The Military Justice System - A Brief Overview

1. The Military Justice System -A Brief Overview Presented by:Ninth District Legal Office

2. Origins of the Military Justice System • Constitution: Gave Congress broad powers to regulate the “land and naval forces.” • Uniform Code of Military Justice (UCMJ) was enacted by President Truman in 1950. • Manual for Courts-Martial (MCM) in 1951. Amended numerous times since. • UCMJ is Federal law: • Promulgated by Congress & Signed by President. • Supplemented by rules issued under various Executive Orders. (April 2002 is latest)

3. Purpose of the UCMJ? Preamble to MJM says UCMJ is to: • Promote justice, • Assist in maintaining good order and discipline, • Promote efficiency and effectiveness in armed forces, and thereby • Strengthen national security

4. Notice…”justice” is first! “It is the function of the courts to make sure…that the men and women constituting our Armed Forces are treated as honored members of our society whose rights do not turn on… the generosity of a commander but as written in the Constitution.” - U.S. Supreme Court Justice Douglas

5. UCMJ jurisdiction • Civil Court Jurisdiction is territorial (e.g., city, county, state, district, etc. • Courts-martial jurisdiction is based on STATUS of individuals

6. Status: Who’s subject to UCMJ? • Active duty members • Reservists while in drill/active duty status • Academy cadets • PHS members serving w/ Armed Forces • Prisoners of War • Civilians serving w/ Armed Forces during war • Retired members receiving pay

7. Crimes under the UCMJ • Common law crimes (e.g., rape, murder, robbery, etc.) • Uniquely military offenses • Conduct prohibited under the “General Articles”

8. What are “Uniquely Military Offenses?” If you work for Microsoft, you’d call it: • Late for work • Cuss out your boss • Ignore boss’s guidance But, you’re in the Coast Guard, so you call it: • Unauthorized Absence • Disrespect to Superior • Failure to obey orders

9. General articles • All disorders and neglects that are to the prejudice of good order and discipline • All conduct of a nature to bring discredit upon the armed forces • Other violations federal law which are non-capital crimes; this can include violations of state law which qualify under Federal Assimilative Crimes Act (18 U.S.C. §13)

10. Elements • UCMJ Articles are very detailed and include specific “elements” • Example: Article 114 – Dueling (seriously). Any member of the Armed Forces who: • Fights another person with deadly weapons, • For private reasons, and • By private agreement

11. Military justice system process overview • Multi-tiered criminal justice system • Designed to be fair, yet practical • Designed to be easily implemented in field • CO plays a key role • Procedural protections afforded the accused expand with more serious offenses that are referred to more formal forums

12. Types of military justice proceedings • Non-Judicial Punishment (Article 15) • Summary Court-Martial • Special Court-Martial • General Court-Martial

13. GCM R I G H T S SpCM SCM NJP • PENALTY

14. Captain’s Mast (NJP) • Nonjudicial Punishment (NJP) can be imposed by any CO/OIC on a member attached to his/her command • Reserved for minor offenses (<1 yr, no DD) • Consider circumstances, age, rank, performance, etc. • Max punishments are limited and depend on rank of CO/OIC and rank of member • Standard of proof is preponderance of evidence

15. NJP process • Command receives report of Offense (CG-4910) • XO reviews and then assigns a Preliminary Inquiry Officer (PIO) to investigate • PIO conducts investigation and provides recommendation to command to either dismiss, proceed with NJP, refer to Court-Martial, or other Admin Measures • XO reviews report and recommends action to CO

16. Member’s rights • Member has the right to refuse mast and demand court-martial unless assigned to a ship. • Member has right to consult with an attorney before accepting or rejecting mast unless assigned to a ship. • Member does not have the right to be represented by an attorney at mast • Member has right to examine documents and evidence CO/OIC may consider at Mast • Member has right to remain silent or can present evidence including evidence of extenuation or mitigating circumstances • Member gets a Mast Representative or can provide his own spokesperson.

17. Mast Rep vs. Spokesperson Mast Representative • Appointed by command and should be attached to same unit if practicable • Member can request specific rep • Communications Privileged • Rep can question witnesses, speak for the member, present evidence and make plea for leniency Spokesperson • Can be anyone including attorney • Member must pay costs of spokesperson • Spokesperson can speak on members behalf when asked by CO • Cannot examine or cross examine witnesses • No right to both spokesperson and mast rep/ CO’s decision

18. MAST proceedings • Rules of evidence do not apply • Open to public • Burden of proof is preponderance of evidence (“more likely than not”) • Member entitled to present a defense, can remain silent or make statement, introduce evidence etc.. • Multiple offenses should be considered at same time

19. Punishment • Max punishment is determined by rank of CO/OIC conducting mast and status (officer or enlisted) and rank of member • Punishments can include: reprimand, correctional custody, restriction, extra duties, forfeiture of pay and reduction in pay grade • Cannot award confinement or discharge • Finding does not result in conviction • Command can suspend punishment

