not reasonably available, the Coast Guard HM1, within the limits. of his qualifications, could provide certain treatment of contractors' employees and perform certain service. Medical services over and above those which HM1 could administer would then be the responsibility of the contractor. Op CCCG 1954/21. 15 April 1954.

§ 155.

§ 155.1. Generally.

§ 153. Hours of Labor

Laborers and Mechanics

In the absence of statutory authorization therefor, Department of Defense construction specifications and contracts cannot include a provision which would limit the work week of laborers and mechanics to forty hours per week with the payment of overtime compensation for hours worked in excess of forty hours per week, since such a provision would tend to restrict competition and to increase the cost to the government of the work to be done, and compliance therewith cannot be regarded as reasonably requisite to the accomplishment of work under the contract. (Citing 18 Comp Gen 285; 17 Comp Gen 37; 20 Comp Gen 18; 20 Comp Gen 24; 31 Comp Gen 561.) MS Comp Gen B-119547, 33 Comp Gen 477. 16 April 1954.

I. IN GENERAL.

COURTS-MARTIAL

§ 3. Appointment of Court.

§ 4.

Convening Authority.

§ 11. Competency of Members of Court.

§ 13. Changes in Personnel of Court.

II. LAW OFFICER, COUNSEL AND OTHER PERSONNEL. § 19. Law Officer.

§ 25. Trial Counsel.

§ 27. Defense Counsel.

§ 29. Individual Counsel for Accused.

§ 31. Reporter.

III. JURISDICTION.

§ 37. In General.

§ 45. Persons Subject to Military Law.

§ 47. Persons Serving With or Accompanying Armed

Forces.

§ 49. Discharge or Separation; Termination of Service with Armed Forces.

§ 51.

§ 53.
$ 55.

Offenses Punishable by Confinement for Five Years or More.

Fraudulent Discharge.

- Change in Status; Discharge for Purpose of Reenlistment, to Accept Commission, etc.

§ 59. Concurrent and Reciprocal Jurisdiction.

IV. CHALLENGES.

§ 63. In General.

§ 69. Grounds for Challenge.

§ 71. Determination and Voting.

§ 73. Peremptory Challenges.

$3.1. Generally.

I. IN GENERAL

§3. Appointment of Court

When a board of review ordered a rehearing as to certain charges against the accused, the trial counsel at the original hearing, acting in his capacity as Staff Judge Advocate of Ellington Air Force Base, prepared a request for the appointment of a general court-martial addressed to the Commander, Flying Training Air Force. This communication requested that ten named officers be designated as members of the court-martial, that the Staff Judge Advocate of Ellington Air Force Base be appointed as trial counsel and further that a named officer be appointed defense counsel. This request was prepared for the signature of another officer of the command “For the Commander" of Ellington Air Force Base. The detail actually appointed was identical in all respects with that requested by the trial counsel, except that the latter provided no officer's name for detail as law officer. Held: To permit the trial counsel to select members

of the court, who are then actually appointed by the convening authority, for the trial of the case in which the trial counsel, as an adversary, has a personal interest, violates the intent of the Uniform Code of Military Justice and constitutes reversible error. This is so notwithstanding the request for the detail was forwarded over the command line of the Commander, Ellington Air Force Base and the recommendations were adopted by the convening authority. (Citing ACM 8779, Ross, 16 CMR 579; MCM, 1951, par 5a (4) and 33a; Winthrop, Military Law and Precedents, 2nd ed, 1920, p 62; UCMJ, Arts 25d (2) and 37; U. S. v. Coulter (No. 2786), 3 USCMA 657, 14 CMR 75, 78-79; U. S. v. Murphy, 224 F 554; Patrick v. Commonwealth, 115 Va 933, 78 SE 628; CM 363294, Moses, 11 CMR 281; U. S. v. Clisson (No. 4635), 5 USCMA 277, 17 CMR 277 and other cases.) ACM 8501-R, Cook (1955) 18 CMR 715.

[See 31 Am Jur, Jury § 79.]

§ 3.5. Appointing orders.

The members of the court which tried the accused were formally appointed as such by letter orders issued under the command line of the commanding general of the post. When it was discovered that the general was absent on temporary duty, visiting ROTC units in nearby communities, corrected letter orders were issued over the command line of a colonel who was the next senior officer present and the general's chief of staff. With the exception of the command line the corrected letter orders were identical with the original. Pursuant to specific directions previously given the staff judge advocate by the commanding general, the colonel referred the case to trial to the court purportedly appointed in the corrected orders. Written certificates by the general, his staff judge advocate, and adjutant general, showed that the general, prior to his departure on temporary duty, personally approved the selection of the personnel of the court which tried the accused and directed that the case be referred for trial to that court. It is contended that the colonel, as an officer detailed to General Staff Corps, was not eligible to assume command (see AR 600-20, pars 3, 4 and 5, dated 5 May 1950). Held that:

assuming that the colonel was not qualified to assume command and that his corrected orders and reference for trial were therefore a nullity, the court which tried the accused was nevertheless properly appointed. Since the Code is silent on the subject and there appears to be no mandatory requirement in the Manual that appointing orders must be in written form prior to trial (see MCM, 1951, pars 36, 37; cf. U. S. v. Emerson (No. 77), 1 USCMA 43, 1 CMR 43; U. S. v. Lee (No. 2111), 3 USCMA 109, 11 CMR 109; U. S. v. Beard (No. 1778), 2 USCMA 344, 8 CMR 144), the selection of court personnel by the general prior to his departure, though verbal, constituted a legally competent appointing order and the publication of the letter order on the day following his departure was merely the formalization of that verbal order. Furthermore, since the court which tried the case was composed of the identical personnel verbally, but effectively, appointed and designated as

the court to try the case prior to the general's departure, such court was properly convened and functioned pursuant to such appointment and direction.

