MILITARY JUSTICE

MILITARY JUSTICEMILITARY JUSTICE Robert Don GiffordRobert Don GiffordAssistant U.S. AttorneyAssistant U.S. Attorney

Lt. Col., U.S. Army Reserve JAG CorpsLt. Col., U.S. Army Reserve JAG [email protected] [email protected] [email protected]@us.army.mil

(405) 553-8736(405) 553-8736

Why you need to know this stuff• "Recently in Porter v. McCollum, the U.S. Supreme Court,

citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel.

• The Porter Court stated we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2191880

Getting RecordsGetting Records The Veteran Client/DefendantThe Veteran Client/Defendant War Hero, Decorations, Outstanding War Hero, Decorations, Outstanding

Evals, Awards, etc.Evals, Awards, etc. All on-line: All on-line:

http://www.archives.gov/veterans/ Another good resource: Another good resource:

http://www.yourvaadvocate.com/resources.html

Nat’l Personnel Records CenterNat’l Personnel Records Center The National Personnel Records Center , Military

Personnel Records (NPRC-MPR), in St. Louis, MO, is the repository of millions of military personnel, health, and medical records of discharged and deceased veterans of all services during the 20th century. NPRC (MPR) also stores medical treatment records of retirees from all services, as well as records for dependent and other persons treated at naval medical facilities. Copies of most military and medical records on file at NPRC (MPR), including the DD Form 214, Report of Separation (or equivalent), can be made available upon request.

For the NPRCFor the NPRC Air Force Officers and Enlisted -- September

25, 1947Army Officers separated July 1, 1917Army Enlisted separated November 1, 1912 Navy Officers separated January 1, 1903

Navy Enlisted separated January 1, 1886 Marine Corps Officers and Enlisted separated January 1, 1905 Coast Guard Officers and Enlisted separated January 1, 1898

Need records before this date?Need records before this date? Military personnel records for individuals

separated before these dates are on file at the National Archives and Records Administration, Old Military and Civil Records Branch (NWCTB), Washington, DC 20408. E-mail address: [email protected].

Federal law (5 USC 552a(b)) requires that all requests for records and information be submitted in writing. The easiest way to do this is by using Standard Form (SF) 180, Request Pertaining to Military Records.

The Freedom of Information Act (FOIA)

The Freedom of Information Act, or FOIA (5 U.S.C. 552, as amended), generally provides any person with the statutory right, enforceable in court, to obtain access to Government information in executive branch agency records. This right to access is limited when such information is protected from disclosure by one of FOIA's nine statutory exemptions. Click for more information on the Provisions of the Freedom of Information Act.

FOIA and Official Military Personnel Files (OMPF)

The public has access to certain military service information without the veteran's authorization or that of the next-of-kin (the un-remarried widow or widower, son, daughter, father, mother, brother or sister) of deceased veterans.

What you getWhat you get Examples of information which may be

available from Federal (non-archival) Official Military Personnel Files (OMPF) without an unwarranted invasion of privacy include:• Name, Service Number, Dates of Service , Branch of

Service, Final Duty Status , Final Rank, Salary, Assignments and Geographical Locations, Source of Commission, Military Education Level, Promotion Sequence Number, Awards and decorations (eligibility only, not actual medals), Photograph, Transcript of Courts-Martial Trials, Place of entrance and separation

Another Good ResourceAnother Good ResourceVeterans & Servicemembers Survival Veterans & Servicemembers Survival

GuideGuide The Guide can be found here: The Guide can be found here:

http://www.nimj.com/documents/Survival-Guide.pdf

Or you can pick and choose a Or you can pick and choose a chapter here: chapter here: http://www.veteransforamerica.org/survival-guide/survival-guide-download/

Tools to get recordsTools to get records Just ask! Call the OSJAJust ask! Call the OSJA Ask for AR 15-6 investigations (Army) Ask for AR 15-6 investigations (Army)

(usually conducted by an officer who (usually conducted by an officer who is non-law enforcement or JAG).is non-law enforcement or JAG).

The Air Force does similar “informal” The Air Force does similar “informal” investigations as well.investigations as well.

