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MILITARY JUSTICE

MILITARY JUSTICE. OFFICE OF THE STAFF JUDGE ADVOCATE CPT Michael Cressler. AGENDA. THE COMMANDER’S TOOLS ADVERSE ADMINISTRATIVE ACTIONS ADMINISTRATIVE SEPARATION ACTIONS (“Chapters”) INVESTIGATING CRIME & MISCONDUCT NONJUDICIAL PUNISHMENT (ART. 15s) THE COURT-MARTIAL PROCESS

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MILITARY JUSTICE

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  1. MILITARY JUSTICE OFFICE OF THE STAFF JUDGE ADVOCATECPT Michael Cressler

  2. AGENDA • THE COMMANDER’S TOOLS • ADVERSE ADMINISTRATIVE ACTIONS • ADMINISTRATIVE SEPARATION ACTIONS (“Chapters”) • INVESTIGATING CRIME & MISCONDUCT • NONJUDICIAL PUNISHMENT (ART. 15s) • THE COURT-MARTIAL PROCESS • THE ARTICLE 15 AND CHAPTER PROCESS

  3. THE COMMANDER’S TOOLS

  4. Counseling & Admonition Para. 1-16, AR 635-200, counseling Memorandum of Reprimand Revoke Pass Privileges Corrective Training Rehab. Transfer NCOER Flag Bar to Reenlistment Removal From Promotion List Administrative Reduction in Rank Administrative Separation ADVERSEADMINISTRATIVE ACTIONS

  5. ADMINISTRATIVE REPRIMAND • AR 600-37; AR 190-5 • Purposes • Procedures • Drafting and Initiating • Notice and Rebuttal • Disposition: OMPF v. Local File • Appeals • DUI: General Officer Memo of Reprimand

  6. BAR TO REENLISTMENT • Discretionary Grounds • Untrainable • Unsuitable • Mandatory Grounds • Lack of family care plan • Unsat progress in weight control program • 2x APFT failures • Removed for cause from NCOES course • Periodic Review: every 3 months

  7. REMOVAL FROM PROMOTION LIST • AR 600-8-19 • E-2 to E-4: Commander Decides • E-5 and E-6: Local Board Decides • E-7 and Up: Recommend to PERSCOM • Substandard duty performance or misconduct • Overweight plus • no satisfactory progress in 6 months, or • still exceeds body fat after 12 months

  8. ADMINISTRATIVE REDUCTION • AR 600-8-19 • Authority to Reduce • E-1 thru E-4 - Company Commander • E-5 thru E-6 - Bn Commander (LTC) • E-7 & above - Bde Commander (COL) • Grounds • Civilian Court Conviction • Inefficiency • Procedures (E-5 & above get board w/in 30 days)

  9. MISCELLANEOUS ACTIONS • REVOCATION OF PASS PRIVILEGES (nonpunitive) • REHAB. TRANSFER • CORRECTIVE (EXTRA) TRAINING • AR 600-20, para. 4-6b • Purpose: To correct deficiencies • Must be directly related to deficiencies • FLAGS (Suspension of Favorable Actions) • AR 600-8-2 • When to Impose • Three Types: Regular; Weight Control; APFT Failure

  10. ADMINISTRATIVE SEPARATION ACTIONS “CHAPTERS” (“How to Fire a Soldier From His or Her Job”)

  11. SEPARATIONS: COMMON ISSUES • Admin Separation = “You’re Fired” • Honorable v. General Discharge v. OTH • Para. 1-16 Counseling (“magic language”) • Medical Exam • Separation Board • OTH recommended; or • 6 or more years active and reserve service • Processing Time

  12. PARA 1-16 COUNSELING Pursuant to paragraph 1-16, AR 635-200, this constitutes a formal counseling session concerning your noted deficiencies. You will be given a reasonable period of time to correct these deficiencies and to rehabilitate yourself into a productive, satisfactory soldier. If your performance and conduct continue to be unsatisfactory, you may receive punishment under Article 15, UCMJ, or may be processed for separation under the provisions of Chapter 5, 9, 11, 13, 14, or 18, AR 635-200. If you are processed for separation under the provisions of AR 635-200 you may receive a general discharge or an other than honorable discharge. Each type of discharge may have serious consequences affecting civilian employment, Veteran’s Benefits or future service in the Armed Forces.

