A PROPOSAL TO MAKE COURTS-MARTIAL
COURTS: THE REMOVAL OF COMMANDERS
FROM MILITARY JUSTICE
Charles W. Schiesser·
Daniel H. Benson **
Having offered in the past various suggestions for reform of the
American system of military justice, I the authors now submit what
they believe to be a comprehensive revision of the Uniform Code of
Military Justice (UCMJ) which goes to the heart of the problem, as
they see it, rather than merely the symptoms. It should be explained
at the outset that the authors do not agree on all aspects of military
justice. Colonel Schiesser is of the opinion that the present system
under the UCMJ, 2 as administered by the various armed forces,
represents an enlightened system of military criminal law which is
generally satisfactory for its stated purposes, and which should
encompass jurisdiction over all offenses described in the UCMJ,
wherever committed. 3 It is his view that the reform now proposed
* Colonel, U.S. Army, JAGC; Military Judge. B.A., Concordia, 1955; J.D., University
of Minnesota School of Law, 1958; LL.M., Georgetown University School of Law, 1963;
S.J.D., George Washington University School of Law, 1971. The opinions and conclusions
expressed herein by Colonel Schiesser are his own and do not necessarily represent the views
of the U.S. Army or any other government agency.
** Assistant Professor of Law, Texas Tech University. B.A., University of Texas at
Austin, 1958; J.D., University of Texas, 1961; M.A., Texas Tech University, 1974.
1. Benson, Military Justice in the Consumer Perspective, 13 ARIZ. L. REV. 595 (1971)
[hereinafter cited as Benson); Benson, The United States Court of Military Appeals, 3 TEX.
TECH L. REV. 1 (1971); Benson, The Military Jury: An Unrepresentative Tribunal?, 7 TRIAL,
Sept.!Oct. 1971, at 40; Schiesser & Benson, Modern Military Justice, 19 CATHOLIC U.L. REv.
489 (1970) [hereinafter cited as Schiesser & Benson); Schiesser, Trial by Peers: Enlisted
Members on Courts-Martial, 15 CATHOLIC U.L. REV. 171 (1966).
2. 10 U.S.C. §§ 801-940 (1970) (originally enacted as Act of May 5, 1950, ch. 169, § I,
64 Stat. 108).
3. See 10 U .S.C. § 805 (1970); O'Callahan v. Parker, 395 U.S. 258 (1969). In O'Callahan
the Supreme Court divested the military of some of its prior court-martial jurisdiction. The
defendant in 0 'Callahan had been charged with the nonmilitary offenses of attempted rape,
housebreaking, and assault with intent to rape, in violation of 10 U.S.C. §§ 880, 930, 934
(1970), respectively. A majority of the Court held that the military was without jurisdiction
under the circumstances, since there was no "service connection" involved in the offenses
charged. The defendant was legally absent from his base at the time of the offenses; the
offenses were not committed on a military reservation; the location of the offenses was not
under military control; there was no connection between the offenses and the defendant's
military duties; the victim was not performing duties related to the armed forces; the offenses
were committed in peacetime and in American territory rather than in a foreign nation; the
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would bring the military system of criminal justice to the highest
possible standards of both efficiency and justice. Professor Benson,
on the other hand, has suggested4 that legislation be enacted to
withdraw jurisdiction from the military justice system for all offenses other than crimes against the military such as refusal to obey
orders, absence without leave, and desertion. 5 Professor Benson continues to believe that further piecemeal reform will be inadequate
so long as real control of military justice remains in the hands of
nonlegal 6 military commanding officers. 7
While both authors agree upon the necessity of removing the
military commander (referred to in military law as the convening
authority) from the military justice system, they do so for different
reasons and from differing points of view. Colonel Schiesser does not
advocate a narrowing of present military jurisdiction,S regardless of
whether the reform proposed in this paper is adopted. Professor
Benson believes that military jurisdiction should be narrowed in any
event. D In spite of their differences, the authors are persuaded that
civil courts were open and functioning; and the offenses did not involve any flouting of
military authority. Subsequent cases involving the application of O'Callahan principles,
however, indicate that those principles will not be expanded, and may even be significantly
narrowed by the present Court. See Schlesinger v. Councilman, 420 U.S. 738 (1975); Relford
v. Commandant, 401 U.S. 355 (1971). See also Nelson v. Westbrook, Court-Martial Jurisdiction Over Service Connected Offenses: An Analysis of a 'Callahan v. Parker, 54 MINN. L. REV.
1 (1969).
4. Benson, supra note 1, at 610-17.
5. Id. at 612.
6. The use of "nonlegal" or its equivalent as a modifier of "convening authority" is done
to designate the convening authority who is a layman vis-a.-vis a lawyer.
7. Professor Benson thinks that the original intention in the minds of those who wrote
the Constitution was to keep military jurisdiction as narrow as possible, and that early
American practice gave no broad, general criminal jurisdiction to courts-martial. See Reid
v. Covert, 354 U.S. 1, 23-30 (1957), for an excellent discussion by Justice Black of the early
American practice, and the protests of John Adams, Thomas Jefferson, and others against
British abuses of military jurisdiction. The creation of a true court system in the military,
with full appellate review, including certiorari jurisdiction in the Supreme Court for review
of decisions of the Court of Military Appeals, would be a substantial improvement over the
present system, although this, in Professor Benson's view, would still not reflect the original
American practice unless military jurisdiction is narrowed to military offenses. See also F.
WIENER, CIVILIANS UNDER MILITARY JUSTICE: THE BRITISH PRACTICE SINCE 1689, ESPECIALLY IN
NORTH AMERICA (1967) [hereinafter cited as F. WIENER).
8. In fact, Colonel Schiesser advocates the establishment of military grand juries and
trial by jury in the military services in order to remedy the defects set forth by the Supreme
Court in a 'Callahan, so that military jurisdiction can return to the simple and efficient test
of military status; that is, in question form, "Was the defendant on active duty in the armed
forces at the time of the alleged offense?"
9. Professor Benson does not foresee enactment by Congress of the necessary reforms
(abolition of the convening authority, creation of permanent independent courts, provision
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their agreement upon the need to eliminate the position of
convening authority is vastly more important than their disagreement regarding other aspects of military justice. It is their hope that
a jointly authored article, involving thinking informed by their respective differing stances concerning American military justice,
may be of some value to those concerned with reform in this area of
the law.
I.
THE CONVENING AUTHORITY
The appropriate place to begin a consideration of military law
as it now exists is with the convening authority.t° This is so because
military justice literally begins and ends with the convening authority. Terminology found in the UCMJ, the Manual far CaurtsMartial, II appellate decisions in military cases, 12 and articles regarding military justice would indicate to those unfamiliar with military
justice that a system of independent courts has been established
and is in operation in the armed forces. Such is not the case. In spite
of all the discussion of courts and military judges, findings and
sentences of courts-martial, and appellate review, real control of the
American system of military justice lies in the hands of the nonlegal
commanding officers known as convening authorities under the
UCMJ. It must be recognized from the outset that commanders
ordinarily do not have backgrounds in law. They have no special
training to perform legal functions, such as finding facts, separating
hearsay from other evidence, or reaching legal conclusions from the
for full appellate review up to and including the Supreme Court of the United States).
Accordingly, in his view it is essential to divest the military of its present broad general
criminal jurisdiction, regardless of whatever other reforms may be adopted in the future.
10. 10 U.S.C. §§ 822, 823,824 (1970). See Schiesser & Benson, supra note 1, at 51218.
11. Exec. Order No. 11.476,3 C.F.R. 802 (1971) (1966-1970 Comp.), as amended, Exec.
Order No. 11.835, 40 Fed. Reg. 4247 (1975). The complete text of the Manual for CourtsMartial, United States, 1969 (Revised Edition) appears at 34 Fed. Reg. 10503 (1969); the text
of the 1975 executive order amending the Manual appears at 40 Fed. Reg. 4247 (1975). The
Manual will be cited hereafter as M.C.M., 1969 (Rev.), and referred to as the Manual. The
Manual provisions have the force and effect of law so long as they do not attempt to supplant
substantive law. See United States v. McFadden, 19 U.S.C.M.A. 412, 42 C.M.R. 14 (1970);
United States v. Jenkins, 7 U.S.C.M.A. 261, 22 C.M.R. 51 (1956); United States v. Greer, 3
U.S.C.M.A. 576, 13 C.M.R. 132 (1953).
12. Military cases are reported in the official reports of the United States Court of
Military Appeals (cited U.S.C.M.A.), and in Court Martial Reports (cited C.M.R.). The
official reports of the Court of Military Appeals contain only cases decided by that court,
while both those decisions and the decisions of the armed forces courts of military review are
reported in Court Martial Reports.
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evidence or lack of evidence before them. They are trained to command, control, and operate military units, not to act as judges or
juries. Yet these are the roles into which they are thrust by the
judicial system that presently exists in the military.
To fully understand the significance of the convening authority
and its role in the military justice system, some of the major features
of the system must be noted. No military trial court exists except
by the military order of a military commander, namely, the convening authority,,3 No military trial court can continue to exist beyond
the time specified by the military commander who created it, or
after it is terminated by the commander. U In theory, ifno convening
authority ever again ordered a court-martial into existence, no further military criminal trials could be held in any of the armed forces
of the United States. In the event of this admittedly wholly improbable situation, no legal officer in any of the armed forces would have
the power to call into being courts-martial. l5 No militar,y judge,
Judge Advocate General, appellate military judge, or judge of the
Court of Military Appeals could create a court-martial. Courtsmartial are creatures of military orders. They exist within a statutory scheme that allows for their creation, and in that sense they are
13. See 10 U.S.C. §§ 822, 823, 824 (1970); para. 36, M.C.M., 1969 (Rev); ch. 12, CourtMartial Orders, Army Reg. 27·10, Change 3 (May 27,1969). See also United States v. Robinson, 13 U.S.C.M.A. 674, 33 C.M.R. 206 (1963).
14. See W. WINTHROP, MILITARY LAW AND PRECEDENTS 53-54 (2d ed. 1896) [hereinafter
cited as W. WINTHROP), in which the author argued that, properly understood, courts-martial
are not really courts at all:
Courts-martial of the United States, although their legal sanction is no less
than that of the federal courts, being equally with these authorized by the Constitution, are, unlike these, not a portion of the Judiciary of the United States, and are
thus not included among the "inferior" courts which Congress "may from time to
time ordain and establish." . . . Not belonging to the judicial branch of the Government, it follows that courts-martial must pertain to the executive department; and
they are in fact simply instrumentalities of the executive power, provided by Congress for the President as Commander-in-chief, to aid him in properly commanding
the army and navy and enforcing discipline therein, and utilized under his orders
of those of his authorized military representatives.
Thus indeed, strictly, a court-martial is not a court in the full sense of the term,
or as the same is understood in the civil phraseology. It has no common law powers
whatever, but only such powers as are vested in it by express statute, or may be
derived from military usage . . . . It is indeed a creature of orders, and except in
so far as an independent discretion may be given it by statute, it is as much subject
to the orders of a competent superior as is any military body or person. [Emphasis
by Winthrop.)
15. Only those officials designated in 10 U.S.C. §§ 822, 823, 824 (1970) can convene
courts-martial.
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statutory courts, but they have no independent existence apart from
the military orders of military commanders. With this in mind,
courts-martial can be evaluated for what they are, and the vast
power of nonlegal military officers at every stage of American military justice can be more easily appreciated.
A detailed exposition of the law regarding the powers and duties
of military commanders acting as convening authorities is beyond
the scope of this article. That task has been accomplished adequately by many others" o Since the effective date (1951) of the
UCMJ, much litigation has arisen concerning the powers and duties
of convening authorities, abuses of power by convening authorities,
and determination of the extent of their power. Each case dealing
with any aspect of the convening authority's power and duties is
related to the central theme of the present article and can be instructive. But the purpose of this article is not to provide a comprehensive treatment of that aspect of military law as an isolated phenomenon. Rather, it is to view the office and functioning of the convening authority in terms of the extent to which that office and
functioning permeate all of military justice, so that appropriate
questions can be raised regarding the desirability of continuing the
present scheme.
Necessary to this examination of the extent of the convening
authority's role in military justice is an understanding of the quality
of that role. When performing within prescribed statutory limits, a
convening authority is exercising his command duties and responsibilities, and in so doing, he is exerting what may be called "lawful"
command influence upon the administration of military justice
under his command. Thus, a particular convening authority may
believe that rape is a sufficiently serious crime to merit thorough
investigation in every alleged case, regardless of the circumstances
or the evidence, the strength of the prosecution's prospective case,
or the recommendations of the commander's staff judge advocate
(the military legal officer with the responsibility of advising the
commander on all matters of military law, civil and criminal)Y
16. E.g., Hansen, Judicial Functions for the Commander?, 41 MIL. L. REV. 1 (1968);
West, A History of Command Influence on the Military Judicial System, 18 U.C.L.A.L. REV.
1 (1970) [hereinafter cited as West]; Lowe v. Laird, 18 U.S.C.M.A. 131, 39 C.M.R. 131
(1969). See also United States v. Frazier, 21 U.S.C.M.A. 444, 45 C.M.R. 218 (1972); Priest v.
Koch, 19 U.S.C.M.A. 293, 41 C.M.R. 293 (1970); United States v. Boehm, 17 U.S.C.M.A.
530, 38 C.M.R. 328 (1968) (cases discussing and interpreting the vast powers of the convening
authority in modem military justice).
17. 10 U.S.C. §§ 834, 861 (1970); paras. 35, 85, M.C.M., 1969 (Rev.). See also
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Consequently, the convening authority might refer all such cases in
the command to an investigating officer. The converse may be true
also. A convening authority may decide not to refer cases of alleged
rape to an investigating officer, and if a convening authority so
decides, he can be overruled by a higher commander or convening
authority but not by any legal officer. In either instance, the convening authority is acting within the limits of his lawful authority under
the current UCMJ, and is exercising lawful command influence
upon the administration of military justice under his command. It
is submitted that placing this kind of almost absolute authority in
the hands of a nonlegal military commander is extremely undesirable for the reasons discussed in this article, but it is recognized that
under the present system, military commanders can, and do, exercise significant lawful command influence on military justice.
There is, however, another variety of command influence: "unlawful" command influence. Unlawful command influence consists
of actions taken by a convening authority, or other military commander, which exceed the limits of legitimate military authority.
An example would be the action of a convening authority in Ilssembling prospective court members (military jurors) and giving them
a forceful lecture on the necessity of a high rate of convictions and
severe sentences in future cases to be tried. IS Another example
would be exerting pressure upon the lawyers responsible for defending cases before courts-martial (a practice specifically prohibited by
the UCMJ) .19 A further example would be imposing some kind of
sanction or punishment upon legal personnel or court members
(military jurors) who failed to perform as desired by a convening
authority, or other military commander, in a given case. 20
DEPARTMENT OF THE ARMY PAMPHLET 27-5, STAFF JUDGE ADVOCATE HANDBOOK (July 19, 1963),
for a discussion of the duties and responsibilities of the Staff Judge Advocate. Significantly,
the staff judge advocate is pointedly told in that publication that he is a staff officer first
and a legal advisor second. [d. at 75.
18. There are numerous cases involving lectures given by convening authorities, or
given under their orders, to prospective court-members; see, e.g., United States v. Wright,
17 U.S.C.M.A. 110, 37 C.M.R. 374 (1967); United States v. Olson, 11 U.S.C.M.A. 286, 29
C.M.R. 102 (1960); United States v. McCann, 8 U.S.C.M.A. 675, 25 C.M.R. 179 (1958);
United States v. Navarre, 5 U.S.C.M.A. 32, 17 C.M.R. 32 (1954); United States v. Littrice, 3
U.S.C.M.A. 487, 13 C.M.R. 43 (1953).
19. 10 U.S.C. § 837 (1970). See United States v. Hubbard, 20 U.S.C.M.A. 482, 43
C.M.R. 322 (1971); United States v. Kitchens, 12 U.S.C.M.A. 589, 592 n.3, 31 C.M.R. 175,
178, n.3 (1961), in which the Court of Military Appeals denounced, in dictum, the practice
of lowering the efficiency report of military defense counsel for their efforts during the defense
of a case. See also United States v. Hayes, 7 U.S.C.M.A. 477, 22 C.M.R. 267 (1957).
20. See Homey v. Resor, 455 F.2d 1345 (D.C. Cir. 1971); United States v. DuBay, 17
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Unlawful command influence has been the subject of much
discussion. 21 The United States Court of Military Appeals has been
reluctant to correct instances of unlawful command influence, and
has been heavily criticized for its reticence. 22 The armed forces, by
and large, have admitted that some unlawful command influence
exists from time to time, but insist that it is minimal and largely
insignificant. Almost all civilian commentators consider unlawful
command influence to be one of the most serious defects of the
American system of military justice. 23 The existence of some unlawful command influence is assumed here, but no position is taken on
its precise current extent. The mere fact that unlawful command
influence could exist is part of the problem being addressed in this
article, and unlawful command influence exists in significant part
because the present structure of American military justice permits
it to exist. That structure sets up conditions which virtually insure
that unlawful command influence will be present in a variety of
situations. The UCMJ gives nonlegal military commanders who are
convening authorities such pervasive power that they are confronted
at every turn by temptation to intervene unlawfully in the processes
of military justice.
U.S.C.M.A. 147, 37 C.M.R. 411 (1967); United States v. Pierce, 29 C.M.R. 849 (1960) (Air
Force Board of Review); H. MOYER, JR., JUSTICE AND THE MILITARY 714·20, 742·46 (1972)
[hereinafter cited as H. MOYER].