Military Law in Civilian Practice

Justice is . . .Justice is . . .

““the hope of all who suffer,the hope of all who suffer,the dread of all who wrong.”the dread of all who wrong.”

John Greenleaf WhittierJohn Greenleaf Whittier

What is Military Justice?What is Military Justice?

““Military justice is to Military justice is to justice what military justice what military music is to music.”music is to music.”– Groucho MarxGroucho Marx

Applies to:Applies to:

US Army

US Navy

US Air Force

US Marine Corps

Military Justice - An OverviewMilitary Justice - An Overview

Who is subject to Military Justice?Who is subject to Military Justice? Why do we need a separate system?Why do we need a separate system? What is the legal basis for our system?What is the legal basis for our system? Overview of the court system.Overview of the court system. Evolving nature of the system.Evolving nature of the system. ConclusionConclusion

Jurisdiction - Who is subject?Jurisdiction - Who is subject?

Active Duty Soldiers, Sailors, Airmen, Active Duty Soldiers, Sailors, Airmen, Marines - Coast Guard in time of WarMarines - Coast Guard in time of War

Reserve/National Guard in drill statusReserve/National Guard in drill status– also subject to State Military Codealso subject to State Military Code

DOES NOT apply to civilians except:DOES NOT apply to civilians except:– Martial law declaredMartial law declared– No competent civilian courts existNo competent civilian courts exist

What crimes are subject to What crimes are subject to military justice?military justice?

Any crime contained in the UCMJAny crime contained in the UCMJ Under the Assimilated Crimes Act, state law Under the Assimilated Crimes Act, state law

crimes that are not covered may also be crimes that are not covered may also be prosecutedprosecuted

Applies On- and Off-postApplies On- and Off-post May have concurrent jurisdiction with local law May have concurrent jurisdiction with local law

enforcmentenforcment May be prosecuted by “two sovereigns”May be prosecuted by “two sovereigns”

Why a separate system?Why a separate system?

Unique disciplinary needs of the military.Unique disciplinary needs of the military. Need for a quick, efficient system.Need for a quick, efficient system. Need for worldwide applicability.Need for worldwide applicability.

Legal Basis for the Military Legal Basis for the Military Justice SystemJustice System

Constitution - Article Constitution - Article I, Section 8, Clause I, Section 8, Clause 14, states that 14, states that “Congress shall have “Congress shall have the Power . . . [t]o the Power . . . [t]o make Rules for the make Rules for the Government and Government and Regulation of the land Regulation of the land and naval forces.”and naval forces.”

Evolution of the systemEvolution of the system

Original Articles of War - derived from the Original Articles of War - derived from the British Code of 1765British Code of 1765

Revised in 1806Revised in 1806 Revised during the War of 1812 and Seminole Revised during the War of 1812 and Seminole

WarsWars Changed again in 1874Changed again in 1874 Overhauled in 1917Overhauled in 1917 Replaced by UCMJ in 1951.Replaced by UCMJ in 1951.

UCMJUCMJ

Enacted by Congress in Enacted by Congress in 19501950

Took effect in 1951Took effect in 1951 Provides a single Provides a single

source for all servicessource for all services Replaced Articles of Replaced Articles of

War (Army) and War (Army) and “Rocks and Shoals” “Rocks and Shoals” (Navy)(Navy)

Manual for Courts MartialManual for Courts Martial

Enacted by Executive Enacted by Executive Order of the PresidentOrder of the President

Constitutionality has Constitutionality has survived, but is still survived, but is still subject to question in subject to question in individual casesindividual cases

Sets out RCM, MRE, Sets out RCM, MRE, NJP, and Punitive NJP, and Punitive Articles Articles

MANUAL

FOR

COURTS-MARTIAL

UNITED STATES

(2005 EDITION)

The 2005 Edition of the MCM is a complete revision of the 2002 MCMincorporating all Executive Orders (EO) through 3 December 2004 (EO 12473promulgating the 1984 MCM; EO 12484, 15 Nov 84; EO 12550, 19 Feb 86;EO 12586, 3 Mar 87; EO 12708, 23 Mar 90; EO 12767, 27 Jun 91; EO12888, 23 Dec 93; EO 12936, 10 Nov 94; EO 12960, 12 May 95; EO 13086,27 May 98; EO 13140, 6 Oct 99; EO 13262, 11 Apr 02; EO 13365, 3 Dec04). Copies of each Executive Order can be found in Appendix 25.

