APPENDIX II

GLOSSARY OF WORDS AND PHRASES

The following words and phrases are those most frequently encountered in military justice that have special connotations in military law. The list is by no means complete. It is designed solely as a ready reference for the meaning of certain words and phrases. Where it has been necessary to explain a word or phrase in the language of or in relation to a rule of law, no attempt has been made to set forth a definitive or comprehensive statement of such rule of law.

ABANDONED PROPERTY-Property to which the owner has relinquished all rights, title, claims, and possession with intention of not reclaiming it or resuming ownership, possession, or enjoyment.

ABET-To encourage, incite, or set another on to commit a crime, Article 77, UCMJ.

ACCESSORY AFTER THE FACT-Any person subject to the Code who, knowing that an offense punishable by the Code has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender's apprehension, trial or punishment. NOTE: Article 78, UCMJ, deals with accessories.

ACCESSORY BEFORE THE FACT-One who counsels, commands, procures, or causes another to commit an offense-whether present or absent at the commission of the offense. NOTE: Under Article 77, UCMJ, an accessory before the fact is a principal.

ACCUSATION-A formal charge against a person, to the effect that the person is guilty of a punishable offense, laid before a court having jurisdiction to inquire into the alleged crime.

ACCUSED-One who is charged with an offense under the Code.

ACCUSER-Any person who signs and swears to charges; any person who directs that charges normally be signed and sworn to by another; and any other person who has an interest other than an official interest in the prosecution of the accused.

ACQUITTAL-The legal and formal certification of the innocence of a person who has been charged with a crime; a deliverance or setting free a person from a charge of guilt.

ACTIVE DUTY-The status of being in the active federal service of any of the armed forces under a competent appointment or enlistment or pursuant to a competent muster, order, call, or induction.

ACTUAL KNOWLEDGE-A state wherein the person in fact knows of the existence of an order, regulation, fact, and so forth, in question.

ADDITIONAL CHARGES-New and separate charges preferred after others have been preferred against the accused while the original charges are still pending.

AD HOC-For this; for this special purpose.

AD INTERIM-In the meantime. An officer "ad interim" is one appointed to fill a temporary vacancy.

ADJOURNMENT-The putting off or postponing of a trial until a stated time or indefinitely; a cessation of the proceedings for a period extending beyond the same day.

ADJUDICATE-To determine whether a claim is proper and decide what amount, if any, should be paid the claimant.

ADMINISTRATIVE BOARD-A board appointed to render findings based on facts pertaining, or believed to pertain, in a case and to recommend retention, separation, or suspension of separation, and the reason for separation and the characterization of service or description of separation.

ADMINISTRATIVE SEPARATION-A discharge or release from active duty upon expiration of enlistment or required period of service, or before, by administrative means and not by a court-martial.

ADMIRALTY-That body of law and regulation dealing with civil maritime cases.

ADMISSION-A self-incriminatory statement falling short of a complete acknowledgement of guilt.

AD VALOREM-According to value; ad valorem tax is a tax or duty upon the value of the article or thing subject to taxation.

AFFIANT-The person who makes and subscribes an affidavit.

AFFIDAVIT-A statement or declaration reduced to writing and confined by the party making it by an oath taken before a person who has authority to administer the oath.

AGENT-A person authorized by another to act for that person. One entrusted with another's business.

AIDER AND ABETTOR-One who shares the criminal intent or purpose of a perpetrator, and hence is liable as a principal, Article 77, UCMJ.

ALIBI-A defense that the accused could not have committed the offense alleged because the accused was somewhere else when the crime was committed.

ALLEGATION-The assertion, declaration, or statement of a party in a pleading of what the party expects to prove.

ALLEGE-To assert or state in a pleading; to plead in a specification.

ALL WRITS ACT-A federal statue, 28 U.S.C. 1651(a) (1982), that empowers all courts established by Act of Congress, including the Court of Military Appeals, to issue such extraordinary writs as are necessary or appropriate in aid of their respective jurisdictions and agreeable to the usage and principles of law.

APPEAL-A complaint to a superior court of an injustice done or error committed by an inferior court whose judgment or decision the court above is called upon to correct or reverse. See Appellate Review.

APPELLANT-The party who takes an appeal from one court or jurisdiction to another.

APPELLATE REVIEW-The examination of the records of cases tried by courts-martial by proper reviewing authorities, including, in appropriate cases, the convening authority, the Court of Military Review, the Court of Military Appeals, the U.S. Supreme Court, and the Judge Advocate General.

APPREHENSION-The taking of a person into custody.

APPROVED FINDINGS OF AN ADMINI-STRATIVE BOARD-Final approval of the findings of an administrative board rests with the separation authority and, unless the separation authority modifies the findings and recommendation, approval of the board's recommendations as to characterization or separation, or both, constitutes approval of such findings and recommendations.

ARBITRATION-The act of determining a decision in a controversy by a disinterested third party.

ARRAIGNMENT-The reading of the charge(s) and specification(s) to the accused or the waiver of their reading, coupled with the request that the accused plead thereto.

