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1. Overview of Military Justice

CHAPTER 1

Overview of Military Justice

  1.       Introduction

  2.       Creation of the Military Justice System

  3.       Jurisdiction

  4.       Types of Offenses

  5.       Investigation of Offenses

  6.       Types of Courts-Martial

  7.       Procedural Safeguards

  8.       Post-Trial Review

  9.       Appellate Review

 

I.     Introduction

A.    Basic Goals.  The fundamental objective of any criminal law system is to discover the truth, acquit the innocent without unnecessary delay or expense, punish the guilty proportionately for their crimes, and prevent and deter future crime.  Military justice shares each of these objectives, and also serves to enhance good order and discipline within the military.

B.     Separate System.  A question that has been debated often, especially whenever there is a high profile case that captures the public’s attention, is why we have a separate military justice system?  What we are frequently reminded from these debates is that “the military is, by necessity, a specialized society separate from civilian society.”  Parker v. Levy, 417 U.S. 733 (1974).  As the U.S. Supreme Court noted in Parker v. Levy, the “differences between the military and civilian communities result from the fact that ‘it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.’”  Id. at 743, citing United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).  The military is a “separate society” warranting its own military justice system.  See Francis A Gilligan & Fredric I. Lederer, Court-Martial Procedure, Fourth Edition, 1-4 (2015) (foreword by former Chief Judge James E. Baker).  The reasons often cited to for maintaining a separate military justice system include:

1.      The worldwide deployment of military personnel;

2.      The need for instant mobility of personnel;

3.      The need for speedy trial to avoid loss of witnesses due to combat effects and needs;

4.      The peculiar nature of military life, with the attendant stress of combat; and

5.      The need for disciplined personnel.  Id. 

C.     Good Order and Discipline.  Of all the rationales for a separate system, perhaps the most persuasive is the need for disciplined personnel.  Members of the Armed Forces are subject to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts.  United States v. Watson, 69 M.J. 415 (2011).  In the military justice system, discipline can be viewed as being every bit as important as individual liberty interests.  The Preamble to the Manual for Courts-Martial (MCM) recognizes the importance of discipline as part of military justice:  “The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.”  Manual for Courts-Martial, Preamble, I-1 (2012).  Given the necessity for discipline in the military, military justice is under the overall control of the commander. 

1.      Commander’s Discretion.  Commanders have a wide variety of options available to them to deal with disciplinary problems.  These options include administrative actions ranging from an informal counseling, extra training, withdrawal or limitation of privileges, and administrative separations, to punitive options such as punishment under Article 15, UCMJ, and trial by court-martial.

2.      Prosecutorial Discretion.  Prosecutorial discretion lies with the commander and not the judge advocate, a concept unfamiliar to civilian practitioners who are more accustomed to prosecutorial discretion being entrusted to a prosecuting attorney.  In the military justice system, the commander, with the advice of his or her legal advisor, decides whether a case will be resolved administratively or referred to a court-martial.  If the case is to be referred to a general court-martial, Article 34, UCMJ, requires that a judge advocate make findings that there is probable cause to believe an offense under the UCMJ has been committed and that the accused committed it.  In practice, this process is true for both special and general courts-martial.  Technically, it is the commander who approves and signs the charging document and who ultimately makes the decision whether a case is to be referred to a trial by court-martial.

D.    Key References.

1.      Military Justice – Army Regulation 27-10

2.      Manual for Courts-Martial (MCM)

3.      Rule for Courts-Martial (R.C.M.)

4.      Military Rule of Evidence (M.R.E.)

5.      Uniform Code of Military Justice (UCMJ)

6.      Military Judges’ Benchbook – DA Pamphlet 27-9

II.  Creation of the Military Justice System

A.    Authority.  In order to provide for the common defense, the Constitution gives Congress the power to raise, support and regulate the Armed Forces.  U.S. Const., Preamble, art. I, § 8, cls. 11-14 (War Power).  Under this authority, Congress enacted the UCMJ in 1950.  10 U.S.C. §§ 801-946 (Articles 1 - 146).  The UCMJ is the code of military criminal law and procedure applicable to all U.S. military members worldwide.

B.     Implementation.  The Constitution makes the President the Commander-in-Chief of the Armed Forces.  U.S. Const., art. II, § 2, cl. 1.  Also, Congress expressly delegated UCMJ authority to the President to make rules and set punishment limits for cases arising under the UCMJ.  10 U.S.C. §§ 836, 856.  Under these authorities, the President implements the UCMJ through Executive Orders.  The MCM was created in 1984 by Executive Order 12473 (April 13, 1984), and it is intended to be a self-contained  practitioners manual for Judge Advocates and Commanders.  The President also delegated authority to each of the Service Secretaries, including the Department of Homeland Security (for the Coast Guard), to further implement the UCMJ and the rules contained within the MCM.  Each Sister Service supplements the MCM to meet its individual needs.  For instance, the Army uses Army Regulation 27-10.  The Navy and Marine Corps use the Manual for the Judge Advocate General, and the Air Force uses Air Force Instructions. 

