Courts-martial

SIGNIFICANCE: Courts-martial judge major infractions of military law by members of the armed forces.

To preserve discipline and ensure order, military commanders have three ways to punish violations of the rules, regulations, and laws governing the Army, Navy, Air Force, Marine Corps, Coast Guard, and National Guard: administrative action, nonjudicial punishment, and courts-martial. In administrative action the commander punishes by withdrawing common privileges with the offender’s acquiescence. In nonjudicial punishment a small-unit commander tries minor infractions and assesses limited penalties. Courts-martial can consider any accusation of misconduct as defined in the Uniform Code of Military Justice (UCMJ) of 1950, published and elaborated on in the Manual for Courts-Martial, which was last updated in 2024. The sentences of some courts-martial include long-term imprisonment and the death penalty. Punishments under administrative action or nonjudicial punishment are internal military affairs; conviction by court-martial becomes part of a person’s permanent criminal record.

All officers, enlisted personnel, and reservists on active duty are subject to the UCMJ, and each branch of the armed forces has jurisdiction over members of all the other branches. The Supreme Court has ruled that military courts cannot try civilians (Ex parte Milligan, 1866) or civilian employees of the services, even when functioning under martial law (Duncan v. Kahanamoku , 1946). Courts-martial have exclusive jurisdiction over all purely military offenses, such as disobedience of orders or desertion. An action violating both military and civilian law can be tried either by court-martial or by a civilian court, although local civilian authorities usually have precedence over military courts.

Generally similar to civilian criminal courts, courts-martial nevertheless differ in their pretrial procedures, their questioning of witnesses, their method of reaching verdicts, and the variety of punishments they may impose. Three types of courts-martial exist: general, special, and summary. They differ in the crimes they judge and in the severity of punishment they may impose. All three are ad hoc courts convened by a commanding officer to judge a specific case or a small number of related cases. In general and special courts-martial, the “accused” (not “defendant,” as in civilian courts) has the right to counsel; in summary courts-martial, counsel may be excluded if military circumstances require it.

Pretrial Procedure

The responsible officer, such as a company commander in an infantry regiment, acts as the accuser of subordinates suspected of having violated a provision of the UCMJ, who must be warned that any statements they make can be used against them during judicial action. The responsible officer can prefer charges and recommend the type of court-martial to the next higher-level commander, such as a battalion commander. This higher-level commander may convene either a summary court-martial or a special court-martial to hear the charges. This procedure, known as an “Article 32 investigation,” performs the same function as a grand jury in civilian law. However, the accused has several rights not granted to civilian defendants, including the power to cross-examine witnesses and to submit and examine evidence. The investigating officer reports the findings to an officer who has the authority to convene a general court-martial. That commander may convene the court, refer the charges back to a lower court, or drop the charges. If a general or special court-martial is initiated, the convening authority also appoints the trial counsel, a commissioned officer certified as a competent military lawyer by the service’s judge advocate general, and the defense counsel, who must likewise be a certified military lawyer. In some cases the accused may also hire a civilian lawyer.

During the discovery phase of a court-martial proceeding attorneys take depositions from witnesses, gather documentary evidence, and arrange for the appearance of witnesses. The equivalent of the prosecuting attorney in a civilian court, the trial counsel must provide the defense with copies of documents and papers relating to the charge, reports of physical or psychological examinations performed on the accused, and a list of witnesses to be called. The defense must also disclose the names of its witnesses to the trial counsel. The accused may agree at this time to a plea bargain , as in civilian courts. A military judge may grant the accused or witnesses transactional immunity, which protects them from trial for one or more offenses under the UCMJ, or testimonial immunity, which excludes later trial action based on statements made in depositions or in court.

Conduct of Courts-martial

The president of the United States, service secretaries, or high-ranking commanders, usually generals or admirals, convene general courts-martial. Those who convene courts-martial select members of their command to act as members of the court. The court consists of five to seven officers; one must be a qualified military judge, who is the presiding officer, and the rest fulfill much the same function as a civilian jury. Enlisted accused may request that one-third of the court be enlisted personnel. Except in capital cases, the accused can choose to be tried before a military judge alone.

The presiding officer instructs the members of the court on points of law, controls the proceedings, rules on questions of law and procedure, issues judgments on questions of fact, rules against trial participants who are in contempt of court, and may summon witnesses in addition to those called by the court and defense counsel. The court takes testimony, assesses the evidence, and may directly question witnesses, unlike the jury of a civilian court. The panel then retires to discuss the verdict, which must be based strictly on the evidence presented in court. Finally, after instruction from the presiding officer on the consequences of different verdicts, the panel votes. A two-thirds majority is required for conviction, which means that there is never a deadlocked jury, as in civilian courts. Court is reconvened and the verdict announced. If the accused is acquitted, the proceedings end and the accused is released.