20. NJP limits--Officers NJP Imposed by: Flag O4+ O3- Admonition Yes Yes Yes Arrest in Quarters 30 No No Restriction 60 30 15 Forfeitures 1/2 ppm No No 2mos Reprimand Yes Yes Yes

21. NJP limits--Enlisted O4 or > CO CO OIC Reprimand Yes Yes No CC(E3 below) 30 7 No Extra Duties* 45 14 14 Restriction 60 14 14 Forfeitures 1/2ppm 7 days 3 days 2mos Reduction Yes Yes No (E6 below)

22. Appeal of NJP • Member can appeal if punishment is unjust (illegal) or disproportionate • Appeal must be in writing and made within 5 calendar days of imposition of punishment • Appeal via CO to District Commander • Reviewed by Law Specialist • Review must be done within 5 days of submission or member can request punishment be deferred until appeal decided

23. Summary Court-Martial • Also generally for minor offenses • Quasi-judicial in nature • No right to appointed counsel; may bring own counsel • Guilt/punishment decided by 1 officer • Rules of evidence do apply • Standard of proof: beyond a reasonable doubt • Member can refuse • Member can consult w/ appointed counsel to decide

24. Summary Court-Martial sentence limitations If accused is E-4 or below • reduction to lowest pay grade, forfeiture of 2/3 pay per month for one month, confinement at hard labor for one month or restriction for two months, reprimand If accused is E-5 or above • reduction to next inferior pay grade, forfeiture of 2/3 pay per month for one month, restriction for two months, reprimand

25. Special Court-Martial • Appropriate for all offenses except serious felonies • Judicial in nature: federal conviction if found guilty • Right to appointed counsel, civilian lawyer at own expense • Military judge presides • Guilt/punishment determined by at least 3 officers (2/3 to convict) or MJ if you waive right to members • Enlisted has right to 1/3 enlisted members on panel (from other than accused’s unit)

26. Special Court-Martial (continued) • Rules of evidence apply • Standard of proof: beyond a reasonable doubt • Max punishment: 1 year confinement, BCD, fine/forfeiture of 2/3 pay per month for 1 year • Can be convened by any CO

27. General Court-Martial • Appropriate for most serious felony cases • Judicial in nature: federal conviction if found guilty • Right to appointed counsel/ civilian lawyer at own expense • Military judge presides • Guilt/punishment determined by at least 5 members • 2/3 to convict • 3/4 for sentence > 10yrs • Unanimous for death sentence

28. General Court-Martial • Rules of evidence apply • Standard of proof: beyond a reasonable doubt • Max punishment: death, life in prison, total forfeitures (depending on offense) • Can be convened only by Flag rank officer

29. Role of Convening Authority • Chooses type of forum case is decided by • Chooses charges that go to trial • Decides whether to plea bargain • Chooses members who serve on court • May disapprove any finding of guilt • May disapprove/reduce any portion of sentence Role is unique to the military justice system.

30. Pretrial confinement • Arrest or Confinement for violation of UCMJ requires probable cause • Can’t impose punishment for charges before trial • Can impose pretrial confinement if member is suspected of UCMJ violation, is flight risk or danger to others, and less severe restraint inadequate. • Review Safeguard with 48 hour-72 hour review and IRO hearing within 7 days

31. UCMJ system safeguards • Right to appointed counsel even if not poor • Right to be free from compelled self-incrimination & unreasonable search and seizure • Right to speedy trial • Right to confront witnesses • Presumption against pretrial confinement • Presumption of innocence • Requirement that guilt be established beyond a reasonable doubt

32. UCMJ system safeguards (continued) • Right to trial by military members • Charges may only be referred to GCM by Flag rank officer (more experienced, more detached) • Right to present evidence in extenuation & mitigation on sentencing • Right to petition convening authority for clemency after sentencing • Right to refuse NJP (ashore) and SCM • Prompt review of NJP appeals

33. Special Provisions

34. Reserve rules • Reserve member may be ordered to active duty (pursuant to regulations promulgated by the Secretary), for the purpose of: • Article 32 Investigation • Trial by Court-Martial • Nonjudicial Punishment (Captain’s Mast) • But only for offenses committed while on active duty or in a drill status

35. Article 31(b) • Statutory protection for military members • Passed by Congress because it recognized inherent risk of coercion in a military senior/junior relationship during an interrogation setting. • No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

36. Complaint of Wrongs (Art. 138) • Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made….

37. Redress of injuries to property (Art. 139) • Member who has had personal property damaged or stolen by another member can complain to CO. CO may convene a board and then approve an involuntary disbursement from the offending members pay to cover the loss

38. Where to get more information • Manual for Courts-Martial • Military Justice Manual • Personnel Manual • Call the Legal Office Contact information: Ninth District Legal Office 1240 East 9th Street Cleveland, Ohio 44199-2060 (216) 902-6010