  13. REHABILITATION • Required for Chapter 11, 13, 14-12a, and 14-12b separations • Trainees - recycled at least once • Other than trainees - locally reassigned between battalions • Waivers • By separation authority - if rehab transfer will serve no useful purpose or produce a quality soldier • E.g., two consecutive APFT failures, pregnancy while in entry-level status, highly disruptive or potentially suicidal behavior, and active resistance of rehab efforts

  14. TYPES OF CHAPTERS • Parenthood (Family Care Plan) (Ch. 5-8) • Personality Disorder (Ch. 5-13) • Other Designated Physical or Mental Conditions (Ch. 5-17) • Dependency or Hardship (Ch. 6) * • Fraudulent Entry (Ch. 7) • Alcohol/Drug Abuse (“ADAPCP Failure”) (Ch. 9) • In Lieu of Trial by Court-Martial (Ch. 10) *

  15. TYPES OF CHAPTERS • Entry Level Status Performance and Conduct (Ch. 11) • Unsatisfactory Performance (Ch. 13) • Conviction by a Civilian Court (Ch. 14-5) • Minor Disciplinary Infractions (Ch. 14-12a) • Pattern of Misconduct (Ch. 14-12b) • Commission of a Serious Offense (Ch. 14-12c) • Homosexuality (Ch. 15) • Failure to Meet Body Fat Standards (Ch. 18)

  16. PARENTHOOD (CH. 5-8) • Procedure: • Initial counseling by commander on Family Care Plan (checklist on DA Form 5305-R, per AR 600-20, para. 5-5) • Follow-up counseling 30 days later, with either: failure to provide plan or memo from soldier saying plan not possible. • No Medical or Mental Exam Needed • Separation Authority: Bde Commander • Types of Discharge: Honorable or General

  17. PERSONALITY DISORDER (CH. 5-13) • Procedure: • Para. 1-16 Counseling • Mental Evaluation by certified psychologist/ psychiatrist: a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the soldier’s ability to perform duty. • No Medical Exam Needed • Separation Authority: Bde Cdr • Type of Discharge: Honorable

  18. OTHER PHYSICAL OR MENTAL CONDITIONS (CH. 5-17) • Procedure: • Para. 1-16 counseling • Chance to Rehabilitate • Mental or Medical Evaluation: • Other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. • Separation Authority: Bde Cdr • Type of Discharge: Honorable

  19. DEPENDENCY OR HARDSHIP (CH. 6) • Procedure: • Voluntary • Dependency - family member becomes dependent upon soldier as a result of a death in family • Hardship - separation will materially affect the care of soldier’s family by alleviating undue and genuine hardship • Supporting evidence - affidavits • Separation Authority: Bde Cdr • Type of Discharge: Honorable or General

  20. FRAUDULENTENLISTMENT (CH. 7) • Deliberate material misrepresentation, omission, or concealment of information which, if known by the Army, might have resulted in rejection • Procedure: • No para 1-16 counseling • No medical or mental exam needed • Separation Authority: Bde Cdr • Type of Discharge: Honorable, General or OTH

  21. ENTRY LEVEL PERFORMANCE & CONDUCT (CH. 11) • Procedure: • Initiate within initial 180 days of soldier’s service • Para 1-16 counseling • No Medical or Mental Exam Needed • Separation Authority: Bn Cdr • Type of Discharge: Uncharacterized

  22. UNSATISFACTORY PERFORMANCE (CH. 13) Procedure Para 1-16 Counseling/Rehabilitative transfer Required for two consecutive APFT failures and elimination for cause from NCOES course Medical and Mental Exam required Separation Authority: Bn Cdr Types of Discharge: Honorable or General

  23. CONVICTION BY CIVILIANCOURT (CH. 14-5) • Required • Civilian Conviction: • Civilian sentence of 6 or more months, even if suspended/probation, or • Punitive discharge would be authorized at C-M for the type of offense committed. • No Para. 1-16 Counseling needed • Separation Authority: GCMCA • Types of Discharge: Honorable, General or OTH