Other SourcesOther Sources

Regulations (DoD, Regulations (DoD, Army, USAFACFS)Army, USAFACFS)

Court DecisionsCourt Decisions

““I beseech your Majesty, let me I beseech your Majesty, let me have Justice, and I will then trust have Justice, and I will then trust

the law.”the law.”

Spoken to King James I, 1603Spoken to King James I, 1603

System of Courts-MartialSystem of Courts-Martial

Dates back to 1776Dates back to 1776 Older than Federal Ct.Older than Federal Ct. Civilian Appellate Ct. Civilian Appellate Ct.

established in 1950established in 1950 Currently, three levels Currently, three levels

of appealof appeal ACCA (ACMR)ACCA (ACMR) CAAF (COMA)CAAF (COMA)

United States Supreme United States Supreme Court by writ of Court by writ of certioraricertiorari

Army Court of Criminal AppealsArmy Court of Criminal Appeals(ACCA)(ACCA)

Replaced the Army Court of Military Review Replaced the Army Court of Military Review in 1994in 1994

Three Judges - all Senior Judge AdvocatesThree Judges - all Senior Judge Advocates Reviews all cases in which the following are Reviews all cases in which the following are

adjudged:adjudged:– death penaltydeath penalty– punitive discharges (DD, BCD, Dismissal)punitive discharges (DD, BCD, Dismissal)– confinement for one year or moreconfinement for one year or more

Court of Appeals for the Armed Court of Appeals for the Armed Forces (CAAF)Forces (CAAF)

Replaced COMAReplaced COMA Composed of 5 Composed of 5

Civilian JudgesCivilian Judges All lawyersAll lawyers 15 year terms15 year terms No more than 3 from No more than 3 from

any political partyany political party Named by Pres./S.Ct.Named by Pres./S.Ct.

Supreme Court of the United Supreme Court of the United StatesStates

Has authority to hear Has authority to hear appeals from CAAFappeals from CAAF

Grants hearing by Grants hearing by discretiondiscretion

Must apply for Must apply for Writ of Writ of CertiorariCertiorari

4 Justices must vote to 4 Justices must vote to hear case; 5 needed to hear case; 5 needed to reverse a decisionreverse a decision

It is the function of the courts to make sure, in It is the function of the courts to make sure, in cases properly coming before them, that the cases properly coming before them, that the

men and women constituting our Armed men and women constituting our Armed Forces are treated as honored members of a Forces are treated as honored members of a

society whose rights do not turn on the society whose rights do not turn on the charity of their military commander . . . . A charity of their military commander . . . . A member of the Armed Forces is entitled to member of the Armed Forces is entitled to

equal justice under law not as conceived by equal justice under law not as conceived by the generosity of a commander but as written the generosity of a commander but as written

in the Constitution.”in the Constitution.”Justice Douglas, 1968Justice Douglas, 1968

Military Justice - an evolving conceptMilitary Justice - an evolving concept

““The laws of a state change with The laws of a state change with the changing times.”the changing times.”

AeschylusAeschylus

“ “Laws and institutions must go Laws and institutions must go hand in hand with the progress hand in hand with the progress of the human mind.” of the human mind.” Thomas JeffersonThomas Jefferson

Still ChangingStill Changing

The UCMJ is subject to evolution in three The UCMJ is subject to evolution in three ways:ways:– Congress or the President changing the RulesCongress or the President changing the Rules– CAAF’s interpretationCAAF’s interpretation– The Supreme Court’s interpretationThe Supreme Court’s interpretation

ReferencesReferences

AR 26-27 (Rules of Professional Conduct AR 26-27 (Rules of Professional Conduct for Lawyers- esp. Rules 1.13, 2.1 and 3.8)for Lawyers- esp. Rules 1.13, 2.1 and 3.8)