C.     The Manual for Courts-Martial.  The MCM contains the relevant statutes (UCMJ), rules (R.C.M. and M.R.E.), forms, scripts, and analysis for practitioners in the field.  The MCM covers almost all aspects of military criminal law and is intended to serve as a portable manual to help facilitate military justice in remote and austere locations.  The rules contained in Parts I-V of the MCM are directed from the President and serve as requirements.  The other parts of the MCM include forms, scripts, discussion, and analysis which serve only as guidance.  See Manual for Courts-Martial (2019).  The different parts of the MCM are listed and explained below:

1.      NOTE:  Practitioners should be advised that the MCM historically (from 1994-2019) has been updated every three or four years.  Such updates are too infrequent to ensure precision, and users are reminded to conduct appropriate research before relying on the printed MCM.  Online updates to the MCM can be found here:  http://jsc.defense.gov/Military-Law/Current-Publications-and-Updates/. 

2.      NOTE:  Practitioners must also remember that the MCM is only a reflection of the law and procedural rules – the actual statutory authority exists in 10 U.S.C. §§ 801-946, and the rules of procedure and evidence are found in Executive Orders from the POTUS.  The MCM is merely a user’s manual.  It was created to improve efficiency and portability.  While the MCM can be cited as authority and is vital to the day-to-day practice of military justice, practitioners must remember to seek out the original authority when required by motion or argument.  The Executive Orders upon which the MCM is built are addressed below in paragraph C.14. 

3.      Part I, Preamble.  This part explains the sources of authority and the structure of the MCM.

4.      Part II, Rules for Courts-Martial.  This part sets forth the rules that govern court-martial jurisdiction, command authorities, court-martial procedure, and post-trial requirements.  For trial practice, including motions, depositions, subpoenas, and other pre-trial matters, the Rules for Courts-Martial (R.C.M.) are similar to the Federal Rules of Criminal Procedure.

5.      Part III, Military Rules of Evidence.  This part establishes the evidentiary rules applicable in each court-martial.  The M.R.E. are modeled after and closely resemble the Federal Rules of Evidence (FRE), except with regard to Federal civil matters and military-specific provisions.  For example, all of Section III of the M.R.E., rules 301-321, are military-specific, and there is no corollary in the FRE.  The M.R.E. are to be construed to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law.  M.R.E. 102.  Non-binding discussion paragraphs were added to Part III in 2012.

6.      Part IV, Punitive Articles.  This part addresses the criminal offenses contained in the UCMJ.  It is organized by paragraph and is intended to provide basic and necessary information about each criminal offense, as follows:  (a) text of the statute; (b) elements of the offense; (c) explanation of the offense; (d) lesser included offenses; (e) maximum punishments; and (f) sample specifications.  While Congress provides the text of the statute, the President provides the remaining portions of Part IV by Executive Order.  This part also has non-binding discussion paragraphs to alert practitioners to case law and other practical considerations.  See Manual for Courts-Martial, Punitive Articles, IV-1 discussion (2019)

7.      Part V, Nonjudicial Punishment Procedure.  Often overlooked, this part of the MCM establishes the basic requirements of and protections from nonjudicial punishment.  In practice, each Service has promulgated regulations that implement Part V of the MCM.  Practitioners are likely much more familiar with their Service regulation; however, it is imperative to know where nonjudicial punishment authority is derived – Article 15 from Congress, and Part V of the MCM from the President.   

8.      U.S. Constitution, contained in Appendix 1.

9.      Uniform Code of Military Justice.  Appendix 2 contains the entire UCMJ, Articles 1-146. 

10.   Maximum Punishment Chart, contained in Appendix 12.

11.   **MJA  2016** Listing of Lesser Included Offenses.  New Appendix 12A is intended to be the listing of all lesser included offenses, instead of putting this information in Part IV of the MCM, where it used to reside.  The reason for the new Appendix 12A is to allow the Joint Service Committee to more conveniently update LIOs as they are impacted by appellate precedent and to conform to United States v. Jones, 68 M.J. 465 (C.A.A.F. 2011), and its progeny. 

