Military Law

Military Law

What is Military Law?

Military Law is a very important legal system.   There is a distinct legal system that applies to members of the armed forces. Military law in the United States is controlled by the Uniform Code of Military Justice, Title 10 United States Code, Chapter 47. Military Law is implemented by the Manual for Courts-Martial, an Executive order issued by the President of the United States.

Commanding Officers are very important to military law. They have the authority to impose non-judicial punishment. The Commanding Officers also has many other responsibilities. Commanding officers authorize searches and seizures of property; make the initial determination to confine an accused; and exercise prosecutorial discretion. In exercising discretion, a Commanding Officer may dismiss charges; effect non-punitive measures; impose non-judicial punishment; or refer a matter to court-martial.

One are of Military Law is Non-judicial punishment. Non Judicial punishment provides U.S. military commanders the essential means of maintaining good order and discipline. The proceedings are called different terms by the different branches of the armed forces. The Army and the Air Force refer to it as an “Article 15”, the Navy calls it “Captain’s Mast” or “Admiral’s Mast”, and the Marine Corps refers to it as “office hours”. These are how the various areas of the military handle military law.

Servicemembers are notified by the commander as to the nature of the misconduct of which he or she is accused, what supporting evidence there is, and the commander’s intent to impose non-judicial punishment. The commander then holds a hearing at which the servicemember may be present. The member may also have a spokesperson attend the hearing, may present evidence to the commander, and may request that the commander hear from certain witnesses. The commander must consider any information offered during the hearing, and must be personally convinced that the member actually committed misconduct before imposing punishment. Maximum penalties depend on the rank of the accused and that of the officer imposing punishment.

Members that consider the punishment to be unjust or disproportionate to the misconduct committed, they can appeal to higher authority. The appeal authority may set aside the punishment, decrease its severity, or deny the appeal, but may not increase the severity of the punishment. If they do not feel their Commanding Officer will give them a fair hearing, they can opt for a Court Martial instead. This is the process of military law.

Maximum allowable penalties for accused officers:

If the officer imposing punishment holds General Court Martial authority, or a commanding officer of the grade O-7 or greater:

  • Arrest in quarters: not more than 30 days.
  • Restriction to limits: not more than 60 days.
  • Forfeiture of pay: not more than 1/2 of one month’s pay per month for two months.
  • Admonition or reprimand.

By Commanding Officers of the grades O-4 to O-6:

  • Restriction to limits: not more than 30 days.
  • Admonition or reprimand.

By Commanding Officers of the grades O-1 to O-3

  • Restriction to limits: not more than 15 days.
  • Admonition or reprimand.

By Officers In Charge:

  • No NJP authority over Officers.

Maximum possible punishments for enlisted soldiers:

For Commanding Officers at the grade of O-4 or above are:

  • Restriction to specific limits (normally work, barracks, church, mess hall, and medical facilities) for not more than 60 days
  • Extra duties, including fatigue or other duties, for not more than 45 days
  • Restriction with extra duties for not more than 45 days
  • Correctional Custody for not more than 30 days (only if accused is in the grades E-3 and below)
  • Forfeiture of one half of base pay for two months
  • Reduction by one grade. Not imposable on E-6 or above for USMC, or E-7 or above for other services
  • Confinement on diminished rations for not more than 3 days (USN and USMC E-3 and below only, and only when embarked on a vessel)
  • Admonition or reprimand, either written or verbal.

For Commanding Officers at the grade of O-3 or below and commissioned OIC:

  • Restriction to specific limits (normally work, barracks, church, mess hall, and medical facilities) for not more than 14 days
  • Extra duties, including fatigue or other duties, for not more than 14 days
  • Restriction with extra duties for not more than 14 days
  • Correctional Custody for not more than 7 days (only if accused is in the grades E-3 and below)
  • Forfeiture of 7 days pay
  • Reduction by one grade, if original rank in promotion authority of imposing officer. Not imposable on E-6 or above for USMC, or E-7 or above for other services
  • Confinement on diminished rations for not more than 3 days (USN and USMC E-3 and below only, and only when embarked on a vessel)
  • Admonition or reprimand, either written or verbal.


Court Martial

A court-martial is a military court that determines punishments for members of the military subject to military law. There are lawyers representing the government, and lawyers representing the accused. Civilian counsel may be retained at the accused’s own expense. Both sides present the facts, legal aspects, and arguments most favorable to them. This follows the rules of procedure and evidence. It is then up to the judge to decide questions of law. The court-martial members apply the law and decide questions of fact. Only a court-martial can determine innocence or guilt. General and special court-martial convictions are equivalent to federal court convictions. This is military law.

Types of Court-Martials:

Summary Court-Martial Trials provide a simple procedure for resolution of charges involving minor incidents of misconduct. The summary court-martial consists of one individual, typically a judge advocate. The maximum punishment imposable by a summary court-martial is considerably less than a special or general court-martial. The accused must consent to trial by summary court-martial before the court can commence. This is the summary court martial trial area of military law.

Special Court-Martials are the intermediate level of courts. An accused facing a special court-martial can be sentenced to no more than one year confinement (or a lesser amount if the offense has a lower maximum), forfeiture of two-thirds pay per month for six months, a bad conduct discharge (for enlisted personnel), and certain lesser punishments. This is the special court-martial area of military law.

General court-martials set the maximum punishment for each offense under the Manual for Courts-Martial (MCM), and may include death (for certain offenses), confinement, a dishonorable or bad conduct discharge for enlisted personnel, a dismissal for officers, or a number of other forms of punishment. Before a case goes to a general court-martial, a pretrial investigation under Article 32 of the Uniform Code of Military Justice must be conducted, unless waived by the accused. An accused before any court-martial is entitled to free legal representation by a defense counsel, and can also retain civilian counsel at his or her own expense. This is the general court-martial area of military law.

Military Law Cases involving a punitive discharge or dismissal or confinement for one year or more will undergo automatic review by the appropriate military court of criminal appeals, unless the accused waives such review. The Court of Criminal Appeals can correct any legal error it may find, and it can reduce an excessive sentence. The accused will be assigned an appellate defense counsel to represent him or her at no cost before the Court. Beyond the Court of Criminal Appeals, the accused can petition the United States Court of Appeals for the Armed Forces for further review. That court consists of civilian judges, and it can correct any legal error it may find. Appellate defense counsel will also be available to assist the accused at no charge. Again, the accused can also be represented by civilian counsel, but at his or her own expense. Beyond that court, it is possible to petition the United States Supreme Court to review the case, although such petitions are rarely granted. This is all part of military law.

 

 

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