  24. PATTERNS OF MISCONDUCT (CH. 14-12b) Procedure Para 1-16 Counseling/Rehabilitative transfer Evidence of Misconduct: Article 15s, Letters of Indebtedness, Bounced Checks, Bar, Negative Counseling, etc.. Mental & Medical Exams Separation Authority: Bde Cdr Types of Discharge: Honorable, General, or OTH

  25. COMMISSION OF SERIOUS OFFENSE (CH. 14-12c) Required “Serious Offense” Any offense for which punitive discharge is authorized by the MCM at court-martial Includes disobedience! Mandatory initiation rules for drug use No Para. 1-16 Counseling needed Mental & Medical Exams Separation Authority: Bde Cdr Types of Discharge: Honorable, General, or OTH

  26. HOMOSEXUALITY (CH. 15) • CALL US FIRST! • S.A.M. • Statement • Act • Marriage within same sex • Commander’s Inquiry • Administrative Board - waivable

  27. FAILURE TO MEET BODY FAT STANDARDS (CH. 18) • Four Ways to Fail (AR 600-9) • Unsat Progress in 6 months (3-8 lb./mo.) • Unsat Progress in 2 consecutive months • Overweight again in 12 months following “release” • Overweight again 12-36 months following release after 90 day warning • Para 1-16 Counseling • Medical Exam • Separation Authority: Bn Cdr • Type of Discharge: Honorable

  28. INVESTIGATION OF CRIME AND MISCONDUCT Searches & Seizures Inspections Confessions & Admissions

  29. INVESTIGATIONS • Who should investigate? • Commander • Commander’s Inquiry • AR 15-6 Investigation (Formal and Informal) • MPI • CID • Search & Seizure • Warrant/Authorization to search required • No warrant required • Consent search • Plain view • Inspection (not a “search”)

  30. COMMANDER’S AUTHORIZATION TO SEARCH • Commander • Cdr who “owns” the place • Neutral & detached (search conducted by third party). • Military Magistrate as an option • Probable Cause Determination • A reasonable belief (“more likely than not”) that certain specific evidence of a crime is probably in the place to be searched. • Reliable information from reliable source

  31. INSPECTIONS • Primary Purpose: Health, Welfare, & Morale -- Not to collect evidence • Not a “Search” in the legal sense • Inspect everyone the same • Examples • Barracks H&W • Car Inspections • Unit Urinalysis • “Subterfuge” Rule

  32. STATEMENTS OF SUSPECTS • Article 31 Warnings are mandatory for: • Official • Questioning • of a Suspect • Use DA Form 3881 • Sworn Statement on DA Form 2823 • Commander administers oath

  33. SUPPORTING DOCUMENTSFOR ARTICLE 15 • Use DA Form 2823 for sworn statements • Include copy of all evidence - SOPs, etc. • In counseling statements include who, what, where, when and how • Corroborate witness statements • Not necessary to cite UCMJ Article or follow sample specifications in MCM

  34. NONJUDICIAL PUNISHMENTARTICLE 15, UCMJ • Procedure - Appendix B, AR 27-10 • Not a Guilty Plea • Rights: Spokesperson (except summarized), documents/witnesses/evidence, open hearing. • Min. 48 hours to decide, consult counsel • Appeals. 5 days to submit. JAG review. Command has 5 days to act. • Filing - Often more important than the punishment for NCOs. • Vacation of Suspended Punishments

  35. Field Grade Reduction E5-E6: 1 Grade E1-E4: Red. to E1 1/2 mo. pay for 2 mos. 45 days of extra duty 45 days restriction Summarized 14 days extra duty 14 days restriction Company Grade Red. 1 grade (E1-E4) Forfeit 7 days pay 14 days extra duty 14 days restriction AUTHORIZED PUNISHMENTS ARTICLE 15, UCMJ

  36. THE ARTICLE 15 ANDCHAPTER PROCESS • Compile evidence • Submit with Request for Legal Action to Bn S-1 • Bn S-1 logs action, adds additional documents (ERB, 2-1, etc.) and forwards to OSJA • OSJA receives action, reviews for completeness, logs action, and prepares packet