12.   Scripts and Forms, contained in various Appendices.

13.   Analysis.  The R.C.M., M.R.E. and Punitive Articles (Parts II, III, and IV) each have analysis in Appendices 15, 16, and 17, respectively.  While discussion paragraphs are meant to serve as guidance in the form of treatise, the analysis is more akin to legislative intent and historical record-keeping.  The “intent” captured in the analysis is usually from the Joint Service Committee on Military Justice (JSC).  The JSC is the entity that researches and proposes changes to the MCM and UCMJ.  The JSC also drafts the Executive Orders that the President will sign to update the MCM.  The analysis appendices in the MCM are a repository of notes from the JSC.  On the spectrum of authority, the UCMJ is most powerful; then the rules prescribed by the President in Parts I-V of the MCM; then Service regulation and the discussion paragraphs in the MCM; and then the analysis.  Discussion paragraphs and Service regulations are often cited by appellate courts as a  form of authority, but the analysis is less compelling and cited less often.

14.   Historical Executive Orders.  Appendix 19 of the MCM lists all of the Executive Orders that comprise the MCM.  The MCM was first created in 1984 by a very large Executive Order and has since been updated, almost annually, by subsequent orders.  These orders had originally been printed in Appendix 25 of the MCM but were removed in 2012.  Copies of the actual Executive Orders that comprise the MCM are now available online at the JSC Website. 

15.   Prior Versions of Article 120.  Appendices 20-22 contain, respectively, the pre-2007 and the 2007 versions of Article 120.  These appendices were added to the 2012 MCM to help practitioners in charging older sexual offenses. 

III.         Jurisdiction

A.    Article 2, UCMJ, defines and establishes jurisdiction over all Servicemembers (Army, Navy, Air Force, Marine, and Coast Guard).   The UCMJ also provides for jurisdiction over several other categories of individuals, including but not limited to:  Reserve Component and National Guard members, certain retired military members; military members serving a court-martial sentence; members of the National Oceanic and Atmospheric Administration and Public Health Service and other organizations when assigned to serve with the military; enemy prisoners of war in custody of the military; and, in times of declared war or contingency operations, persons serving with or accompanying an armed force in the field.  Article 2, UCMJ; 10 U.S.C. § 802. 

B.     Court-Martial Jurisdiction.  Under the MCM, jurisdiction of a court-martial means “the power to hear a case and to render a legally competent decision.”  See R.C.M. 201(a)(1) discussion.  Under R.C.M. 201(b), a court-martial has jurisdiction if the following are all true:

1.      The court-martial must be convened by an official empowered to convene it;

2.      The court-martial must be composed in accordance with the Rules for Courts-Martial with respect to number and qualifications of its personnel (military judge and members must have proper qualifications);

3.      Each charge before the court-martial must be referred to it by competent authority;

4.      The accused must be a person subject to court-martial jurisdiction (personal jurisdiction); and

5.      The offense must be subject to court-martial jurisdiction (subject matter jurisdiction).

C.     The nuances of court-martial jurisdiction are beyond the scope of this outline, however, it is enough to say generally that jurisdiction of a court-martial does not depend on where the offense was committed; it depends solely on the status of the accused.  See Solorio v. United States, 483 U.S. 435, 447 (1987).  Also, a court-martial exists by order of a commander and is not a standing tribunal like an Article III federal court.  A court-martial is derived from Article I authority in the Constitution:  Congress created our court system with the UCMJ, and Congress gave commanders the authority to convene a court-martial.  A court-martial is not a standing court; rather it comes into existence when a commander “refers” a case, and it ceases to exist after sentencing when the court-martial “closes”. 

IV.          Types of Offenses

A.    Overview:  A court-martial may try any offense listed in the punitive articles of the UCMJ.  The punitive articles include  Articles 77 through 134 of the UCMJ.  10 U.S.C. §§ 877-934.  Some of the offenses listed within Articles 77 through 134 have a civilian analog while others are exclusive to the military. 

1.      Civilian Analog Offenses.  Examples of civilian analog offenses under the UCMJ include conspiracy (Article 81); murder (Article 118); rape (Article 120); robbery (Article 122); and assault (Article 128).    

2.      Military-Specific Offenses.  Examples of military-specific offenses include desertion (Article 85); absence without leave (Article 86); insubordinate conduct (Article 91); mutiny and sedition (Article 94); misconduct as a prisoner (Article 98); malingering (Article 83); and conduct unbecoming an officer (Article 133). 

B.     General Article 134.  In addition to the enumerated offenses discussed above, a Servicemember may be tried at a court-martial for offenses not specifically covered within the punitive articles.  General Article 134 states that all “crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court martial, according to the nature and degree of the offense.”  For more detail on Article 134, see Chapter 20 of this deskbook.

1.      Federal Assimilative Crimes Act (18 U.S.C. § 13).  The military uses Article 134 to assimilate state and federal offenses for which there is no analogous crime in the UCMJ in order to impose court-martial jurisdiction.  The potential punishments for violations generally match those applicable to the corresponding civilian offense.