ARREST-Moral restraint imposed upon a person by oral or written orders of competent authority limiting the person's personal liberty pending disposition of charges. Arrest is not imposed as punishment for an offense.

ARREST IN QUARTERS-A moral restraint limiting an officer's liberty, imposed as a nonjudicial punishment by a flag or general officer in command.

ARTICLE 15-The Article of the UCMJ that grants the power of a commander to impose nonjudicial punishment.

ARTICLE 32 INVESTIGATION-See Pretrial Investigation.

ARTICLE 39a SESS1ON-A session of a court-martial called by the military judge, either before or after assembly of the court, without the members of the court being present, to dispose of matters not amounting to a trial of the accused's guilt or innocence.

ASPORTATION-A carrying away; felonious removal of goods; refers to one of the ways in which larceny under Article 121, UCMJ, may be committed.

ASSAULT-An attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated, Article 128, UCMJ.

ASSEMBLED-A court is said to be assembled when its preliminary organization is complete, the members have gathered in the courtroom, and the presiding officer announces the court assembled.

ATTEMPT-An act, or acts, done with a specific intent to commit an offense under the Code, amounting to more than mere preparation, and tending but failing to effect the commission of such offense.

ATTEST-To signify by subscription of the signer's name that the signer has witnessed the execution of the particular instrument.

ATTORNEY, POWER OF-An instrument authorizing another to act as one's agent or attorney. The instrument by which authority of one person to act in place and stead of another as attorney in fact is set forth.

AUTHENTICATION-An official statement certifying that a writing is true and accurate.

AUTHENTICITY-The quality of being genuine in character, which in the law of evidence refers to a piece of evidence actually being what it purports to be.

BAD-CONDUCT DISCHARGE-One of two types of punitive discharges that may be awarded an enlisted member as a court-martial sentence; designed as a punishment for bad conduct, rather than as a punishment for serious offenses of either a civil or military nature; maybe awarded by GCM or SPCM.

BAIL-To procure the release of a person from legal custody, by undertaking that the person will appear at the time and place designated and submit to the jurisdiction and judgment of the court.

BATTERY-An assault in which the attempt or offer to do bodily harm is consummated by the infliction of that harm, Article 128, UCMJ.

BEYOND A REASONABLE DOUBT-The degree of persuasion based upon proof such as to exclude not every hypothesis or possibility of innocence, but any fair and rational hypothesis except that of guilt; not an absolute or mathematical certainty but a moral certainty.

BIGAMY-The criminal offense of willfully and knowingly contracting a second marriage (or going through the form of a second marriage) while the first marriage, to the knowledge of the offender, is still substituting and undissolved.

BODILY HARM-Any physical injury to or offensive touching of the person of another, however slight.

BONA FIDE-In good faith; actual; genuine.

BREACH OF ARREST-Going beyond the limits of arrest as set by orders, Article 95, UCMJ.

BREACH OF PEACE-An unlawful disturbance of the peace by an outward demonstration of a violent or turbulent nature, Article 116, UCMJ.

BREAKING ARREST-Going beyond the limits of arrest before being released by proper authority.

BURGLARY-The breaking and entering in the nighttime of the dwelling of another with intent to commit murder, manslaughter, rape, carnal knowledge, larceny, wrongful appropriation, robbery, forgery, maiming, sodomy, arson, extortion, or assault, Article 129, UCMJ.

BUSINESS ENTRY-Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, made in the regular course of any business, profession, occupation, or calling of any kind.

CAPITAL OFFENSE-An offense for which the maximum punishment includes the death penalty.

CAPTAIN'S MAST-The term applied, through tradition and usage in the Navy and Coast Guard, to nonjudicial punishment proceedings.

CARNAL KNOWLEDGE-An act of sexual intercourse under circumstances not amounting to rape, by a person with a female who is not his wife, and who has not attained the age of 16, Article 120, UCMJ.

CASE LAW-Law obtained from cases that have been decided.

CAVEAT EMPTOR-Let the buyer beware (or take care).

CHALLENGE-A formal objection to a member of a court or the military judge continuing as such in subsequent proceedings. May be either (1) a challenge for cause-such objections based on a fact or circumstance that has the effect of disqualifying the person challenged from further participation in the proceedings or (2) peremptory challenge-such objection is permitted without

grounds or basis, except that the military judge cannot be peremptorily challenged.

CHANGE OF VENUE-Removal of a trial from one jurisdiction to another.

CHARGE-A formal statement of the Article of the UCMJ that the accused is alleged to have violated.

CHARGE AND SPECIFICATION-A description in writing of the offense that the accused is alleged to have committed; each specification, together with the charge under which it is placed, constitutes a separate accusation.

CHARGE SHEET-A two-page document, DD Form 458, that contains (1) information about the accused, (2) the charges and specifications, (3) the preferring of charges and their referral to a summary, special, or general court-martial; and (4) in the case of a summary court-martial, the record of trial.

CHIEF WARRANT OFFICER-A warrant officer of the armed forces who holds a commission or warrant in warrant officer grades W-2 through W-4.

CIRCUMSTANTIAL EVIDENCE-Testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.

CLEMENCY-Discretionary action by proper authority to reduce the severity of a punishment.

