this be done "before the assembling of the court." 36, 185, October, 1889. 2143. The record of a court martial must show affirmatively whatever is made by statute, essential to its jurisdiction and the legality of its proceedings,' for example, that the members and judge-advocate were sworn as enjoined by the 84th and 85th Articles of War. So repeatedly held that if the record failed to show that the court and judge-advocate were sworn, and the omission could not be supplied by proceedings on revision, the sentence was void; but that if the court had not been dissolved, the original reviewing authority, or his successor in command, the record having been transmitted to him, either before or after his final action on the sentence, could legally reconvene the court to supply the omission in the record, if there was in fact an omission; the only purpose of such revision being to make the record conform to the actual facts, in other words to speak the truth. I, 487, December, 1862; II, 154, 155, April, 1863; IX, 653, September, 1864; XI, 93, November, 1864; XIX, 336, January, 1866. 2144. A mere clerical error in the spelling of the name of the accused, leaving it idem sonans, is not a case of misnomer and does not affect the validity of the proceedings as recorded. 25, 234, June, 1888. 2145. The record of a court of justice consists of two parts which may be denominated the substantive and the judicial portions. In the former-the substantive portion the court records (makes a record of) or attests its own proceedings and acts. To this (record or attestation) unerring verity is attributed by the law, which will neither allow the record to be contradicted in these respects nor the facts thus recorded or attested, to be proved in any other way than by the production of the record itself or by copies proved to be true in the prescribed manner. The Supreme Court of the United States has repeatedly held that a court martial is a court possessing ample and exclusive jurisdiction to try and determine a certain class of cases, and that its functions are those of a court and its acts judicial proceedings, etc. These proceedings and acts are all recorded, and the record thus made is ultimately filed in its proper place as the record of the judicial proceedings had. Where therefore, after a record of a general court martial had been duly acted upon and the sentence (dismissal of an officer) executed, the dismissed officer filed affidavits to the effect that the testimony of one witness had not been made a part of the record (which in fact did not show that any such witness testified) and asked that the sentence be set 1 Runkle v. U. S., 122, U. S., 543. 2 Best, Principles of Evidence, p. 578. 3 See Dynes . Hoover, 20 Howard, 65; Ex parte Reed, 100 U. S., 13; Smith r. Whitney, 116 id., 167; Johnson r. Sayre, 158 id., 109; Swaim e. U. S., 165 id., 561. aside as void, it was held that the record could not be thus contradicted or impeached, or the validity of the sentence questioned.' Card 5654, May, 1899. 2146. It is required by army regulations, that reviewing officers shall state at the end of the proceedings in each case their decision and orders thereon, but there is no law requiring this of the President. His approval of the sentence of dismissal by court martial must be his personal act but the law does not prescribe the manner in which he shall communicate such action, and in the absence of such a provision, it would seem that he may legally communicate his action with reference to court martial cases by means of the ordinary court martial order. Thus where the record of a trial, involving dismissal of an officer, contained no entry of the action of the President, held that the order publishing the case and setting forth the action thereon of the President was sufficient and legal evidence of such action. 22, 436, February, 1888. RECORD OF SERVICE. 2147. No official of the War Department, or other executive oficer, is empowered to change a record of fact-to so alter the official record of a soldier that it shall state that as a fact which is not a fact, whatever may be the equities of the case. It can not, for example, be made to appear on such a record that the soldier has been discharged, mustered out, reenlisted, or mustered in, when in fact he has not been. Congress alone can grant relief in such cases by authorizing such entries of record as would in effect accomplish the object sought-as it has indeed done in repeated instances. 35, 357, 393, and 36, 175, October, 1889; 40, 225, April, 1890; Card 8962, September, 1900. The general rule is that only erroneous records shall be amended, and the object of their amendment should be to make them state the truth (by correction by the person who made them or such entry thereon by See the opinion of the Attorney General in this case, published in G. O. 21, A. G. O., 1900, the latter portion of which referring to the record of the court martial, reads as follows: "The record is that which the court certify to have transpired on the trial, and embodies the action of the court. The fact that the court in due and legal form announces that it did so and so, or that so and so transpired, makes that the record and the fact, and no one except the court itself can lawfully alter that record. If it were to be held otherwise, there is not a record filed in the War office that could not be subject to attack by ex parte affidavits and that too at a time when the officers of the court might be dead or scattered to the ends of the earth and unable to defend the solemn certificate which they made; and all the judgments of courts martial as filed and acted on would be open to perpetual contradiction on subsequent assertions of interested parties which it would be impossible to meet or disprove.' See 2 Opins. At. Gen., 69; 7 id. 472; Williams v. U. S., 17 Peters, 152, in connection with Runkle v. U. S., 122 U. S., 543. another as may be duly authorized).' The exception to the general rule is where a statute requires a certain amendment to be made. But in such an instance the statute should be strictly observed and applied only to the class of cases falling within its purview. 