6. Summary Courts-Martial
A. Overview. A summary court-martial (SCM) is the least formal of the three types of courts-martial and the least protective of a soldier’s rights. The SCM is a streamlined trial process involving only one officer who theoretically performs the prosecutorial, defense counsel, judicial, and panel member (juror) functions. The purpose of this type of court-martial is to dispose promptly of relatively minor offenses. The one officer assigned to perform the various roles incumbent on the SCM must inquire thoroughly and impartially into the matter concerned to ensure that both the United States and the accused receive a fair hearing. Since the SCM is a streamlined procedure providing fewer protections and rights, the maximum possible punishment is very limited. Furthermore, it may try only enlisted personnel and only those who consent to be tried by SCM.
B. Key References.
1. Army Regulation (AR) 27-10, Military Justice
2. Department of Army (DA) Pamphlet (PAM) 27-7, Summary Court-Martial Officer’s Guide
3. Uniform Code of Military Justice (UCMJ), Articles 20 and 24
4. Manual for Courts-Martial (MCM) Provisions
a) Rules for Courts-Martial (R.C.M.) 1301 – 1306.
b) Military Rule of Evidence (M.R.E.) 101 – applying the rules of evidence to SCMs.
c) Appendix 4 – Charge sheet.
d) Appendix 9 – Guide for SCM (script)
e) Appendix 15 – Record of Trial by SCM
5. DA PAM 27-17, Military Judges’ Benchbook
C. Unique to the Military.
1. The SCM has no civilian equivalent. It is strictly a creature of statute within the military system.
2. Although it is a proceeding at which the technical rules of evidence apply, and at which a finding of guilty can result in loss of liberty and property, there is no constitutional right to representation by counsel. Middendorf v. Henry, 425 U.S. 25 (1976) (citing Toth v. Quarles, 350 U.S. 11 (1955)).
3. The MJA 2016 amendment to Art. 20 includes a new provision which makes explicit that a summary court-martial is a non-criminal forum. A finding of guilty at a summary court-martial does not constitute a criminal conviction. See also Middendorf, 425 U.S. at 38; cf. Argersinger v. Hamlin, 407 U.S. 25 (1972); See generally Weiss v. United States, 510 U.S. 163 (1994); United States v. Booker, 5 M.J. 238(C.A.A.F. 1977).
A. Authority to Convene. A SCM is convened (created) by an individual authorized by law to convene SCMs. Article 24, of the Uniform Code of Military Justice (UCMJ) and R.C.M. 1302(a), specify those persons who have the power to convene an SCM.
B. Commanding officers authorized to convene a General Court-Martial (GCM) or Special Court-Martial (SPCM) are also empowered to convene a SCM. Thus, the commanding officer of an installation and commanding officers of brigades have this authority. Additionally, unless withheld by a superior competent authority, a field grade officer in command of a battalion or squadron may convene a SCM. Finally, the MCM states that a commanding officer of a detached company or other detachment of the Army also has the authority to convene a SCM.
1. Court-Martial Convening Authority Generally
a) Battalion/Squadron commander (Lieutenant Colonel): summary court-martial convening authority (SCMCA).
b) Brigade commander (Colonel): special court-martial convening authority (SPCMCA).
c) Division commander (Major General): general court-martial convening authority (GCMCA).
2. Options of SCMCA [Articles 20 and 24 UCMJ]
a) Dismiss charges. Dismissal does not bar subsequent action under R.C.M. 306(c) [R.C.M. 403(b)(1)].
b) Alternative disposition. The SCMCA could handle the matter with a Field Grade Article 15.
c) Return to subordinate commander. The SCMCA may return to a subordinate commander for independent discretion on how the case should be handled. No recommendation may be made by the SCMCA [R.C.M. 401(c)(2)(B) and 403(b)(2)].
d) Forward to superior commander with recommendation [R.C.M. 403(b)(3)]. Recording the receipt of charges on charge sheet, discussed infra; tolls statute of limitations [R.C.M. 403(a)].
e) Refer to a SCM [R.C.M. 403(b)(4)].
f) Direct an Article 32 investigation [R.C.M. 403(b)(5)]
C. Mechanics of convening. Before any case can be brought before a SCM, the court must be properly convened (created). It is created by the order of the convening authority detailing the SCM officer to the court. R.C.M. 504(d)(2) requires that the convening order specify that it is a SCM and designate the SCM officer. Additionally, the convening order may designate where the court-martial will meet.