21. See, e.g., A. JENSEN & M. ABRAMSON, THE TRIAL OF CHAPLAIN JENSEN (1974)
[hereinafter cited as A. JENSEN & M. ABRAMSON]; H. MOYER, supra note 20, at 677·784; R.
RIVKIN, GI RIGHTS AND ARMY JUSTICE: THE SERVICEMAN'S GUIDE TO MILITARY LIFE AND LAW
(1970) [hereinafter cited as R. RIVKIN]; R. SHERRILL, MILITARY JUSTICE IS TO JUSTICE AS
MILITARY MUSIC IS TO MusIC 76·81 (1970) [hereinafter cited as R. SHERRILL]; Sherman, The
Civilianization of Military Law, 22 ME. L. REv. 3 (1970) [hereinafter cited as Sherman];
West, supra note 16.
22. E.g., R. SHERRILL, supra note 21, at 213·18; Benson, The United States Court of
Military Appeals, 3 TEX. TECH L. REV. 1 (1971); West, supra note 16, at 136·37.
23. This position differs significantly from that of military spokesmen, who ordinarily
give lip service to the evils of unlawful command influence, but then vigorously insist that it
is a thing of the past and no longer exists in modem military justice. See, e.g., H. MOYER,
supra note 20, at 684·91. The following language in the authors' 1970 article, Modem Military
Justice, Schiesser & Benson, supra note 1, at 510, is quoted by Moyer: "Instances of illegal
command influence in the Army have been rare under the Uniform Code of Military Justice."
H. MOYER, supra note 20, at 684. In that article we intended to convey the idea that instances
of appellate correction of illegal command influence have been rare under the UCMJ, and
we pointed out immediately after the quoted language that the UCMJ was in effect for more
than 10 years before the first significant case of command influence reached the Court of
Military Appeals in 1961. Schiesser & Benson, supra note 1, at 510.
At the time of publication, a suit was pending in which the constitutionality of the entire
UCMJ was attacked. Hendrix v. United States, filed, No. 306·75, Ct. Cl., Nov. 3, 1975. But
see McDonald v. United States, No. 396·73, Ct. Cl., Feb. 18, 1976.
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To attack this problem inherent in the present system of military justice is not to impugn the integrity of military commanders.
Military commanders are no better and no worse, insofar as the
present analysis is concerned, than any other citizens of our society;
neither are they inferior, morally or ethically, to legal personnel.
But nonlegal military commanders are distinctly inferior to legal
personnel insofar as the technical ability needed for the proper administration of a system of criminal justice is concerned, just as they
are inferior (as are lawyers) to physicians in terms of medical knowledge. Lawyers in the armed forces are ill-equipped to direct air
strikes against enemy targets, lead troops into battle, or engage in
any of the myriad other functions in which military commanders
must engage as military professionals. Military commanders, in like
fashion, are not trained to perform brain surgery upon military patients in military hospitals. And military commanders are not professionally competent to administer criminal justice. TQey have
administered it since 1776,24 and they administer it now, but this
situation should be changed. The time has arrived to abolish the
office of convening authority and substitute for it a system of justice
more nearly comparable to that found in our federal and our state
criminal justice systems.
II.
THE DIRECTION OF CHANGE
The appendix to this article represents the approach taken by
the authors to the task of substituting legal personnel for convening
authorities in our military justice system, and the reader should
refer to that appendix as the proposed changes are discussed.
Changing the UCMJ to accomplish the substitution of legal personnel for convening authorities would be relatively simple and would
bring about no substantive changes in military justice. The proposed changes would vastly improve the procedures of military justice and prevent laymen from functioning in inherently legal positions.
Reduced to its essentials, the proposed system would set up real
courts, presided over by magistrates and judges. The present Article
32 investigation25 would be replaced by a true grand jury. Cases
24. See W. WINTHROP, supra note 14, at 17-56, for the history of American military
justice. See also, Henderson, Courts-Martial and the Constitution: The Original
Understanding, 71 HARV. L. REV. 293 (1957).
25. An Article 32 investigation is the military counterpart of a civilian grand jury. Their
differences are discussed later in the article.
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would be initiated by complaint, information, and indictment.
Military magistrates and judges would be given the power to issue
search warrants and decide questions of pretrial restraint. Mter
conviction, appellate review by judges, rather than by staff judge
advocates and convening authorities, would be available. In short,
the convening authority would be done away with entirely. Any
duty or responsibility given the convening authority by the present
UCMJ would be lodged in a military magistrate, a military judge,
or a military appellate judge.
The proposal that follows would not mean the "civilianization"
of military law. 26 Nor is such a result intended. It is true that the
proposed system would be more like civilian criminal justice systems than the present system, but that, in and of itself, would not
"civilianize" military law. Courts-martial would remain in the
hands of the armed forces; military lawyers in uniform would remain in charge of administering military justice; and military trials
would proceed swiftly and in an orderly, military manner. The entire military justice process would continue to be carried out exclusively within the armed forces until a case reached the United
States Court of Military Appeals for review. If legal tasks were to
be performed, however, lawyers and judges would perform them, not
nonlegal military commanders. This difference is the essence of the
reform proposed. In view of the unsatisfactory nature of all prior
piecemeal reform of military justice, as indicated by the continuing
professional and lay criticism of military justice,27 it is submitted
that the proposed measures would get at the root of the problems
existing in military justice and in large measure eliminate them.
III.
PRETRIAL PROCEEDINGS
A.
The Present Practice
At present in American military law, convening authorities
have virtually full and unimpaired control over which military personnel are to be charged with what offense and how the charges are
to be disposed of within the command concerned. Commanding
officers usually prefer charges against any service member, and regardless of the circumstances under which a service member initially becomes involved in a military criminal case, commissioned
26.
27.
But see, Sherman, supra note 21.
See notes 21 and 22, supra, and note 73 infra.
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officers take over and determine the handling of the case from its
beginning to its final disposition in the command involved. 28 The
commanding officer refers the case to trial; determines the level of
court-martial to be employed;29 appoints the military jurors, the
military judge, the prosecutor, and the defense counsel; and brings
the court-martial into existence.
At this point it should be stated again that courts-martial come
into existence only by the military order of a convening authority;
they have no other existence and are terminated at the pleasure of
the convening authority, by a military order.30 Emphasis on this
characteristic of military law is necessary to overcome the natural
tendency to think of courts-martial in terms of their civilian trial
court counterparts which have a continuing existence after being
created by statute or constitutional provision and not by executive
order. In this discussion of the power of the convening authority to
appoint courts-martial, the primary concern is with his power to
bring such courts into legal existence, not his power to assign particular cases to given courts-martial for trial (although that function
is also involved in the general powers of a convening authority).
Articles 22, 23, and 24 of the UCMJ31 set forth the three types
of court-martial available for the trial of military cases: general,
special, and summary courts-martial. These articles prescribe the
status necessary for the convening authority of each type. Merely
to read the UCMJ provisions in these articles is to begin to appreciate how plainly military criminal law is bound to concepts of
military field command, the location of detachments and military
or naval units of various sizes and compositions, and the rank or
authority of the commissioned officers commanding such units.
Part of the burden of this article is to demonstrate that such anachronistic concepts are neither necessary nor desirable in a modem
system of military criminal law.
A general court-martial, as set out in Article 22, may be convened by the President of the United States; the Secretary of a
Department concerned; the commanding officer of a territorial department, an Army group, an Army, an Army Corps, a division, a
28.
29.
See Benson, supra note I, at 607-10.
The three levels of courts-martial (summary, special, and genera\) are set forth in
10 U.S.C. §§ 818-20, 822-24 (1970) and are discussed in paras. 3-5, 14-16, M.C.M., 1969
(Rev.).
30. See notes 13-15 supra.
31. 10 U.S.C. §§ 822, 823, 824 (1970).
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separate brigade, or a corresponding unit of the Army or Marine
Corps; the commander in chief of a fleet; the commanding officer
of a naval station or larger shore activity of the Navy beyond the
United States; the commanding officer of an air command, an air
force, an air division, or a separate wing of the Air Force or Marine
Corps; any other commanding officer designated by the Secretary
of a Department concerned; or any other commanding officer in any
of the armed forces when so empowered by the President. 32 If the
appropriate convening authority involved happens to be the accuser
in the case, the court-martial must be convened by a superior authority, and it may be convened by a superior authority in any case
in which the lower convening authority deems it desirable. 33 A general court-martial is brought into existence for the trial of felonygrade criminal cases by the military order of the above officers and
officials.
A special court-martial is brought into legal existence by the
military order of any official who may convene a general courtmartial; or by the commanding officer of a district, garrison, fort,
camp, station, Air Force base, auxiliary air field, or other place
where members of the Army or the Air Force are on duty; the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army; the commanding officer of a wing, group,
or separate squadron of the Air Force; the commanding officer of
any naval or Coast Guard vessel, shipyard, base, or station; the
commanding officer of any Marine brigade, regiment, detached battalion, or corresponding unit; the commanding officer of any Marine
barracks, wing, group, separate squadron, station, base, auxiliary
air field, or other place where members of the Marine Corps are on
duty; the commanding officer of any separate or detached command
or group of detached units of any of the armed forces placed under
a single commander for this purpose; or by the commanding officer
or officer in charge of any other command when empowered by the
Secretary of a Department concerned. 34 As in the case of the general
court-martial, if the convening authority is the accuser in the case,
a superior authority must convene the court-martia1. 35
Finally, a summary court-martial, which consists of only a mili32.
33.
34.
35.
10 u.s.c. §
10 u.s.c. §
10 U.S.C. §
10 U.S.C. §
822 (1970).
822(b) (1970).
823 (1970).
823(b) (1970).
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tary commissioned officer who mayor may not have any legal training, can be convened by any official who may convene a general or
a special court-martial; the commanding officer of a detached company or other detachment of the Army; the commanding officer of
a detached squadron or other detachment of the Air Force; or the
commanding officer or officer in charge of any other command when
empowered by the Secretary of a Department concerned. 36 When
only one commissioned officer is present within a command or detachment, he must serve as the summary court-martial officer of
that command or detachment and must hear and determine all
summary court-martial cases brought in such command or detachmentY The UCMJ also provides, however, that summary courtsmartial may be convened by superior competent authority in any
case in which it is considered desirable by the lower summary courtmartial convening authority.38 The summary court-martial is the
court par excellence of the old-time military justice system: it can
even convene itself,39 and it is judge and jury combined in one
human being. As in the case of all other courts-martial, action by a
convening authority, even if the convening authority happens to be
the court as well, is necessary to bring the court into legal existence.
If the convening authority has the authority to convene a general court-martial, then he can convene either of the inferior courtsmartial. 40 In practice, however, convening authorities at each convening level ordinarily convene only the courts-martial for that
36.
37.
10 U.S.C. § 824 (1970).
10 U.S.C. § 824(b) (1970).
38.
[d.
39. 10 U.S.C. § 824(b) (1970) provides in pertinent part: "When only one commissioned
officer is present with a command or detachment he shall be the summary court-martial of
that command or detachment and shall hear and determine all summary court-martial cases
brought before him." Summary courts-martial also have other functions not directly associated with military justice, such as collecting the effects of a deceased service member,
collecting the debts due such a decedent's estate, and dealing with a military decedent's
estate in related ways, pursuant to 10 U.S.C. § 4712 (1970) and 10 U.S.C. § 9712 (1970). A
summary court-martial may hold inquests, pursuant to 10 U.S.C. § 4711 (1970), when "a
person is found dead under circumstances that require an investigation, at a place garrisoned
. by the Army and under the exclusive jurisdiction of the United States." Obviously, a "summary court-martial" is functioning merely as a commissioned officer of the armed forces with
certain specific duties to be performed under these statutes, rather than as a criminal trial
court, and our proposal to remove the convening authority from military justice and to do
away with courts-martial would not prohibit commissioned officers from functioning in these
capacities. The terminology of the applicable statutes could be changed from "summary
court-martial" to "inquest officers," or some similar title.
40. 10 U.S.C. § § 823, 824 (1970).
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level. Of course, if a convening authority at the summary or special
court-martial level wants an individual tried by a higher courtmartial, he must refer the case to the appropriate higher level convening authority.41 And although they do have the authority to do
so, neither the President of the United States nor the Secretaries of
the Departments concerned actually convene courts-martial. 42
Once a convening authority determines that a particular person
should stand trial, he must order such a court into existence or refer
the case to an existing court-martial of the desired level. Cases may
be referred directly to summary and special courts-martial, but not
to general courts-martial. A case may not be tried by a general
court-martial until the military equivalent of a grand jury has examined the evidence and made recommendations as provided in
Article 32 of the UCMJ. 43 The Article 32 investigation, as it is known
in military law terminology, has been widely compared to the civilian grand jury, and assertions have been made that this investigation provides an accused H similar protections. The Article 32 investigation, however, differs significantly from a grand jury in several
respects. First, the Article 32 investigating officer is not a "juror"
selected from the general population, but a commissioned officer
appointed by the convening authority involved. 45 Second, failure to
follow the procedures set forth in the UCMJ regarding the investigation does not constitute jurisdictional error. 46 Third, the report of
the investigating officer, whatever it may be, does not bind the
convening authority in any way. Indeed, the convening authority
can appoint a new Article 32 investigating officer for additional
investigation and recommendations until the recommendation he
desires is obtainedY Fourth, and perhaps of singular importance,
41. Paras. 32(f), 33(i), M.C.M., 1969 (Rev.).
42. 10 U.S.C. §§ 822(a)(1), (2) (1970).
43. 10 U.S.C. § 832 (1970); para. 34, M.C.M., 1969 (Rev.).
44. See, e.g., McDonald v. Hodson, 19 U.S.C.M.A. 582, 42 C.M.R. 184 (1970); Moyer,
Procedural Rights of the Military Accused: Advantages Over a Civilian Defendant, 22 ME.
L. REV. 105, 109-14 (1970); Murphy, The Formal Pretrial Investigation, 12 MIL. L. REV. 9
(1961).
45. 10 U.S.C. § 832 (1970); para. 34, M.e.M., 1969 (Rev.).
46. 10 U.S.C. § 832 (1970) specifically provides that while its requirements are "binding
on all persons administering this chaper," nevertheless "failure to follow them does not
constitute jurisdictional error."
47. See R. SHERRILL, supra note 21, at 37-38, for an account of the appointment of no
less than three different Article 32 investigating officers in the Presidio of San Francisco
"mutiny" cases. The first officer recommended that the charges be tried as willful disobedience by a special court-martial. Sherrill reports that:
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the Article 32 investigating officer is a commissioned officer under
the command of the convening authority, and as such, is fully subject to any and all command influence, lawful or unlawful, that
might be directed toward him.
An additional requirement for referring a case to a general
court-martial is that the convening authority obtain the advice of
the staff judge advocate or legal officer in the case. 4R The purpose
of this provision of the UCMJ, in theory, is to insure that the impartial advice of a legal officer will be sought and considered by the
convening authority before a case is actually referred to a general
court-martial for trial. Once again, however, as throughout military
law, the convening authority is in almost complete control of the
military subordinates who perform these theoretically salutary
functions. In his definitive article on unlawful command influence,
Luther West, a former Army Judge Advocate General's Corps officer, commented that military staff judge advocates are not fairminded persons in the judicial sense of the term.49 The staff judge
advocate's review, prior to trial, of the evidence and legal posture
of the case ordinarily does give the convening authority guidance,
The Army commanders were highly offended by that report, and they were not
pleased by the recommendations of [the officer] . . . who conducted the second
Article 32 hearing. He, too, saw the offense as something other than mutiny. He
suggested the prisoners be tried by a general court-martial for willful disobedience,
an offense that could bring a maximum sentence of five years. Not until still
another captain held a third Article 32 investigation (normally only one investigation is held) did the commanders get the recommendation they sought: mutiny
charges.
Id. at 38. It has been held that the investigating officer's report is advisory only, and in no
way binds the convening authority. Green v. Convening Authority, 19 U.S.C.M.A. 576, 42
C.M.R. 178 (1970). See also para. 34(a), M.C.M., 1969 (Rev.); Sherman, Congressional Proposals for Reform of Military Law, 10 AMER. CRIM. L. REV. 25, 35-36, 39 (1971).
48. 10 U.S.C. § 834 (1970).
49. West, supra note 16, at 107, states:
The provisions of the Uniform Code, as well as the opinions of the Court of Military
Appeals, that call for a "fair-minded" staff judge advocate, and one who is capable
of supervising both the prosecution and defense of a criminal case at the same time,
are utopian in logic, and fraudulent in operation. There can never be such a system,
especially in the military, that is "fairly" administered, but this fact has never kept
the Court of Military Appeals from alluding to it as real.
And in West, Command Influence, in CONSCIENCE AND COMMAND; JUSTICE AND DISCIPLINE IN
THE MILITARY 73-74 (J. Finn ed. 1971), the former judge advocate states: "Neither our people
nor our courts acknowledge that military commanders and military staff judge advocates are
not fair-minded men in the judicial sense of the word; that they are, basically, incapable of
operating a system of justice along democratic principles."
Professor Benson made the same point in an earlier article on the military justice system.
Benson, supra note 1, at 604-06.
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and the convening authority follows the advice thus given in the
vast majority of the cases. The point is, however, that the convening
authority need not do so; he, and not the staff judge advocate or any
other legal functionary, is in control of what happens to the case.
A convening authority may refer cases to trial by either a summary or a special court-martial without an Article 32 investigation
or a pretrial "advice" opinion from the staff judge advocate. Because most of the cases tried by court-martial in the armed forces
are tried by special courts-martial,50 the protections, such as they
are, provided by the Article 32 investigation and the legal opinion
of the staff judge advocate prior to referral for trial are not available
in such cases.