Manual for Courts-Martial (MCM) 2008Manual for Courts-Martial (MCM) 2008 AR 27-10 (Military Justice)AR 27-10 (Military Justice) DA PAM 27-9 (Military Judge’s Benchbook)DA PAM 27-9 (Military Judge’s Benchbook) www.jagcnet.army.mil LAAWS XXI CD/DVD setLAAWS XXI CD/DVD set

Critical FormsCritical Forms DA 3881 (Rights Warning/Waiver)DA 3881 (Rights Warning/Waiver) DD 458 (Charge Sheet)DD 458 (Charge Sheet) DA 2823 (Sworn Statement)DA 2823 (Sworn Statement) DA 2627 (Article 15 Record)DA 2627 (Article 15 Record)

Preliminary ConsiderationsPreliminary Considerations Center of Gravity in the military justice system – Center of Gravity in the military justice system –

Commander. Roles we think of as prosecutor (e.g.- Commander. Roles we think of as prosecutor (e.g.- referral and disposition of charges; approval of referral and disposition of charges; approval of pretrial agreements) and judge (approval of pretrial agreements) and judge (approval of sentence; considerations for requests for clemency).sentence; considerations for requests for clemency).

Commanders at all levels play personal roles in the Commanders at all levels play personal roles in the MJ process. No superior commander is permitted to MJ process. No superior commander is permitted to influence, directly or indirectly, a subordinate’s influence, directly or indirectly, a subordinate’s decision on the referral or disposition of alleged decision on the referral or disposition of alleged misconduct. Caveatmisconduct. Caveat

The commander (and therefore her prosecutor- Trial The commander (and therefore her prosecutor- Trial Counsel) is expected to balance the critical need for Counsel) is expected to balance the critical need for good order and discipline against the critical good order and discipline against the critical individual rights of soldiers in general and the individual rights of soldiers in general and the accused in particular.accused in particular.

Commander’s Disciplinary Options “The Spectrum”

No Action

Adverse Admin Actions

Admin Separation

Article 15 Court-Martial

Consequences to Soldier

Roles in Military Justice SystemRoles in Military Justice SystemCompany/Battery CommanderCompany/Battery Commander Receives initial report of misconduct (RCM 301), makes a Receives initial report of misconduct (RCM 301), makes a

preliminary inquiry into the alleged offense (RCM 303) and preliminary inquiry into the alleged offense (RCM 303) and makes and initial disposition decision on any case for which makes and initial disposition decision on any case for which authority has not been withheld by a superior commander authority has not been withheld by a superior commander (RCM 306)(RCM 306)

Can dispose of charges by dismissal, administrative action, Can dispose of charges by dismissal, administrative action, Company Grade Article 15 (see Part IV, MCM and AR 27-10, Company Grade Article 15 (see Part IV, MCM and AR 27-10, Ch. 3) or forwarding to superior commander for dispositionCh. 3) or forwarding to superior commander for disposition

Typically also is the commander who orders probable cause Typically also is the commander who orders probable cause searches or health and welfare inspections (MRE 313-316)searches or health and welfare inspections (MRE 313-316)

CanCan order suspects into pretrial restraint or confinement with order suspects into pretrial restraint or confinement with the support of his MJ office and with proper available facilities the support of his MJ office and with proper available facilities (see, generally, RCM 304-305)(see, generally, RCM 304-305)

Battalion CommanderBattalion Commander Can dispose of charges by dismissal, Can dispose of charges by dismissal,

administrative action, Field Grade Article 15, administrative action, Field Grade Article 15, forwarding to a subordinate or superior forwarding to a subordinate or superior commander for disposition or by referral to a commander for disposition or by referral to a Summary Court Martial (MCM Ch. 3-IX, DA PAM Summary Court Martial (MCM Ch. 3-IX, DA PAM 27-7)27-7)

Can order probable cause search (rare) or a Can order probable cause search (rare) or a battalion-wide health and welfare inspectionbattalion-wide health and welfare inspection

Receipt of properly sworn charge sheet (DD 458) Receipt of properly sworn charge sheet (DD 458) acts as a “filing” of the charges for Statute of acts as a “filing” of the charges for Statute of Limitation purposes (10 USC 843, RCM 403).Limitation purposes (10 USC 843, RCM 403).