D. SCM officer. A SCM is a one-officer court-martial. As a jurisdictional prerequisite, this officer must be a commissioned officer, on active duty, and hold the rank of CPT (O-3), or higher.
1. As a practice point, to borrow from the standard in Art. 25, UCMJ, the SCM should be best qualified by reason of age, education, experience, and judicial temperament as his performance will have a direct impact upon the morale and discipline of the command.
2. Where more than one commissioned officer is present within the command or unit, the convening authority may not serve as SCM. When the convening authority is the only commissioned officer in the unit, however, he or she may serve as SCM officer and this fact should be noted in the convening order attached to the record of trial. R.C.M. 1301(a). In such a situation, however, the better practice would be to appoint a SCM officer from outside the command, as the SCM officer need not be from the same command as the accused.
3. The SCM officer assumes the burden of prosecution, defense, judge, and jury as she must thoroughly and impartially inquire into both sides of the matter and ensure that the interests of both the government and the accused are safeguarded and that justice is done. While he or she may seek advice from the legal advisor on questions of law, he or she may not seek advice from anyone on questions of fact, since she has an independent duty to make these determinations. R.C.M. 1301(b).
E. Jurisdictional limitations.
1. Over the Person. Art. 20, UCMJ, and R.C.M. 1301(c) provide that a SCM has the power (jurisdiction) to try only those enlisted persons who consent to trial by SCM. The right of an enlisted accused to refuse trial by SCM is absolute. No commissioned officer, warrant officer, cadet, or person not subject to the UCMJ (Art. 2, UCMJ) may be tried by SCM. The accused must be subject to the UCMJ at the time of the offense and at the time of trial; otherwise, the court-martial lacks jurisdiction over the person of the accused.
2. Over the Offense. A SCM has the power to try all offenses described in the UCMJ except those for which a mandatory punishment beyond the maximum imposable at a SCM is prescribed by the UCMJ. Cases for which the maximum penalty is death are capital offenses and cannot be tried by SCM. See R.C.M. 1004 for a discussion of capital offenses. Pursuant to the 2014 NDAA, R.C.M. 1301(c) was amended to reflect the changes to other portions of the MCM which limited jurisdiction over offenses under Arts. 120(a), 120(b), 120b(a), 120b(b), forcible sodomy under Art. 125 (which will be deleted as part of the MJA 2016), and attempts thereof under Art. 80 to general courts-martial.
a) Any minor offense can be disposed of by SCM. For a discussion of what constitutes a minor offense, refer to Part V, MCM under Section 1(e).
b) In 1977, the United States Court of Military Appeals ruled that the jurisdiction of SCMs is limited to “disciplinary actions concerned solely with minor military offenses unknown in the civilian society.” United States v. Booker, 3 M.J. 443 (C.M.A. 1977). Read literally, this would have precluded SCMs from trying civilian crimes such as assault, larceny, drug offenses, etc. Following a reconsideration of that decision, the court rescinded that ruling and affirmed that “with the exception of capital crimes, nothing whatever precludes the exercise of summary court-martial jurisdiction over serious offenses in violation of the Uniform Code of Military Justice.” United States v. Booker, 5 M.J. 246 (C.M.A. 1978).
A. Preliminary inquiry. R.C.M. 303 imposes upon the officer exercising immediate authority over the accused the duty to make, or cause to be made, a preliminary inquiry into the charges or suspected offenses. Where the basis for a potential summary court-martial comes from a law enforcement report, it is reasonable for a commander to fulfill this responsibility by reviewing the law enforcement report and discussing with his or her servicing judge advocate whether additional investigation is in fact necessary. Also, a commander must keep in mind the requirements and limitations contained within AR 15-6, Chapter 4, when conducting or considering the conduct of a preliminary inquiry under R.C.M. 303.
B. Preferral of charges. R.C.M. 307. Charges are formally made against an accused when signed and sworn to by a person subject to the UCMJ (known as “the accuser”). This procedure is called “preferral of charges.” Charges are preferred by executing the appropriate portions of the charge sheet. MCM, Appendix 4.
