ESTABLISHMENT OF MILITARY JUSTICE . 7.

3 9
authorities were to be free to disregard the advice of his office with respect t o
the legality of findings and sentences . If the opinions of his office were t o
control, he recommended that reviewing authorities be advised to that effect .
General Orders, No . 7, required that only those records of general courts -
martial carrying sentences of death, dismissal, or dishonorable discharge b e
forwarded in the American Expeditionary Forces to the branch office for review .
.On July 14, 1918, Gen . Kreger, Acting Judge Advocate General, America n
Expeditionary Forces, wrote a letter to Gen. Crowder in which he recommended
that orders be issued requiring that the records of all cases tried in th e
American Expeditionary Forces be transmitted to his office for review . He
stated as follows (Exhibit 94 .) :
" Before I left Washington I understood that you expected after this branc h
had been established for some little time to consider the advisability of re-
quiring it to review the records of all cases tried by general courts-martial
in the American Expeditionary Forces . I have considered the matter and
have discussed it with Gen . Bethel. We are agreed that it would be advisabl e
to have all such records examined here : First, in order that illegal sentences -
may either not be carried into effect at all or their execution arrested at the
earliest possible moment ; and second, because the examination of a portion
only of the cases arising in the command does not give the branch the genera l
view of the administration of military justice that would put it in a positio n
most effectively to aid in carrying into effect the views and policies of you r
office and of the War Department . It is accordingly recommended that in
the near future orders be issued requiring this branch to review, before trans -
. mission to your office, the records of all cases tried here by general courts- '
martial . This recommendation is not to be understood as suggesting tha t
the execution of sentences be held in abeyance pending review by this branch
in any cases other than those in which General Orders No . 7 now requires .
-such action . "
Gen . Crowder had written Gen . Kreger on June 21, 1918, requesting from hi m
an opinion on this very subject . (Exhibit 95 .) Gen . Bethel, in concurrin g
in Gen. Kreger's views, stated as follows (Exhibit 96) :
" The European branch reviews for the Judge Advocate General ' s Office the
.records in cases of the three sentences named above . (That is, death sentence ,
dismissal of officers, and dishonorable discharge not suspended) ; but all othe r
records, sentences involving forfeiture, ordinary confinement, and dishonor -
able discharge, where suspended, go to the Judge Advocate General's Office i n
Washington for review, resulting, of course, in much delay . If such a sen -
'tence is held to be invalid, the action setting it aside for invalidity can onl y
take effect after considerable part of it has been served, or if it is desire d
' to reconvene the court for correction of an error it is generally impracticabl e
to do so after so long a period . It would, therefore, in my opinion, he much
better administration for the European branch to make the review of all .
court-martial eases. "
Gen . Ansell concurred in' the recommendations of Gens . Bethel and Krege r
and, on August 29, 1918, made them the basis for a memorandum to the Chie f
of Staff, recommending an amendment of General Orders No . 7, so as to
require all records of trial in the American Expeditionary Forces to be sent t o
the branch office for review (Exhibit 98) . He went further than that in hi s
draft of amendment submitted to the Chief of Staff . He made provision fo r
the exercise in the American Expeditionary Forces of the selfsame appellat e
power which he urged so strongly in his memorandum of November 10, .1917 ,
and which the Secretary of War, after careful consideration, disapproved Th e
only difference was this : Instead of the Acting Judge Advocate General exer-
cising the power himself, the War Department directed that the convenin g
authorities set aside all sentences, or any part thereof, found by the Actin g
Judge Advocate General to he invalid or void . There was no choice left t o
the convening authority, so that exactly the same purpose was accomplishe d
-as though the power had been exercised by the Acting Judge Advocate General .
The actual draft of the .amendment was as follows (Exhibit 99 )
" The records of all general courts-martial and of all military -commission s
originating in the said expeditionary forces will be forwarded to the sai d
branch office for review, and it shall be the duty of the said Acting Judge Advo -
:eate General to examine and review such records, to return to the proper com-
manding officer for correction such as are incomplete, and to report to th e
'roper officer any defect or irregularity which renders the finding or sentenc e
_invalid or void in whole or in part . Any sentence or any part thereof so found