Military Justice
Military Justice Overview
--.
A.
B.
C.
D.
E.
F.
Basic considerations
Nonpunitive disciplinary measures
Elimination proceedings [AR635-200]
Nonjudicial punishment [Article 15]
Unlawful command influence
Court-martial system
Pretrial restraint
Commander Focus
• Short-term
• Long-term:
– Integrated
leadership system
for dealing with
problem soldiers:
– Select correct
command response
by beginning with the
end in mind
– Apply command
response correctly:
• Right tool
• Right level
• Proper standard
• Proper procedure
– Trial counsel reliance
Criminal Law: Civilian vs. Military
• More similarities than differences:
– Sources
– Practitioners
– Analytic approaches and procedures
• Differences:
– Purposes
– Decisionmakers
– Jurisdiction
– Offenders
Purposes of Military Justice
• Promote justice
• Assist in maintaining good order and
discipline in the armed forces
• Promote efficiency and effectiveness in
the military establishment [and thereby]
• Strengthen the national security of the
United States
Decisionmakers:
Command Involvement
• Making commander the decision-maker
• Maintaining fairness by avoiding
unlawful command influence
• Augmenting commander’s nonpunitive
options to deal with poor performance
with punitive options to deal with
misconduct
Disciplinary Options
• Take no action
• Nonpunitive options
• Punitive options
– Nonjudicial punishment [Article 15, UCMJ]
– Courts-martial
Examples of Disciplinary Options
• Nonpunitive options
–
–
–
–
–
Counseling
Corrective training
Reprimand
Bar to reenlistment
Adverse efficiency
reports
– Administrative
separation
• Punitive options
– Nonjudicial
punishment
• Summarized
• Formal
– Court-martial
•
•
•
•
Summary
Special
BCD-Special
General
Distinctions Between Nonpunitive
and Punitive Options
Option
Goal
Role
Standard
Nonpunitive Correct Poor Supervisor Preponderance
of Evidence
Performance
Punitive
Punish Crime
Judge
Beyond
Reasonable
Doubt
Distinctions Between Nonpunitive
and Punitive Options
• Supervisors use less-severe
nonpunitive options to correct poor
performance
• Severe nonpunitive options generally
require command involvement or
approval
• Commanders use punitive options to
punish
Nonpunitive Options:
1. Preliminary Inquiry
• RCM 303
• Company
commander
responsible for
conducting a
preliminary inquiry
to determine how to
dispose of report of
misconduct by
soldier in unit
Nonpunitive Options Preliminary Inquiry - First Steps
• Prevent further harm
• Preserve evidence
• Notify:
– Chain of command
– Soldier’s supervisors
• Locate suspected soldier
Nonpunitive Options Preliminary Inquiry - Second Steps
• Begin coordination with investigators
and trial counsel
• Flag soldier
• Begin fact-finding
• Begin determining applicable law &
regulation
• Begin framing range of options
Factfinding
•
•
•
•
Incident
Victim impact
Impact on morale & discipline
Other aggravating and
mitigating factors
• Accused
– Past offenses
– Past duty performance
– Current performance
– Military character
– Future potential
•
•
•
•
•
•
•
•
Accused
Victim
Family of accused
Family of victim
Unit’s leaders
Unit’s soldiers
Military public
General public
Nonpunitive Options:
2. Counseling
• Can be oral or written, positive or negative
• Purposes of negative counseling:
– Identify poor performance
– Determine reasons for poor performance
– Develop plan to improve poor performance
– Ensure understanding of adverse
consequences if performance does not
improve
– Document basis for more severe options
Nonpunitive Options:
2. Counseling with a View toward Separation
AR 635-200, para 1-18
• Counseling with a view toward separation, aka
“rehabilitative counseling” or “1-18 counseling”
• Required before initiating many separation actions
• Required contents:
– Reason for counseling
– Separation action may be started if problem persists
– Type of discharge that could result from separation
action
• OSJA has pre-printed forms
Nonpunitive Options:
3. Corrective Training AR 600-20, para 4-6
• Extra training during or after duty hours
• Requirements:
– Connection [nexus] between poor
performance and corrective training
– Must be monitored
– Must cease when training goal
accomplished
• Primary tool for the NCO
• Examples
Nonpunitive Options:
4. Loss of Discretionary Benefits e.g., AR 600-8-10, chap 2 [pass]
• Abuse of privilege justifies loss of
privilege - nexus required
• Examples:
– Loss of post driving privilege for DWI
– Loss of pass privilege for FTR
– Loss of check privilege for rubber checks
– Loss of PX privilege for shoplifting
• Written counseling used to document
Nonpunitive Options:
5. Admonition and Reprimand AR 600-37, chap 3
• Can be oral or written [“memorandum of
reprimand”]
• If written, can be filed locally or
permanently [“OMPF filing”]
• OMPF filing a career-terminator
• Mandatory GOMOR for drunk driving often filed in OMPF- AR 190-5
Nonpunitive Options:
6. MOS Reclassification AR 600-200, ch 2
• Grounds: Misconduct or inefficiency
incompatible with “the technical, supervisory or
other requirements of the MOS.”