Once the convening authority has decided what level of courtmartial will be used for the trial, he must appoint the members
(military jurors) of the court, 51 the attorneys who will prosecute the
case,52 the attorneys who will defend the accused,53 and then he must
detail the military judge who will preside and the court reporter who
will record the proceedings. 54
50. In 1969, for example, there were 72,243 convictions by courts-martial in the United
States Army, the vast majority of which occurred in special courts-martial that never involved an Article 32 investigation. The Court of Military Appeals had jurisdiction to review
only 2,323 of these cases. 1969 ANN. REP. OF THE U.S.C.M.A., THE JUDGE ADVOCATES GEN. OF
THE ARMED FORCES AND THE GEN. COUNSEL OF THE DEP'T OF TRANSP. 17-18 (1969). See also,
West, supra note 16, at 91, n.9.
51. 10 U.S.C. § 825 (1970).
52. 10 U.S.C. § 827 (1970).
53.
[d.
54. 10 U.S.C. §§ 826, 828 (1970). Although the convening authority has no official
control over the assignment of military judges to provide judicial support to his military units,
he does have the power to appoint one of several judges for the trial of cases if more than one
judge is available. The UCMJ provides that a commissioned officer certified to be qualified
for duty as a military judge of a general court-martial may perform such duties "only when
he is assigned and directly responsible to the Judge Advocate General, or his designee, of the
armed force of which the military judge is a member . . . . " 10 U.S.C. § 826(c)(1970). Thus,
general court-martial military judges are not assigned to field units of the armed forces, but
are assigned directly to the Judge Advocate General, or his designee, of the armed force
involved. The purpose of this provision is to insulate general court-martial military judges
from pressures and control that might be exercised upon them by local, field unit commanding officers. In the Army, for example, general court-martial military judges are assigned to
U.S. Army Judiciary (a designee of the Army's Judge Advocate Genera\), and then further
ordered to their respective "duty stations" with field units. In this way, an Army military
judge may live and work at Fort Bliss, Texas, but his formal military assignment and official
unit is U.S. Army Judiciary, Washington, D.C. Special court-martial military judges do not
enjoy this statutory protection, and can be assigned directly to field units, rather than to a
Judge Advocate General or his designee. Some special court-martial military judges may be
assigned to a Judge Advocate General as a matter of policy, rather than to field units, but
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In addition to this judicial authority, a military commander
possesses the power to impose nonjudicial punishments for minor
offenses under Article 15 of the UCMJ.55 Nonjudicial proceedings
are ordinarily conducted informally in the commander's office; the
commander acts as judge, jury, prosecutor, defense counsel, and
reporter (in that he prepares a record of the proceedings). No rules
of evidence apply. Punishments may be quite severe. 56 Appeals are
allowed, but only to other superior military commanders, who, like
the commander imposing punishment, are nonlawyersY A commander also has the power to issue search and seizure orders,58 issue
arrest orders, 59 and order members of his command into restriction,
arrest, or confinement. 60
B.
The Proposed Practice
The elimination of the convening authority and all of the powthis is not required by statute. The vast majority of special court-martial military judges are
assigned directly to the local senior commanding officer of the fort, base, post, or station
involved, and serve under his authority. See e.g., Army Reg. 27-10, paras. 9-2(c)-(d) Change
8 (Sept. 7,1971); cf. Douglass, The Judicialization of Military Courts, 22 HASTINGS L.J. 213,
215-217 (1971).
Commentaries concerning the convening authority's informal power to affect the assignment of military judges include West, supra note 16; A. JENSEN & M. ABRAMSON, supra note
21; R. RIVKIN, supra note 21; R. SHERRILL, supra note 21.
55. 10 U.S.C. § 815 (1970); paras. 128-135, M.C.M., 1969 (Rev.).
56. 10 U.S.C. § 815(b) (1970) provides, inter alia, for confinement on bread and water
or diminished rations for up to 3 consecutive days (if imposed upon a person embarked in a
vessel), correctional custody (physical restraint, with regular duties, extra duties, fatigue
duties, or hard labor) up to 30 consecutive days, forfeiture of up to half of 1 month's pay per
month for 2 months, reduction to the lowest enlisted pay grade (for enlisted personnel only),
or restriction to certain specified limits for up to 2 months.
57. 10 U.S.C. § 815(e) (1970). The statute requires that the appeal be "promptly forwarded and decided," but provides that "the person punished may in the meantime be
required to undergo the punishment adjudged [sic)."
58. See United States v. Florence, 1 U.S.C.M.A. 620, 5 C.M.R. 48 (1952); United States
v. Doyle, 1 U.S.C.M.A. 545, 4 C.M.R. 137 (1952); Comment, Search and Seizure Under the
Uniform Code of Military Justice, 101 U. PA. L. REV. 851 (1953). By Army regulation, military
judges assigned to Army Judiciary (as distinguished from those generally younger and junior
military judges who are assigned directly under the military commander of the particular post
or station where they serve) may issue search warrants. Army Reg. 27-10, Change 8, ch. 14
(September 7, 1971). That regulation follows generally FED. R. CRIM. P. 41 with the substitution of the military judge for the U.S. magistrate. There is no statutory authority for searches
in the military; all such searches are based upon the traditional military authority of lay
commanders, the decisions of the Court of Military Appeals, para. 152, M.C.M., 1969
(Rev.), and regulations like Army Reg. 27-10, supra.
59. 10 U.S.C. §§ 807, 809, 810 (1970).
60.
[d.
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ers, authority, and responsibilities of that office are proposed by this
article. By eliminating the convening authority, virtually all command influence, legal or illegal, would be eliminated and all judicial
authority transferred from nonlegal personnel to lawyers and judges.
A system of military criminal law, operated by legal professionals
in the military, and st.ructured like our civilian systems, would result.
Under the system proposed here three types of military proceedings (not trials, because the complaint proceedings would not
result in criminal convictions) would exist: the complaint proceeding, a noncriminal proceeding for minor offenses before a military
magistrate; the criminal trial before a military magistrate; and the
trial of all other offenses before a military judge (bench trial or jury
trial) after indictment by a military grand jury or by information if
the defendant waived the grand jury. A discussion follows of how
cases would be handled under the system and what the system
would require to achieve efficiency and justice in a military context.
1.
The Complaint
Anyone, the police, a victim, or a commanding officer, with
knowledge of a crime allegedly committed by a service member
would be able to initiate a military justice action by filing a simple
complaint against the wrongdoer directly with the lower military
court, which will be designated the military magistrate court. The
complainant would not need to be subject to military law. This
change from current practice under the UCMJ is recommended to
enable civilian victims to file criminal actions against service members. 61 The complaint would merely state the general nature of the
crime, provide the nameS and addresses of any known witnesses,
and give the location of any known real or documentary evidence.
The complaInt would be a very simple document so that the lowest
ranking, or the least educated, service member could easily understand and execute it. An example of a criminal complaint for a
minor offense could look like this:
61. 10 U.S.C. § 830(a) (1970) provides in pertinent part that "[clharges and specifica.
tions shall be signed by a person subject to this chapter." Thus persons not subject to military
law cannot file charges under our present system of military justice.
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COMPLAINT
In the Military Magistrate Court for the Sixth Judicial Circuit
United States of America
v.
No. 75/1
John Doe, Private
US Army
Private John Doe was absent without authority from 20 June 1974
until 22 June 1974. Military Record showing above absence
attached.
JOHN T. SMITH
CPT,Inf.
Commanding
Complaints could be printed as forms for most offenses with
blanks left for filling in names, units, and other such differing information. A complaint, such as the one shown above for an unauthorized absence normally would be filed by the defendant's unit commander who represents the victim inasmuch as the offense is by
nature one against the unit and the armed service involved. If the
crime involved were assault, for example, normally the particular
victim ofthe crime would sign the complaint. Thus, service member
participation in the military criminal process would increase and
individual victims would feel that they had some power to bring
their attackers into court to answer their charges. The complaint
would always be filed in the lower military court, the military magistrate court, because trials in the higher military court, the military
judge court, normally would be by indictment. Once a complaint
was filed with the military magistrate, it would be placed upon the
appropriate docket. The military magistrate's administrative personnel would maintain separate dockets for proceedings such as
requests for search and seizure authorizations or arrest warrants,
noncriminal trials, minor criminal trials, and grand jury hearings.
When defendant John Doe in the above complaint appeared
before the military magistrate on the complaint alleging his 2-day
absence without leave, he normally would be offered an immediate
noncriminal trial comparable to what is now known as an Article 15
nonjudicial punishment proceeding. If the defendant agreed to a
noncriminal trial, the military magistrate would conduct the pro-
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ceeding in which he would hear all of the evidence, use criminal
rules of evidence, require proof beyond reasonable doubt, and give
effect to all other safeguards of a criminal trial. If the magistrate
found the defendant responsible for a 2-day absence without leave,
he would immediately impose an appropriate punishment from
among the punishments authorized. 62 The finding of responsibility
for absence without leave would not constitute a criminal conviction, but it would impose basically the same punishment now imposed under Article 15. 63 The service member, however, would have
the benefit of presenting his case before a legally trained military
magistrate, and would be represented by legal counsel.
If John Doe either refused a noncriminal trial as he would have
a right to do, or because of prior convictions, the military magistrate
refused to grant him such a trial, then his case, being minor in
nature, would be docketed on the military magistrate's criminal
trial docket. All trials in the military magistrate court would be
trials before the judge alone, and the maximum punishment could
not exceed confinement for 6 months, forfeiture of two-thirds of the
defendant's pay per month for 6 months, and reduction in grade for
enlisted personnel. Because the case would now be criminal in nature, trial could not proceed on the complaint alone. At this point
if he did not consider prosecution warranted, the military prosecutor
could move for dismissal of the complaint and the proceedings
would end. On the other hand, the prosecutor. might believe prosecution was warranted, and in that case would file with the military
magistrate an information within 5 days after the complaint had
been filed. Thereafter, the defendant would have 3 days, in time of
peace, to prepare for trial and could file with the court motions for
continuances for good cause shown. The information, which the
prosecutor would file, could take the following form:
62. The military magistrate would be bound by the current punishments under nonjudicial punishment found in para. 131(b), M.C.M., 1969 (Rev.), which include diminished
rations for 3 days when on a vessel, correctional custody for 30 days, forfeiture of one-half of
1 month's pay per month for 2 months, reductions in grade for enlisted personnel, extra duties
for 45 days, restriction for 60 days, and certain detentions of pay where the detained pay is
eventually returned to the service member.
63. That punishment is referred to as Captain's Mast in the naval service.
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INFORMATION
In the Military Magistrate Court of the Sixth Judicial Circuit
United States of America
v.
No. 751
John Doe, Private
US Army
Private John Doe, did, on or about 20 June 1974, without authority, absent himself from his unit, Company A, 1st Battalion, 19th
Infantry, located at Fort Ruger, Hawaii, and did remain so absent
until on or about 22 June 1974 in violation of Title 10, United
States Code, section 886.
RICHARD T. BROWN
CPT, JAGC
Military Prosecutor
If trial on the above information resulted in a conviction, a perma-
nent criminal record would result, and any sentence imposed would
be a criminal sentence maintained on a permanent record.
The entire concept of the complaint proceeding is to handle
minor offenses. Thus, most minor offenses would be tried on the
complaint alone, because a trial on a complaint would be noncriminal in nature. A defendant ordinarily would not want to demand
a criminal trial inasmuch as the two trials would be identical except
that one could result in a criminal conviction, while the other could
never result in a criminal conviction. The complaint trial would
continue the current concept of nonjudicial punishment under Article 15 of the UCMJ, but would give to the defendant all of the
protections of a criminal trial. Thus the service member would lose
nothing by accepting the complaint trial by military magistrate,
and would gain all of the rights and safeguards that should be accorded an accused person in any judicial proceeding.
The proposed procedures for handling allegations of serious
crimes must be considered next. A serious criminal case could not
be tried on a complaint. Nor could such a case be tried by the
military magistrate, because the authorized punishment would be
above the jurisdiction of his court. Once a complaint alleging a
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MILITARY JUSTICE
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serious crime was filed, however, it would be docketed on the military magistrate's grand jury docket.
For the purpose of example, assume that a complaint has been
filed against a military defendant alleging aggravated assault with
a knife and the infliction of grievous bodily injuries upon the victim.
After the complaint was filed, the prosecutor would have to decide
whether or not he wished some action to be taken by the military
magistrate. If he did not desire a pretrial confinement order, a
search warrant, or some other such action by the magistrate, he
could bring the case directly before the military grand jury without
first having a probable cause hearing before the military magistrate.
If, however, the prosecutor wanted any such action taken by the
military magistrate, the prosecutor, defense attorney, defendant,
and all available witnesses would have to appear before the military
magistrate for a probable cause hearing within 24 hours of the filing
of the complaint. The military magistrate, after hearing the evidence, could free the defendant or order him held for grand jury
action, order confinement of the defendant pending further hearings
or order restriction in lieu of confinement, and order the barracks
area searched, all depending, of course, upon the state of the evidence. If probable cause were found, the case would be ordered to
the military grand jury.
2.
The Military Grand Jury
The military grand jury would be required (unless waived) prior
to any trial in the military judge court, and would involve every case
in which the punishment was greater than confinement at hard
labor for 6 months, forfeiture of more than two-thirds of an accused's pay per month for 6 months, or reduction in grade for enlisted personnel. If the defendant waived the military grand jury,
the case would proceed by information.
Although a large military grand jury, comparable to civilian
grand juries64 is desirable, it is not feasible in the military where
personnel must be engaged in fighting or in training to fight. Thus,
a three-member grand jury is suggested. The military services could
maintain a body of this size without harming military efficiency or
preparedness.
Return now to the hypothetical aggravated assault case, and
64.
u.s.c.
In the federal system the grand jury is not less than 16 and not greater than 23, 18
§ 3321 (1970).
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assume the defendant was bound over to a military grand jury and
placed in pretrial confinement after his probable cause hearing.
Because the defendant was in pretrial confinement, his case would
be handled on an expedited basis; the trial of the case, less defense
delays, would begin within 90 days from the beginning date of the
pretrial confinement or any other restraint on liberty.65 If the accused were not in confinement, or under any other form of restraint
on liberty, the 90-day rule would not apply, and the prosecution
would have approximately 6 months in which to bring the defendant
to trial. The defendant's case would then be placed upon the regular
docket, one maintained separate from the restraint-upon-liberty
docket.
On the grand jury hearing date, three military grand jurors,
selected randomly by the administrative office of the military magistrate, would conduct a hearing. The defendant, represented by
legal counsel, the prosecutor, and the court reporter (who would
record the proceedings verbatim but transcribe only a summarized
record) would be present. The prosecutor would present his witnesses and all real and documentary evidence. Thereafter the defendant could present witnesses, testify or remain silent, and present
any relevant real or documentary evidence. After the hearing, the
military magistrate would inform the grand jury of the elements of
the offense, and instruct them that they could return an indictment
only if they found that a crime probably had been committed and
that the defendant probably had committed it. The grand jurors
would go into deliberation and vote in secret. A two-thirds vote for
an indictment would result in a "true bill" and a trial. Any other
vote would result in a "no bill" and the end of the proceedings
unless new evidence were subsequently discovered and presented to
the grand jury.
If a "true bill" were returned, the prosecutor would draft the
indictment. An indictment in our hypothetical aggravated assault
case might be similar to the following:
65. Under the UCMJ as presently interpreted, a service member must be brought to
trial within 90 days, less defense delays, if he is in confinement. United States v. Marshall,
22 U.S.C.M.A. 431, 47 C.M.R. 409 (1973); United States v. Burton, 21 U.S.C.M.A. 112,44
C.M.R. 166 (1971). We are proposing that the 90-day requirement be applied whenever the
defendant is deprived in any way of his liberty including restriction, a commonly applied
pretrial restraint in the military service.
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INDICTMENT
In the Miltary Judge Court for the Sixth Judicial Circuit
United States of America
v.
No. 75/1
John Smith, Private
US Army
Private John Smith, Company A, 1st Battalion, 19th Infantry, did,
at Fort Ruger, Hawaii, on or about 21 June 1974, unlawfully assault Private First Class Phillip Jones, Company A, 1st Battalion,
19th Infantry, by cutting him on the face, chest, and back with a
knife, and did thereby intentionally inflict grievous bodily harm
upon him, to-wit, deep cuts on the face, chest, and back.
ROBERT B. PETERSON
Colonel, Infantry
Foreman
As soon as the indictment was returned, it would be docketed
in the military judge court, and the prosecutor would serve a copy
upon the defendant, along with a summary of the grand jury proceedings, copies of all pertinent documents, and a copy of the docketing form setting forth the time and place of the preliminary hearing in the case. The preliminary hearing could take place immediately after the indictment, but the trial on the merits could not
occur, in time of peace, until at least 5 days after the date of service
of the indictment on the defendant.
3.
The Preliminary Hearing
Preliminary hearings before the military magistrates would be
available but requests for them would be infrequent because of the
simple nature of magistrates' cases. Accordingly, most such hearings would be before a military judge.
A preliminary hearing before a military judge would take place
shortly after the indictment. The proceedings would require the
presence of the military judge, counsel for both sides, the defendant,
and the court reporter. They would be recorded verbatim. Either
side could file written motions, supported by affidavits when necessary, requesting appropriate relief, and if an actual hearing were
waived, the judge could issue a decision or order on the written
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pleadings. In ari in-court hearing, however, the court would hear
evidence and then rule on motions before it. These motions might
include ones for appropriate relief, to dismiss, or in bar of trial.
