Military justice

SIGNIFICANCE: Military law is analogous to civilian criminal law, but it is entirely penal, or disciplinary, in scope. The central purpose of having special military law is to give commanders strong tools to maintain the discipline and effectiveness of the military establishment.

American military law has developed in response to the special needs of the nation’s military services. Some actions in the military services that may seem noncriminal to civilians have severe consequences due to the special needs of maintaining military discipline. For example, civilians who fail to appear at their jobs might simply be terminated, while service members who fail to appear for work may face criminal charges.

American military justice has its roots in the sixty-nine Articles of War established by the Second Continental Congress in 1775. Modeled on the British Articles of War, the American code was deliberately designed to be harsh. Its primary function was to ensure discipline among troops, and it used courts-martial as tools to promote obedience among service members. Until 1950, the US Army did not even have a formal appeals process for court-martial convictions, and there was no sentencing uniformity throughout command units or the different service branches.

By the end of World War II, military courts had convened more than two million courts-martial, and many former service members were proclaiming that grave injustices were being perpetrated in military courts. Among the most common complaints were lack of uniformity in the administration of justice and the capricious nature of some unit commanders. Public disenchantment over the military justice system eventually led to reform. In 1950, the Uniform Code of Military Justice (UCMJ) was passed.

The first major overhaul of the military justice system since 1775, the UCMJ was designed to ensure that the administration of law would be uniform among all the armed services. The code created centralized review panels, which would hear appeals of defendants, and the Court of Military Appeals, a three-member panel of civilian judges that would have jurisdiction to hear mandatory appeals involving the death penalty. Several other changes were implemented after 1950. Procedural changes to the Court of Military Appeals were addressed in the 1969 Manual for Courts-Martial (MCM).

The Military Justice Act of 1968 established a trial judiciary consisting of circuit judges in each service, and it also allowed accused persons to request trials by military judges alone, instead of having their cases heard by panels of court members. The Military Justice Act of 1983 instituted more procedural changes, including provisions for government appeals of some rulings by military judges. At the same time, however, the law did not allow the government to appeal findings of not guilty. The 1983 law also provided for defense and government appeals to the US Supreme Court from the US Court of Appeals for the Armed Forces.

Sources of Military Law

The primary source of military law for the US armed services is the US Constitution. Other sources include international law, congressional acts, individual service regulations, usages and customs of the armed forces, and decisions of the military court system.

Military law stems from two provisions in the US Constitution: those vesting certain powers in the legislative branch, and those granting certain authority to the executive branch. The Fifth Amendment specifically notes that offenses in the armed services are to be handled in accordance with military law, thus recognizing that cases arising in military units must be handled separately from those occurring in similar circumstances in civilian society.

The Constitution also provides that the president serve as the commander in chief of the armed forces and is thus empowered to appoint all officers to ensure that the laws of the nation are faithfully served. The Constitution empowers Congress to make rules and regulations for the government and regulation of the land and naval forces, as well as to make all laws necessary to provide for the discipline of the armed services.

Apart from the Constitution, other sources have a great impact upon military law. Congressional legislation created the UCMJ and the Manual for Courts-Martial (MCM), the procedural requirements for military justice. The MCM is implemented by presidential executive order. As the commander in chief, the president may promulgate other executive orders and service regulations, so long as they do not conflict with basic constitutional or statutory provisions.

Under international law, all American service members are subject to the Geneva Conventions of 1949, as well as provisions outlined for international contingencies. Military personnel serving abroad are also required to abide by the laws of the host nations, as determined by arranged Status of Force Agreements (SOFA) between those nations and the United States.

The Uniform Code of Military Justice

The UCMJ was passed in 1950, enacted in 1951, and implemented by the Manual for Courts-Martial. It established service courts of military review composed of appellate military judges. The code also provided for the US Court of Military Appeals, which originally contained three civilian judges. In 1991, two more civilian judges were added to the appeals court, whose name was changed to the US Court of Appeals for the Armed Forces.

The main purpose of the UCMJ, and in particular its punitive articles, is to ensure that there is uniformity among all commands and across all branches of service in the punishment of crime. Under the code, soldiers in the Army who commit larceny face exactly the same charges and possible punishments as Marines and Navy sailors who commit the same offense.

The UCMJ is the basic source of military law. Persons subject to its provisions include members of all regular components of the US armed forces, even those persons awaiting discharge, as well as volunteers from the time of their entry into the armed forces. Cadets, aviation cadets, and midshipmen in the military academies are subject to the UCMJ, as well as retired members of regular components of the armed forces who are still entitled to pay, and members of reserve components under certain circumstances. The important thing to note is that the jurisdiction of a court-martial depends solely on the accused person’s status relative to the provisions of the code.