CLOSED SESSIONS-Those periods during a court-martial where the members or the military judge (in a judge alone case) is deliberating alone on findings and sentence.

CODIFICATION-Process of collecting and arranging the laws of a country or state into a code; for example, U.S. Code.

COLLATERAL ATTACK-An attempt to impeach or challenge the integrity of a court judgment in a proceeding other than that in which the judgment was rendered and outside the normal chain of appellate review.

COLLISION-Striking together of two objects, one of

which may be stationary. The act of ships or vessels striking together. In its strict sense, collision means the impact of two vessels, both moving, and is distinguished from allision, which designates the striking of a moving vessel against one that is stationary.

COMMAND-(1) An order; (2) any demanding of another to do an act toward commission of a crime, Article 77, UCMJ.

COMMANDING OFFICER-A commissioned officer in command of a unit or units, an organization, or an area of the armed forces.

COMMISSIONED OFFICER-An officer of the naval service who holds a commission in an officer grade, chief warrant officer W-2, and above.

COMMON TRIAL-A trial in which two or more persons are charged with the commission of an offense or offenses that, although not jointly committed, were committed at the same time and place and are provable by the same evidence.

_{COMPETENCY-The} presence of those characteristics, or the absence of those disabilities (for example, exclusionary rules), that renders a particular item of evidence fit and qualified to be presented in court.

CONCURRENT JURISDICTION-Jurisdiction that is possessed over the same parties or subject matter at the same time by two or more separate tribunals.

CONCURRENT SERVICE OF PUNISHMENT- Two or more punishments being served at the same time.

CONFESSION-An acknowledgement of guilt of an offense.

CONFINEMENT-The physical restraint of a person, imposed by either oral or written orders of competent authority, depriving a person of freedom.

CONSECUTIVE SERVICE OF PUNISHMENT- Two or more punishments being served in series, one after the other.

CONSPIRACY-A combination of two or more persons who have agreed to accomplish, by concerted action, an unlawful purpose or some purpose not in itself unlawful but by unlawful means, and the doing of some act by one or more of the conspirators to effect the object of that agreement.

CONSTRUCTIVE ENLISTMENT-A valid enlistment arising where the initial enlistment was void but the enlistee submits voluntarily to military authority, is mentally competent and at least 17 years old, receives pay, and performs duties.

CONSTRUCTIVE KNOWLEDGE-A state wherein a person is inferred to have knowledge of an order, regulation, or fact as a result of having a reasonable opportunity to gain such knowledge (for example, presence in an area where the relevant information was commonly available).

CONTEMPT-In military law, the use of any menacing words, signs, or gestures in the presence of the court, or the disturbance of its proceedings by any riot or disorder.

CONTINUANCE-The adjournment or postponement of a case to another day or time.

CONTRABAND-Items, the possession of which is in and of itself illegal.

CONVENING AUTHORITY-The officer having authority to convene a court-martial and who convened the court-martial in question, or that officer's successor in command.

CONVENING ORDER-The document by which a cow-t-martial is created, specifies the type of court, details the members, and, when appropriate, the specific authority by which the court is created.

CORPUS DELICTI-The body of a crime; facts or circumstances showing that the crime alleged has been committed by someone.

COUNSELING-Directly or indirectly advising or encouraging another to commit an offense, Article 77, UCMJ.

COURT-MARTIAL-A military court, convened under authority of the government and the UCMJ for trying and punishing offenses committed by members of the armed forces and other persons subject to military law.

COURT-MARTIAL ORDER-A published order announcing the results of a court-martial trial.

COURT OF INQUIRY-A formal administrative fact-finding body convened under the authority of Article 135, UCMJ, whose function it is to search out, develop, analyze, and record all available information relative to the matter under investigation.

COURT OF MILITARY APPEALS-The highest appellate court established under the UCMJ to review the records of certain trials by court-martial, consisting of three judges appointed from civil life by the President, by and with the advice and consent of the Senate, for a term of 15 years.

COURT OF MILITARY REVIEW-An intermediate appellate court established by each Judge Advocate General to review the record of certain trials by court-martial-formerly known as Board of Review.

CREDIBILITY OF A WITNESS-A witness' worthiness of belief.

CROSS-EXAMINATION-The examination of a witness at a trial or hearing, or at a deposition, by the party opposed to the one who produced him or her, upon his or her evidence given in the case-in-chief, to test its truth, to further develop it, or for other purposes.

CULPABLE-Deserving blame; involving the breach of a legal duty or the commission of a fault.

CULPABLE NEGLIGENCE-Culpable negligence is a degree of negligence greater than simple negligence. This form of negligence is also referred to as recklessness and arises whenever an accused recognizes a substantial unreasonable risk yet consciously disregards that risk.

CUSTODY-That restraint of free movement that is imposed by lawful apprehension.

CUSTOM-A practice that fulfills the following conditions: (a) it must be long continued; (b) it must be certain or uniform; (c) it must be compulsory; (d) it must be consistent; (e) it must be general; (f) it must be known; and (g) it must not be in opposition to the terms and provisions of a statute or lawful regulation or order.