Other matters that might be considered at the hearing would be
requests to suppress evidence, challenges of the judge, challenges to
the manner in which the grand jury was selected, and the plea of
the defendant. If the plea were "guilty," the court could hold an
inquiry to determine that the plea was provident before entering
findings of guilty. If the defendant were not in confinement, he
would be warned that the trial could proceed in his absence, for
example, in the event of his flight or other voluntary failure to
appear for trial.
At the time the trial date was set the defendant would be required to elect either a bench trial or a jury trial, but a jury trial
could be waived as late as the date of trial. The defendant's election
of a judge or jury trial at the pretrial hearing would facilitate placing
his case on the proper docket and making administrative arrangements for the trial.
4.
Restraint Before Trial
No developed law presently exists concerning pretrial restraint
in the military because the decision to impose pretrial restraint,
whether by restriction, arrest, or confinement, is discretionary with
the commanding officer, and his decision is reviewable only for an
abuse of discretion. 66 The UCMJ, of course, provides that no person
may be ordered into pretrial arrest or confinement without probable
causeY The Court of Military Appeals, however, has never implemented this substantive right by requiring procedural safeguards.
A service member does not receive a probable cause hearing before
he is placed under arrest or confinement. Indeed, no official with
legal training currently has the authority to conduct such a hearing
except in limited locations. 68
66. Para. 21, M.C.M., 1969 (Rev.). In Homer v. Resor, 19 U.S.C.M.A. 285, 286, 41
C.M.R. 285, 286 (1970), the Court of Military Appeals held that "[tlhe type of restraint, if
any, to be imposed upon an accused prior to trial presents a question for resolution by the
commanding officer, in the exercise of his sound discretion. His decision will not be reversed
in the absence of a showing of an abuse of discretion. See Levy v. Resor, 17 U.S.C.M.A. 135,
37 C.M.R. 399 (1967)."
67. 10 U .S.C. § 809(d) (1970) reads: "No person may be ordered into arrest or confine·
ment except for probable cause."
68. While Army Reg. 27-10, ch. 16, Change 15 (Sept. 9, 1974), created a "Military
Magistrate Program" in the Army, the military magistrate is required by paragraph 16-4 to
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Legally untrained commanding officers naturally do not understand that their authority to impose operational restrictions differs
from their ability to impose judicial restraints. Commanders have
plenary powers to impose operational restrictions on their units.
Thus, entire units, and all personnel therein, may be placed under
the tightest possible security to protect a mission, deny the enemy
information, and keep destinations and objectives secret. Because
they have this untrammeled authority to decide where and how
their subordinates eat, sleep, travel, and communicate for operational purposes, commanders tend to believe they must also have
this same authority to impose pretrial restraints for alleged criminal
misconduct.
Abuses grow out of the understandable failure of nonlegal commanders to separate operational authority from judicial authority.
When commanders act as magistrates, which they now do in making
decisions concerning pretrial restraint, they do not mentally separate their authority into these two compartments. Thus commanders may deprive service members of their liberty for alleged offenses
in much the same way they deprive the same service members of
liberty for operational security of the unit. This results in a situation
in which nonlegal commanders act in a judicial role, using hearsay
evidence, or at times no evidence at all. Often these acts of commanders appear to be, and actually are, arbitrary. The commanders
are not at fault for abuses that result; the system is at fault for its
failure to lodge all judicial authority in judicial officials instead of
nonlegal commanders.
Military law should continue to provide commanders with authority to impose operational restrictions on their units and personnel, and this power must be a plenary power of command. At the
same time, military law should remove all judicial authority from
commanders and transfer that authority to magistrates or judges
who are trained to exercise it properly. The commander then would
have absolute power where it is needed for the operation of the
military unit when no criminal misconduct is involved, and the
military magistrates or judges would possess power to impose sanctions when alleged criminal misconduct has occurred. This dichotomy would be simple to distinguish and apply, and this change
"presume that, in each case, the charges and specifications against the confinee are based
upon substantial evidence." In Hawaii, as an example, the local commander also gave the
military magistrate authority to hear evidence and decide whether probable cause for confinement exists.
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would make the service member's expectations accord with the reality of military life. When a service member enters active duty, he
understands that on military missions much individual freedom
must be surrendered in order to accomplish the mission. If he is not
on a mission, however, and he is accused of having committed a
crime, he does not expect to give up his liberty without the assistance of counselor effective procedural safeguards.
Military society, as any other society, must place a magistrate
or a judge between its service-member-citizens and governmental
power. If a service member is suspected of a crime and superior
commanders want to impose pretrial confinement, the service member should have the right to say, "I didn't do it," or, "I am not the
person who did it; you have the wrong Smith," or to state any other
defense he might have. His statements should be made before a
magistrate or judge who has the authority to hear both sides, to
consider documents and testimony given under oath, to hold a trialtype hearing, to have counsel present for both sides, and to rule for
either one side or the other as the evidence requires.
Military magistrates already exist in the Army, and some magistrates can conduct trial-type hearings. 69 The system proposed by
this article would expand the present Army program into a Military
Magistrate Court in which only the magistrate, or if one were not
available, a judge, could order an accused into restriction or confinement except for operational restrictions.
Whether restraint were imposed by a magistrate or judge, its
length and conditions would be closely controlled by law so that
service members would not remain under extended periods of
pretrial restraint. If a person under investigation were restricted or
confined and the alleged offense minor, the trial before a military
magistrate would take place within 30 days, less defense delays, or
be dismissed. If the offense were serious and the case sent to a
military grand jury with the trial to be before a military judge, the
period of restriction or pretrial confinement, less defense delays,
would not exceed 90 days, or the case would be dismissed. These
time limits are essential to protect military personnel from excessive
pretrial restraint, and can easily be met by the military with its
demonstrated ability to organize a swift and efficient system of
criminal trials.
69.
Id.
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MILITARY JUSTICE
585
Arrest
In the military, what was known at common law as arrest is
termed "apprehension,"70 and what might be thought of as moral
restraint or restriction is termed" arrest. "71 It is proposed here that
apprehension be designated "arrest" and military arrests be designated "restrictions." In practice, arrest is rarely used in the military; restriction is preferred in almost all cases.
In this proposed reform, those persons 72 presently authorized to
arrest persons under the UCMJ would continue to have that authority for offenses committed in their presence, or if immediate action
were necessary and it was impracticable to secure an arrest warrant.
In all other cases a request for an arrest warrant, supported by
affidavit, would have to be presented to a magistrate, and if a warrant issued, the arrest would be made either by military police or
military criminal investigators. These requirements would formalize military arrest procedures, and place a judicial officer, the military magistrate, between service members and the police or others
having the authority to make military arrests.
IV.
A.
TRIAL PROCEEDINGS
The Present Practice
As indicated in the discussion of the present pretrial practice
in American military law, the convening authority appoints all of
the trial personnel, including lawyers, judge, jury, and court reporter. 73 Thus the convening authority necessarily enjoys a tremen70. 10 U.S.C. § 807(a) (1970) reads: "Apprehension is the taking of a person into
custody."
71. Para. 20 M.C.M., 1969 (Rev.).
72. Para. 19, M.C.M., 1969 (Rev.).
73. In addition, the convening authority has a considerable amount of control over the
witnesses who wi11 appear at a court-martial. 10 U.S.C. § 846 (1970) provides: "The trial
counsel, the defense counsel, and the court-martial shal1 have equal opportunity to obtain
witnesses and other evidence in accordance with such regulations as the President may
prescribe" (emphasis added). The catch, however, in the classic manner of Hel1er's Catch 22
is that the prosecution decides for the defendant which witnesses are necessary and which
witnesses are not necessary. Para. 115, M.C.M., 1969 (Rev.), states that the prosecutor (trial
counsel, in military terminology) wi\l take "timely and appropriate action to provide for the
attendance of those witnesses who have personal knowledge of the facts at issue in the case
for both the prosecution and the defense," and that in the event of "disagreement between
the trial counsel and the defense counsel as to whether the testimony of a witness so requested
would be necessary, the matter will be referred" for decision to the convening authority or to
the military judge or the president of a special court-martial without a military judge accord-
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dous degree of control over the courts-martial tried in the command.
Beyond that initial control arising from his power to select court
personnel, however, under present practice; the convening authority
retains significant control during' the trial stage of any court-martial
case.
.
At a summary court-martial, which consists only of a single
commissioned officer, that nonlegal officer alone hears the evidence,
decides all issues of law and fact in the case, and in the event of a
conviction, imposes the punishment. An accused has the right to be
represented by a retained attorney if he desires, but the armed
services are not obligated to provide an attorney unless the accused
is sentenced to confinement. 74 No member of the armed services can
be tried by a summary court-martial if he objects. 75 Upon objection
from an accused, the convening ~uthority can only try the accused
by a special or general court-martia1. 76
In a special court-martial under present practice, a variety of
ing to whether the question arises before or after the trial begins." In addition, the defendant
is required to request the appearance of witnesses in writing, and must set forth (1) a synopsis
of the testimony expected from the witness, (2) "full reasons which necessitate the personal
appearance of the witness," and (3) "any other matter showing that the expected testimony
is necessary to the ends of justice." [d. For an instructive account of the abuse of this power
during the 1972 court-martial of a Navy chaplain for adultery (the first court-martial for
adultery only in the history of the United States Navy, and the only court-martial to date of
any chaplain in any of the armed forces of the United States), see A. JENSEN & M. ABRAMSON,
supra note 21, at 218-222. (Chaplain Jensen was acquitted by the court-martial.)
74. In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Supreme Court extended the sixth
amendment right to counsel to all criminal trials which can result in a sentence of
imprisonment. In response to that decision, the Army and Air Force provided that henceforth
military defense counsel would be detailed to summary courts-martial as a condition to
sentencing a defendant to confinement. See Dept. of the Army, Message 101236Z (Aug. 10,
1972); paras. 3-6c, A.F.M. 111-1 (Aug. 30, 1972); H. MOYER, supra note 20, at 389. The Navy
and Marine Corps decided to litigate the matter, and did so unsuccessfully. See Daigle v.
Warner, 348 F. Supp. 1074 (D. Hawaii 1972), in which a federal district court held that
Argersinger does apply to courts-martial conducted pursuant to 10 U.S.C. § 820 (1970), and
that counsel must be provided where confinement may result.
75. 10 U.S.C. § 820 (1970).
76. [d. But if a service member does object to trial by summary court-martial, then trial
will ordinarily be ordered by special or general court-martial for the offense involved, with
the risk of more severe punishment in the event of conviction. And as one critic of military
justice pointed out, the usual result of a court-martial is a conviction:
To be court-martialed, in Army lingo, means to be convicted. More than ninety
percent of all courts-martial result in "Federal Court conviction"-an insurmountable stigma in landing more civilian jobs. During the course of the Vietnam war
there have been annually seventy thousand courts-martial, service-wide.
F. GARDNER, THE UNLAWFUL CONCERT 220 (1970). Thus, the right to refuse a summary courtmartial carries with it the risk of probable subsequent conviction by a special or general courtmartial and a greater range of punishment.
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procedures are possible. Ordinarily, all special courts-martial consist of a military judge, the court members (military jurors) if the
accused desires a trial by court members, and the prosecuting and
defending attorneys.77 The defendant, of course, can be represented
by a retained private attorney, an appointed military attorney, or
by both. 7s Trial can be before the military judge alone, or before the
court-members sitting as "jurors."79
General and special courts-martial follow the same basic procedures. Verbatim question-and-answer transcripts of the proceedings
must be made in all general courts-martial. so This procedure, however, is required in special courts-martial only when the convening
authority has directed that the case be tried as a "Bad Conduct
Discharge" case, that is, when the court is specifically given the
power to adjudge a bad conduct discharge as a part of the punishment in the event of a conviction. sf
The military judge in special and general courts-martial can
conduct hearings before trial under Article 39 (called "Article 39
hearings") of the UCMJ to dispose of motions raising defenses or
objections, to rule on various matters which may be ruled upon by
the military judge later in the trial or initially, to conduct arraignments and receive the pleas of the accused, and to perform any other
procedural function within the province of a military judge under
the UCMJ that does not require the presence of the court members.82 If a finding of guilty is reached upon trial, then the accused
can elect to have his sentence imposed by the court members or by
the military judge alone, with certain limitations. s3
77. With very limited exceptions, special courts-martial must have a military judge and
lawyers representing both the prosecution and the defense. 10 u.s.c. §§ 816,819,827 (1970).
Although the UCMJ does not require a military judge on every special court-martial, one is
usually detailed to such courts, the exception of "physical conditions or military exigencies"
set forth in 10 U.S.C. § 819 (1970) having been so narrowly implemented that it is virtually
never used. With respect to lawyer defense counsel, a similar situation exists. 10 U.S.C. §
827(c) (1970) provides that in all special courts-martial the defendant shall be "afforded the
opportunity" to be represented by a lawyer, qualified in the sense of 10 U.S.C. § 827(b) (1970),
except in cases where such counsel "cannot be obtained on account of physical conditions or
military exigencies." The Manual narrowly limits such situations. See para. 6(c), M.C.M.
1969 (Rev.).
78. Para. 48, M.C.M. 1069 (Rev.).
79. 10 U.S.C. § 816 (1970).
80. 10 U.S.C. § 854 (1970).
81. 10 U.S.C. § 819 (1970).
82. 10 U.S.C. § 839(a) (1970).
83. The defendant can accomplish a form of trial by judge alone with sentencing by the
court-members, by entering a plea of guilty before the military judge alone in an Article 39a
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An extremely troublesome aspect of present military law has
been Article 62 of the UCMJ which provides that if a specification
(similar to a count in a federal indictment) of any charge before a
court-martial is dismissed on motion, and if the ruling does not
amount to a finding of not guilty, the convening authority may
return the record to the court-martial for reconsideration and any
further "appropriate action." This provision of the UCMJ is implemented by paragraph 67f of the Manual for Courts-Martial 84 in such
a way that a legally untrained commander can overrule a military
judge on an issue of law. The Manual provision reads: .
To the extent that the matter in disagreement relates solely to a
question of law, as for example, whether the charges allege an
offense cognizable by a court-martial, the military judge or president of a special court-martial without a military judge will accede
to the view of the convening ·authority.85
This has been held by the Court of Military Appeals to mean that,
on those issues of law, the nonlegal convening authority is the supreme judge of what is or is not lawful in court-martial procedure
at the trial level, rather than the military judge or the president of
the court (the officer who presides at any special court-martial sitting without a military judge).86 Obviously it is wholly unsatisfactory to allow legally untrained persons to rule in this fashion on
matters of law in criminal trials, yet American military law permits
this practice in special courts-martial and in general courts-martial
session, but not requesting trial by judge alone. In this manner, the military judge determines
guilt, but court-members determine the sentence. If, however, a defendant elects to have a
trial by court members on a not guilty plea, and there is a conviction, then the court members
determine the sentence also. Similarly, if trial is before a military judge alone on a not guilty
plea, and there is a conviction, then the military judge determines the sentence. The UCMJ
prohibits trial of a capital offense (unless it has been referred to trial specifically as a noncapital case) by a military judge alone. 10 U.S.C. § 818 (1970).
84. Para. 67(f), M.C.M., 1969 (Rev.).
85.
[d.
86. Lowe v. Laird, 18 U.S.C.M.A. 131,39 C.M.R. 131 (1969); United States v. Boehm,
17 U.S.C.M.A. 530, 38 C.M.R. 328 (1968). See Floyd, Government Appeals in Military Criminal Cases, 24 JAG J. 129, 136 (1970).
Although the military judge's authority is limited by that of the convening authority, he
has been the subject of much praise. See, e.g., Goldschlager, The Military Judge: A New
Judicial Capacity, 11 A.F. JAG L. REv. 175 (1969); Quinn, Courts-Martial Practice: A View
from the Top, 22 HASTINGS L.J. 201, 208-10 (1971) [hereinafter cited as Quinn]; Westerman,
Court of Military Review, 24 ARMY DIGEST, Oct. 1969, at 10-11. See also DeBarr, The Military
Judiciary, 61 A.B.A.J. 307 (1975); Douglass, The Judicialization of Military Courts, 22
HASTINGS L.J. 213 (1971).
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as well. Aside from this absurd difficulty, the military judge does
have the power to control the proceedings at trial, and to rule after
the manner of a civilian judge on issues arising during trial. The
military judge has certain limitations on his power to hold persons
in contempt,87 but this has not significantly hampered the trial of
courts-martial as far as can be determined to date.
B.
The Proposed Practice
Generally, modern military trial procedure and the rules of
evidence under which military cases are tried are quite good and for
the most part are not in need of reform. The current military trial
as conducted in the general court-martial would give little cause for
complaint if the convening authority were kept entirely out of the
proceedings. The procedures, the rules of evidence, the opening and
closing statements, and the instructions to the jury are virtually the
same as those in civilian trials. Merely abolishing the convening
authority would go a long way toward transforming the military
system into a true court system. Summary, special, and general
courts-martial, however, should be abolished as well, and a twolevel, permanent military court system created with military magistrates presiding over minor cases, and military judges presiding over
all other cases.
1.