1. Personal data. Block I of page 1 of the charge sheet should be completed first. The information relating to personal data can be found in pertinent portions of the accused’s service record or other administrative records.
2. The charges. Block II of page 1 of the charge sheet is then completed to indicate the precise misconduct involved in the case. Each punitive article found in Part IV, MCM, contains sample specifications. A detailed treatment of pleading offenses is contained in the Criminal Law Deskbook, Volume II, Crimes and Defenses.
3. Accuser. The accuser is a person subject to the UCMJ who signs item 11d in block III at the bottom of page 1 of the charge sheet. The accuser should swear to the truth of the charges and have the affidavit executed before an officer authorized to administer oaths.
4. Oath. The oath must be administered to the accuser and the affidavit so indicating must be executed by a person with proper authority. Art. 136, UCMJ, authorizes all judge advocates, summary courts-martial officers, all adjutants, and legal officers to administer oaths for this purpose. No one can be ordered to prefer charges to which she cannot truthfully swear. Often, the trial counsel will administer the oath. When the charges are signed and sworn to, they are “preferred” against the accused. This step also starts the speedy trial clock.
5. Informing the accused. After formal charges have been signed and sworn to, the preferral process is completed when the charges are submitted to the accused’s immediate commanding officer. The first step which must be taken is to inform the accused of the charges against him. The purpose of this requirement is to provide an accused with reasonable notice of impending criminal prosecution in compliance with criminal due process of law standards. R.C.M. 308 requires the immediate commander of the accused to have the accused informed as soon as practicable of the charges preferred against him, the name of the person who preferred them, and the person who ordered them to be preferred. The important aspect of this requirement is that notice must be given through official sources. The accused should appear before the immediate commander or other designated person giving notice and should be told of the existence of formal charges, the general nature of the charges, and the name of the person who signed the charges as accuser. A copy of the charges should also be given to the accused. After notice has been given, the person who gave notice to the accused will execute item 12 at the top of page 2 of the charge sheet. If not the immediate commander of the accused, the person signing on the “signature” line should state their rank, component, and authority.
6. Formal receipt of charges. R.C.M. 403(a). Item 13 in block IV on page 2 of the charge sheet records the formal receipt of sworn charges by the officer exercising SCMCA. Often this receipt certification and the notice certification will be executed at the same time, although it is not unusual for the notice certification to be executed prior to the receipt certification. The purpose of the receipt certification is to establish that sworn charges were preferred before the statute of limitations operated to bar prosecution. Art. 43, UCMJ, sets forth time limitations for the prosecution of various offenses. If sworn charges are not received by an officer exercising SCM jurisdiction over the accused within the time period applicable to the offense charged, then prosecution for that offense is barred by Art. 43, UCMJ. The time period begins on the date the offense was committed and ends on the date appropriate to that offense. Where the accused is absent without leave at the time charges are sworn, it is permissible and proper to execute the receipt certification even though the accused has not been advised of the existence of the charges. In such cases, a statement indicating the reason for the lack of notice should be attached to the case file. When the accused returns to military control, notice should then be given to him. The receipt certification need not be executed personally by the SCM convening authority and is often completed for her by the adjutant.
C. Referral of Charges. Once the charge sheet and supporting materials are presented to the SCMCA and she makes her decision to refer the case to a SCM the case is referred. The procedure to accomplish referral is by completing item 14 in block V on page 2 of the charge sheet. The referral is executed personally by the SCMCA.
1. The referral should explicitly detail the type of court to which the case is being referred. Thus, the referral might read “referred for trial to the summary court-martial convened by my summary court-martial convening order XX dated 15 January 201X.” This language precisely identifies a particular kind of court-martial and the particular SCM to try the case.
2. In addition, the referral on page 2 of the charge sheet should indicate any particular instructions applicable to the case such as “confinement at hard labor is not an authorized punishment in this case” or other instructions desired by the convening authority. If no instructions are applicable to the case, the referral should so indicate by use of the word “none” in the appropriate blank. Once the referral is properly executed, the case is “referred” to trial and the case file forwarded to the proper SCM officer.