Authorized, as a Court Martial Convening Authorized, as a Court Martial Convening Authority, to enter into pretrial agreements with Authority, to enter into pretrial agreements with the accused (RCM 705)the accused (RCM 705)

Brigade CommanderBrigade Commander Can dispose of charges by dismissal, administrative Can dispose of charges by dismissal, administrative

action, Field Grade Article 15, forwarding to a action, Field Grade Article 15, forwarding to a subordinate or superior commander for disposition or subordinate or superior commander for disposition or by referral to a Summary, Special or Bad-Conduct by referral to a Summary, Special or Bad-Conduct Special Court Martial (RCM 404)Special Court Martial (RCM 404)

Referral to SPCM or BCD SPCM requires “adequate Referral to SPCM or BCD SPCM requires “adequate pretrial advice” from the Staff Judge Advocate (RCM pretrial advice” from the Staff Judge Advocate (RCM 406)406)

Can direct probable cause searches or health and Can direct probable cause searches or health and welfare inspections within his command (very rare)welfare inspections within his command (very rare)

Is authorized to begin a formal pretrial (Article 32) Is authorized to begin a formal pretrial (Article 32) investigation (RCM 404, 405, 10 USC 832, DA PAM 27-investigation (RCM 404, 405, 10 USC 832, DA PAM 27-17)17)

Authorized, as a Court Martial Convening Authority, to Authorized, as a Court Martial Convening Authority, to enter into pretrial agreements with the accused (RCM enter into pretrial agreements with the accused (RCM 705)705)

General Court Martial Convening General Court Martial Convening AuthorityAuthority

Can dispose of charges by dismissal, administrative Can dispose of charges by dismissal, administrative action, Field Grade Article 15, forwarding to a action, Field Grade Article 15, forwarding to a subordinate or superior commander for disposition or by subordinate or superior commander for disposition or by referral to a Summary, Special, Bad-Conduct Special or referral to a Summary, Special, Bad-Conduct Special or General Court Martial (RCM 404)General Court Martial (RCM 404)

Referral to GCM requires “adequate pretrial advice” Referral to GCM requires “adequate pretrial advice” from the Staff Judge Advocate (RCM 406)from the Staff Judge Advocate (RCM 406)

Is authorized to begin a formal pretrial (Article 32) Is authorized to begin a formal pretrial (Article 32) investigation (RCM 404, 405, 10 USC 832, DA PAM 27-investigation (RCM 404, 405, 10 USC 832, DA PAM 27-17)17)

Authorized, as a Court Martial Convening Authority, to Authorized, as a Court Martial Convening Authority, to enter into pretrial agreements with the accused (RCM enter into pretrial agreements with the accused (RCM 705)705)

Lowest authority who may grant immunity to an Lowest authority who may grant immunity to an accused to compel testimony against the privilege of accused to compel testimony against the privilege of self-incrimination (RCM 704)self-incrimination (RCM 704)

Trial Counsel (10 USC 838)Trial Counsel (10 USC 838) Clerk (Panel, Dockets, Records)Clerk (Panel, Dockets, Records) Procurer of witnesses and evidence for Procurer of witnesses and evidence for

both sidesboth sides General “gofer” (Lunch, Escorts, Bailiff)General “gofer” (Lunch, Escorts, Bailiff) Command’s chief advisor on MJ issues Command’s chief advisor on MJ issues Advocate for the Government’s caseAdvocate for the Government’s case Must be detailed to GCM and all SPCM (10 Must be detailed to GCM and all SPCM (10

USC 821)USC 821)

Defense Counsel (10 USC 838)Defense Counsel (10 USC 838) Advocate for the Defense caseAdvocate for the Defense case Must be detailed to all SPCM and Must be detailed to all SPCM and