Military Magistrate Trials
Military magistrate courts would handle criminal and noncriminal cases in the system proposed by this article. Minor offenses,
with the concurrence of the service member, would be disposed of
swiftly (normally on the same day a complaint is filed) as noncrim87. 10 U.S.C. § 848 (1970); para. 118, M.C.M., 1969 (Rev.). If a military judge is trying
a case alone, he may determine whether the action in question constitutes contempt, and may
adjudge a punishment (which, of course, is of no force or effect unless and until the convening
authority approves it and orders it executed). When the military judge is trying a case with
court members, he makes a determination of whether the person involved should be held in
contempt, and if any court member objects to that determination, the court members must
vote on it, with appropriate instructions from the military judge. If the court members do
not sustain the initial determination of the military judge, that is the end of the matter. If
they do sustain his initial determination, then they are instructed and vote upon the issue of
whether the person involved shail be held in contempt, and in the event of an affirmative
determination, they adjudge a sentence (which is of no force or effect unless and until the
convening authority approves it and orders it executed). A significant question is presented
in the case of non-military personnel in contempt of court-martial proceedings: are they
subject to the contempt provisions of the UCMJ? Probably they are not. See generally F.
WIENER, supra note 7.
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inal cases, as indicated in the discussion of pretrial procedures.
Noncriminal military magistrate cases would occur in a trial setting
no different from military magistrate criminal trials, except that
they would take place on a complaint rather than on an information.
In criminal cases the defense could also move for a Bill of Particulars and thus force the prosecutor to set forth his case fully.
All magistrate cases would be without a jury, whether criminal
trials or noncriminal proceedings, and would use a "beyond a reasonable doubt" criminal evidentiary test of guilt. In both noncriminal and criminal cases before the magistrate, legal counsel would
represent both the defendant and the United States; witnesses
would testify under oath; real and documentary evidence would be
received; cross-examination and confrontation would be accorded;
the defendant would be allowed to testify or remain silent; a verbatim record of the proceedings would be recorded, but not transcribed; and appellate review of the case before a military judge
would be mandatory if the defendant filed a notice of appeal.
Military magistrates, of course, would handle many other issues. Instead of nonlegal commanders issuing search warrants or
arrest warrants, or acting to confine, all proceedings of this nature
would be held in the military magistrate court. Before a magistrate
acted a hearing would be held under regulations issued by the Departments concerned. The regulations would be patterned after general civilian practice in these procedural areas. All final decisions
by a military magistrate except findings of not guilty would be
appealable to a military judge, and an appeal could be taken by
counsel for either the prosecution or the defense.
2.
Military Judge Trials
The reform of the military justice system proposed herein
would make indictment by a military grand jury (unless waived by
the defendant) and trial by jury (unless waived by the defendant)
mandatory for military courts in the trial of felony-grade offenses
just as they are in civilian courts. These procedural protections can
be provided military defendants without harming the military
structure. Their use would improve the current Article 32 investigation and court member trials, without establishing a radically different system. 88 These two requirements would be the only signifi88. In 1969 the United States Supreme Court, in O'Caliahan v. Parker, 395 U.S. 258
(1969), held that because the military services have no grand jury system and no trial by jury,
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cant differences between the military judge trial under the UCMJ
and the military judge trial under the system proposed. With these
two major changes, and some accompanying minor changes in the
actualJormat of the trial, the military judge trial would equal any
civilian trial in fairness and in according justice to the individual.
3.
The Military Jury
Military juries would be composed of nine jurors and three
alternates, selected randomly by the military judges' administrative
office. Both the prosecutor and defense counsel could observe the
selection process if they desired to do so. The selection would be
made from all eligible jurors, except that, to the extent possible, no
jurors would come from the accused's unit or be his junior in rank.
At the appropriate time the military jurors would be summoned
for voir dire examination by the military judge and both counsel.
The jurors would be questioned as a body, and individually when
necessary. Each defendant and the United States would have three
peremptory challenges. The military judge would rule finally on
challenges for cause. Once nine jurors and three alternates were
selected, the jury would be sworn.
Jurors would take a one-time oath, and once sworn in, written
confirmation of the oath would be placed in each juror's personnel
file. The senior member of the jury would be the foreman. The jury
would vote by secret written ballot. Two-thirds of the members
concurring at the time of the vote would be required for a conviction,
unless the death penalty were being sought, in which case all members would have to concur in the sentence. The jury would sentence
the defendant only when the punishment could extend to death; any
service members, even though on active military service, could not be tried by courts-martial
for certain off-post crimes unless the crimes were "service-connected." See note 3 supra. This
limited military jurisdiction over service members to acts on or near military enclaves, and
some officials came to refer to O'Callahan and its progeny as a "magnet theory of jurisdiction." As a service member came nearer and nearer to a military enclave, military jurisdiction
became stronger and stronger until at some point near the installation boundary the magnetic
force swept the service member into the military jurisdictional net. At the same time, however, many crimes by service members occurring off-base were determined to be not serviceconnected, and thus not subject to military trial.
There is no doubt that 0 'Callahan weakened the authority of the military services over
its own personnel. In some jurisdictions service members in substantial numbers engaged in
unlawful drug use and possession off-base with little fear of any jurisdiction, civil or military,
taking action against them. Many service members ended up in civilian jails and their units
moved without them, while, had they been in military confinement, they could have been
ordered to move with their units.
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lesser punishment would be determined by the military judge.
In addition to the right to a jury trial in the normal criminal
process when confinement could exceed 6 months or when a punitive discharge could be adjudged, the trial of any contempt case in
which confinement could be more than 6 months would be by jury.
In other words, no service member could be sentenced to confinement for more than 6 months, or to a discharge, unless he were
accorded, or he waived, trial by jury.
4.
The Trial Proceeding
The military trial would remain almost the same as trial under
the UCMJ is currently. Opening arguments would be made; the
prosecution would put on its case-in-chief; the defense would ordinarily make a motion for acquittal; the defense would put on its
case-in-chief; final arguments would be made; the military judge
would charge the jury; the jury would deliberate and vote, and
return a verdict of guilty, guilty of a lesser included offense, or not
guilty. After the jury returned a verdict, it would have completed
its function in the trial, unless the death penalty were involved. 89
5.
The Sentence Hearing
The sentence hearing would be set for a date shortly after findings of guilty were returned. A presentence report, something now
unknown to military law, would be prepared and made available to
the military judge to assist him in arriving at an appropriate sentence. This report would consist of the defendant's record of prior
con victions, civilian or military; his personnel and efficiency reports; and all other pertinent materials.
Once a sentence was adjudged, either the military judge or
magistrate could defer or suspend the punishments imposed. In any
case in which the judge or magistrate believed a legal issue was
involved on which the accused might prevail on appeal, the entire
sentence would be deferred until completion of appellate review.
89. Only a jury could return a death sentence; all lesser punishment would be meted
out by the military judge. This provision is in accord with current military practice, 10 U.S.C.
§ 818 (1970), and we think that military sentencing in all other respects should parallel the
sentencing procedures followed in federal district courts, where the judge, rather than the
jury, determines the sentence.
At the time of publication, the Supreme Court had under consideration anum ber of cases
involving death penalty statutes enacted after the decision in Furman v. Georgia, 408 U.S.
238 (1972). It remains to be seen whether capital punishment is still constitutional, and that
question is not addressed in the present article.
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Under the UCMJ many service members serve their entire confinement sentences before their cases are reversed, and no remedy exists
to return any of this lost freedom. The judge and magistrate, under
the proposed system, could suspend sentences in whole or in part.
Current practice permits the judge merely to recommend to the
convening authority that the sentence be suspended, but as always
the convening authority is in no way bound by such a recommendation.
V.
A.
POST-TRIAL PROCEEDINGS
The Present Practice
It is in post-trial proceedings that some of the most inappropriate functions have been given to the convening authority. In
these proceedings the convening authority assumes the role of Supreme Court in most of the courts-martial tried in the armed forces
of the United States, that is, the special courts-martial. 90 And as a
result of the convening authority's power, the military judge is divested of almost all power to render judgments and impose sentences that will remain final and actually be carried into execution.
The convening authority is the only official in our system of
military justice empowered to "approve" the actions of any courtmartial. Unless and until the convening authority "approves" the
action taken by a court-martial, the action is of no force or effect.
An acquittal or a finding of not guilty, however, cannot be altered
or disturbed by a convening authority.91
The implications of this kind of power should be examined
briefly. In theory, placing this overriding power in the commanding
officer is a salutary measure designed to allow a benevolent military
commander to remedy incorrect judgments or harsh sentences imposed by courts-martial. If the staff judge advocate advises the convening authority in the post-trial review of the case 92 that the find90. "Appellate review," if it can fairly be called that, in special courts-martial (unless
a bad conduct discharge has been adjudged and approved by the convening authority), is
merely review by the convening authority himself, or by a judge advocate officer. See 10
u.s.c. §§ 864, 865 (1970) paras. 91(b)(2), 94(2), M.C.M., 1969 (Rev.). No court ever reviews
the case unless the defendant has the resources to conduct a collateral attack in the federal
courts. See Weckstein, Federal Court Review of Courts-Martial Proceedings: A Delicate
Balance of Individual Rights and Military Responsibilities, 54 MIL. L. REV. 1 (1971). See also
Schlesinger v. Councilman, 420 U.S. 738 (1975).
91. 10 U.S.C. §§ 862, 864 (1970).
92. 10 U.S.C. § 861 (1970).
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ings or sentence are legally in error or factually insufficient, or that
the sentence is unduly harsh, then the convening authority can take
appropriate action to set aside such findings or reduce such sentences. But the Court of Military Appeals has held that a convening
authority can take this action for any reason, or for no reason at all;
the convening authority's· discretion in the matter is absolute and
cannot be challenged. 93 Thus, the convening authority has the power
to insulate fully any service member in the command from the
consequences of a trial. 94 If the convening authority in a case involving a conviction for the murder of innocent civilians in a combat
zone, for example, decided he wanted to set aside the finding of
guilty and the sentence, he could do so. No power within our system
of military justice could prevent such action.
Compare this situation with that found in civilian courts of
general jurisdiction: the judgments of civilian courts are final unless
overturned by a higher appellate court or altered in sOIl!e lawful
manner by the judge of the trial court in proceedings such as hear93. 10 U.S.C. §§ 860-64, 866(e), 867(0, 871, 874 (1970); paras. 84-88, 98, 100, 101,
M.C.M., 1969 (Rev.). See United States v. Boatner, 20 U.S.C.M.A. 376, 43 C.M.R. 216
(1971); United States v. Kirsch, 15 U.S.C.M.A. 84, 91, 35 C.M.R. 56, 63 (1964); United States
v. Massey, 5 U.S.C.M.A. 514, 520, 18 C.M.R. 138, 144 (1955).
94. This phenomenon has been called "reverse command influence," i.e .. command
influence used to insulate, protect, or help a defendant. H. MOYER, supra note 20, at 769.
Moyer correctly notes that "as a phenomenon it has been virtually ignored in literature on
military justice, despite the widespread discussion of its converse." Id. Moyer cites and quotes
our 1970 discussion of this phenomenon, in which we pointed out that at first glance "reverse
command influence" appears to be a salutary infusion of commendable clemency power, but
concluded that upon closer examination there are other implications of such power in the
hands of lay convening authorities. Id. Moyer cites, as further examples of "reverse command
influence," the cases of former Sergeant Major William O. Wooldridge, who was allowed to
retire without being court-martialed in a widespread scandal over fraud in the operation of
enlisted servicemen's clubs; the absence of any prosecution of the high ranking Army officers
involved in the My Lai murders; the dropping of all charges against the only general officer
charged in connection with the My Lai murders, Major General Samuel W. Koster, former
superintendent of West Point and the commander of the Army division involved; and, the
dropping of charges against Major General John D. Lavelle, who commanded the Seventh
Air Force in Vietnam and ordered 24 unauthorized bombing raids against North Vietnam and
the falsification of reports about such raids. H. MOYER, supra note 20, at 769-73. Moyer also
mentions the infamous "mere gook rule" of American military law, which is military slang
for the view that "crimes are less serious when the victim is an Oriental," and points out that
this rule "has manifested itself through, for example, the dropping or reducing charges,
references of serious charges to special courts-martial, or pretrial agreements for low or suspended sentences." Id. at 773-74. Moyer states, and we agree, that the examples could
continue. Id. For our present purpose in this article, the point is that the phenomenon of
"reverse command influence" can significantly weaken our system of military justice, and
probably has weakened it. It should be eliminated.
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ings on motions for new trial. In no state of the United States does
any lay person pass upon the legal and factual sufficiency of the
findings and judgments of our civilian courts in either civil or criminal cases, and of course the same is true in the federal court system.
But under our present system of military justice, the nonlegal convening authority, rather than any appellate court, has the opportunity to pass upon the findings, judgments, and sentences of courtsmartial.
Article 60 of the UCMJ requires that the record of trial in all
courts-martial be forwarded to the convening authority for initial
action. 95 The record of general courts-martial must first be sent to
the convening authority's staff judge advocate who prepares a posttrial review of the proceedings for the guidance of the convening
authority.96 At this point, after having set forth thus far the stark
powers of the convening authority, it is perhaps unnecessary to add
that the convening authority is in no way bound by the post-trial
recommendations of the staff judge advocateY The UCMJ commands only that the review be written and submitted.
In fairness, it should be noted that in the vast majority of cases
known to the authors, convening authorities actually do follow the
recommendations of the staff judge advocate, at least with respect
to any legal errors involved. As a matter of sound jurisprudential
policy, however, it is undesirable to lodge power of this nature in the
convening authority, that is, to empower nonlegal personnel to overrule the legal decisions of military judges and ignore the legal advice
of staff judge advocates in reviewing cases.
Once the convening authority has taken final action on the
record in a general court-martial case, he must forward it to the
appropriate Judge Advocate General. 98 Depending upon the sentence, the record will then undergo administrative examination or
appellate review, along with trial records of special courts-martial
in which bad conduct discharges have been adjudged as part of the
sentences. 99 In all other courts-martial, the convening authority,
after taking post-trial action, turns the record over to an armed
forces judge advocate or other legal officer who administratively
reviews the record.
95.
96.
97.
98.
99.
10 U.S.C. § 860 (1970).
10 U.S.C. § 861 (1970).
See notes 46-47 supra.
10 U.S.C. §§ 866, 868-69 (1970).
10 U.S.C. §§ 866(b), 869 (1970).
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In the Office of The Judge Advocate General, or other office
established by that officer, records of general courts-martial containing the more severe punishments and special courts-martial in
which bad conduct discharges have been adjudged are reviewed by
a Court of Military Review. Each service (Army, Navy, Air Force,
and Coast Guard (Department of Transportation» 100 has a Court of
Military Review. These courts have been staffed exclusively by military lawyers in all ofthe services except the Navy and Coast Guard.
They have the power to reduce the sentences imposed for reasons
of illegality or inappropriateness, and to take reversive action such
as ordering charges set aside and dismissed because of legal errors.
If the Courts of Military Review affirm cases, the cases in some
instances then may be reviewed by the United States Court of Military Appeals.
Cases reach the Court of Military Appeals by petition on good
cause shown (the overwhelming majority of all general and badconduct-discharge special courts-martial cases on appeal are presented, and denied hearings, in this manner at the Court of Military
Appeals level),.ol by certification on the part of an armed service
Judge Advocate General,102 on mandatory review if the defendant is
a general or an admiral or has received a death sentence that has
been affirmed by a Court of Military Review, and upon petition for
extraordinary relief. 103 At the Court of Military Appeals, a military
defendant enjoys all of the usual rights and procedures provided in
the appellate consideration of a criminal case, including a free record of trial, the assistance of appointed counsel, and the rights of
briefing and full oral argument. 104
100. The Coast Guard was moved from the Treasury Department to the Department
of Transportation in 1967 under 49 U.S.C. § 1655(b) (1970) (originally enacted as Act of Oct.
15, 1966, Pub. L. No. 89-670, § 6, 80 Stat. 937).
101. 10 U.S.C. § 867(b)(3) (1970). For example, in 1969 there were 464 petitions for
review filed with the Court of Military Appeals; review was granted in only 61 cases, and was
denied in the remaining 403 cases. See note 50, supra.
102. 10 U.S.C. § 867(b)(2) (1970).
103. 10 U.S.C. § 867(b)(l) (1970). This automatic appellate review extended to generals
and admirals by virtue of their rank and status, and denied to all others by virtue of their
rank and status, has been held constitutional by the Court of Military Appeals and by the
United States Court of Appeals for the District of Columbia Circuit. Gallagher v. Quinn, 363
F.2d 301 (D.C. Cir.), cert. denied, 385 U.S. 881 (1966); United States v. Gallagher, 15
U.S.C.M.A. 391, 35 C.M.R. 363 (1965), reu'd on other grounds, 22 U.S.C.M.A. 191,46 C.M.R.
191 (1973). To complete the intermediate stage of the history of Private Gallagher's persistent
(and finally successful) legal battle for ultimate vindication, see Gallagher v. United States,
423 F.2d 1371 (Ct.CI.), cert. denied, 400 U.S. 849 (1970).
104. The existence and function of the Court of Military Appeals is not at issue here.
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Even the judgments and orders of the Court of Military Appeals
affirming a case are not final. Once again the convening authority
has the last word. The action of the Court of Military Appeals is not
effective unless and until the convening authority involved orders
execution of the sentence. 105 The convening authority, however, cannot increase any sentence or order into execution any sentence that
has been ordered set aside by the court.
B.
The Proposed Practice
It is proposed that the system of administrative review of
courts-martial presently in effect under the UCMJl06 be replaced by
true judicial review. Any case could be reviewed by intermediate
courts all the way to the United States Court of Military Appeals.
All review would be conducted by courts; no longer would a record
of trial by court-martial be turned over to a staff judge advocate for
review. Interlocutory review would be established for certain issues,
and full judicial review of all cases would be made available.