2.      Preemption doctrine.  The preemption doctrine prohibits application of Article 134 to conduct already covered under Articles 80 through 132. 

V.   Investigation of Offenses

A.    Report of misconduct.  When a Servicemember has reportedly committed an offense, his or her commander is usually notified by military law enforcement (via daily “blotter reports” from the installation Provost Marshal), or by a report from an alleged victim or through direct observation of the alleged misconduct.  After receiving notification that a Servicemember committed an offense triable by court-martial, the commander must at a minimum, direct that a preliminary inquiry be conducted before disposing of a case.  R.C.M. 303.    

B.     Commander’s Inquiry.  The inquiry by the command may range from an examination of the possible charges and an investigative report to a more extensive investigation depending on the offense(s) alleged and the complexity of the case.  The investigation may be conducted by members of the command or, in more complex cases, military and civilian law enforcement officials.  By policy, the Department of Defense and each Sister Service “requires” that allegations of sexual offenses be reported to the appropriate Military Criminal Investigative Organization (for the Army that is the Criminal Investigation Command, or CID; for Navy/Marine, NCIS; for Air Force, OSC).   See DODI 6495.

C.     Commander’s Options.  After the investigation is complete, the appropriate commander must make a disposition decision.  By policy, the Secretary of Defense has withheld the disposition authority for all sexual offenses (Article 120 rape and sexual assault, and Article 125 forcible sodomy) to the first O-6 special court-martial convening authority in the chain of command.  Commanders may make the following disposition decisions UP R.C.M. 306(c):

1.      Take no action;

2.      Initiate administrative action (which can include separation from the Army);

3.      Impose non-judicial punishment (a form of punishment that is not considered a conviction, but can result of loss of rank, pay, and other privileges);

4.      Prefer charges (the process of formally charging a soldier with and offense for resolution at court-martial); or

5.      Forward to a higher authority for preferral of charges.

D.    Preferral of Charges.  The first formal step in a court-martial, preferral of charges consists of drafting a charge sheet containing the charges and specifications against the accused.  A specification is a plain and concise statement of the essential facts constituting the offense charged.  R.C.M. 307(c)(3).  The M.C.M. contains model specifications to assist trial counsel and the chain of command in drafting the specifications.  The charge sheet must be signed by the accuser under oath before a commissioned officer authorized to administer oaths.  R.C.M. 307(b).  Any person subject to the UCMJ may prefer charges as the accuser.  R.C.M. 307(a). 

E.     Referral of Charges.  After charges have been preferred, they may be referred to one of three types of courts-martial: summary, special, or general.  R.C.M. 401(c).  The process of “referral” is simply the order that states that charges against an accused will be tried by a specific court-martial.  The Court Martial Convening Authority, a commander, determines which level of court-martial to which the charges are to be referred.  R.C.M. 504.  That commander must be advised by her Staff Judge Advocate or legal advisor before making her determination (this is required for general courts-martial by Article 34, UCMJ; however, R.C.M. 401 and 601 require legal advice for any referral to special or general court-martial).  Usually, the seriousness of the offenses alleged determines the type of court-martial. 

VI.          Types of Courts-Martial

A.    Unlike Article III federal courts, courts-martial are not standing courts.  Courts-martial are created by individual Court-Martial Convening Orders (CMCO).  Without a CMCO, there is no court and thus no authorization to adjudicate any charged offense.  Congress, in creating the military justice system, established three types of courts-martial: (1) summary court-martial, (2) special court-martial, and (3) general court-martial.  Article 16, UCMJ; 10 U.S.C. § 816.  While the Rules of Courts-Martial and the Military Rules of Evidence are applicable to all courts-martial, the jurisdiction and authorized punishments vary among the different courts-martial types. 

B.     Summary Courts-Martial.  The function of the summary court-martial is to “promptly adjudicate minor offenses under a simple procedure” and “thoroughly and impartially inquire into both sides of the matter” ensuring that the “interests of both the Government and the accused are safeguarded and that justice is done.”  R.C.M. 1301(b).  The summary court-martial can adjudicate minor offenses allegedly committed by enlisted Servicemembers. 

C.     Special Courts-Martial.  Special courts-martial generally try offenses that are considered misdemeanors.  The formality and procedural protections are much more involved in a special court-martial as opposed to a summary court-martial.  Convening authorities can refer a case to two types of special courts-martial:  those consisting of a military judge and four members (although the accused can later elect to trial by military judge alone); and those consisting of a military judge alone.

D.    General Courts-Martial.  A general court-martial is the highest trial level in military law and is reserved  for the most serious offenses.

