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FAQ: Military Justice

A Few Good Men is one of my favorite movies. Much to my disappointment, we didn’t spend the officer basic course, or a good part of our time on active duty, watching and breaking down that movie. We did learn, however, valuable courtroom skills, as well as procedural and substantive legal training to help prepare us become experienced litigators. One thing the movie doesn’t depict is that all service-members have the option to hire a civilian attorney to represent them in court-martial, and they don’t have to use their appointed Judge Advocate.

Here are some basic FAQ’s I’ve learned in my time practicing military justice that you might find useful.

What is a court-martial?

There are different types of court-martial. They aren’t classified as felony and misdemeanor courts, but I found it helpful to provide that analogy to clients when explaining what they were looking at, with general courts-martial roughly analogous to a felony court, and special courts-martial akin to a misdemeanor court. Essentially, there are different levels of court-martial that can be understood based on what the upper limits for punishment are. And sometimes certain offenses must be sent to a particular court-martial.

General Court-Martial

The most serious offenses are generally taken to a general court-martial. Officers must be tried by a general court-martial.

A general court-martial may try any person subject to the UCMJ for any offense made punishable under the UCMJ. Recent amendments also mandate that certain offenses are tried only at general court-martial, such as rape, rape of a child, sexual assault, sexual assault of a child, as well as attempts thereof under Article 80.

A general court-martial may adjudge any punishment authorized under Rule for Court-Martial 1003, to include, in certain circumstances, death.

Special Court-Martial

A special court-martial is more limited in the types of punishments available. A special court-martial may not adjudge any sentence that includes the death penalty, dishonorable discharge, dismissal, confinement for more than 1 year, hard labor without confinement for more than 3 months, forfeiture of pay exceeding two-thirds pay per month, or any forfeiture of pay for more than 1 year.

Special Court-Martial Judge Alone

One of the recent amendments to the UCMJ provided for this new type of court-martial. Punishments are even more limited in these courts-martial, where a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months, may not be adjudged. So this means you cannot be discharged from this court-martial, although you may be subject to an administrative separation for your convictions in a separate proceeding. If, before arraignment, the accused objects, he can reject the forum offered here by the convening authority’s referral, if a specification is not a drug offense and has a maximum authorized period of confinement greater than two years, or if a conviction would result in sex offender registration.

Summary Court-Martial

A summary court-martial is composed of one commissioned officer on active duty. In my experience, the officer was normally an 0-3, because that is the lowest permissible rank that will serve as the hearing officer.

The purpose of a summary court-martial is to promptly adjudicate minor offenses under a simple disciplinary proceeding. A finding of guilt does not constitute a criminal conviction, although jeopardy attaches to any charge tried therein. The maximum penalty that can be adjudged in a summary court-martial is confinement for 30 days, forfeiture of two-thirds pay per month for one month, and reduction to the lowest pay grade. For any enlisted member at E-5 or above, a summary court-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next pay grade.

Accused do not have a right to counsel at a summary court-martial. However, pursuant to Rule for Court-Martial 1301(e), an accused may have a defense counsel represent them at a summary court-martial provided the appearance of counsel does not unreasonably delay the proceedings. And an accused has the right to object to this forum, and demand a trial by another court-martial.

Where can you appeal a court-martial?

Service Court of Appeals

Article 66 of the UCMJ mandates that each Judge Advocate General shall establish a Court of Criminal Appeals. The Courts of Criminal Appeals are staffed by senior judge advocates, normally in the grade of 0-5 and 0-6, and sit in three judge panels. These bodies are known as the Air Force Court of Criminal Appeals, the Army Court of Criminal Appeals, the Coast Guard Court of Criminal Appeals, and the Navy Court of Criminal Appeals (which also encompasses the Marines).

These service Courts of Criminal Appeals must review all cases where the judgement from a court-martial includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more. A Court of Criminal Appeals will also have jurisdiction in timely appeals filed by convicted servicemembers who are sentenced to more than 6 months confinement but are not discharged, or in cases where the government had previously filed an appeal under Article 62.

Court of Appeals for the Armed Forces

Article 67 mandates review of service courts by the Court of Appeals for the Armed Forces (CAAF). This Court is composed of five civilians who are appointed by the president to 15-year terms, and confirmed by the Senate. They have jurisdiction over the service Court of Criminal Appeals, and also demonstrate the continued civilian control over the military, as these civilians, for all practical purposes, serve as the last check on military justice. (The U.S. Supreme Court has jurisdiction to oversee military cases, but rarely does so, and most appellants should not count on the Supreme Court hearing their case.)

All appellants have the right to petition CAAF within 60 days of the decision by the Court of Criminal Appeals. CAAF does not have to review all these cases, and practically only grants a small fraction of the petitions before it. However, CAAF must review all cases where an appellant was sentenced to death, and all cases certified for appeal by the Judge Advocate General of any one of the branches.

One of the distinctions between CAAF and the Courts of Criminal Appeals is the scope of their review. Article 66(d)(1) provides a positive mandate for the Courts of Criminal Appeals to affirm only such findings of guilt and the sentence as the Court finds correct in law and fact, and what it determines should be approved. This means these courts conduct a factual sufficiency review, to determine if there is sufficient evidence to prove guilt beyond a reasonable doubt. It also means they can determine the appropriateness of a sentence for reasons other than legal error. In contrast, Article 67(c)(4) provides CAAF may only take action with respect to matters of law. So CAAF does not have jurisdiction to conduct a factual sufficiency or sentence appropriateness review of the case.

If you find yourself facing a court-martial or other military justice proceeding, I know just how complex these matters can be. I encourage you to reach out for a free consultation about your rights.

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