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The Military Justice System - A Brief Overview

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Title: The Military Justice System - A Brief Overview


1
The Military Justice System -A Brief Overview
  • Presented byNinth District Legal Office

2
Origins of the Military Justice System
  • 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)

3
Purpose of the UCMJ?
  • 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

4
Noticejustice is first!
It is the function of the courts to make
surethat 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
5
UCMJ jurisdiction
  • Civil Court Jurisdiction is territorial (e.g.,
    city, county, state, district, etc.
  • Courts-martial jurisdiction is based on STATUS of
    individuals

6
Status Whos subject to UCMJ?
  • Active duty members
  • Reservists while in drill/active duty status
  • Academy cadets
  • PHS members serving w/ Armed Forces
  • Prisoners of War
  • Civilians serving w/ Armed Forces during war
  • Retired members receiving pay

7
Crimes under the UCMJ
  • Common law crimes (e.g., rape, murder, robbery,
    etc.)
  • Uniquely military offenses
  • Conduct prohibited under the General Articles

8
What are Uniquely Military Offenses?
  • If you work for Microsoft, youd call it
  • Late for work
  • Cuss out your boss
  • Ignore bosss guidance
  • But, youre in the Coast Guard, so you call it
  • Unauthorized Absence
  • Disrespect to Superior
  • Failure to obey orders

9
General articles
  • 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)

10
Elements
  • 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

11
Military justice system process overview
  • Multi-tiered criminal justice system
  • Designed to be fair, yet practical
  • Designed to be easily implemented in field
  • CO plays a key role
  • Procedural protections afforded the accused
    expand with more serious offenses that are
    referred to more formal forums

12
Types of military justice proceedings
  • Non-Judicial Punishment (Article 15)
  • Summary Court-Martial
  • Special Court-Martial
  • General Court-Martial

13
GCM
R I G H T S
SpCM
SCM
NJP
PENALTY
14
Captains Mast (NJP)
  • Nonjudicial Punishment (NJP) can be imposed by
    any CO/OIC on a member attached to his/her
    command
  • Reserved for minor offenses (lt1 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

15
NJP process
  • Command receives report of Offense (CG-4910)
  • XO reviews and then assigns a Preliminary Inquiry
    Officer (PIO) to investigate
  • PIO 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

16
Members rights
  • 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.

17
Mast Rep vs. Spokesperson
  • Mast Representative
  • Appointed 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
  • Spokesperson
  • Can be anyone including attorney
  • Member must pay costs of spokesperson
  • Spokesperson can speak on members behalf when
    asked by CO
  • Cannot examine or cross examine witnesses
  • No right to both spokesperson and mast rep/ COs
    decision

18
MAST proceedings
  • Rules of evidence do not apply
  • Open to public
  • Burden 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

19
Punishment
  • 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 discharge
  • Finding does not result in conviction
  • Command can suspend punishment

20
NJP limits--Officers
NJP Imposed by Flag O4 O3- Admonition Yes Y
es Yes Arrest in Quarters 30 No No Restriction
60 30 15 Forfeitures 1/2 ppm No
No 2mos Reprimand Yes Yes Yes
21
NJP limits--Enlisted
O4 or gt CO CO OIC Reprimand Yes Yes No CC(
E3 below) 30 7 No Extra Duties 45 14 14 Res
triction 60 14 14 Forfeitures 1/2ppm 7 days
3 days 2mos Reduction Yes Yes No (E6
below)
22
Appeal of NJP
  • 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 Commander
  • Reviewed by Law Specialist
  • Review must be done within 5 days of submission
    or member can request punishment be deferred
    until appeal decided

23
Summary Court-Martial
  • Also generally for minor offenses
  • Quasi-judicial in nature
  • No right to appointed counsel may bring own
    counsel
  • Guilt/punishment decided by 1 officer
  • Rules of evidence do apply
  • Standard of proof beyond a reasonable doubt
  • Member can refuse
  • Member can consult w/ appointed counsel to decide

24
Summary Court-Martial sentence limitations
  • 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

25
Special Court-Martial
  • Appropriate for all offenses except serious
    felonies
  • Judicial in nature federal conviction if found
    guilty
  • Right to appointed counsel, civilian lawyer at
    own expense
  • Military judge presides
  • Guilt/punishment determined by at least 3
    officers (2/3 to convict) or MJ if you waive
    right to members
  • Enlisted has right to 1/3 enlisted members on
    panel (from other than accuseds unit)

26
Special Court-Martial (continued)
  • Rules of evidence apply
  • Standard of proof beyond a reasonable doubt
  • Max punishment 1 year confinement, BCD,
    fine/forfeiture of 2/3 pay per month for 1 year
  • Can be convened by any CO

27
General Court-Martial
  • Appropriate for most serious felony cases
  • Judicial in nature federal conviction if found
    guilty
  • Right to appointed counsel/ civilian lawyer at
    own expense
  • Military judge presides
  • Guilt/punishment determined by at least 5 members
  • 2/3 to convict
  • 3/4 for sentence gt 10yrs
  • Unanimous for death sentence

28
General Court-Martial
  • Rules of evidence apply
  • Standard of proof beyond a reasonable doubt
  • Max punishment death, life in prison, total
    forfeitures (depending on offense)
  • Can be convened only by Flag rank officer

29
Role of Convening Authority
  • Chooses type of forum case is decided by
  • Chooses charges that go to trial
  • Decides whether to plea bargain
  • Chooses members who serve on court
  • May disapprove any finding of guilt
  • May disapprove/reduce any portion of sentence
  • Role is unique to the military justice system.

30
Pretrial confinement
  • Arrest or Confinement for violation of UCMJ
    requires probable cause
  • Cant impose punishment for charges before trial
  • Can 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

31
UCMJ system safeguards
  • Right to appointed counsel even if not poor
  • Right to be free from compelled
    self-incrimination unreasonable search and
    seizure
  • Right to speedy trial
  • Right to confront witnesses
  • Presumption against pretrial confinement
  • Presumption of innocence
  • Requirement that guilt be established beyond a
    reasonable doubt

32
UCMJ system safeguards (continued)
  • Right to trial by military members
  • Charges may only be referred to GCM by Flag rank
    officer (more experienced, more detached)
  • Right to present evidence in extenuation
    mitigation on sentencing
  • Right to petition convening authority for
    clemency after sentencing
  • Right to refuse NJP (ashore) and SCM
  • Prompt review of NJP appeals

33
Special Provisions
34
Reserve rules
  • Reserve member may be ordered to active duty
    (pursuant to regulations promulgated by the
    Secretary), for the purpose of
  • Article 32 Investigation
  • Trial by Court-Martial
  • Nonjudicial Punishment (Captains Mast)
  • But only for offenses committed while on active
    duty or in a drill status

35
Article 31(b)
  • 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.

36
Complaint of Wrongs (Art. 138)
  • 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.

37
Redress of injuries to property (Art. 139)
  • 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

38
Where to get more information
  • Manual for Courts-Martial
  • Military Justice Manual
  • Personnel Manual
  • Call the Legal Office
  • Contact information
  • Ninth District Legal Office
  • 1240 East 9th Street
  • Cleveland, Ohio 44199-2060
  • (216) 902-6010

39
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