  37. THE ARTICLE 15 ANDCHAPTER PROCESS • Trial Counsel reviews packet • Packet sent back to unit, thru Bn S-1 • Action is read to soldier • Soldier goes to TDS - MWF 0830-1100 • Soldier makes election of rights and action is returned to unit for completion • Action returned to OSJA for final processing

  38. THE COURT-MARTIAL PROCESS • WHY A SEPARATE MILITARY JUSTICE SYSTEM? • UNIQUE DISICPLINARY NEEDS • EFFICIENCY IN A SPARTAN ENVIRONMENT • WORLD-WIDE JURISDICTION

  39. LEGAL BASIS OF MILITARY JUSTICE • U.S. CONSTITUTION • Article I, Section 8--Congress • Article II, Section II--President • UCMJ (10 U.S.C SECTIONS 801-946) • MANUAL FOR COURTS MARTIAL • Rules for courts Martial • Rules of Evidence • REGULATIONS • CASE LAW

  40. THE MILITARY COURT SYSTEM • TRIAL COURTS • Summary Court-Martial (SCM) • Special Court-Martial (SPCM) • Special Court-Martial empowered to adjudge a Bad Conduct discharge (BCD-SPCM) • General Court Martial (GCM)--Felonies

  41. SUMMARY COURT-MARTIAL • Enlisted Personnel Only • Convened by: Bn Cdr or higher • Members: Summary Court-Officer • Max Punishments: • Red to E-1 (E-4 and below) • Red of 1 Grade (E5 - E7) • Confinement for 1 Month (E4 and below) • 45 days hard labor w/o conf (E4 and below) • 2 months restriction • Forfeiture of 2/3 pay for 1 month

  42. BCD-SPECIAL COURT-MARTIAL • Convened By: GCMCA • Members • Max Punishments: • Red to E1 • 6 Months Confinement • Forfeit 2/3 pay for 6 months • Bad Conduct Discharge • Goes on record as federal misdemeanor conviction

  43. GENERAL COURT-MARTIAL • Convened By: GCMCA • Members • Article 32 Investigation • Max Punishment: • Red to E1 • Confinement (depending on offense) • Total Forfeiture of Pay and Allowances • Dishonorable Discharge/Dismissal • Death (depending on offense) • Goes on record as federal felony

  44. THE MILITARY COURT SYSTEM • APPELLATE COURTS • Courts of Criminal Appeals • Review all cases involving punitive discharge or confinement in excess of one year. • U.S. Court of Appeals for the Armed Forces • Review all cases involving the death penalty and cases which it certifies for review. • United States Supreme Court

  45. THE PLAYERS COMMANDERS STAFF JUDGE ADVOCATE TRIAL COUNSEL (Prosecutor) TRIAL DEFENSE COUNSEL (TDS) MILITARY JUDGE CIVILIAN DEFENSE COUNSEL LEGAL SPECIALISTS MILITARY POLICE/CID

  46. Offense Occurs Investigation Pretrial Restraint, Restriction, or Confinement? Preferral Transmittal Article 32 Investigation (GCM Only) Referral Arraignment Motions Trial Findings Sentencing Unit Support Requirements Bailiffs Prisoner Escorts COURT-MARTIAL PROCESS

  47. INITIATION AND DISPOSITION OF CHARGES Reported Offense Commander’s Inquiry Dispose of Offense in a TIMELY MANNER at the LOWEST APPROPRIATE LEVEL

  48. PRETRIAL RESTRAINT & CONFINEMENT • Pull Pass Privileges • Pretrial Restriction • Identify restriction “tantamount to confinement” • Pretrial Confinement • Who can order it • Conditions warranting PTC • Cdr’s written review (PTC checklist) • Magistrate’s review within 48 hours

  49. CONDITIONS WARRANTING PTC • Probable Cause; and • Foreseeable that • Will not appear at trial (flight risk), or • Will engage in serious criminal misconduct; and • Lesser forms of restraint inadequate.

  50. COMMANDER’S OPTIONS • No Action • Dismiss Charges • Administrative Action • Counsel • Reprimand • Separation • Nonjudicial Punishment • Prefer and Forward Charges

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