GCMGCM Advises soldiers on Article 15s, Advises soldiers on Article 15s,

adverse personnel actions and other adverse personnel actions and other issues adverse to command such as issues adverse to command such as suspect rightssuspect rights

Military JudgeMilitary Judge Judge in the traditional sense (RCM 801)Judge in the traditional sense (RCM 801) Once charges are referred for trial, has Once charges are referred for trial, has

broad discretion over the case, even broad discretion over the case, even above and beyond the Convening above and beyond the Convening Authority (the bomb is a granted Motion Authority (the bomb is a granted Motion for Finding of Not Guilty (RCM 917)for Finding of Not Guilty (RCM 917)

Search and SeizureSearch and Seizure Three basic types: probable cause (MRE 315); Consent, Three basic types: probable cause (MRE 315); Consent,

plain view, automobile, etc., with military considerations plain view, automobile, etc., with military considerations (MRE 314) and “health and welfare” (MRE 313)(MRE 314) and “health and welfare” (MRE 313)

PC search can be authorized on any military property PC search can be authorized on any military property (e.g., barracks, foot/wall lockers) and any non-(e.g., barracks, foot/wall lockers) and any non-government property on a government facility (e.g., POV government property on a government facility (e.g., POV on a military post). On non-government property off on a military post). On non-government property off government facility, get civilian authority cooperationgovernment facility, get civilian authority cooperation

PC Search can be authorized by commander or by a PC Search can be authorized by commander or by a neutral, detached magistrate (rare in deployed neutral, detached magistrate (rare in deployed situations)situations)

PC Search can be based on written sworn or unsworn PC Search can be based on written sworn or unsworn statements of witnesses communicated in any statements of witnesses communicated in any reasonable way to the authorizing official. The authority reasonable way to the authorizing official. The authority to search can be verbal, but I recommend reducing it to to search can be verbal, but I recommend reducing it to writing ASAP. The Army has forms (DA 3744 and DA writing ASAP. The Army has forms (DA 3744 and DA 3745), but memoranda for record will do.3745), but memoranda for record will do.

Interrogations/Self-IncriminationInterrogations/Self-Incrimination UCMJ Art. 31 (10 USC 831) is the main UCMJ Art. 31 (10 USC 831) is the main

consideration- gives broader protection that does consideration- gives broader protection that does 55thth Amendment as interpreted through Amendment as interpreted through MirandaMiranda and its progeny; prohibits eliciting and its progeny; prohibits eliciting anyany self- self-incriminating statement from the accused, even if incriminating statement from the accused, even if she is not in custodyshe is not in custody

The accused can give incriminating against The accused can give incriminating against herself in a variety of situations in the Army- herself in a variety of situations in the Army- traditional law enforcement situation, AR 15-6 traditional law enforcement situation, AR 15-6 investigation, informal commander’s inquiry, etc., investigation, informal commander’s inquiry, etc., etc. The key to keeping an incriminating etc. The key to keeping an incriminating statement in court is to have anyone acting under statement in court is to have anyone acting under color of command authority (investigating officer, color of command authority (investigating officer, NCO, commander, etc.) to (a) consult SJA or Trial NCO, commander, etc.) to (a) consult SJA or Trial Counsel if investigation takes a turn against the Counsel if investigation takes a turn against the accused and (b) proficiently use DA Form 3881 accused and (b) proficiently use DA Form 3881

Nonjudicial PunishmentNonjudicial Punishment Part IV, MCM; AR 27-10, Ch. 3. and Appx. BPart IV, MCM; AR 27-10, Ch. 3. and Appx. B Article 15 UCMJ- preferred method of handling Article 15 UCMJ- preferred method of handling

minor offensesminor offenses Accused always has right to refuse and demand Accused always has right to refuse and demand