If the accused is convicted, the sentencing phase begins. The court again hears arguments from the trial counsel and defense counsel in favor of a specific punishment and reviews pertinent evidence, such as records of previous convictions. The panel deliberates once more and votes by secret written ballot on the sentence. General courts-martial may impose any punishment authorized under the UCMJ. While a simple majority vote is sufficient for most sentences, such as dismissal from the service and dishonorable discharge, three-fourths of the panel must approve a sentence of imprisonment for ten years or more and a unanimous vote is required to impose the death penalty.

Special courts-martial convene under the authority of commanders of small units, such as regiments, or small installations, and consist of three members, unless the accused chooses to be tried by a military judge alone. Enlisted accused may also demand that one member of the panel be enlisted. A special court-martial verdict may include a bad conduct discharge if the court includes a military judge. Otherwise, the court may convict the accused to as many as six months of confinement, forfeiture of two-thirds pay for six months, hard labor for three months, or reduction in rank.

Unlike general and special courts-martial, which can try officers, summary courts-martial have power over only enlisted personnel. An Army or Marine officer of the rank at least of captain (equivalent to a lieutenant in the Navy and Coast Guard) is the convening authority and appoints the single member of the court. When no other commissioned officer is available, convening authorities in courts-martial may appoint themselves. The purpose of the court is to hear charges of minor offenses promptly. For accused noncommissioned officers, the presiding officer may impose sentences not to exceed forfeiture of two-thirds of one month’s pay, restriction for two months, or reduction of one rank. Accused who are in the fourth enlisted pay grade or below may receive one month’s confinement or hard labor for forty-five days as well.

After adjourning a court-martial, the trial counsel must notify the accused’s commander or the convening authority of the verdict and sentence, and this officer executes the court’s decision by ordering confinement, the withholding of pay, or imposing other punishments. The military judge or convening authority may call for post-trial sessions to correct errors or rectify improper procedures by reopening the proceedings. A complete record of a court-martial’s proceedings is assembled and forwarded to an appropriate reviewing authority.

Reviews and Appeals

The provisions for review and appeal of decisions by courts-martial are as varied as those for civilian courts, but they invest considerable review authority in individuals as well as in appellate panels. Lawyers in the office of the staff advocate general, a unit under the authority of the local commanding general or admiral, review the conduct and decisions of courts-martial to ensure that proper procedures were followed. The convening authority also reviews the verdict of a court-martial and may vacate or reduce a sentence.

The accused has two years in which to appeal a conviction to the service’s judge advocate general. After examining court-martial records, the judge advocate general may modify or set aside the findings or refer the case to the court of criminal appeals for the appropriate branch of the service. This court may modify a sentence but may not vacate it or alter the changes made by the convening authority. The judge advocate general may then refer the case to the Court of Appeals for the Armed Forces, whose three judges are appointed for fifteen-year terms by the president of the United States and confirmed by the U.S. Senate. The accused may also petition this appeals court. Furthermore, the Court of Appeals for the Armed Forces must review all verdicts that affect general or flag officers and death sentences, which, if approved, may be carried out only upon orders from the president.

Federal courts may review courts-martial when their jurisdiction is questioned or when the accused petition for writs of habeas corpus (applications to a court to consider whether a person in custody is being held lawfully). The U.S. Supreme Court may review decisions of the Court of Appeals for the Armed Forces and return cases to the lower court for further hearings or direct the president or service secretary to act upon its directives.

Bibliography

Bishop, Joseph W., Jr. Justice Under Fire. New York: Charterhouse, 1974.

Finn, James, ed. Conscience and Command: Justice and Discipline in the Military. New York: Random House, 1971.

Frost, Lawrence A. The Court Martial of General George Armstrong Custer. Norman: University of Oklahoma Press, 1968.

Military Justice Trial Procedure. Washington, D.C.: Headquarters, Department of the Army, 1973.

Schug, Willis E., ed. United States Law and the Armed Forces: Cases and Materials on Constitutional Law, Courts-Martial, and the Rights of Servicemen. New York: Praeger, 1972.

Sherrill, Robert. Military Justice Is to Justice as Military Music Is to Music. New York: Harper & Row, 1969. Bitter indictment of the influence of local commanders on courts-martial proceedings; inspired by cases from the Vietnam War.

"2024 Manual for Courts-Martial." Joint Service Committee on Military Justice, 2024, jsc.defense.gov/Military-Law/Current-Publications-and-Updates/. Accessed 25 June 2024.

Ulmer, S. Sidney. Military Justice and the Right to Counsel. Lexington: University Press of Kentucky, 1970.

West, Luther. They Call It Justice. New York: Viking Press, 1977.