The core of the UCMJ can be found in the punitive articles numbered 77 through 134. All offenses listed in those articles are considered court-martial offenses. Each offense is listed along with the elements of proof used to define it. The UCMJ also includes provisions for lesser included offenses. For example, article 119 defines manslaughter as a lesser included offense for article 118’s murder. Military courts can convict defendants of lesser included offenses when they are unable to find them guilty of the original charges. This procedure enables courts to make findings without having to amend the original charges. The code also lists maximum permissible punishments for each offense.

Nonjudicial Punishments

The UCMJ permits military punishments to be handled in one of two basic ways. The first, under article 15, allows commanders to handle minor offenses with nonjudicial punishments. Minor offenses are generally considered to be those that might result in court-martial sentences of up to thirty days of confinement. However, the final decision to classify any offense as minor rests with the commander of the accused person.

A commander using nonjudicial punishment must conduct a prehearing inquiry to determine the truth of the charges being considered for court-martial. Once they are satisfied there is enough evidence to make a conviction by court-martial possible, they may offer the accused a nonjudicial punishment in lieu of trial by court-martial. The commander must then advise the accused of their rights against self-incrimination and the charges that are being preferred against them. The accused is permitted to examine all evidence, present a defense, and have witnesses present for their nonjudicial hearing. They may then choose to either accept a nonjudicial punishment under article 15 or be tried by court-martial. However, service members who are attached to vessels that are about to embark or have already embarked must accept punishments under article 15.

Accepting punishment under article 15 is not considered to constitute an admission of guilt. When article 15 proceedings are convened by field-grade officers (those in pay grades O-4 to O-6, such as majors, lieutenant colonels, or colonels), records of the proceedings are permanently placed in the personnel files of the accused. Records of proceedings convened by junior officers (pay grades O-1 through O-3) are placed only in local files until the accused either is transferred from their duty station or leaves the service.

Field-grade officers may award punishments that are more severe than those that junior officers can award. A punishment under article 15 can be appealed to higher authority, which may let the punishment stand, reduce it, or dismiss it. The higher authority cannot increase the levels of punishment.

Courts-Martial

Offenses that cannot be classified as minor are tried by court-martial, as are cases in which the accused refuses nonjudicial punishment. Article 32 of the UCMJ requires that before a court-martial convenes, a pretrial investigation must be conducted to inquire about the truth of the matter, determine the charges that can be preferred, and make recommendations about the disposition of those charges. When an article 32 investigation recommends that probable cause exists to charge the accused, the charges are then forwarded to court-martial authorities by the commanding officer of the accused.

Convictions by courts-martial are considered federal felony convictions, and the court may impose punishment as outlined by the UCMJ. For example, a conviction for disobeying lawful orders of a commissioned officer can result in the offender being dishonorably discharged from the service and sentenced to perform five years of hard labor in confinement. As in cases involving nonjudicial punishments, service members may appeal their court-martial convictions through the US Court of Appeals for the Armed Services.

Military Justice versus Civilian Justice

Although military justice differs substantially from civilian justice in many ways, accused service members are occasionally afforded more rights than civilians charged with the same crimes would be. Civilian and military law are both based on the Constitution, but differences in the makeup of military justice stem from the fact that the military has special needs regarding the status quo of military order and discipline.

A number of procedural differences separate military and civilian justice. For example, in civilian criminal justice, defendants accused of violating state laws are subject to the jurisdiction of the state in which the offense occurred. By contrast, military service members accused of similar crimes are subject to the UCMJ because of their status as service members, and the location of the offense is largely irrelevant.

When civilians are taken into custody, they are read their Miranda rights. When they elect to exercise those rights by requesting attorneys, they are escorted to holding cells to await arraignment. Service members, on the other hand, are advised of their rights under article 31 of the UCMJ, which extends safeguards that go beyond Miranda, in that they apply even to noncustodial questioning. When a service member requests an attorney, the investigator’s interview is concluded and the service member is sent to their commander, who decides whether to place them in pretrial confinement or another form of restriction.

All service members are entitled to representation by a military defense counsel free of charge. By contrast, civilians must show that they are indigent to qualify for free counsel. When charges against civilians are examined, grand juries meet in secret, without the presence of the accused. The military equivalent of grand juries are article 32 hearings, which are not conducted in secret. During these hearings, accused service members and their attorneys are permitted to examine all evidence and witnesses, make statements, and present evidence of their own.

Some states do not guarantee all defendants the right to appeal their convictions in noncapital cases. By contrast, the cases of service members who are sentenced to punitive discharges or confinement for a period of at least one year receive automatic appellate reviews.

Bibliography

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