Court-MartialCourt-Martial Accused MUST be afforded opportunity to seek Accused MUST be afforded opportunity to seek

counsel except in Summary Article 15 procedurecounsel except in Summary Article 15 procedure Officers- seek GO Article 15Officers- seek GO Article 15 Key: fill out DA 2627 properly and know sequence Key: fill out DA 2627 properly and know sequence

of events in reading it to the accusedof events in reading it to the accused

Company/Battery Grade Article 15Company/Battery Grade Article 15 Admonition or ReprimandAdmonition or Reprimand Reduce E4 and below one gradeReduce E4 and below one grade Forfeit seven days pay at rank held after Article Forfeit seven days pay at rank held after Article

15 (compute at reduced rank, even if suspended)15 (compute at reduced rank, even if suspended) Restriction for 14 daysRestriction for 14 days Extra Duty for 14 daysExtra Duty for 14 days Correctional Custody for 7 days (E1-E3)Correctional Custody for 7 days (E1-E3) Bread and water for 3 days (embarked on vessel Bread and water for 3 days (embarked on vessel

only- E1-E3)only- E1-E3)

Field Grade Article 15Field Grade Article 15 Admonition or ReprimandAdmonition or Reprimand Reduce E4 and below to E1 or any intermediate Reduce E4 and below to E1 or any intermediate

grade; Reduce E5 and E6 one gradegrade; Reduce E5 and E6 one grade Forfeit ½ of one month’s pay for two months at Forfeit ½ of one month’s pay for two months at

rank held after Article 15 (compute at reduced rank held after Article 15 (compute at reduced rank, even if suspended)rank, even if suspended)

Restriction for 60 daysRestriction for 60 days Extra Duty for 45 days (combinations of Extra Duty for 45 days (combinations of

Restriction and Extra Duty cannot exceed 45 Restriction and Extra Duty cannot exceed 45 consecutive days)consecutive days)

Correctional Custody for 30 days (E1-E3)Correctional Custody for 30 days (E1-E3) Restricted Rations for 4 days (embarked on Restricted Rations for 4 days (embarked on

vessel only- E1-E3)vessel only- E1-E3)

Summary Court MartialSummary Court Martial Accused always has the right to object (RCM Accused always has the right to object (RCM

1301; 1303); 1301; 1303); No right to counsel at proceeding (DA PAM 27-7; No right to counsel at proceeding (DA PAM 27-7;

MCM Appx. IX)MCM Appx. IX) Officers, cadets and midshipmen exempt from Officers, cadets and midshipmen exempt from

SCM (RCM 1301 (c))SCM (RCM 1301 (c)) Maximum punishments (RCM 1301):Maximum punishments (RCM 1301):

• 30 days’ confinement (E4 and below)30 days’ confinement (E4 and below)• 45 days’ hard labor w/o confinement (E4 and 45 days’ hard labor w/o confinement (E4 and

below)below)• Forfeiture ½ one month’s pay (E4 and below)Forfeiture ½ one month’s pay (E4 and below)• Reduction to lowest enlisted grade (E4 and Reduction to lowest enlisted grade (E4 and

below) or one grade (E5 and above)below) or one grade (E5 and above)• No Punitive Discharge (RCM No Punitive Discharge (RCM 1301)1301)

BCD Special Court MartialBCD Special Court Martial May theoretically try any soldier in the Army May theoretically try any soldier in the Army

(Officers SHOULD go to GCM)(Officers SHOULD go to GCM) Accused and government both represented by Accused and government both represented by

counsel; presided over by Military Judge- 3 counsel; presided over by Military Judge- 3 member panel with one enlisted member on member panel with one enlisted member on Accused’s motionAccused’s motion

Maximum Punishments (Enlisted)Maximum Punishments (Enlisted)• Confinement for one yearConfinement for one year• Reduction to lowest enlisted gradeReduction to lowest enlisted grade• Total forfeitures of pay and allowancesTotal forfeitures of pay and allowances

General Court MartialGeneral Court Martial Tries any member of the military (10 Tries any member of the military (10

USC 817)USC 817) At least 5 members (10 USC 829 (b))At least 5 members (10 USC 829 (b)) May impose any punishment May impose any punishment

authorized under the Code to any authorized under the Code to any soldier (10 USC 818)soldier (10 USC 818)

SentencingSentencing Bifurcated procedure (RCM 1001 (a))Bifurcated procedure (RCM 1001 (a)) Accused has the right to ask for relaxed Accused has the right to ask for relaxed

rules of evidence (RCM 1001 (c)(3)- Good rules of evidence (RCM 1001 (c)(3)- Good Soldier Books, “He’s a Good Boy” letters Soldier Books, “He’s a Good Boy” letters from Mom, etc.from Mom, etc.

