796 ESTABLISHMENT OF MILITARY JUSTICE .

WASHINGTON, D. C . ,
March 25, 1919 .
Recall of Col . Read .
Q . After the record in the case of a court-martial leaves the board of review ,
what becomes of it?A. In those eases in which an opinion in writing is ren-
dered, as, for instance, cases involving the dismissal of an officer, death pen-
alty, confinement in the penitentiary, and in all cases of conscientious ob-
jectors, the opinion is prepared by the officer to whom the particular case i s
assigned . After he completes this opinion he submits it to the chief of his sec-
tion of the Military Justice Division. If the chief of that section concurs i n
that opinion it then goes directly to one or the other of the two sections o f
the board of reviews . The section of the board of review concerned then con-
siders that opinion in the same way that an appellate court would consider a
case sent to it . If the board of review concurs in that opinion it then goe s
directly to me as Chief of the Military Justice Division, and also as ex-officio-
member of each of the two sections of the board of review . The opinion I
may say is still in the rough . If I concur with the board then the opinion ,
the rough copy, is marked "final" and it is written up, initialed by me, and i f
the case is one for submission to the President, as, for instance, the deat h
penalty or dismissal, or in the infrequent cases where the President himself i s
the convening authority, the record goes from my office to the Judge Advocat e
General or the Acting Judge Advocate General, and if he concurs he signs th e
opinion and it then becomes the opinion of the office and is forwarded to Th e
Adjutant General for transfer, through the Chief of Staff, to the Secretary o f
War and finally to the President. In those cases which come up to this offic e
under General Orders, No . 7, we deal directly with the reviewing authority con-
cerned through the Judge Advocate General or the Acting Judge Advocate
General, as the case may be.
In connection with the review of the records of trials by general court -
martial in my division there is, I think, one defect or weakness in the syste m
which, however, it seems to me, is practically unavoidable and irremediable .
It is this. . The vast majority of the cases which come there for review ar e
those cases in which the dishonorable discharge imposed has been suspende d
and those cases hi which no dishonorable discharge was imposed . No written
review is prepared in those cases unless an error is discovered which necessi-
tates either setting the conviction aside or returning the record for certai n
corrections . Here is where the defect lies to which I refer. The determina-
tion as to whether or not the record is legally sufficient to support the finding s
and sentence is practically a matter submitted to the judgment of the office r
who reviews the record and the chief of that particular section of the Militar y
Justice Division . If they should make a mistake, that mistake may not b e
discovered at all or may only be discovered when the case comes before th e
office again on an application for clemency, and the record is then again re -
viewed . There have been occasional instances of this sort, very infrequent,
but there have been instances . Of course, with efficient lawyersofficerst o
reveiw the record a mistake of this sort should never occur, but we have no t
always been fortunate in having all high-class lawyers in those lower section s
of the division . It would be impracticable, of course, for the hundreds an d
thousands of records of general courts-martial which come to this office to be
reviewed by the boards of review as at present constituted . As a matter o f
fact, it is almost it physical impossibility for them to keep up with the work,
which is properly assigned to them as it is .
Q . That you regard as the only defect?A. Yes, sir.
Q . This, however, is more a defect of possible personnel than of system?
A . Yes, sir ; except that if the sentence is found to be illegal, the accused
would have served part of an illegal sentence before the error could have been
discovered and the necessary corrective action taken.
Q . When you became Chief of the Division of Military Justice, in th e
spring of 1918, did you receive any specific instructions relative to the handlin g
of the cases under General Orders No. 7?-A . No, sir .
Q. What was your policy in those cases?A . Shortly after I took charge of
the Division of Military Justice I called Col . Mayes's attention to the fact that
quite a number of the sentences imposed by general courts-martial appeared t o
me to be unnecessarily severe . He agreed with me, but stated that under th e
provisions of General Orders No . 7 he thought we were limited to passing o n
the legal sufficiency of the records and that we had no authority under tha t
order to make any suggestions to reviewing authorities as to the quantum of