A. The summary court martial process is governed primarily by DA PAM 27-7 ICW the applicable R.C.M.s. The following is notes and highlights from the procedures outlined therein.
B. Pretrial Preparation.
1. General. After charges have been referred to trial by SCM, all case materials are forwarded to the proper SCM officer, who is responsible for thoroughly preparing the case for trial.
2. Preliminary Preparation. Upon receipt of the charges and accompanying papers, the SCM officer should begin preparation for trial. The charge sheet should be carefully examined, and all obvious administrative, clerical, and typographical errors corrected. See R.C.M. 1304. The SCM officer should initial each correction she makes on the charge sheet.
a) If the errors are so numerous as to require preparation of a new charge sheet, re-swearing of the charges and re-referral is required. See generally R.C.M. 603.
b) If the SCM officer changes an existing specification to include any new person, offense, or matter not fairly included in the original specification, R.C.M. 603 requires the new specification to be re-sworn and re-referred. The SCM officer should continue his or her examination of the charge sheet to determine the correctness and completeness of the information on the charge sheet.
c) The SCM officer, with his or her legal advisor, should review the charge(s) and specification(s). The SCM officer should check for proper form and determine the elements of the offense. “Elements” are facts which must be proved in order to find the accused guilty of any offense. Part IV, MCM, contains some guidance in this respect, but for more detailed guidance consult the Military Judges’ Benchbook, DA PAM 27-9. The SCM officer should also review the evidence relating to the charges.
d) Importantly, the SCM officer is responsible for identifying and securing the attendance of military witnesses for trial. DA PAM 27-7, para. 2-4a. Although a paralegal may be detailed to assist with this process, the DA PAM states that paralegals are “not typically detailed to provide clerical support.” Para. 1-3f.
e) Finally, although the SCM officer is tasked with reviewing the entire casefile, it is only for the purpose of preparing for trial, that is, to determine the order of witnesses and the questions the SCM is going to ask them, and for certain other limited purposes (as, for example, the impeachment of the testimony of a witness at trial by previous inconsistent statements (Mil. R. Evid. 613(a), (b); 801(d)). The SCM officer may not use the CID or MP report as a substitute for live witnesses except to the extent the accused consents after being advised that he need not do so, and that he is entitled to have witnesses present. DA PAM 27-7, para. 3-1c.
3. Initial session. This should be conducted IAW Appendix 9, MCM, with the appropriate portions of DD Form 2329 completed. R.C.M. 1304(b) and DA PAM 27-7, para. 4-1 contain a detailed list of the matters of which the Accused must be advised and his or her rights in the process.
a) If the accused refuses the SCM, the convening authority may take steps to dismiss the case or refer it to trial by special or general court-martial, or dispose of the case at NJP. If the decision is to dismiss charges, and reprefer to a different forum, this should not implicate the speedy trial clock, if done properly. See Deskbook, Chapter 10.
b) The jurisdictional maximums for a SCM are as follows:
(1) E-4 and below.
(a) Reduction to the lowest pay grade (E-1);
(b) Forfeiture of two-thirds of one-month’s pay;
(c) Confinement not to exceed one month or hard labor without confinement for forty-five days (in lieu of confinement) or restriction to specified limits for two months. If confinement is adjudged with either hard labor without confinement or restriction in the same case, the rules concerning apportionment found in R.C.M. 1003 (b)(6) and (7) must be followed. Given this requirement, it is unusual for a SCM officer to adjudge a combination of confinement and hard labor or restriction.
(2) E-5 and above.
(a) Reduction to the next lower pay grade;
(b) Restriction to specified limits for two months (cannot adjudge confinement);
(c) Forfeiture of two-thirds of one month’s pay.
(3) The effective date of restriction and/or extra duties is the date the convening authority (CA) approves the sentence and orders it executed. This means that the CA can neither impose not require immediate service of such punishment on the date it is adjudged by the SCM officer unless the member waives the seven day period to submit clemency matters and the CA takes his/her action immediately. See R.C.M. 1105(c)(2).. The MJA 2016 will not change this. R.C.M. 1106(d)(2) (MJA 2016). Ordinary confinement, however, begins to run from the date the sentence was adjudged by the SCM officer. However, the accused may request that the CA defer confinement until action or as part of a clemency request. See R.C.M. 1306(a).