56, 352, Norember, 1892. REDUCTION TO THE RANKS OF COMMISSIONED OFFICER. 2148. Reduction to the ranks was authorized to be imposed as a punishment by courts martial upon commissioned officers of the army, on conviction of absence-without-leave-by the act of March 3, 1863, c. 75, s. 22; and, upon conviction of the offence of neglecting or refusing to turn over to the proper official any captured or abandoned property coming into the possession of the party-by the act of March 12, 1863, c. 120, s. 6. This punishment which involved a dismissal of the officer (XVI, 484, August, 1865) is no longer legal; the statutory provisions indicated being impliedly confined in their application to the period of the civil war (or for a limited period succeeding the same), and not being re-enacted in the Revised Statutes." REDUCTION TO THE RANKS OF NON-COMMISSIONED OFFICER 2149. A court martial, in sentencing a non-commissioned officer to be reduced to the ranks, is not empowered to direct that when reduced he be transferred to another regiment or company. XI, 205, December, 1864. 2150. The warrant or certificate given to a non-commissioned officer is as much the personal property of the individual as is the commission given to a commissioned officer. In the absence of any statute or regulation requiring that a sergeant or corporal shall surrender his warrant on being reduced to the ranks (or dishonorably discharged), he may retain it with the same right as that by which an officer retains his formal commission on being dismissed. XLI, 310, July, 1878. 2151. A sergeant deserted and upon the recommendation of the company commander his successor was appointed by the regimental com 1See § 2452, post, and note. 2 Cases of officers sentenced to this punishment, upon conviction under the first named statute, are published in G. O. 27, War Dept., 1864; do. 80, Dept. of the Gulf, 1863; do. 38, Dept. of the East, 1864; do. 36, Middle Dept. 1864; do. 5, 2d Div., 5th Army Corps, 1864; G. C. M. O. 25, 51, Army of Potomac, 1864; do. 12 id. 1865. No instance has been met with of the imposition of this punishment upon a conviction under the latter statute. In some few cases, during the civil war, this punishment was adjudged-illegally—for offences other than those specified in the acts designated in the text. 3 The authority to order the transfer of soldiers is expressly vested by the Army Regulations in certain military commanders. mander. Held, that the legal effect of such appointment was to reduce the deserter to the grade of a private. Card 2213, May, 1896. 2152. The legal effect of an order making an appointment or promotion of a non-commissioned officer to a position supposed to be vacated by an illegal sentence, when made by the officer having authority to reduce by order, would be a reduction by order of the soldier so sentenced to reduction. Card 2757, November, 1896. RE-ENLISTMENT. 2153. Except in cases to which the last paragraph of the 60th Article of War may be applicable, a soldier cannot be made amenable for an offence committed under an enlistment prior to that in which he is serving. Re-enlistment does not revive such a liability. L, 501, July, 1886. 2154. The term re-enlistment is sometimes used in the narrow sense of an enlistment within one month after discharge under sections 1282 and 1284, Rev. Sts.; but these sections simply prescribe increased pay in case of re-enlistment within one month. They do not prevent a re-enlistment after the expiration of the month. Section 1116, Rev. Sts. is based upon the law of March 16, 1802 (2 Stats. 135), in which there is no such limitation as to time. Re-enlistment under this statute means a re-entry into the service and it is prescribed that as to such re-entry the limitation as to age shall not apply. LVII, 41, October, 1888. 2155. The act of June 20, 1890, c. 437, in directing the mustering out of the enlisted men of the Artillery Detachment at West Point and their immediate re-enlistment as army service men in the Quartermaster Department, does not authorize their being forced into a new contract or re-enlisted against their will. The enlistment, like all other enlistments, can be voluntary only. 41, 460, July, 1890. 2156. Held that the provision of the Army Appropriation Act of Feb. 27, 1893, c. 168, that thereafter, in time of peace, "no private shall be re-enlisted who has served ten years or more," applied to "lance corporals" and "band musicians," but did not apply to general service clerks, or to the musicians of the band of the Military Academy. 58, 333, March, 1893. 2157. Under the act of Feb. 27, 1893, c. 168, a soldier who has served as an enlisted man twenty years or more may be re-enlisted, but if G. O. 96 of 1891 be observed, only in his former command. 61, 57, August, 1893. The term "as enlisted men "-here employed, held, in 1The act of Aug. 1, 1894, c, 179, extends this period to three months. |