• If loss of MOS required due to misconduct, must
first be processed for administrative separation
UP AR 635-200
• Examples:
– Military Police
– Legal Specialists
– Security Analysts
• Command involvement
Nonpunitive Options:
7. Suspension/Revocation of
Security Clearance - AR 380-67, ch 8
• Broad Grounds: Soldier’s misconduct
or other behavior raises serious
questions about continued access to
classified materials
• Examples:
– Substance abuse
– Financial difficulties
– Excessive gambling
Nonpunitive Options:
8. Adverse Efficiency Reports
• OERs [AR 623-105] & NCOERs [AR 623-205]
• Misconduct: Must be substantiated
• Poor performance: Must be well-documented
[written counseling,etc.] IAW local guidance
F
Nonpunitive Options:
9. Bar to Reenlistment AR 601-280, ch 8
• No right to a career
• Broad grounds
• Mandatory initiation of
separation
proceedings if soldier
fails to improve
• Anticipate tightened
requirements if
recruiting shortfalls
continue
Nonpunitive Options:
10. Administrative Reduction AR 600-8-19, chap 6
• Broad Grounds: “Any action or course
of conduct affirmatively evidencing that
the [soldier]… lacks those abilities and
qualities required and expected of a
person of that grade and experience.”
• Approval authority:
– E-4 and below - company commander
– E-5 and above - right to board proceeding
B. Administrative Separation AR 635-200
• Generally requires approval by battalion or
brigade commander
• Right to board if soldier has more than 6
years of service or OTH discharge sought
• Rehabilitative counseling generally required
• Renewed emphasis on taking other
rehabilitative measures because of:
– Recruiting shortfalls
– Increased investment in training soldiers
B. Administrative Separation Developments
• 114,451 enlisted separations for FY97
• Overall enlisted attrition:
15% lost in first six months
+ 22% more lost before initial ETS
37% overall attrition
• Chap 11 and 13 will generally be
rehabilitatively transferred before initiating
separations [see para 1-18c, AR 635-200]
• Voluntary Chap 16 no longer available
Some Types of Administrative
Separation
•
•
•
•
Parenthood
Personality disorder
Overweight
Entry-level
separation
• Fraudulent entry
• Rehabilitative
failure/substance
abuse
• In lieu of courtmartial
• Unsatisfactory
performance
• Pattern of
misconduct
• Commission of a
serious offense
• Homosexuality
B. Administrative Separation Characterization of Discharge
• Administrative discharges:
– Honorable
– General
– Other than honorable [OTH]
• Punitive discharges:
– Bad conduct discharge [BCD]
– Dishonorable discharge [DD]
• Consequences of receiving anything except an
honorable discharge:
- Perception
- College Fund
- Other benefits
B. Administrative Separation Characterization of Discharge
• Admin options for characterizing discharge:
– Honorable
– General
– Other than honorable
• Availability of options vary by type of
separation, e.g., chapter 14 for misconduct
can result in:
– Honorable [ordered by GCMCA]
– General [ordered by SPCMCA]
– Other than honorable [ordered by GCMCA
after formal board proceedings]
B. Administrative Separation Board Proceedings
• Soldier has right to board when:
– Soldier has more than 6 or more years of AD and
RC service on date of initiation of separation
– OTH discharge sought
– Homosexuality [Chap 15]
• Board recommends:
– Whether respondent be retained or separated
– How respondent’s discharge is characterized
• Separation authority decides:
- Retention/separation
- Suspension
- Characterization
B. Administrative Separation Officers - AR 600-8-24
• Broad grounds:
– Substandard performance of duty
– Moral and professional dereliction
– In the interests of national security
• Expedited procedures for probationary
officers
B. Administrative Separation Homosexuality
• Investigative responsibility:
– Unit: Consensual acts between adults
– Criminal investigation:
• Force
• Children
• Fraternization [?]