(4) Maximum Punishment Chart.
E5 AND ABOVE
E4 AND BELOW
Confinement for 1 month or less.
Hard labor without confinement for 45 days or less.
Restriction for two months or less.
Forfeiture of 2/3 pay per month for one month or less.
Reduction to the lowest enlisted grade.
One grade only
4. Rights to Counsel.
a) In 1972, the Supreme Court held, with respect to “criminal prosecutions,” that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at this trial.” Argersinger v. Hamlin, 407 U.S. 25, 37 (1972).
b) The Supreme Court, in Middendorf v. Henry, 425 U.S. 25 (1976), held that a SCM was not a “criminal prosecution” within the meaning of the Sixth Amendment, reasoning that the possibility of loss of liberty does not, in and of itself, create a proceeding at which counsel must be afforded. Rather, it reasoned that a SCM was a brief, nonadversarial proceeding, the nature of which would be wholly changed by the presence of counsel. It found no factors that were so extraordinarily weighty as to invalidate the balance of expediency that has been struck by Congress.
c) In United States v. Booker, 5 M.J. 238 (C.M.A. 1977), reconsidered at 5 M.J. 246 (C.M.A. 1978), the C.M.A. considered the Supreme Court’s decision in Middendorf and concluded that there existed no right to counsel at a SCM. See also United States v. Kahmann, 59 M.J. 309, 315 (C.A.A.F. 2004)
d) While the MCM created no statutory right to detailed military defense counsel at a SCM, the convening authority may still permit the presence of such counsel if the accused is able to obtain such counsel. The Manual has created a limited right to civilian defense counsel at SCM, however. R.C.M. 1301(e) provides that the accused has a right to hire a civilian lawyer and have that lawyer appear at trial, if such appearance will not unnecessarily delay the proceedings and if military exigencies do not preclude it. The accused must, however, bear the expense involved. If the accused wishes to retain civilian counsel, the SCM officer should allow him a reasonable time to do so.
e) Booker Warnings - although holding that an accused had no right to counsel at a SCM, the C.M.A. ruled in Booker, supra, that if an accused was not given an opportunity to consult with independent counsel before accepting a SCM, the SCM will be inadmissible at a subsequent trial by court-martial. The term “independent counsel” has been interpreted to mean a lawyer qualified in the sense of Article 27(b), UCMJ, who, in the course of regular duties, does not act as the principal legal advisor to the convening authority. Under the Booker Rule, the Government needs to show that the accused either exercised his right to confer with counsel or made a voluntary, knowing, and intelligent waiver of this right. Without such a showing, a SCM will not be considered a “criminal conviction” and will not be admissible as a prior conviction under R.C.M. 1001(b)(3), nor for purposes of impeachment under M.R.E. 609, MCM. See United States v. Booker, 3 M.J. 443, 448 (C.M.A. 1977). See also United States v. Kelly, 45 M.J. 259 (C.A.A.F. 1996). While these cases would seem to allow a prior SCM’s use as a “conviction” to trigger the increased punishment provisions of R.C.M. 1003(d) if the accused had been actually represented by counsel or had rejected the services of counsel provided to him, the discussion following R.C.M. 1003(d) opines that convictions by SCM may not be used for this purpose. As the discussion and analysis sections of the MCM, it has no binding effect and represents only the drafters’ opinions. Thus, this issue remains unresolved.
5. Additional considerations.
a) Orderly proceeding. The SCM officer is responsible for planning an orderly trial procedure that includes the logical presentation of evidence. DA PAM 27-7, para. 3-2c. The SCM officer is permitted to contact potential witnesses to determine their knowledge of the case and whether they have any further admissible evidence, to include documents. Id. Because of the Military Rules of Evidence apply, the SCM officer may need to call witness to provide proper foundations for the admission of evidence. Such technical questions may be addressed to the SCM officer’s legal advisor. The accused may request additional witnesses, beyond those identified by the SCM officer, to testify on his behalf. DA PAM 27-7, para. 3-3c. Importantly, the SCM officer may not take the testimony of any witness by telephone at trial over the accused’s consent. DA PAM 27-7, para. 3-2c(2).