Military Judge does not know the quantum Military Judge does not know the quantum of a Pretrial Agreement before she passes of a Pretrial Agreement before she passes sentence (DA PAM 27-9, Ch. 2-2-8); panel sentence (DA PAM 27-9, Ch. 2-2-8); panel does not even know there is a PTA (RCM does not even know there is a PTA (RCM 705 (e))705 (e))

Common ProblemsCommon Problems Improper filling out of DA 2627 (no/improper Improper filling out of DA 2627 (no/improper

specification, no/wrong location for TDS, improper specification, no/wrong location for TDS, improper administrative data)administrative data)

Punishment imposed before adjudicationPunishment imposed before adjudication Punishment exceeds commander’s authorityPunishment exceeds commander’s authority Suspension of punishments for longer than is Suspension of punishments for longer than is

authorized (120 days for Article 15s/SCMs)authorized (120 days for Article 15s/SCMs) Commander’s actions/words that indicate the he is Commander’s actions/words that indicate the he is

not impartial or has prejudged the casenot impartial or has prejudged the case Unit forgetting/not providing for accusedUnit forgetting/not providing for accused NCOs/junior officers jumping into role of commanderNCOs/junior officers jumping into role of commander Improper pretrial restriction/confinementImproper pretrial restriction/confinement Failure to involve CID at the right timeFailure to involve CID at the right time Failure to protect accused’s right against self-Failure to protect accused’s right against self-

incrimination in administrative proceeding or non-incrimination in administrative proceeding or non-criminal investigationcriminal investigation

And now, time for a game of:And now, time for a game of:

IS THIS A CRIME?IS THIS A CRIME?

Having unclean arms or equipment.Having unclean arms or equipment. Using insulting language toward a sentry.Using insulting language toward a sentry. Refusing to submit to a dental exam.Refusing to submit to a dental exam. Straggling.Straggling. Using contemptuous language against the Using contemptuous language against the

President or Vice-President.President or Vice-President. Concealing evidence of another’s crime.Concealing evidence of another’s crime.

YES!YES!

Violation of Arts. 134 & 92 (Failure to obey Violation of Arts. 134 & 92 (Failure to obey a lawful order - confinement from 3-6 mos.)a lawful order - confinement from 3-6 mos.)

Art. 134; 3 mos.Art. 134; 3 mos. Art 92; from 3 mos. to 2 years.Art 92; from 3 mos. to 2 years. Art. 134; 3 mos.Art. 134; 3 mos. Art. 88; 1 year confinement.Art. 88; 1 year confinement. Art. 134; (Misprision); 3 years.Art. 134; (Misprision); 3 years.

In conclusion,In conclusion,

Words to live by:Words to live by:

““You should never You should never wear your best wear your best trousers when you go trousers when you go out to fight for out to fight for freedom and liberty.” freedom and liberty.” Henrik IbsenHenrik Ibsen

Our system of military Our system of military justice represents our justice represents our best efforts at best efforts at balancing two balancing two competing needs: first, competing needs: first, the need for the need for maintaining good order maintaining good order and discipline, in the and discipline, in the interests of national interests of national security; second, the security; second, the need for respecting the need for respecting the rights of every citizen, rights of every citizen, in the interests of our in the interests of our very survival.very survival.

Our system is not perfect, but . . .Our system is not perfect, but . . .

It is “a system of military justice that It is “a system of military justice that is notably more sensitive to due is notably more sensitive to due process concerns than the one process concerns than the one prevailing through most of our prevailing through most of our

country’s history. . . .”country’s history. . . .”Justice Ginsburg, concurring inJustice Ginsburg, concurring in

Weiss v. U.S.Weiss v. U.S. (1992) (1992)

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