• DO NOT start either unit or criminal investigation
until you have established that:
– Allegation meets definition of homosexual
conduct [Statements, Acts, Marriage]
– Allegation is credible
Distinctions Between Nonpunitive
and Punitive Options
Option
Goal
Role
Standard
Nonpunitive Correct Poor Supervisor Preponderance
of Evidence
Performance
Punitive
Punish
Crime
Judge
Beyond
Reasonable
Doubt
Distinctions Between Nonpunitive
and Punitive Options Can Blur
• Some performance problems are also
military crimes, e.g. FTR, AWOL,
dereliction of duty
• Some nonpunitve options involve
severe sanctions
• Rule of thumb: Commanders become
involved when distinctions blur
Drunk Driving
• RCM 303
Preliminary inquiry:
– What facts?
– Which sources?
• Nonpunitive options
+
– Mandatory
– Other
• “Double jeopardy?”
Punitive Options
C.
Nonjudicial Punishment [NJP]
Summarized
Formal
D.
E & F.
Unlawful Command Influence
Courts-Martial
Summary
Special
BCD-Special
General
1. Purposes of Nonjudicial
Punishment [NJP]
• Correct, educate and reform offenders who
cannot benefit from less stringent measures
• Preserve a soldier’s record from the
unnecessary stigma of a court-martial
conviction
• Further military efficiency by disposing of
minor offenses in a manner requiring less
time and personnel than trial by court-martial
1. Authority to Impose Nonjudicial
Punishment [NJP]
• Commander [commissioned or warrant
officer] exercising primary command
authority over a military organization or
territorial area
• Commanders can impose nonjudicial
punishment upon members of their
command
1. Nonjudicial Punishment:
Minor Offenses
• Use of nonjudicial punishment normally
confined to minor offenses
• Minor offenses are those which have
maximum punishments not containing a
dishonorable discharge or confinement for
longer than one year
• Maximum punishments are noted in the
Punitive Articles [Part IV, MCM] and Appendix
12, MCM
1. Nonjudicial Punishment:
Double Jeopardy
• Misconduct can only be punished once under
Article 15
• BUT…
– Non-minor offenses can also be tried by
court-martial
– Off-post misconduct can be punished by
both military and civilian authorities
– Use of nonjudicial punishment does not
prevent use of nonpunitive options
Types of Nonjudicial Punishment
Procedures
• Summarized
[DA Form 2627-1]
• Formal
[DA Form 2627]
– Company grade
– Field grade
Rules Applicable to Both Types of
NJP [Summarized and Formal]
– Must address UCMJ offense
– Soldier may refuse NJP and “demand” trial by
court-martial
– Guilt must be established beyond reasonable
doubt
– Finding of guilty not a criminal conviction
NCIC
Rules Applicable to Both Types of
NJP [Summarized and Formal]
– Company commander may not delegate authority
to determine guilt or select punishment to, e.g.,
1SG or PLT LDR
– Soldier may appeal findings & punishments
– Findings may be posted or announced:
• Delete SSAN on posted forms
• Post findings of not guilty
• Consider carefully before posting findings if
accused is a NCO
a. Summarized Proceedings
• Least-severe punitive action
– Use to address least-severe misconduct
– Use when mildest punishment is all that is
required, e.g., outstanding soldier
• Maximum punishments:
– Oral reprimand
– Extra Duty for 14 days
– Restriction for 14 days
a. Summarized Proceedings
• Advantages:
– Can be handwritten
– Fast - soldier only has 24 hours to decide
whether to accept
– No stigma - stays in local records for 2
years or until soldier transferred
• Limitations:
– Can only be used for enlisted accused
– No right to see Trial Defense Service [TDS]
Maximum Punishments:
Formal Proceedings
• Imposed by
company grade cdr:
– 14 days
restriction/extra
duty
– 7 days correctional
custody [E-3 and
below]
– 7 days pay
– 1 grade reduction
[E-4 and below]
• Imposed by field grade
commander:
– 60 days restriction
– 45 days extra duty
– 30 days correctional
custody [E-3 and
below]
– 1/2 month pay for 2
months
– E-4: 1 or more grade
E-5: 1 grade*
Rights in Summarized & Formal NJP
• Summarized:
– Normally 24 hours to
decide
– Right to refuse
– Right to present
evidence
– Right to remain silent
– No right to consult a
lawyer
– No right to request
spokesman
– No right to open
hearing
• Formal:
– Normally 48 hours to
decide
– Right to refuse
– Right to present
evidence
– Right to remain silent
– Right to consult
lawyer
– Right to request
spokesman***
– Right to open hearing
Hypothetical
• Question:
– What do you do if you have
notified accused of intent to
use formal proceedings, he’s
seen TDS lawyer, 48 hours
have elapsed, and he
remains silent when you ask
him if he “demands” trial by
court-martial?