b) Subpoena power. The SCM officer is authorized by Article 46, UCMJ, and R.C.M. 703(e)(2)(C) and 1301(f) to issue subpoenas to compel the appearance at trial of civilian witnesses. DA PAM 27-7, para. 2-4b. In such a case, the SCM officer will follow the same procedure detailed for a SPCM or GCM trial counsel in R.C.M. 703(c). Appendix 7 of the MCM contains an illustration of a completed subpoena. While the power of SCMs to obtain evidence under R.C.M. 703 has not changed with the MJA 2016, R.C.M. 703 will change dramatically with the introduction of the investigative subpoena. Even so, because of the nature of the proceeding, it is unlikely the changes to R.C.M. 703 will have much impact on the conduct of SCMs.
c) Motions. The SCM officer is responsible for ruling on all motions. These may come in the form of oral motions from the accused or written motions. The DA PAM specifically discusses motions to suppress and recommends consultation with the legal advisor prior to ruling. Para. 2-3d.
C. Trial Procedure. See Appendix 9, MCM and DA PAM 27-7.
1. Practical considerations.
a) No federal conviction. The main benefit of a SCM proceeding is that it is not considered a federal conviction. Depending upon the offense(s) charged, this fact alone may provide the basis for an accused to consent to trial by SCM. This is often why an accused will offer to plead guilty at a summary court-martial as part of a deal commonly known as a “summary OTH” wherein a case preferred with a recommendation for trial at a SPCM empowered to adjudge a BCD is referred to a SCM where the accused agrees to plead guilty, followed by a waiver of his or her right to an administrative board proceeding.
b) Victim’s rights. One of the changes as part of the MJA 2016 is the addition of subsection (4) to 1304(a), which explicitly incorporates Article 6b victim’s rights into the SCM. Because the majority of Art. 120 offenses are not triable at SCM, victim’s rights in the context of a SCM will be potentially different than in the type of case we normally associate with Art. 6b rights.
c) Sentencing changes. Under the current rules, the SCM was only required to follow the procedures in R.C.M. 1001, while applying the “principles” in the remainder of Chapter 10, to include R.C.M. 1001A. As part of the revisions pursuant to the MJA 2016, the SCM will now have the explicit requirement to following procedures during sentencing the include a victim’s right to heard.
d) Technical considerations. The usual lack of counsel at the SCM combined with the potential for evidentiary and witness issues makes a contested SCM a highly unpredictable proceeding. The lack of trained legal personnel at the actual hearing can create multiple difficulties, especially if the SCM officer does not adequately prepare or fully comprehend the mechanics of ruling on motions and admitting evidence.
D. Post-Trial responsibilities of the SCM. After the SCM officer has deliberated and announced findings and, where appropriate, the sentence, he or she must then fulfill certain post-trial duties. The nature and extent of these post-trial responsibilities depend upon the findings.
1. Accused acquitted on all charges. In cases in which the accused has been found not guilty as to all charges and specifications, the SCM must:
a) Announce the findings to the accused in open session (R.C.M. 1304(b)(2)(F)(i));
b) Inform the CA as soon as practicable of the findings (R.C.M. 1304(b)(2)(F)(v));
c) Prepare the record of trial in accordance with R.C.M. 1305;
d) Cause one copy of the record of trial to be served upon the accused (R.C.M. 1305(d)(1)), and secure the accused’s receipt; and
e) Forward the original and one copy of the record of trial to the CA for action (R.C.M. 1305(d)(2)).
f) The basic mechanics of this will not change under the MJA 2016. The nomenclature used for SCM records will reflect the changes to the post trial procedures for others types of courts-martial (certification as opposed to authentication).
2. Accused convicted on some or all of the charges. In cases in which the accused has been found guilty of one or more of the charges and specifications, the SCM must:
a) Announce the findings and sentence to the accused in open session [R.C.M. 1304(b)(2)(F)(i) and (ii)];
b) Advise the accused of his or her appellate rights:
(1) The accused has the right to submit post-trial matters and to request appellate review. Currently, there is only one rule which covers post trial submissions and post-trial review (R.C.M. 1306). With the MJA 2016 changes, there will be two separate rules; one governing post trial procedures and another governing post-trial review.