1.
Interlocutory Review
Interlocutory review is not now available under the UCMJ (except for minor instances under the confusing and largely ineffective
extraordinary remedy doctrine in the Court of Military Appeals),107
For criticism of the court, see R. SHERRILL, supra note 21, at 213-61; Benson, The United
States Court of Military Appeals, 3 TEX. TECH L. REv. 1 (1971); Fratcher, Presidential Power
to Regulate Military Justice: A Critical Study of the Decisions of the Court of Military
Appeals, 34 N.Y.U.L. REV. 861 (1959); West, supra note 16. In defense of the court, see Quinn,
supra note 86; Quinn, Some Comparisons Between Courts-Martial and Civilian Practice, 15
U.C.L.A.L. REV. 1240 (1968); Sherman, supra note 21, at 51; Willis, The Constitution, the
United States Court of Military Appeals and the Future, 57 MIL. L. REV. 27 (1972); Willis,
The United States Court of Military Appeals: Its Origin, Operation and Future, 55 MIL. L.
REV. 3993 (1972). See also Warren, The Bill of Rights and the Military, 37 N.Y.U.L. REV. 181
(1962).
105. See note 93 supra.
106. 10 U.S.C. §§ 860, 861, 862, 863, 864, 865, 869, 871 (1970).
107. Even military apologists for the Court of Military Appeals recognize this fundamental gap in its powers. See, e.g., Willis, The Constitution, the United States Court of
Military Appeals and the Future, 57 MIL. L. REv. 27, 81-83 (1972). Extraordinary relief is
almost never granted by the Court of Military Appeals, in spite of the court's grandiloquent
phrases in discussing this power, as noted in Benson, The United States Court of Military
Appeals, 3 TEX. TECH L. REv. I, 10-14 (1971). In view of Professor Benson's prior criticism of
the Court of Military Appeals for its timidity in the exercise of extraordinary relief powers,
candor requires the admission that he was counsel for the successful petitioner in Gallagher
v. United States, 22 U.S.C.M.A. 191, 46 C.M.R. 191 (1973), in which the Court of Military
Appeals did grant the extraordinary relief sought. The basic point remains, however; the
Court of Military Appeals grants extraordinary relief in an extremely small number of cases,
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and this has resulted in considerable waste of judicial time and
effort. Many issues in military trials could, and should, receive interlocutory review. Military judges are often challenged, and under
current practice the judge must disqualify himself or deny the challenge and await final appellate review to determine if his decision
was a correct one. If an appellate court reverses the case, an entire
new trial is required. Magistrates and judges should be given discretionary authority to certify to an appellate court interlocutory issues
of this nature. This procedure also would allow the prosecutor to
appeal issues of law on which the judge has ruled against the government, and the prosecutor believed the judge was in error.
All of the issues that should be subject to interlocutory review
are not listed here. Broad authority should be granted to the appellate court in this area so that it might determine for itself the types
of issues it would hear.
2.
Judicial Review
All administrative review as now provided under the UCMJ
should be abolished. Summary, special, and some general courtsmartial receive only administrative review ,08 under present practice.
Under the proposed system, magistrate court decisions would
be reviewed by a military judge upon the request of a defendant,
and review for good cause shown would be allowed before the Court
of Military Review and the Court of Military Appeals. Thus magistrate cases would receive judicial review at three levels, and in all
military cases reviewed in the Court of Military Appeals, the accused could petition for a grant of certiorari from the Supreme Court
of the United States, and the court itself could certify questions for
Supreme Court review.
All military judge cases would be reviewed by a Court of Military Review at the request of a defendant. In every instance and at
every level, the defendant would be able to appeal or waive appeal.
Every defendant would be represented by an attorney to assure that
his decision to appeal or to waive an appeal was an informed deciSIOn.
when considered in terms of the thousands of courts-martial convictions adjudged under the
UCMJ. See also H. MOYER, supra note 20, at 642-60, for a comprehensive discussion and
bibliography pertaining to extraordinary relief at the Court of Military Appeals and in the
various armed forces Courts of Military Review.
108. See note 106 supra.
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Every hearing would be recorded verbatim by a qualified court
reporter, but a verbatim transcript would only be required of portions of the trial record. The defense counsel and prosecutor would
assign appellate errors, and an extract of the record pertinent to the
assigned error would be produced for use by the appellate courts.
For errors alleging insufficiency of evidence, a verbatim record of all
the evidence would be produced. Generally, counsel at trial would
agree on the size and content of the extract, but if counsel could not
agree, the magistrate or judge hearing the case would determine this
question. An appellate court, of course, could order a larger extract
forwarded if it so desired.
The United States Court of Military Appeals would be given
jurisdiction to hear every military case, except those in which the
defendant knowingly and voluntarily waived his appellate rights.
The court would be required to review cases in which the sentence
extended to death, dismissal, dishonorable or bad conduct discharge, or confinement for 1 year or more. The Court of Military
Appeals would thus become a true "supreme court for the military,"
and could better insure the protection of every service member's
judicial rights.
VI.
CONCLUSION
As Luther West pointed out in his article on unlawful command
influence in the American system of military justice:
\
Historically, the American military commander has been responsible for the administration of military justice within his command. If a soldier commits an offense, if he refuses to fight in
battle, steals from another soldier, goes absent without leave or
commits a murder, his immediate commander must decide
whether he is to be punished for this infraction of military
discipline. IOU
If the commander is fair, well and good. If he is not fair, "he may
usurp the functions of the courts, and influence them to render
verdicts or sentences designed to effect his own wishes, regardless
of the merits of the individual case."IIO And as West goes on to say,
"[F]or many years the discretion of military commanders to con109. West, supra note 16, at 1.
1l0. [d. at 2.
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trol verdicts and sentences of military courts was viewed as a military matter . . . . "111
The attitude that military justice is a military rather than a
legal matter continues to pervade some of the most important provisions of the Uniform Code of Military Justice. The powers of the
convening authority vastly exceed those of any comparable executive official in any civilian system of criminal justice in the United
States. It is hoped that this discussion of proposed reforms demonstrates that a truly impartial, legal, judicial system can work efficiently in the military services. Military justice should be controlled
by military lawyers and judges, just as the military practice of medicine and surgery is controlled by physicians. It would be unthinkable that a military commander might pass upon the work of a
military physician, "approve" surgery performed in a military hospital by reviewing the physician's post-operative report, or consider
the "advice" of physicians and then make a diagnosis in ea.ch medical case to be treated in a military hospital. Merely stating such a
proposition exposes its unacceptability. It is no longer acceptable to
allow legally untrained military commanders to participate in our
system of military criminal justice in the fashion now required by
the UCMJ. The administration of a sophisticated system of criminal justice is not a task for legally untrained personnel. The time
has come to effect those changes in the Uniform Code of Military
Justice that would remove convening authorities from military justice matters. Control of the system of military justice belongs and
should now be placed in the hands of military lawyers and military
judges.
111.
[d.
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APPENDIX
This appendix represents an approach to the task of substituting legal personnel for
convening authorities in the American system of military justice. No attempt has been made
to present the whole of a revised Uniform Code of Military Justice in this appendix. For
purposes of this article it is only necessary to show, in broad outline form, the general shape
of the UCMJ provisions that would be changed to effect removal of convening authorities.
Many provisions of the present UCMJ would remain unchanged, and no change at all would
be made in substantive military criminal law. The adoption of the phraseology employed in
this appendix is not crucial to the primary goal of removing the convening authority from
military justice.
The chart on the following page presents in schematic form the changes proposed.
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SUPREME COURT OF THE UNITED STATES
Jurisdiction on:
1. Petition for writ of certiorari
2. Certification by Court of
Military Appeals
COURT OF MILITARY ApPEALS
Military Supreme Court
COURT OF MILITARY REVIEW
Appellate court for all military judge cases
MILITARY JUDGE COURT
Trial court of general criminal jurisdiction
Appellate court for all military magistrate cases
Characteristics:
1. Grand jury indictment required unless waived
2. Jury trial
MILITARY MAGISTRATE COURT
Lower trial court
Characteristics:
1. Imposes confinement at hard labor for 6 months maximun
2. Issues search warrants
3. Issues arrest warrants
4. Permits pretrial restriction of confinement
5. Supervises military grand jury
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603
THE MILITARY CRIMINAL JUSTICE ACT
Subchapter I.
General Provisions
Sec. 801 Art. I, Definitions
In this chapter:
(1) "Judge Advocate General" means, severally, the Judge Advocates General of the
Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in
the Navy, the General Counsel of the Department of Transportation.
(2) The Navy, Marine Corps, and the Coast Guard when it is operating as a service in
the Navy, shall be considered as one armed force.
(3) "Commanding Officer" includes only commissioned officers and refers to officials
who are excluded entirely from any participation in the Military Criminal Justice System,
except as they may be complainants or defendants.
(4) "Officer in charge" means a member of the Navy, the Marine Corps, or the Coast
Guard designated as such by appropriate authority, and refers to officials, such as Commanding Officers, who are excluded entirely from any participation in the Military Criminal
Justice System, except as they may be complainants or defendants.
(5) "Superior commissioned officer" means a commissioned officer superior in rank or
command.
(6) "Cadet" means a cadet of the United States Military Academy, the United States
Air Force Academy, or the United States Coast Guard Academy.
(7) "Midshipman" means a midshipman of the United States Naval Academy and any
other midshipman on active duty in the naval service.
(8) "Military" refers to any or all of the armed forces.
(9) "Accuser" means a person who signs and swears to a complaint, any person who
directs that a complaint nominally be signed and sworn to by another, and any other person
who has an interest other than an official interest in the criminal prosecution of an accused.
(10) "Military Magistrate Court" means a Court created by the Chief Judge of the
United States Court of Military Review of each military service.
(11) "Military Magistrate" means an official who presides over trials in the Military
Magistrate Court.
(12) "Military Judge Court" means a Court created by section 816 (Article 16) of this
chapter.
(13) "Military Judge" means an official who presides over trials in the Military Judge
Courts and is appointed by the Chief Judge of the United States Court of Military Review of
each service.
(14) "Law Specialist" means a commissioned officer of the Coast Guard designated for
special duty (law).
(15) "Legal Officer" means any commissioned officer of the Navy, Marine Corps, or
Coast Guard designated to perform legal duties for the service concerned.
(16) "Judge Advocate" means an officer of the Judge Advocate General's Corps of the
Army or the Navy or an officer of the Air Force or the Marine Corps who is designated as a
judge advocate.
Sec. 802 Art. 2.
Persons subject to this chapter for criminal jurisdiction
The following persons are subject to this chapter for the exercise over them of criminal
jurisdiction:
(1) Members of a regular component of the armed· forces, including those awaiting
discharge after expiration of their terms of enlistment; volunteers from the time of their
muster or acceptance into the armed forces; inductees from the time of their actual induction
into the armed forces; and other persons lawfully called or ordered into, or to duty in or for
training in, the armed forces, from the dates when they are required by the terms of the call
or order to obey it.
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(2) Cadets, aviation cadets, and midshipmen.
(3) Members of a reserve component while they are on inactive duty training authorized
by written orders which are voluntarily accepted by them and which specify that they are
su bject to this chapter.
(4) Persons in custody of the armed forces serving a sentence imposed by a military
court.
(5) Members of the Environmental Science Services Administration, Public Health
Service, and other organizations, when assigned to and serving with the armed forces.
(6) Prisoners of war in custody of the armed forces.
(7) In time of a declared war, persons serving with or accompanying an armed force in
the field.
Sec. 803 Art. 3.
Jurisdiction to try certain personnel
(a) Subject to section 832 of this title (Article 32), no person against whom a complaint
has been filed under this chapter for an offense alleged to have been committed while in a
status in which he was subject to this chapter for an offense against this chapter punishable
by confinement for five years or more and for which the person cannot be tried in the courts
of the United States or of a State, a Territory, or the District of Columbia, may be relieved
from amenability to trial by a military court by reason of the termination of that status,
provided that at the time of trial he is subject to this chapter.
(b) Each person discharged from the armed forces who is later alleged to have fraudulently obtained his discharge is, subject to section 832 (Article 32), subject to trial by a
military court on such a complaint and is after apprehension subject to this chapter while in
the custody of the armed forces for that trial. Upon conviction of that offense he is subject to
trial by a military court for all offenses under this chapter committed before the fraudulent
discharge.
(c) No person who has deserted from the armed forces may be relieved from amenability to the jurisdiction of this chapter by virtue of a separation from any later period of service.
Sec. 804 Art. 4.
Dismissed officer's right to trial by a military court
[Same as existing law, except remove "court-martial" and substitute "military court"
in subsection (a).]
Sec. 805 Art. 5.
Territorial applicability of this chapter
This chapter applies in all places.
Sec. 806 Art. 6.
Judge Advocates and legal officers
(a) The assignment for duty of judge advocates of the Army, Navy, and Air Force and
law specialists of the Coast Guard, except those appointed as Military Magistrates or Judges,
shall be made upon the recommendation of the Judge Advocate General of the armed force
of which they are members. The assignment for duty of judge advocates of the Marine Corps
shall be made by direction of the Commandant of the Marine Corps, except for Military
Magistrates and Judges. The Judge Advocate General or senior members of his staff shall
make frequent inspections in the field in supervision of the administration of military justice.
(b) The staff judge advocate or legal officer of any command is entitled to communicate
directly with the staff judge advocate or legal officer of a superior or subordinate commander
or with the Judge Advocate General.
(c) Military Magistrates and Judges shall be independent officials, and they shall receive information and directives only from the Chief Judge of the United States Court of
Military Review of their service.
Subchapter
Sec. 807 Art. 7.
(a)
n.
Arrest and Restraint
Arrest
Arrest is the taking of a person into custody.
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(b) Any person authorized under regulations governing the armed forces to arrest persons subject to the criminal jurisdiction of this chapter or to a criminal trial thereunder may
do so for an offense that has been committed in his presence, or upon reasonable belief that
an offense has been committed and that the person arrested committed it, under circumstances where it is impractical to comply with subsection (d) of this section.
(c) Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to criminal
jurisdiction under this chapter and to arrest such persons subject to this chapter who take
part therein in their presence, or upon reasonable belief that an offense has been committed
and that the person arrested committed it, under circumstances where it is impracticable to
comply with subsection (d) of this section.
(d) All other arrests shall be by warrant, oral or written, issued by a Military Magistrate
under section 819(a) (Article 19(a)) of this chapter, and enforced by military police or military
criminal investigators under regulations governing the armed forces.
Sec. 808 Art. 8.
Arrest of Deserters
Any civil officer having authority to arrest offenders under the laws of the United States
or of a State, Territory, Commonwealth, or possession, or the District of Columbia may
summarily arrest a deserter from the armed forces and deliver him into the custody of those
forces.
Sec. 809 Art. 9.
Imposition of Restraint
(a) Restriction is the restraint of a person by an order, not imposed as a punishment
for an offense, directing him to remain within certain specified territorial or geographical
limits. Confinement is the physical restraint of a person.
(b) Any person subject to the criminal jurisdiction of, or to trial under, this chapter,
may be ordered into restriction or into confinement by any Military Magistrate by an order,
oral or written, delivered in person or through other persons.
(c) No person may be ordered into restriction or confinement by a Military Magistrate
except for probable cause. Probable cause shall be determined in a hearing where the person
under investigation shall be represented by counsel, afforded the rights of confrontation and
cross-examination of adverse witnesses, and allowed to present witnesses, evidence, and his
own testimony, should he desire to do so, on his own behalf.
(d) Nothing in this article shall limit the plenary powers of a Commanding Officer or
Officer in Charge to impose operational restrictions on his unit, or any subunit thereof, or on
any personnel of his unit or any subunit thereof. Violations of this subsection shall be punishable under Article 92 of this Chapter.
(e) Nothing in this article limits the authority of persons authorized to arrest offenders
to secure their custody until proper authority may be notified, and the offenders may be
turned over thereto.
Sec. 810 Art. 10.
Restraint of persons under investigation
Any person subject to this chapter and charged with an offense under this chapter shall
be ordered into restriction or confinement by a Military Magistrate, as circumstances may
require; but when charged only with an offense normally tried by a Military Magistrate's
Court, such pretrial restraint shall not exceed thirty days. When tried by a Military Judge's
Court, such pretrial restraint shall not exceed ninety days. When any person subject to this
chapter is placed in restriction or confinement prior to trial, the Military Magistrate concerned shall inform him of the specific wrong for which he is under investigation, and he shall
be tried within the time prescribed above, less defense delays, or he shall be released and no
further prosecution shall be permitted.
Sec. 811 Art. 11.
(a)
Reports and receiving of prisoners
No provost marshal, commander of a guard, or master at arms may refuse to receive
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or keep any prisoner committed to his charge by a Military Magistrate of the armed forces,
when the Military Magistrate furnishes a statement, signed by him, of the offense under
investigation against the prisoner.
(b) Every commander of a guard or master at arms to whose charge a prisoner is
committed by a Military Magistrate shall, within twenty-four hours after that commitment
or as soon as he is relieved from guard, report to the commanding officer of the prisoner the
name of the prisoner, the offense under investigation against him, and the name of the
Military Magistrate who ordered the commitment.
Sec. 812 Art. 12.
Confinement with enemy prisoners prohibited
No member of the armed forces may be placed in confinement in immediate association
with enemy prisoners or with other foreign nationals not members of the United States armed
forces.
Sec. 813 Art. 13.
Punishment prohibited before trial
Subject to section 845 (Article 45) of this title, no person, while being held for trial or
for the result of trial, may be subjected to punishment or penalty other than restriction or
confinement upon the offenses pending against him, nor shall the restriction or confinement
imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of
discipline.