E.     See Chapter 6 of this Deskbook for more details about Summary Court-Martial.   

VII.       Procedural Safeguards

A.    The Constitution specifically exempts military members accused of a crime from the Fifth Amendment right to a grand jury indictment.  Based upon this exemption, the Supreme Court has inferred there is no right to a civil jury in courts-martial.  See Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866).  Despite this exemption, the military justice system has created, in most instances, equal if not greater procedural protections for military members.  For instance, Congress has, in Article 32, UCMJ, provided for a pretrial hearing that performs the same basic function as a grand jury.  However, the Article 32 has the added benefit of allowing the accused to call witnesses, present evidence, and cross examine government witnesses.  Below are some of the key procedural safeguards afforded an accused under the UCMJ. 

B.     Constitutional Safeguard:  Presumption of Innocence

1.      "The principle that there is a presumption of innocence in favor of the accused is undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 453 (1895)

2.      General Courts-Martial:  If the accused fails to enter a proper plea, a plea of not guilty will be entered.  R.C.M. 910(b).  Members of a court-martial must be instructed that the "accused must be presumed to be innocent until the accused's guilt is established by legal and competent evidence beyond a reasonable doubt."  R.C.M. 920(e).  The accused shall be properly attired in uniform with grade insignia and any decorations to which entitled.  Physical restraints shall not be imposed unless prescribed by the military judge.  R.C.M. 804

C.     Constitutional Safeguard:  Right to Remain Silent

1.      "No person... shall be compelled in any criminal case to be a witness against himself...."  Amendment V.

2.      General Courts-Martial:  Coerced confessions or confessions made without the statutory equivalent of a Miranda warning are not admissible as evidence.  Article 31, UCMJ, 10 U.S.C. § 831.  The trial counsel must notify the defense of any incriminating statements made by the accused that are relevant to the case prior to the arraignment. Motions to suppress such statements must be made prior to pleading.  M.R.E. 304.

D.    Constitutional Safeguard:  Freedom from Unreasonable Searches & Seizures

1.      "The right of the people to be secure… against unreasonable searches and seizures, shall not be violated; no Warrants shall issue, but upon probable cause…."  Amendment IV.

2.      General Courts-Martial:  "Evidence obtained as a result of an unlawful search or seizure... is inadmissible against the accused..." unless certain exceptions apply.  M.R.E. 311.  An "authorization to search" may be oral or written, and may be issued by a military judge or an officer in command of the area to be searched, or if the area is not under military control, with authority over persons subject to military law or the law of war.  It must be based on probable cause.  M.R.E. 315.  Interception of wire and oral communications within the United States requires judicial application in accordance with 18 U.S.C. §§ 2516 et seq.  M.R.E. 317.  A search conducted by foreign officials is unlawful only if the accused is subject to "gross and brutal treatment."  M.R.E. 311(c).

E.     Constitutional Safeguard:  Assistance of Effective Counsel

1.      "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense."  Amendment VI.

2.      General Courts-Martial:  The accused has a right to military counsel at government expense.  An accused may choose individual military counsel, if that attorney is reasonably available, and may hire a civilian attorney in addition to military counsel.  Article 38, UCMJ, 10 U.S.C. § 838.  Appointed counsel must be certified as qualified and may not be someone who has taken any part in the investigation or prosecution, unless explicitly requested by the accused.  Article 27, UCMJ, 10 U.S.C. § 827.  The military recognizes an attorney-client privilege.  M.R.E. 502. 

F.     Constitutional Safeguard:  Right to Indictment and Presentment

1.      "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...."  Amendment V.

2.      General Courts-Martial:  The right to indictment by grand jury is explicitly excluded in "cases arising in the land or naval forces."  Amendment V.  Whenever an offense is alleged, the commander is responsible for initiating a preliminary inquiry and deciding how to dispose of the offense.  R.C.M. 303-06.  Prior to convening a general court-martial, a preliminary hearing must be conducted.  R.C.M. 405.  This investigation, known as an Article 32 preliminary hearing, is meant to ensure that there is a basis for prosecution.  R.C.M. 405(a).

G.    Constitutional Safeguard:  Right to Written Statement of Charges

1.      "In all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature and cause of the accusation...."  Amendment VI.

2.      General Courts-Martial:  Charges and specifications must be signed under oath and made known to the accused as soon as practicable.  Article 30, UCMJ, 10 U.S.C. § 830

H.    Constitutional Safeguard:  Right to be Present at Trial

1.      The Confrontation Clause of Amendment VI guarantees the accused's right to be present in the courtroom at every stage of his trial.  Illinois v. Allen, 397 U.S. 337 (1970).

