The Military Justice System -A Brief OverviewPresented by:Ninth District Legal Office

2Presenter’s Name June 17, 2003

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)

Origins of the Military Justice System

3Presenter’s Name June 17, 2003

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

Purpose of the UCMJ?

4Presenter’s Name June 17, 2003

“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

Notice…”justice” is first!

5Presenter’s Name June 17, 2003

Civil Court Jurisdiction is territorial (e.g., city, county, state, district, etc.

Courts-martial jurisdiction is based on STATUS of individuals

UCMJ jurisdiction

6Presenter’s Name June 17, 2003

Active duty membersReservists while in drill/active duty statusAcademy cadetsPHS members serving w/ Armed ForcesPrisoners of WarCivilians serving w/ Armed Forces during warRetired members receiving pay

Status: Who’s subject to UCMJ?

7Presenter’s Name June 17, 2003

Common law crimes (e.g., rape, murder, robbery, etc.)Uniquely military offensesConduct prohibited under the “General Articles”

Crimes under the UCMJ

8Presenter’s Name June 17, 2003

If you work for Microsoft, you’d call it:Late for workCuss out your boss Ignore boss’s guidance

But, you’re in the Coast Guard, so you call it:Unauthorized AbsenceDisrespect to SuperiorFailure to obey orders

What are “Uniquely Military Offenses?”

9Presenter’s Name June 17, 2003

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)

General articles

10Presenter’s Name June 17, 2003

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

Elements

11Presenter’s Name June 17, 2003

Multi-tiered criminal justice systemDesigned to be fair, yet practicalDesigned to be easily implemented in fieldCO plays a key roleProcedural protections afforded the accused expand with more

serious offenses that are referred to more formal forums

Military justice system process overview

12Presenter’s Name June 17, 2003

Non-Judicial Punishment (Article 15)Summary Court-MartialSpecial Court-MartialGeneral Court-Martial

Types of military justice proceedings

13Presenter’s Name June 17, 2003

NJPSCM

SpCMGCM

RIGHTS

PENALTY

14Presenter’s Name June 17, 2003

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

Captain’s Mast (NJP)

15Presenter’s Name June 17, 2003

Command receives report of Offense (CG-4910)XO reviews and then assigns a Preliminary Inquiry Officer

(PIO) to investigatePIO 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

NJP process

16Presenter’s Name June 17, 2003

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.

Member’s rights

17Presenter’s Name June 17, 2003

Mast RepresentativeAppointed 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

Mast Rep vs. Spokesperson

SpokespersonCan be anyone including

attorneyMember must pay costs

of spokespersonSpokesperson 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

18Presenter’s Name June 17, 2003

Rules of evidence do not applyOpen to publicBurden 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

MAST proceedings

19Presenter’s Name June 17, 2003

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 dischargeFinding does not result in convictionCommand can suspend punishment

Punishment

20Presenter’s Name June 17, 2003

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

NJP limits--Officers

21Presenter’s Name June 17, 2003

O4 or > CO CO OICReprimand Yes Yes NoCC(E3 below) 30 7 NoExtra Duties* 45 14 14Restriction 60 14 14Forfeitures 1/2ppm 7 days 3 days

2mosReduction Yes Yes No(E6 below)

NJP limits--Enlisted

22Presenter’s Name June 17, 2003

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 CommanderReviewed by Law SpecialistReview must be done within 5 days of submission or member

can request punishment be deferred until appeal decided

Appeal of NJP

23Presenter’s Name June 17, 2003

Also generally for minor offensesQuasi-judicial in natureNo right to appointed counsel; may bring own counselGuilt/punishment decided by 1 officer Rules of evidence do applyStandard of proof: beyond a reasonable doubtMember can refuseMember can consult w/ appointed counsel to decide

Summary Court-Martial

24Presenter’s Name June 17, 2003

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

Summary Court-Martial sentence limitations

25Presenter’s Name June 17, 2003

Appropriate for all offenses except serious felonies Judicial in nature: federal conviction if found guiltyRight to appointed counsel, civilian lawyer at own expenseMilitary judge presidesGuilt/punishment determined by at least 3 officers (2/3 to

convict) or MJ if you waive right to membersEnlisted has right to 1/3 enlisted members on panel (from

other than accused’s unit)

Special Court-Martial

26Presenter’s Name June 17, 2003

Rules of evidence applyStandard of proof: beyond a reasonable doubtMax punishment: 1 year confinement, BCD, fine/forfeiture of

2/3 pay per month for 1 yearCan be convened by any CO

Special Court-Martial (continued)

27Presenter’s Name June 17, 2003

Appropriate for most serious felony cases Judicial in nature: federal conviction if found guiltyRight to appointed counsel/ civilian lawyer at own expenseMilitary judge presidesGuilt/punishment determined by at least 5 members

2/3 to convict 3/4 for sentence > 10yrs Unanimous for death sentence

General Court-Martial

28Presenter’s Name June 17, 2003

Rules of evidence applyStandard of proof: beyond a reasonable doubtMax punishment: death, life in prison, total forfeitures

(depending on offense)Can be convened only by Flag rank officer

General Court-Martial

29Presenter’s Name June 17, 2003

Chooses type of forum case is decided byChooses charges that go to trialDecides whether to plea bargainChooses members who serve on courtMay disapprove any finding of guiltMay disapprove/reduce any portion of sentence

Role is unique to the military justice system.

Role of Convening Authority

30Presenter’s Name June 17, 2003

Arrest or Confinement for violation of UCMJ requires probable cause

Can’t impose punishment for charges before trialCan 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

Pretrial confinement

31Presenter’s Name June 17, 2003

Right to appointed counsel even if not poorRight to be free from compelled self-incrimination &

unreasonable search and seizureRight to speedy trialRight to confront witnessesPresumption against pretrial confinementPresumption of innocenceRequirement that guilt be established beyond a reasonable

doubt

UCMJ system safeguards

32Presenter’s Name June 17, 2003

Right to trial by military membersCharges may only be referred to GCM by Flag rank officer

(more experienced, more detached)Right to present evidence in extenuation & mitigation on

sentencingRight to petition convening authority for clemency after

sentencingRight to refuse NJP (ashore) and SCMPrompt review of NJP appeals

UCMJ system safeguards (continued)

33Presenter’s Name June 17, 2003

Special Provisions

34Presenter’s Name June 17, 2003

Reserve member may be ordered to active duty (pursuant to regulations promulgated by the Secretary), for the purpose of:

Article 32 InvestigationTrial by Court-MartialNonjudicial Punishment (Captain’s Mast)But only for offenses committed while on active duty or in a

drill status

Reserve rules

35Presenter’s Name June 17, 2003

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.

Article 31(b)

36Presenter’s Name June 17, 2003

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….

Complaint of Wrongs (Art. 138)

37Presenter’s Name June 17, 2003

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

Redress of injuries to property (Art. 139)

38Presenter’s Name June 17, 2003

Where to get more information

Manual for Courts-MartialMilitary Justice ManualPersonnel ManualCall the Legal Office

Contact information:

Ninth District Legal Office

1240 East 9th Street

Cleveland, Ohio 44199-2060

(216) 902-6010