Sec. 814 Art. 14.
Delivery of offenders to civil authorities
(a) Under such regulations as the Secretary concerned may prescribe, a member of the
armed forces under investigation for an offense against a civil authority may be delivered,
upon request, to the civil authority for trial.
(b) When delivery under this article is made to any civil authority of a person undergoing sentence of a military court, the delivery, jf followed by conviction in a civil tribunal,
interrupts the execution of the sentence of the military court, and the offender after having
answered to the civil authorities for his offense shall, upon the request of competent military
authority, be returned to military custody for the completion of his military sentence.
Subchapter III.
Sec. 815 Art. 15.
Creation and Composition of Military Courts
Military Magistrate Courts
(a) The Chief Judges of the United States Courts of Military Review of their respective
services shall create Military Magistrate Courts, and shall appoint Military Magistrates, in
such numbers and to serve at such locations as the Chief Judges shall from time to time
determine to be necessary.
(b) A Military Magistrate shall be a commissioned officer of the armed force who is a
member of the bar of a Federal Court or a member of the bar of the highest court of a State.
Sec. 816 Art. 16.
Military Judge Courts
(a) Military Judge Courts are hereby created in each armed force. The numbers of
Courts required, and the appointment of Military Judges to these courts, shall be determined
from time to time by the Chief Judge of the United States Court of Military Review of the
res pecti ve service.
(b) Each Military Judge Court shall consist of a Military Magistrate or Magistrates,
or a Military Judge or Judges.
(c) A Military Judge shall be a commissioned officer of the armed force who is a
member of the bar of a Federal Court or a member of the bar of the highest court of a State,
and who is appointed for duty as a Military Judge by the Chief Judge of the United States
Court of Military Review of his respective service.
Sec. 817 Art. 17.
(a)
Tenure of Military Magistrates and Judges
A Military Magistrate or Judge appointed under sections 815 and 816 (Articles 15
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and 16) of this title may be removed from office only for good cause established and determined on the record after opportunity for hearing by another judge appointed by the Chief
Judge of the United States Court of Military Review of the military service concerned.
(b) A Military Magistrate or Judge may at any time request assignment to a position
outside of the Military Judiciary, and he may be so assigned with the concurrence of the Chief
Judge of the United States Court of Military Review of his respective service.
Subchapter IV.
Jurisdiction of Military 'Courts
Sec. 818 Art. 18. Military Courts classified
The two kinds of Military Courts in each of the armed forces are
(1) Military Magistrate Courts, consisting of a Military Magistrate or Magistrates for
the trial of non-jury cases; and,
(2) Military Judge Courts, consisting of a Military Judge or Judges, where trial shall
be by jury unless the accused waives jury trial in accordance with section 829(a) (Article 29).
Sec. 819 Art. 19.
Jurisdiction of Military Magistrate Courts
(a) The Military Magistrate Courts shall have jurisdiction to issue military arrest and
search warrants in accordance with the procedures established in regulations of the Department concerned. The issuance of an arrest or search warrant shall not bar the Military
Magistrate from presiding at the trial of the matter in the same case.
(b) The Military Magistrate Courts shall have original jurisdiction in all criminal actions wherein the punishment authorized by law after conviction of the offense or offenses
tried does not exceed confinement for more than six months, hard labor without confinement
for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months.
(c) The Military Magistrate Courts shall have jurisdiction in all other criminal actions
to conduct a probable cause hearing on the complaint and to bind the alleged offender over
to the military grand jury or dismiss the complaint.
Sec. 820 Art. 20.
Jurisdiction of Military Judge Courts
Military Judge Courts shall have original jurisdiction in all criminal actions under this
chapter, except as provided in Section 819(b) (Article 19).
Sec. 821 Art. 21.
Jurisdiction of Military Courts exclusive
The provisions of this chapter conferring jurisdiction upon military courts is exclusive,
and all military trials shall be by Military Magistrate or Military Judge Courts.
Subchapter V.
Pre-Trial Procedure
Sec. 822 Art. 22. Complaints
(a) A complaint may be signed by any person under oath before a commissioned officer
of the armed forces authorized to administer oaths and shall state:
(1) The general nature of the offense alleged to have occurred in criminal
cases and the identity of the alleged offender: and
(2) The names and addresses of all witnesses for the complainant or the
alleged offender, and the location of any documentary and real evidence.
(b) All complaints in criminal cases not presented directly to a military grand jury shall
be filed before a Military Magistrate who shall, within twenty-four hours, conduct a preliminary hearing to determine if there is probable cause that a crime has been committed and
the offender named in the complaint committed it. During the hearing the person named in
the complaint shall have the right to be represented by an attorney, to be confronted by and
to cross-examine witnesses against him, to present evidence on his own behalf, and to testify
or remain silent.
(c) If the Military Magistrate fails to find probable cause he shall dismiss the complaint, and no new complaint shall issue unless additional evidence is produced. However,
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nothing shall bar Government counsel from proceeding with the alleged offense directly before
the military grand jury.
(d) If the Military Magistrate finds that probable cause exists he may:
(1) with the consent of the accused, proceed immediately to trial on the
complaint, and in the event of a finding of responsibility on the part of the accused,
impose punishments prescribed for complaint trials (no finding of responsibility on
a complaint shall constitute a criminal conviction); or
(2) docket the case on his criminal calendar when the offense is within the
jurisdiction of his court; or
(3) docket the case on the military grand jury calendar when the offense is
without the jurisdiction of his court.
(e) All complaints that are to be brought to a criminal trial in the Military Magistrate
Courts are subject to a bill of particulars. In addition, whenever a Magistrate directs a
criminal trial, Government counsel shall file with the Court an information particularizing
the complaint, and a copy of the information shall be served upon the accused. In time of
peace no person may, against his objection, be brought to trial on the merits or be required
to participate by himself or with counsel in any session of a Military Magistrate Court on
the merits within a period of three days after the service of an information required by this
subsection.
Sec. 823 Art. 23.
Military Grand Juries
(a) No criminal case where the authorized punishment includes a sentence which in·
cludes a discharge, or confinement for more than six months, may be tried until a thorough
and impartial military grand jury investigation of all the facts and circumstances involved
has been made, unless the accused person waives indictment whereupon trial may be by
information.
(b) Military grand juries shall be composed of three persons subject to this chapter
selected randomly. Voting shall be by secret written ballot. The junior member of the grand
jury shall count the votes. The count shall be checked by the senior member, who shall record
the result of the balloting in writing on the grand jury report form. A concurrence of two·
thirds of the grand jurors present voting for indictment shall result in a "true bill". If less
than two-thirds of the grand jurors present vote for indictment, the vote results in a "no bill",
and the same case shall not be brought again before the military grand jury unless additional
evidence is produced.
(c) A Military Magistrate shall provide legal advice to the military grand jury.
(d) The person under irivestigation shall be advised of the offense or offenses being
investigated, and of his right to be represented at that investigation by counsel. Upon his own
request he shall be represented by civilian counsel if provided by him, or by military counsel
of his own selection if such counsel is reasonably available, or by counsel detailed by the
United States. At the military grand jury investigation full opportunity shall be given to the
person under investigation to cross-examine witnesses against him if they are available and
to present anything he may desire in his own behalf, either in defense or mitigation, and the
grand jurors shall examine available witnesses requested by the accused.
(e) If an indictment is returned, it shall be filed on the criminal docket of a Military
Judge Court and be accompanied by a statement of the substance of the testimony taken on
both sides, and copies therof shall be served upon the person under investigation. In time of
peace no person may, against his objection, be brought to trial on the merits or be required
to participate by himself or with counsel in any session of a Military Judge Court on the
merits within a period of five days after the service required by this subsection.
(f) The requirements of this article are binding on all persons administering this chapter, and failure to follow them shall constitute jurisdictional error.
Sec. 824 Art. 24.
(a)
Compulsory self-incrimination prohibited
No person subject to this chapter may compel any person to incriminate hiIIlself or
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to answer any question the answer to which may tend to incriminate him.
(b) 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 military court.
(c) No person subject to this chapter may compel any person to make a statement or
produce evidence before any military tribunal if the statement or evidence is not material to
the issue and may tend to degrade him.
(d) No statement obtained from any person in violation of this article, or through use
of coercion, unlawful influence, or unlawful inducement may be received in evidence against
him in a trial by military court.
Subchapter VI. Trial Procedure
Sec. 825 Art. 25.
United States Court of Military Appeals shall prescribe rules
(a) The procedure, including modes of proof, in cases before military courts shall be
prescribed by the United States Court of Military Appeals by rules which shall, so far as that
Court considers practicable, apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not
be contrary to or inconsistent with this chapter.
(b) All rules made under this article shall be uniform and shall be reported to Congress.
Sec. 826 Art. 26.
(a)
Duties of the Government counsel and defense counsel
The Government counsel shall represent the United States in all criminal proceed-
ings.
(b) Servicemen have the right to be represented before military courts by civilian
counsel, if provided by them, or by military counsel of their own selection if reasonably
available, or by counsel detailed by the United States. Should any serviceman have counsel
of his own selection, the counselor assistant counsel detailed by the United States shall, if
the serviceman so desires, act as associate counsel; otherwise they shall be excused by the
Military Magistrate or Judge.
(c) In every military criminal proceeding, the milifary defense counsel may, at any time
and at government expense, seek such collateral relief as he deems necessary to protect the
rights of his client in any court having jurisdiction to grant such relief. In every military court
proceeding, the defense counsel may in criminal cases forward to attachment to the record
of proceedings a brief of such matters as he feels should be considered in behalf his client on
review, including any objection to the contents of the record he considers appropriate.
(d) Assistant Government counsel and assistant defense counsel may perform any duty
imposed by law, regulation, or the custom of the service upon them.
(e) Government or military defense counsel shall be provided by the United States in
accordance with regulations of the Department concerned; however, civilian counsel must be
provided by the serviceman at his own expense.
Sec. 827 Art. 27.
Sessions
(a) At any time after a case has been docketed for trial before a military court, the
presiding magistrate or judge may call the court into session without the presence of the
military jury for the purpose of:
(1) hearing and determining motions raising defenses or objections, or any
other matter capable of determination without trial of the issues in the case, including motions to suppress evidence;
(2) hearing and ruling upon any matter which may be ruled upon by the
Military Magistrate or Judge under this chapter, whether or not the matter is
appropriate for later consideration or decision by the military jury;
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(3) holding the arraignment and receiving the pleas of the person on trial in
criminal cases;
(4) performing any other procedural function which may be performed by a
Military Magistrate or Judge under this chapter or under rules prescribed pursuant
to section 825 (Article 25) of this title by the United States Court of Military
Appeals, and which function does not require the presence of the military jury.
These proceedings shall be conducted in the presence of the accused, government and defense
counsel, and a verbatim record shall be attached to the record of proceedings.
(b) When the military jurors deliberate and vote, only the jurors may be present. The
alternates will be excluded. All other proceedings, including any other consultation of the
military jurors with counselor the Military JUdge, shall be made a part of the record of
proceedings and shall be in the presence of the accused, Government and defense counsel,
and the Military Magistrate or Judge.
Sec. 828 Art. 28.
Continuances
The Military Magistrate or Judge may, for reasonable cause, grant a continuance to any
party for such time, and as often as may appear to be just, at any time after a case has been
docketed for trial before the magistrate or judge.
Sec. 829 Art. 29.
Military Trial Juries
(a) Indictment cases shall be tried by jury unless the accused, knowing the identity of
the Judge and after consultation with defense counsel, waives trial by military jury in writing
with the approval of the Court.
(b) A military jury shall consist of nine jurors with three alternates selected from
persons subject to this chapter. Military jurors shall be selected through a random process in
all cases, and a challenge to the selection process may be heard on motion at any time before
sentence is announced.
(c) Voting by members of a military jury upon any question shall be by secret written
ballot. The junior member of the jury shall count the votes. The count shall be checked by
the senior member who shall forthwith announce the result of the ballot to the other members
of the jury. The senior member of the jury shall be the foreman.
(d) No person may be convicted of an offense for which the death penalty is made
mandatory by law, except by the concurrence of all the members of the military jury present
at the time the vote is taken.
(e) No person may be convicted of any other offense, except by the concurrence of twothirds of the military jurors present at the time the vote is taken.
(f) All other sentences shall be determined by a Military Magistrate or by a Military
Judge.
(g) All persons subject to this chapter shall be eligible for military jury service to serve
on military grand or petit juries unless a person:
(1) is unable to read, write, understand, or speak the English langu~e; or
(2) is incapable, by reason of mental or physical infirmity, to render satisfactory jury service; or
(3) has a charge pending against him for the commission of, or has been
convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored by pardon
or amnesty; or
(4) is a member of the accused's company, squadron, ship's crew, or body
corresponding to one of these units.
(i) Where it can be avoided, no member of the armed forces may be tried by a Military
Court any juror of which is junior to him in rank or grade.
Sec. 830 Art. 30.
(a)
Challenges
The Military Magistrate of Judge and members of the military jury may be chal-
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lenged by the Government or defense counsel for cause stated to the Court. The Military
Magistrate or Judge shall determine the relevancy and validity of challenges for cause, but a
challenge may not be received for more than one person at a time. Challenges by the Government or the plaintiff shall ordinarily be presented and decided before those by the defense.
(b) Each accused person and the United States shall be entitled to three preemptory
challenges of jurors in the Military Judge's Court. The Military Magistrate and Judge may
not be challenged except for cause.
Sec. 831 Art. 31.
Oaths
Before performing their respective duties, Military Magistrates and Judges, military
jurors, Government counsel, assistant Government counsel, defense counsel, assistant defense counsel, reporters, and interpreters shall take an oath once to perform their duties
faithfully. The form of the oath, the time and the place of the taking thereof, and the manner
of recording the same, shall be as prescribed in regulations of the Department concerned.
Sec. 832 Art. 32.
Statute of Limitations
(a) A person against whom a complaint has been filed for desertion or absence without
leave in time of war, whether declared or undeclared, or for aiding the enemy, mutiny, or
murder, may be tried and punished at any time without limitation.
(b) Except as otherwise provided in this article, a person against whom a complaint
has been filed for desertion in time of peace or any of the offenses punishable under sections
919-932 (Articles 119-132) of this title is not liable to be tried by military court if the offense
was committed more than three years before the complaint was filed pursuant to section 822
(Article 22) of this title.
(c) Except as otherwise provided in this article, a person against whom a complaint has
been filed is not liable to be tried by military court if the offense was committed more than
two years before the complaint was filed pursuant to section 822 (Article 22) of this title.
(d) Periods in which the accused in a criminal case was absent from territory in which
the United States has the authority to arrest him, or in the custody of civil authorities, or in
the hands of the enemy, shall be excluded in computing the period of limitation prescribed
in this article.
(e) For an offense the trial of which in time of war is certified to the President by the
Secretary concerned to be detrimental to the prosecution of the war or inimical to the national
security, the period of limitation prescribed in this article is extended to six months after the
termination of hostilities as proclaimed by the President or by a joint resolution of Congress.
(f) When the United States is at war, the running of any statute of limitations applicable to any offense under this chapter(1) involving fraud or attempted fraud against the United States or any
agency thereof in any manner, whether by conspiracy or not; or
(2) committed in connection with the acquisition, care, handling, custody,
control, or disposition of any real or personal property of the United States; or
(3) committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or
related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency;
is suspended until three years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.
Sec. 833 Art. 33.
Former Jeopardy
(a) No person may, without his consent, be tried a second time for the same offense.
(b) No person may be tried by military court for any offense if he has been tried for
the same offense in any State court or in any court of the United States; and no person may
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be tried for any offense in any State court or any court of the United States if he has been
tried for the same offense by military court.
(c) No criminal proceedings in which an accused has been found guilty by a military
court upon any information or indictment is a trial in the sense of this article until the finding
of guilty has become final after review of the case has been fully completed.
(d) A proceeding which, after the introduction of evidence but before a finding, is
dismissed or terminated by the Military Magistrate or Judge or on motion of the Government
for failure of available evidence or witnesses without any fault of the accused is a trial in the
sense of this article.
Sec. 834 Art. 34.
Arraignment
Arraignment in a criminal trial shall be conducted in open court and shall consist of
reading the information or indictment to the accused or having the accused waive such
reading, and then calling upon him to plead thereto. The accused shall be given a copy of
the information or indictment before he is called upon to plead.
Sec. 835 Art. 35.
Pleas of the accused
(a) An accused in a military trial may plead not guilty or guilty.
(b) If an accused after arraignment makes an irregular pleading, or after a plea of guilty
sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty
improvidently or through lack of understanding of its meaning and effect, or if he fails or
refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed
as though he had pleaded not guilty.
(e) A plea of guilty by the accused may not be received to any information or indictment alleging an offense for which the death penalty may be adjudged. With respect to any
other information or indictment to which a plea of guilty has been made by the accused and
accepted by the Military Magistrate or Judge a finding of guilty of the information or indictment may be entered immediately. This finding of guilty will bind the accused unless the
Military Magistrate or Judge allows the accused to withdraw his plea before sentence is
announced, in which event the proceedings shall continue as though the accused had pleaded
not guilty.
Sec. 836 Art. 36.
Opportunity to obtain witnesses and other evidence
(a) The Government counsel, defense counsel, and the Court shall have equal opportunity to obtain witnesses and other evidence in accordance with such rules as the United
States Court of Military Appeals may prescribe.