- furthermore, assuming that an appointing order becomes effective only upon formal publication, the conclusion would be the same since the mere fact that on the date of the publication of the original letter order the general was on temporary duty and not physically present at the post would not affect the legal efficacy of the appointing orders provided they were the orders of the general, which fact was uncontested, and provided further that the general was in fact in the exercise of his command at the time of their publication.

- an absence on temporary duty, as under the instant circumstances, is not such an absence as will deprive an officer of his command. (Citing Winthrop's Military Law and Precedents, 2d ed, 1920 reprint, p 67; cf. U. S. v. Bunting (No. 3387), 4 USCMA 84, 15 CMR 84.)

-the case was also properly referred to trial since it appeared that on the day prior to his departure on temporary duty the general specifically directed his staff judge advocate that the case of the accused be referred for trial by general court-martial. The fact that his direction was issued verbally and lacked desired specificity of a formal reference does not constitute such a defect as to deprive the court-martial of jurisdiction. (Citing U. S. v. Emerson (No. 77), 1 USCMA 43, 1 CMR 43.) Moreover, the general's approval of the sentence in his post-trial action would, in any event, serve to ratify the action of the court. (Citing CM 211218, Fleming, 10 BR 25, 27; CM 260637, Arthur, 39 BR 381, 392.) CM 369622, Petro (1954) 16 CMR 302.

§ 4.1. Generally.

§ 4. Convening Authority

In support of a contention that the convening authority and the staff judge advocate were disqualified because they had prejudged the case, the defense presented a press release issued by the convening authority the day before the trial. It mentioned the accused only incidentially and dealt mainly with the attempt to return another airman to military jurisdiction for trial in connection with the same incident after he had been discharged and the efforts made in the Federal courts to obtain his release. The release specifically stated that it did not touch upon evidence pertaining to the guilt or innocence of the persons involved and it concluded with the statement that the facts within the release could be attested by documents available at the Public Information Office. There was no showing that the release was even disseminated in Korea where the trial took place nor was any claim made that any members of the court were aware of its contents. Held: Since the convening authority had already read the record of trial by court-martial in a companion case, another airman having previously been tried for being involved in the same offense, and since he had also examined the statements and

evidence contained in the pretrial investigation of the instant case, he must have obtained knowledge of the circumstances of the alleged offense. Such prior knowledge and information of the incident did not disqualify him from acting as convening authority. The press release does not indicate that the convening authority had any personal interest in the outcome of the proceeding or had prejudged the guilt of the accused. (Citing UCMJ, Arts 1(11), 22(b); MCM, 1951, pars 5a (3) (4), 35a, 62f, 86-88; U. S. v. Gordon (No. 258), 1 USCMA 255, 2 CMR 161; U. S. v. Marsh (No. 1526), 3 USCMA 48, 11 CMR 48; U. S. v. Jewson (No. 532), 1 USCMA 652, 5 CMR 80; Winthrop's Military Law and Precedents, 2nd ed, 1920 Reprint, pp 61–63.)

Held also: The same conclusion applies with respect to the staff judge advocate who participated in the preparation of the press release. Also, other evidence with respect to the conduct of the staff judge advocate was held not to show bias, hostility or animosity toward the accused. ACM 7761, Schreiber (1954) 16 CMR 639.

The accused was a member of the 2346 Air Force Reserve Combat Training Center. The Reserve Combat Training Center and the Headquarters Squadron Section, Headquarters Fourth Air Force, are activities under the command supervision of the Commander, Fourth Air Force, and are located at the same air base but are not in the same chain of command. In the instant case Lieutenant Colonel D., the commander of the Reserve Combat Training Center, was the accuser while Lieutenant Colonel S. was the commander of the Headquarters Squadron Section, which authority convened the court-martial which tried this case. Official records revealed that the date of rank of Lieutenant Colonel S. pre-dated by over two years the date of rank of Lieutenant Colonel D. Held: The convening authority, although neither superior nor inferior in command, was clearly superior in rank and was, therefore, the "superior competent authority" authorized to convene the special courts-martial which tried the accused. (Citing UCMJ, Art 23(b); U. S. v. LaGrange and Clay (No. 313), 1 USCMA 342, 3 CMR 76; ACM S-3033, Burnette, 5 CMR 522; U. S. v. Pease (No. 2349), 3 USCMA 291, 12 CMR 47.) ACM S-9192, Garcia (1954) 16 CMR 674.

The accused was brought to trial on several charges one of which was withdrawn by the convening authority before any evidence was presented because the officer shown on the charge sheet as accuser had been the convening authority on the date of publication of orders appointing the court which tried the case. The court was appointed for the trial of the accused only. Held: The court which heard the case, having been convened by the officer who was the accuser as to one of the charges, from its inception was not qualified to try the offense alleged in that charge. As to the remaining charges, if a convening authority is disqualified to convene a court because of prejudice either real or statutory, he cannot, by including one good specification in a charge, breathe life into that part of the proceeding. He just cannot confer authority on the court-martial to proceed against the accused. (Citing MCM, 1951, par 5a (3);