Hypothetical
• Question:
– What do you do if you have
notified accused of intent to
use formal proceedings, he’s
seen TDS lawyer, 48 hours
have elapsed, and he
remains silent when you ask
him if he “demands” trial by
court-martial?
• Answer:
– Proceed with
formal Article 15
Distinctions Between Summarized &
Formal Proceedings
• Summarized proceedings cannot be
permanently filed
• Summarized proceedings cannot be
offered to officers
• Soldier afforded more rights in formal
proceedings because soldier has more
at risk
NJP: Practical Pointers
• Don’t offer when charge cannot be won
at court-martial
• Speed counts
• Make supervisors use nonpunitive
options, and use NJP when nonpunitive
options fail
• Use suspension wisely
Punitive Options
C.
Nonjudicial Punishment [NJP]
Summarized
Formal
D.
E & F.
Unlawful Command Influence
Courts-Martial
Summary
Special
BCD-Special
General
D. Unlawful Command Influence
• Higher commanders may not order lower
commanders to take punitive action in any
particular way
• Higher commanders may not impose
punishment guidelines for nonjudicial
punishment
• Higher commanders may withhold authority
to take punitive action for classes of offenses
or offenders or for individual cases
Punitive Options
C.
Nonjudicial Punishment [NJP]
Summarized
Formal
D.
E & F.
Unlawful Command Influence
Courts-Martial
Summary
Special
BCD-Special
General
E. Court-Martial:
Initiation and Disposition of CourtMartial Charges
• RCM 303 Preliminary Inquiry - company
commander’s responsibility
• Drafting charges and specifications
• Preferral
• Notification of the accused
• Forwarding to convening authority
• Pretrial investigation [Article 32 Inv.]
• Referral to court-martial
Preliminary Inquiry - RCM 303
• Follow the rules in collecting evidence
• Involve trial counsel and military police
investigators
• Match facts to elements of offense
Preferral of Charges
• Victim’s acquiescence or permission not
required
• Anyone subject to UCMJ may prefer charges
• Charges usually preferred by company
commander
• Person preferring charges swears she has
personal knowledge of or has investigated
the matters charged and that they are true in
fact to the best of her knowledge and belief
Notification of the Accused
• Responsibility of company commander
• Accused notified of:
– Charges
– Person preferring charges
– Person ordering charges preferred
• Usually accomplished by giving
accused copy of charge sheet
Forwarding Charges to Convening
Authority
• A convening authority is an officer with the authority
to convene courts-martial and refer individual cases
to court-martial
• Level
Summary
Usual Rank Usual Command
LTC
Battalion
Special
COL
Brigade
BCD-Special
General
GO
GO
Division or Installation
Division or Installation
• Company commander forwards charges to SCMCA
with recommendation
Levels of Court-Martial:
Summary Court-Martial
• Single commissioned officer functions
as judge, trial counsel and defense
counsel
• Accused may object to trial by summary
court-martial
• Maximum punishments roughly
equivalent to field grade nonjudicial
punishment
Levels of Court-Martial:
Special Court-Martial
• Detailed military judge is presiding officer
• Detailed trial counsel presents government’s
case against the accused [prosecutor]
• Accused represented by defense counsel
• Panel consists of at least 3 persons
• Maximum punishments: Confinement for 6
months [1 year in March 2000], hard labor
without confinement for 3 months, forfeiture of
two-thirds pay for six months and REDLAG
Levels of Court-Martial:
BCD-Special Court-Martial
• Same as SPCM, except . . .
• General court-martial convening authority
• Maximum punishments: Bad Conduct
Discharge [BCD], confinement for 6 months
[1 year in March 2000], hard labor without
confinement for 3 months, forfeiture of twothirds pay for six months and REDLAG
Levels of Court-Martial:
General Court-Martial
•
•
•
•
Panel consists of at least 5 members
Can adjudge any authorized sentence
Can dismiss or confine officers
Accused entitled to pretrial investigation
[Article 32 hearing] before referral to
general court-martial
– Article 32 provides discovery opportunity to
accused and defense counsel
Levels of Court-Martial:
Accused’s Right to Attorney Representation
• Accused has right to attorney representation
at SPCM, BCD-SPCM and GCM
• Right to attorney representation means
accused has right to choose:
– Military defense counsel detailed by TDS
– Military attorney of soldier’s choosing if that
attorney is reasonably avai8lable
– Civilian attorney at no expense to the
Government
• Waivable right?