(b) Process issued by military courts shall be approved by the Military Magistrate or
Judge and be signed by the Clerk of Court. Such process to compel witnesses to appear and
testify and to compel the production of other evidence shall be the same as that which courts
of the United States having criminal jurisdiction may lawfully issue and shall run to any part
of the United States, or the Territories, Commonwealths, and possessions, and anywhere
outside of the United States with respect to United States citizens only. A refusal by a
Military Magistrate or Judge to issue process shall be appealable as an interlocutory matter
to the Court of Military Review of the service concerned, and thereafter to the United States
Court of Military Appeals.
Sec. 837 Art. 37.
Search and seizure
(a) The authority to issue warrants authorizing searches and seizures of persons and
property subject to this chapter in connection with any offense prohibited by this chapter may
be exercised only by Military Magistrates in accordance with rules promulgated by the
United States Court of Military Appeals.
(b) No search or seizure of persons or property shall be ordered by any Military Magistrate except in writing upon probable cause supported by written affidavits and particularly
describing the person or place to be searched or the person or thing to be seized.
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(c) No other search or seizure is authorized, except as may be necessary to protect the
life of a person making an arrest under the authority of this chapter, or to prevent the
destruction of evidence.
(d) Where Military Magistrates are unavailable, Commanding Officers may authorize
searches and seizures in the same manner as Military Magistrates.
Sec. 838 Art. 38.
Contempts
(a) A military court may punish for contempt any person who uses any menacing word,
sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder.
(b) A Military Magistrate or Judge shall have power to punish by fine or imprisonment,
at his discretion, such contempt of his authority as:
(1) misbehavior of any person in his presence or so near thereto as to obstruct
the administration of justice;
(2) misbehavior of any officer of the court in his official transactions; and
(3) disobedience or resistance to the lawful writ, process, order, rule, decree,
or command of the Military Magistrate or Judge.
(c) Trial of contempts shall be by jury unless the person being tried waives jury trial.
(d) Punishments under this section may not exceed confinement for 30 days, or a fine
of $100.00, or both; but no confinement will be imposed on any person not subject to this
chapter until the case on contempt is final on appeal.
Sec. 839 Art. 39.
Depositions
(a) At any time after a complaint has been filed as provided in section 822 (Article 22)
of this chapter, any party may take oral or written depositions unless a Military Magistrate
or Judge forbids it for good cause.
(b) The party at whose instance a deposition is to be taken shall give to every other
party reasonable written notice of the time and place for taking the deposition.
(c) Depositions may be taken before and authenticated by any military or civil officer
authorized by the laws of the United States or by the laws of the place where the deposition
is taken to administer oaths.
(d) A duly authenticated deposition taken upon reasonable notice to the other party
or parties so far as otherwise admissible under the rules of evidence, may be read into
evidence before any military court in a criminal case if it appears(1) that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable
cause, is unable or refuses to appear and testify in person at the place of trial or
hearing; or
(2) that the present whereabouts of the witness is unknown.
(e) A duly authenticated deposition taken upon reasonable notice to the other party or
parties so far as otherwise admissible under the rules of evidence, may be read into evidence
before any military court in a civil case if it appears that any of the provisions of subsection
(d)(l) or (2), above, are met, or that the witness resides or is beyond the State, Territory,
Commonwealth, or District of Columbia in which the court is sitting, or beyond 100 miles
from the place of trial or hearing.
(f) Subject to subsection (d), testimony by des position may be presented by the defense
in capital cases.
(g) Subject to subsection (d), a deposition may be read into evidence in any case in
which the death penalty is authorized but is not mandatory, whenever the Government
counsel notifies the court that the case is to be treated as not capital, and in such a case a
sentence of death shall not be adjudged by any military court.
Sec. 840 Art. 40. Rulings of the Military Magistrate or Judge
(a) The Military Magistrate or Judge shaH rule upon all questions of law and all interlocutory questions arising during the proceedings, and any such ruling is final. However, the
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Military Magistrate or Judge may change his ruling at any time during the trial. The Military
Magistrate or Judge shall have authority, on motion of the accused or on his own motion, to
order the entry of judgment of acquittal of any complaint or indictment against the accused
after the evidence on either side is closed, and after findings of guilty by the military jury, if
the evidence is insufficient to sustain a conviction of such complaint or indictment.
(b) Before a vote by the military jury, the Military Magistrate or Judge shall, in the
presence of the military jurors and counsel, instruct them on the law in civil cases, and on
the elements of the offense or offenses in criminal cases, and charge them in criminal cases:
(1) that the accused must be presumed innocent until his guilt is established
by legal and competent evidence beyond reasonable doubt;
(2) that in the case being considered, if there is a reasonable doubt as to the
guilt of the accused, the doubt must be resolved in favor of the accused and he must
be acquitted;
(3) that, if there is a reasonable doubt as to the degree of guilt, the finding
must be in a lower degree as to which there is no reasonable doubt; and,
(4) that the burden of proof to establish the guilt of the accused beyond
reasonable doubt is upon the United States.
(c) When an accused waives trial by the military jury, the Military Magistrate or Judge
shall determine all questions of law and fact arising during the proceedings. The Military
Magistrate or Judge of such a court shall make a general finding and shall in addition on
request find the facts specially. If an opinion or memorandum of decision is filed, it will be
sufficient if the findings of fact appear therein.
Sec. 841 Art. 41.
Court or Jury to announce action
A Military Magistrate or Judge or jury shall announce its findings and sentence to the
parties as soon as determined.
Sec. 842 Art. 42.
Record of trial
(a) Each military court shall keep a separate verbatim record of the proceedings in each
case brought before it, but only that portion of the record shall be transcribed and authenticated that is agreed by the parties to be necessary for appellate review. When the parties are
unable to agree, the Military Magistrate or Judge shall determine the issue, and order an
extract prepared for appellate review. Authentication shall be by the signature of the Military
Magistrate or Judge, or if the extract cannot be authenticated by the Military Magistrate or
Judge due to death, disability, or absence, it shall be authenticated by the signature ofthe
official court reporter, or the Government counsel in that order.
(b) If the proceedings have resulted in an acquittal, the record of proceedings need not
be transcribed but the Military Magistrate or Judge shall sign an order attached to the
information or indictment showing the acquittal.
(c) A copy of the extract of proceedings when conviction results, or a copy of the order
of aquittal, whichever may be the case, shall be given to the accused no later than thirty days
after the trial ends.
Subchapter vn.
Sec. 843 Art. 43.
Sentences
Cruel and unusual punishments prohibited
Punishment by flogging, or by branding, marking, or tatooing on the body, or any other
cruel or unusual punishment, may not be adjudged by any military court or inflicted upon
any person subject to this chapter or to trial hereunder. The use of irons, single or double,
except for the purpose of safe custody is prohibited.
Sec. 844 Art. 44.
Maximum limits
The punishment which a military court may direct for an offense may not exceed such
limits as the President may prescribe for that offense.
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Sec. 845 Art. 45.
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Effective dates of sentences
(a) Whenever a sentence of a military court as lawfully adjudged includes a forfeiture
of payor allowances in addition to confinement not suspended or deferred, the forfeiture may
apply to payor allowances becoming due on or after the date the sentence is adjudged. No
forfeiture may extend to any payor allowances accrued before that date.
(b) Any period of confinement included in a sentence of a military court begins to run
from the date the sentence is adjudged, but periods during which the sentence to confinement
is suspended or deferred shall be excluded in computing the service of the term of confinement. Any period during which the accused is held in confinement before or during trial shall
be deducted from any period of confinement to which the accused is sentenced, unless the
confinement of the accused during such period was imposed pursuant to the sentence of a
previous military court trial. Such deduction shall be made by the Military Magistrate or
Judge at the time sentence is imposed.
(c) All other sentences of military courts are effective on the date ordered executed.
(d) Any Military Magistrate or Military Judge may defer.or suspend the service of any
sentence to confinement imposed by him. Deferment or suspension shall be determined
within the second discretion of the Military Magistrate or Judge. Deferment shall terminate
when the sentence is ordered executed. Deferment or suspension may be rescinded at any
time for good cause by any Military Magistrate or Judge who originally had jurisdiction to
impose the sentence involved in a particular case.
Sec. 846 Art. 46. Execution of confinement
(a) Under such instructions as the Secretary concerned may prescribe, a sentence of
confinement adjudged by a military court, whether or not the sentence includes discharge or
dismissal, and whether or not the discharge or dismissal has been executed, may be carried
into execution by confinement in any place of confinement under the control of any of the
armed forces or in any penal or correctional institution under the control of the United States,
or which the United States may be allowed to use. Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the same
discipline and treatment as persons confined or committed by the courts of the United States
or of the State, Territory, District of Columbia, or place in which the institution is situated.
(b) The omission of the words "hard labor" from any sentence of a military court
adjudging confinement does not deprive the authority executing that sentence of the power
to require hard labor as a part of the punishment.
Sec. 847 Art. 47.
Sentences; reduction in enlisted grade
(a) Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a military court sentence of an enlisted member in a pay grade above E-!, that
includes(1) a dishonorable or bad-conduct discharge;
(2) confinement; or
(3) hard labor without confinement;
reduces that member to pay grade E-!, effective on the date of the sentence.
(b) If the sentence of a member who is reduced in pay grade under subsection (a) is
set aside on appeal, or as finally approved on appeal, does not include any punishment named
in subsection (a), the rights and privileges of which he or she was deprived because of that
reduction shall be restored to the member and the member shall be entitled to the pay and
allowances to which the member would have been entitled, for the period the reduction was
in effect, had the member not been so reduced.
Subchapter VIII.
Sec. 848 Art. 48.
Review of Military Court Cases
Error of law; lesser included offense
(a) A finding or sentence in a criminal case may not be held incorrect on the ground of
an error of law unless the error materially prejudices the substantial rights of the accused.
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(b) Any reviewing court with the power to affirm a finding of guilty may affirm, instead,
so much of the finding as includes a lesser included offense.
Sec. 849 Art. 49.
Interlocutory Review
Any final ruling by a Military Magistrate or Judge on an interlocutory issue may be certified
for interlocutory review by the Military Magistrate or Judge in his sole discretion.
Sec. 850 Art. 50.
Review of decisions by Military Magistrates
(a) Every final judgment reached by a Military Magistrate shall be reviewed by a
Military Judge.
(b) The Military Judge shall affirm only such findings of guilty and sentence in criminal cases as he finds correct in law and fact.
Sec. 851 Art. 51.
Review of decisions by Military Judges
(a) All final appellate rulings by Military Judges on cases tried by Military Magistrates
are appealable by either Government or defense counsel for "good cause" shown to the United
States Court of Military Review of his respective service.
(b) Every final judgment reached by a Military Judge sitting as a trial court shall be
reviewed by the United States Court of Military Review of his respective service.
Sec. 852 Art. 52.
Courts of Military Review
(a) A United States Court of Military Review is established for each military service
under Article I of the Constitution of the United States and is located in its military department for administrative purposes only. Each court shall be composed of one or more panels,
and each such panel shall be composed of not less than three appellate Military Judges,
appointed by the Secretary concerned. For the purpose of reviewing military cases, the court
may sit in panels or as a whole in accordance with the rules prescribed under subsection (e).
Appellate Military Judges may be commissioned officers or civilians each of whom must be
a member of a bar of a Federal Court or the highest court of a State. The Secretary concerned
shall appoint a Chief Judge and he shall determine on which panels of the court the appellate
judge appointed to the court will act as the senior judge.
(b) The United States Court of Military Review of each service shall review the issues
in(1) all Military Magistrate cases reviewed by a Military Judge on appeal in
which, upon petition by either side, good cause is shown;
(2) all final judgments reached by any Military Judge of the armed force
concerned sitting as a trial court.
(c) The United States Court of Military Review of each service shall affirm only such
findings of guilty and sentences in criminal cases as it finds correct in law and fact.
(d) If the United States Court of Military Review sets aside the findings and sentence
in a criminal case, it may, except where the setting aside is based on lack of sufficient
evidence, order the trial court to conduct a rehearing. If it sets aside the findings and sentence
and does not order a rehearing, it shall order the information or indictment dismissed.
(e) The United States Courts of Military Review shall prescribe uniform rules of procedure for practice before them, and shall establish rules for the qualification of attorneys
admitted to their bars.
(f) No effectiveness, fitness, or efficiency reports shall be prepared on any judge of the
several United States Courts of Military Review.
(g) No member of a Court of Military Review shall be eligible to review any trial if such
member served as investigating officer in the case or served as a member of the military court
before which such trial was conducted, or served as Military Magistrate or Military Judge,
Government counsel, or defense counsel, in the same case.
Sec. 853 Art. 53.
(a)
(1)
Review by the United States Court of Military Appeals
A United States Court of Military Appeals is established under Article I of the
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Constitution of the United States and is located for administrative purposes only in the
Department of Defense. The court shall consist of nine judges appointed from civil life by
the President, by and with the advice and consent of the Senate, for a term of fifteen years.
The terms of office of all successors of the judges serving on the effective date of this Act shall
expire fifteen years after the expiration of the terms for which their predecessors were appointed, but any judge appointed to fill a vacancy occurring prior to the expiration of the
term for which his predecessor was appointed shall be appointed only for the unexpired term
of his predecessor. Not more than five of the judges of the court may be appointed from the
same political party, nor is any person eligible for appointment to the court who is not a
member of the bar of a Federal court or the highest court of a State. Each judge is entitled
to the same salary and travel allowances as are, and as from time to time may be, provided
for judges of the United States Court of Appeals, and is eligible for reappointment. The
President shaH designate from time to time one of the judges to act as chief judge. The chief
judge of the court shall have precedence and preside at any session which he attends. The
other judges shaH have precedence and preside according to the seniority of their commissions. Judges whose commissions bear the same date shall have precedence according to
seniority in age. The court may sit in panels and prescribe its own rules of procedure and
determine the number of judges required to constitute a quorum. A vacancy in the court does
not impair the right of the remaining judges to exercise the powers of the court.
(2) Judges of the United States Court of Military Appeals may be removed
by the President, upon notice and hearing, for neglect of duty or malfeasance in
office, or for mental or physical disability, but for no other cause.
(3) If a judge of the United States Court of Military Appeals is temporarily
unable to perform his duties because of illness or other disability, the President may
designate a judge of the United States Court of Appeals for the District of Columbia
to fiH the office for the period of disability.
(4) Any judge of the United States Court of Military Appeals who is receiving
retired pay may become a senior judge, may occupy offices in a Federal building,
may be provided with a staff assistant whose compensation shaH not exceed the rate
prescribed for GS-9 in the General Schedule under section 5332 of title 5, and, with
his consent, may be caHed upon by the chief judge of said court to perform judicial
duties with said court for any period or periods specified by such chief judge. A
senior judge who is performing judicial duties pursuant to this subsection shall be
paid the same compensation (in lieu of retired pay) and aHowances for travel and
other expenses as a judge.
(b) The United States Court of Military Appeals shaH review the issues in(1) aH cases in which the sentence in criminal cases, as affirmed by a Court
of Review, affects a general or flag officer or extends to death, dismissal, dishonorable or bad conduct discharge, or confinement at hard labor for one year or more;'
(2) aH cases reviewed by a Court of Military Review which the Chief, Government AppeHate Division, orders sent to the Court of Military Appeals for review;
and
(3) aH other cases reviewed by a Court of Military Review in which, upon
petition by either side and on good cause shown, the Court of Military Appeals has
granted a review.
, Automatic review for general and flag officers is provided for by present law,
and an attack on the constitutionality of the provision has been unsuccessful. See
Gallagher v. Quinn, 363 F.2d 301 (D.C. Cir. 1966), cert. denied, 385 U.S. 881;
United States v. Gallagher, 15 U.S.C.M.A. 391, 35 C.M.R. 363 (1965), rev'd on
other grounds, 22 U.S.C.M.A. 191, 46 C.M.R. 191 (1973). Professor Benson objects
to this provision, and questions its constitutional validity.
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(c) The accused has thirty days from the time when he is notified of the decision of a
board of review to petition the Court of Military Appeals for review. The court shall act upon
such a petition within thirty days of the receipt thereof.
(d) In any case reviewed by it, the Court of Military Appeals may act only with respect
to the findings and sentence as approved by the Court of Military Review. In a case which
the Chief, Government Appellate Division, orders sent to the Court of Military Appeals, that
action need be taken only with respect to the issues raised by him. In a case reviewed upon
petition of the accused, that action need be taken only with respect to issues specified in the
grant of review. The Court of Military Appeals shall take action only with respect to matters
of law.
(e) If the Court of Military Appeals sets aside the findings and sentence, it may, except
where the setting aside is based on lack of sufficient evidence in the record to support the
findings, order a rehearing. If it sets aside the findings and sentence and does not order a
rehearing, it shall order that the charges be dismissed.
(f) After it has acted on a case, the Court of Military Appeals may return the record to
the Court of Military Review for further review in accordance with the decision of the court.
Otherwise, unless there is to be further action by the President or the Secretary concerned,
the Chief, Government Appellate Division, shall instruct the trial court to take action in
accordance with that decision. If the court has ordered a rehearing, but the Government
counsel finds a rehearing impracticable; he may request the trial counsel to dismiss the
charges.
(g) Cases in the United States Court of Military Appeals may be reviewed in the
Supreme Court of the United States by the following methods:
(1) By writ of certiorari granted upon the petition of any accused, after rendition of judgment by the United States Court of Military Appeals; or
(2) By certification at any time by the United States Court of Military Appeals of any question of law in any pending case as to which instructions are desired,
and upon such certification the Supreme Court may give binding instructions or
require the entire record to be sent up for decision of the entire case.
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