2.      General Courts-Martial:  The presence of the accused is required during arraignment, at the plea, and at every stage of the court-martial unless the accused waives the right by voluntarily absenting him or herself from the proceedings after the arraignment or by persisting in conduct that justifies the trial judge in ordering the removal of the accused from the proceedings. R.C.M. 801.

I.       Constitutional Safeguard:  Prohibition against Ex Post Facto Crimes

1.      "No... ex post facto law shall be passed."  Art. I, § 9, cl. 3.

2.      General Courts-Martial:  Courts-martial will not enforce an ex post facto law, including increasing the amount of pay to be forfeited for specific crimes.  United States v. Gorki, 47 M.J. 370 (C.A.A.F. 1997).

J.      Constitutional Safeguard:  Protection against Double Jeopardy

1.      "... [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb...."  Amendment V.

2.      General Courts-Martial:  Double jeopardy clause applies. See Wade v. Hunter, 336 US 684, 688-89 (1949).  Article 44, UCMJ prohibits double jeopardy, provides for jeopardy to attach after introduction of evidence.  10 U.S.C. § 844.  General court-martial proceeding is considered to be a federal trial for double jeopardy purposes and are subject to "dual sovereign" doctrine, i.e.:  federal and state courts may prosecute an individual for the same conduct without violating the clause.  Double jeopardy does not result from charges brought in state or foreign courts, although court-martial in such cases is disfavored.  See United States v. Stokes, 12 M.J. 229 (C.M.A. 1982).  If military authorities turn over a Servicemember to civilian authorities for trial, military may have waived jurisdiction for that crime, although it may be possible to charge the individual for another crime arising from the same conduct. See 54 AM. JUR. 2D, Military and Civil Defense §§ 227-28.

K.    Constitutional Safeguard:  Speedy & Public Trial

1.      "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...."  Amendment VI.

2.      General Courts-Martial:  In general, the accused must be brought to trial within 120 days of the preferral of charges or the imposition of restraint, whichever is earliest.  R.C.M. 707(a).  The right to a public trial applies in courts-martial but is not absolute.  R.C.M. 806.  The military trial judge may exclude the public from portions of a proceeding for the purpose of protecting classified information if the prosecution demonstrates an overriding need to do so and the closure is no broader than necessary.  United States v. Grunden, 2 M.J. 116 (CMA 1977).

L.     Constitutional Safeguard:  Burden & Standard of Proof

1.      Due Process requires the prosecution to prove the defendant guilty of each element of a crime beyond a reasonable doubt.  In re Winship, 397 U.S. 358 (1970).

2.      General Courts-Martial:  Members of court martial must be instructed that the burden of proof to establish guilt is upon the government and that any reasonable doubt must be resolved in favor of the accused.  R.C.M. 920(e).

M.   Constitutional Safeguard:  Privilege Against Self- Incrimination

1.      "No person... shall be compelled in any criminal case to be a witness against himself...."  Amendment V.

2.      General Courts-Martial:  No person subject to the UCMJ may compel any person to answer incriminating questions.  Article 31(a) UCMJ, 10 U.S.C. § 831(a).  The accused may not be compelled to give testimony that is immaterial or potentially degrading.  Article 31(c), UCMJ, 10 U.S.C. § 831(c).  No adverse inference is to be drawn from an accused's refusal to answer any questions or testify at court-martial.  M.R.E. 301(f).  Witnesses may not be compelled to give testimony that may be incriminating unless granted immunity for that testimony by a general court-martial convening authority, as authorized by the Attorney General, if required.  18 U.S.C. § 6002; R.C.M. 704. 

N.    Constitutional Safeguard:  Right to Examine or Have Examined Adverse Witnesses

1.      "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him...."  Amendment VI.

2.      General Courts-Martial:  Hearsay rules apply as in federal court.  M.R.E. 801 et seq.  In capital cases, sworn depositions may not be used in lieu of witnesses, unless court-martial is treated as non-capital or it is introduced by the defense.  Article 49, UCMJ, 10 U.S.C. § 849. 

O.    Constitutional Safeguard:  Right to Compulsory Process to Obtain Witnesses

1.      "In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor...."  Amendment VI.

2.      General Courts-Martial:  An accused has the right to compel appearance of witnesses necessary to their defense.  R.C.M. 703.  Process to compel witnesses in a court-martial is to be similar to the process used in federal courts.  Article 46, UCMJ, 10 U.S.C. § 846.

P.     Constitutional Safeguard:  Right to Trial by Impartial Judge

1.      "The Judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress ... may establish. The Judges ... shall hold their Offices during good Behavior, and shall receive ... a compensation, which shall not be diminished during their continuance in office."  Article III § 1.   