5. Article 32 Pretrial Investigation
• Roughly equivalent to grand jury proceeding
• Required before referral to GCM
• Ordered whenever trial by GCM contemplated;
can be waived by accused
• Investigating Officer [IO] responsibilities:
– Certify charges & specifications are in proper form
– Inquire into truth of charges and conclude whether
reasonable grounds exist to believe accused
committed the offenses alleged
– Recommend disposition of charges
7. Court-Martial Trial Procedure
• Pretrial 39a session
• Qualification of court
members [Voir Dire]
• Presentation of
evidence
• Findings
•
•
•
•
Sentence
Post-trial actions
Appellate review
Pretrial agreements
7. Court-Martial Trial Procedure:
a. Pretrial Article 39a Session
•
•
•
•
•
•
Qualifications of military judge
Election of forum
Arraignment
Motions
Pleas
Providency inquiry
7. Court-Martial Trial Procedure:
b.Qualification of Court-Martial Panel
• Voir dire of members by military judge,
defense counsel and trial counsel
• Challenges for cause
• Each side allowed one peremptory
challenge
7. Court-Martial Trial Procedure:
Presentation of Evidence
• Opening instructions by military judge
• Opening statements by trial counsel and defense
counsel
• Presentation of government’s case by trial counsel
• Presentation of accused’s case by defense counsel
• Final argument by trial counsel and defense
counsel
• Final instructions by military judge
7. Court-Martial Trial Procedure:
c. Findings
• Authorized findings:
– Not guilty
– Guilty
– Guilty of a lesser included offense
– Not guilty only by reason of a lack of
mental responsibility
• One vote by secret written ballot - no hung
juries
• At least two-thirds needed to convict:
• 8 = 2/3 x 11
7. Court-Martial Trial Procedure:
d. Sentence
• Trial counsel presents evidence in aggravation
• Defense counsel presents evidence in extenuation
and mitigation
• Military judge issues sentencing instructions
• Panel procedure:
– Sentences proposed & ranked from least to most
severe
– Sentences voted:
• Death sentence must be unanimous
• Confinement for life or >10 years requires 3/4
• All others require 2/3
7. Court-Martial Trial Procedure:
e. Post-trial Actions
• Preparation and authentication of record of
trial
• Staff Judge Advocate [SJA] prepares posttrial review
• Defense counsel submits clemency matters
• Convening authority consideration:
– Can reject [disapprove] any finding of guilty
– Can reduce, suspend or dismiss any
sentence
7. Court-Martial Trial Procedure:
f. Pretrial Agreements
• Plea bargain between accused & convening
authority
• Only the convening authority can bind the
government in a pretrial agreement
• Accused agrees to plead guilty to some or all
charges in exchange for sentence limitation
• Government avoids uncertainty, delay and
expense of full trial
F. Pretrial Restraint
• No bail in military
• Types of pretrial restraint:
– Conditions on liberty
– Restriction in lieu of arrest
– Arrest
– Pretrial confinement
F. Pretrial Confinement:
Legal Basis
• Offense triable by court-martial has been
committed
• Probable cause to believe prisoner committed
it
• Probable cause to believe that confinement is
necessary because foreseeable that:
• Prisoner is flight risk OR
• Prisoner will engage in serious criminal
misconduct
• Less severe forms of restraint are inadequate
F. Pretrial Confinement:
• Logistical challenges
• Multiple reviews
– Local regulation may require SJA approval
– Neutral and detached officer’s 48-hour
probable cause determination [RCM 305i]
– Commander’s 72-hour review and
memorandum [RCM 305h(1)]
– Magistrate’s 72-hour review [RCM 305h(2)]
– Military judge’s initial review [RCM 305j]
– Military judge’s remedial authority
Long-Term Summary:
References
• Nonpunitive options
– Leader Guide
– Applicable AR
• Nonjudicial
punishment
– Manual for CourtsMartial, United
States (1998
Edition)
– AR 27-10
• Court-martial
– Manual for CourtsMartial, United
States (1998
Edition)
– Local Reg “27-10”
• All
– Trial Counsel