780 ESTABLISHMENT OF MILITARY JUSTICE .

Q . Did he remain with the battery from that time until the battery went ou t
to drill?A . No, sir .
Q . What did he do after that time?A . He went over and joined the rest of
the noncommissioned officers in front of the orderly room.
Q . After you gave these noncommissioned officers the instructions of the batter y
commander to the effect that they were released from arrest for the purpose o f
attending drill, were they given ample opportunity to join the battery and go
to drill?A . Yes, sir .
Q . What occurred, Sergeant, immediately after you gave them this order tha t
they were released from arrest and would attend drill?A . When I delivered
the order, sir, all the noncommissioned officers filed out of the office, sir, an d
went down the other side of the orderly room . I lined the battery up, and
there were no noncommissioned officers present . I went back over to the non-
commissioned officers and asked them if they were going to drill or not, t o
which they replied : " No, not under those conditions of being released for jus t
,until after drill . * * * "
The action of these soldiers as testified to by the first sergeant, if true, seem s
to constitute mutiny as defined in Digest of Opinions as quoted above .
The lack of judgment of the battery commander undoubtedly created th e
situation which finally resulted in the trial of these soldiers . I can not, how -
ever, see that this lack of judgment on the part of the battery commander ca n
justify the act of these soldiers . It may, in my judgment, very properly b e
taken into consideration in awarding sentence by the court and in action b y
the reviewing authority .
Gen . Ituckman, an officer of long experience, approved the sentence as awarde d
by the court . These men are at United .States Disciplinary Barracks, For t
Leavenworth, Kans ., serving sentence .
The proceedings of the court were sent to the office of the Judge Advocat e
General of the Army, who reviewed the case and concludes his review b y
stating :
* * * In the exercise of the power of revision conferred upon me by sec-
tion 1199 . Revised Statutes of the United States, I hereby set aside the judg-
ment of conviction and the sentence in the case of each of these several de-
fendants, * * * . "
Section 1199 . enacted in 1866, provides as follows :
" The Judge Advocate General shall receive, revise, and cause to be recorde d
the proceedings of all courts-martial, courts of inquiry, and military com-
missions and perform such other duties as have been performed heretofore b y
the Judge Advocate General of the Army . "
The Judge Advocate General concludes that the word " revise" in the above-
quoted statute gives him the authority to set aside and completely nullify th e
action of a court composed of 12 experienced officers, which action had bee n
approved by the department commander .
The definition of "revise " as given in Standard Dictionary is as follows :
" To go or look over or examine for the correction of errors or for the pur-
pose of suggesting or making amendments, additions, or changes ; reexamine ;
review. "
As the authority exercised by the Judge Advocate General has, within th e
memory of the officers of the Army now on the active list, been exercised onl y
by persons who have by law authority to exercise command, it is believed th e
intent of the law should be beyond question before such radical action is taken.
It is believed doubtful if Revised Statutes, 1199, gives the Judge Advocate Gen-
eral the authority he has taken .
The justification for this belief is also found in the Articles of War, containe d
in the net of June 3, 1916. Articles 46 and 48 provide who have authority t o
carry into execution the sentence of courts-martial .
The commanders mentioned in articles 46 and 48 have power to disapprove a
finding.
Nowhere in the Articles of War can I And the Judge Advocate General i s
given authority to nullify the acts of courts-martial . As the action of the Judge
Advocate General, if permitted to stand, establishes a precedent which may b e
far-reaching in its bearing on the discipline of the Army, I recommend hi s
action be disapproved .
If it be decided that the Judge Advocate General has the legal right to take th e
action taken, there is nothing to do but restore these men to duty and order the m
back to their battery .
I recommend that Capt . Harvey he informed that the evidence in the record o f
the trial of these men discloses the fact that he was entirely lacking in judgment