2.      General Courts-Martial:  A qualified military judge is detailed to preside over the court-martial.  The convening authority may not prepare or review any report concerning the performance or effectiveness of the military judge. Article 26, UCMJ, 10 U.S.C. § 826.  Article 37, UCMJ, prohibits unlawful command influence of courts-martial through admonishment, censure, or reprimand of its members by the convening authority or commanding officer, or any unlawful attempt by a person subject to the UCMJ to coerce or influence the action of a court-martial or convening authority.  Article 37, UCMJ, 10 U.S.C. § 837.

Q.    Constitutional Safeguard:  Right to Trial by Impartial Jury

1.      "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury...."  Art III § 2 cl. 3 "In all criminal prosecutions, the accused shall enjoy the right to a... trial, by an impartial jury of the state...."  Amendment VI.

2.      General Courts-Martial:  A military accused has no Sixth Amendment right to a trial by petit jury.  Ex Parte Quirin, 317 U.S. 1, 39-40 (1942) (dicta).  However, "Congress has provided for trial by members at a court-martial."  United States v. Witham, 47 MJ 297, 301 (C.A.A.F. 1997); Article 25, UCMJ, 10 U.S.C. § 825.  The Sixth Amendment requirement that the jury be impartial applies to court-martial members and covers not only the selection of individual members, but also their conduct during the trial proceedings and the subsequent deliberations. United States v. Lambert, 55 M.J. 293 (C.A.A.F. 2001). 

R.     Constitutional Safeguard:  Right to Appeal to Independent Reviewing Authority

1.      "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it."  Article I § 9 cl. 2.

2.      General Courts-Martial:  The writ of habeas corpus provides the primary means by which those sentenced by military court, having exhausted all military appeals, can challenge a conviction or sentence in a civilian court.  The scope of matters that a court will address is narrower than it is in challenges of federal or state convictions.  Burns v. Wilson, 346 U.S. 137 (1953).  However, Congress created a military court with all civilian justices (non-military retirees), the Court of Appeals for the Armed Forces, to review military cases.  Articles 141-146, 10 U.S.C. §§ 141-146.

S.     Constitutional Safeguard:  Protection against Excessive Penalties

1.      "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."  Amendment VIII.

2.      General Courts-Martial:  Death may only be adjudged for certain crimes where the accused is found guilty by unanimous vote of court-martial members present at the time of the vote.  Prior to arraignment, the trial counsel must give the defense written notice of aggravating factors the prosecution intends to prove.  R.C.M. 1004.  A conviction of spying during time of war under Article 106, UCMJ, carries a mandatory death sentence.  10 U.S.C. § 906.

VIII.    Post-Trial Review

A.    Generally.  Any conviction at a court-martial is subject to an automatic post-trial review by the convening authority. 

B.     Process.  The post-trial process (which was significantly amended by the Military Justice Act of 2016) starts with the assembly of the trial record.  The accused is then given an opportunity to present matters to the convening authority.  R.C.M. 1106.  Beginning in 2013, court-martial victims were permitted to submit matters to the convening authority as well.  R.C.M. 1106A.  After matters are submitted, the convening authority consults with the staff judge advocate regarding what action to take.  R.C.M. 1109(d)(2).  Finally, the convening authority reviews the matters and legal advice and takes initial “action” on the court-martial before there is appellate review.  R.C.M. 1109 and 1110. 

1.      The convening authority used to have broad powers in taking action; however, Congress significantly limited that power in 2013 by amending the UCMJ to prevent convening authorities from taking certain actions in sexual assault convictions and other cases dealing with more serious offenses.  See 10 U.S.C. § 860.  Prior to these changes, the accused’s best hope for relief or clemency existed at post-trial, before appellate review. 

2.      The convening authority may, among other remedies and subject to the limitations of Article 60, suspend all or part of the sentence, disapprove a finding or conviction, or reduce the sentence.  R.C.M. 1109 and 1110.  The convening authority does not have the authority to increase the sentence. 

3.      See Chapter 28 of this deskbook to learn more about the post-trial process or the commander’s authorities to grant clemency.

IX.          Appellate Review

A.    Generally.  After the convening authority takes action and the military judge enters judgment, the case is ripe for appellate review.  Convictions by special or general court-martial are subject to an automatic appellate review by a service Court of Criminal Appeals if the sentence includes confinement for two years or more, a bad-conduct or dishonorable discharge, death, or a dismissal in the case of a commissioned officer, cadet, or midshipman.  R.C.M. 1116.  The Military Justice Act of 2016 added certain new categories of cases subject to appellate review upon request of the accused that would otherwise fall below the mandatory review threshold.  The Military Justice Act of 2016 also expanded review under Article 62 and added a government right to appeal a sentence under Article 56(d). 

1.      Wavier.  Military appellate courts are required to review cases over which they have jurisdiction unless the appellant waives his or her right to an appeal.  An appellant may not waive his or her right to an appeal when the sentence includes death.  R.C.M. 1115.   