(a) R.C.M. 1105 is the current rule covering an accused’s post-trial submissions. Under the MJA 2016, the new rule will be R.C.M. 1106. The timeline, substance, the powers of the convening authority will not change under the MJA 2016. The rights of crime victims to submit matters will also remain unchanged under the new rules.
(b) For post-trial review by a JA, the MJA 2016 will include the particulars of that review in the SCM rules, as opposed to referring back to rules governing all types of CM proceedings.
(c) For post-trial review by TJAG, the MJA 2016 will change the timeline from 2 years to 1 year for the suspense for application for review. Otherwise, the substance and mechanics of the review remain the same.
c) If the sentence includes confinement, inform the accused of his right to apply to the CA for deferment of confinement (R.C.M. 1304(b)(2)(F)(iii));
d) Inform the CA of the results of trial as soon as practicable. Such information should include the findings, sentence, recommendations for suspension of the sentence, and any deferment request (R.C.M. 1304(b)(2)(F)(v));
e) Prepare the record of trial in accordance with R.C.M. 1305;
(1) The MJA 2016 will include what to do in the case of a lost, defective, or otherwise incorrect record (R.C.M. 1305(e)).
f) Cause one copy of the record of trial to be served upon the accused (R.C.M. 1305(e)(1)), and secure the accused’s receipt; and
g) Forward the original and one copy of the record of trial to the CA for action (R.C.M. 1305(e)(2)).
(1) The MJA 2016 will include CA clemency powers within the SCM rules, as opposed to referring back to the rules governing other types of CMs (R.C.M. 1306(b)).
h) As noted above, the basic mechanics of this will not change under the MJA 2016. The nomenclature used for SCM records will reflect the changes to the post trial procedures for others types of courts-martial (certification as opposed to authentication). Furthermore, as with other types of CMs, the requirement for a promulgating order will disappear.
E. After Action Review. Under the current rules, Article 64, UCMJ, and R.C.M. 1112 require that all summary courts-martial be reviewed by a judge advocate who has not been disqualified by acting in the same case as an accuser, investigating officer, member of the court-martial, military judge, or counsel, or has otherwise acted on behalf of the prosecution or defense. The MJA 2016 will not change the substance of this review. Rather, it will contain the requirements in different rules (R.C.M.s 1307 and 1201).
1. Under both current and new rules, no review is required if the accused has not been found guilty of an offense or if the convening authority disapproved all findings of guilty.
2. The judge advocate’s review is a written document containing the following:
a) A conclusion as to whether the court-martial had jurisdiction over the accused and over each offense for which there is a finding of guilty which has not been disapproved by the convening authority;
b) A conclusion as to whether each specification, for which there is a finding of guilty which has not been disapproved by the convening authority, stated an offense;
c) A conclusion as to whether the sentence was legal; and
d) A response to each allegation of error made in writing by the accused.
3. Under current rules, after the judge advocate has completed the review, most cases will have reached the end of mandatory review and will be considered final within the meaning of Article 76, UCMJ. If this is the case, the judge advocate review will be attached to the original record of trial and a copy forwarded to the accused.
4. The review is not final, however, and a further step is required if the judge advocate recommends corrective action. If this is the case, it will require the Staff Judge Advocate (SJA) to forward the record of trial to the GCMCA. With the SJA’s review in hand, the GCMCA will take action on the record of trial in a document similar to CA’s action. He will promulgate it in a similar fashion as well. He may disapprove or approve the findings or sentence in whole or in part; remit, commute, or suspend the sentence in whole or in part; order a rehearing on the findings or sentence or both; or dismiss the charges.
5. If, in his or her review, the judge advocate stated that corrective action was required as a matter of law, and the GCMCA did not take action that was at least as favorable to the accused as that recommended by the judge advocate, the record of trial must be sent to the Office of The Judge Advocate General (OTJAG) for resolution. In all other cases, however, the review is now final within the meaning of Article 76, UCMJ.
6. Under the MJA 2016, the accused will have expanded appellate rights. This will include the option to request review by TJAG, in addition to the explicit right to request review by the CCA. Also, with the changes to the authority for ordering post-trial proceedings in other types of CMs, the new rules will explicitly spell out the powers of the CA with regard to post-trial corrective action for SCMs.