2.      Non-qualifying convictions.  All court-martial convictions not reviewable by the service courts are reviewed by a judge advocate to determine if the findings and sentence are correct in law and fact.   Article 65, UCMJ, 10 U.S.C. § 865. 

B.     Review.  If the conviction is affirmed by the service court, the appellant may request review by the Court of Appeals for the Armed Forces (CAAF).  R.C.M. 1204.  The CAAF is a court composed of five civilian judges appointed by the President.  Article 67 UCMJ; 10 U.S.C. § 867.  With the exception of a case where the sentence is death, the review by the CAAF is discretionary.  The appellant may also seek review by the U.S. Supreme Court.  R.C.M. 1205.  As with the review by CAAF, the review by the Supreme Court is discretionary.  However, the Supreme Court review by writ of certiorari is limited to those cases where CAAF has conducted a review, whether mandatory or discretionary, or has granted a petition for extraordinary relief.  The Court does not have jurisdiction to consider denials of petitions for extraordinary relief.  R.C.M. 1205(a)(4).  Servicemembers whose petitions for review or for extraordinary relief are denied by CAAF may seek additional review only through collateral means, for example, petitioning for habeas corpus to an Article III court, which could provide an alternate avenue for Supreme Court review.

C.     See Chapter 29 of this deskbook to learn more about the appellate process.

 

APPENDIX A

FIELD GRADE NJP v. SCM CHEAT SHEET

(Enlisted Soldiers)

 

 

NJP

SCM

Punishment:  E1-E4

45 extra duty/45 restriction (60 if no extra duty); reduce to E1; ½ of one month’s pay for 2 months

1 month confinement, or 45 extra duty/45 restriction (60 if no extra duty); reduce to E1; 2/3s pay for one month

 

Punishment:  E5-E6

45 extra duty/45 restriction (60 if no extra duty); reduce one grade; ½ of one month’s pay for 2 months

2 months restriction; reduce one grade; 2/3s pay for one month

Punishment:  E7-E9

45 extra duty/45 restriction (60 if no extra duty); ½ of one month’s pay for 2 months

2 months restriction; reduce one grade; 2/3s pay for one month

UCI applies

Yes

Yes

Soldier can turn down

Yes

Yes

Considered a conviction

No

No

Bring all known offenses at once

Yes

Yes

Bring action after state conviction (DUIs)

Yes (requires GCMCA approval)

Yes (requires GCMCA approval)

Double jeopardy attaches

Yes for other NJP; No for court-martial

Yes

Type of offense

Minor (BCD, 1 year of less)

Minor or Major (except capital offenses, mandatory minimum cases)

Proof beyond a reasonable doubt

Yes

Yes

Military Rules of Evidence apply

No

Yes

Adversarial (cross-exam)

No

Yes

Counsel rights

Consult with counsel; spokesman at hearing (at own expense)

Consult with counsel; lawyer at trial (at own expense)

Appeal or clemency

Soldier has 5 days to file; command acts within 5 days.

Accused has 7 days to submit matters (may get an additional 20)

Review

A judge advocate (usually the TC)

An independent judge advocate (usually an administrative law attorney)

 

APPENDIX B

MAXIMUM PUNISHMENT CHEAT SHEET

Type

Restriction/Confinement

Forfeitures

Reduction

Discharge

Summarized Art. 15

14 days extra duty/restriction

None

None

None

Company grade Art. 15

14 days extra duty/restriction

7 days

1 grade (E1-E4)

None

Field grade Art. 15

45 days extra duty/restriction (60 days restriction if no extra duty)

½ of 1 month’s pay for 2 months

1 or more grades (E1-E4); 1 grade (E5-E6)

None

General officer Art. 15

Same as field grade for enlisted; for officers, 60 days restriction or 30 days house arrest

Same as field grade

Same as field grade

None

Summary CM (enlisted only)

1 month confinement (E1-E4); or 45 days hard labor without confinement (E1-E4); 2 months restriction (E1-E9) (max combination of restriction/hard labor without confinement is 45 days).

2/3 pay for one month

1 or more grades (E1-E4); 1 grade (E5-E9)

None

Special CM (referred to MJ alone)

6 months

2/3 pay per month for 6 months

Lowest enlisted grade.  Officers may not be reduced

None

Special CM

12 months

2/3 pay per month for 1 year

Lowest enlisted grade.  Officers may not be reduced

BCD (enlisted only)

General CM

Maximum for the offense

Total forfeitures of pay and allowances

Lowest enlisted grade.  Officers may not be reduced.

DD (E1-E9, noncommissioned warrant officers); dismissal (commissioned officers)

 

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