Harry & Diane Rinker
law library newsletter
CHAPMAN UNIVERSITY SCHOOL OF LAW
ONE UNIVERSITY DRIVE, ORANGE, CA 92866 · WWW.CHAPMAN.EDU/LAW/LIBRARY · 714-628-2553
March 2008
CONTENTS
• Law Library Virtal Tour
Zooms From 360°...........1
• Signed Copy of
Justice’s Book Adorns
Law Library.....................1
• New Movies in Current
Awareness Room............1
• Staff Publication.............1
• Law Library Hours..........1
• New Peridicals in Current
Awareness Room............2
• Military Law Series.........2
FEATURE ARTICLE
The Uniform Code of
Military Justice, Part II:
Crimes, Punishments,
and Review........................2
• Editor/Writer:
Patricia Pelz Hart
• Coordinator:
Debbie Lipton
Law Library Virtual
Tour Zooms From 360°
Look all around. Hyperlink too
• Virtual tour on Law Library website now has
interactive 360° views for some locations.
• Click QuickTime link as needed.
• Click a location link for photo and descriptive text.
• New! Interactive hyperlinks. Zoom in [Shift] or Zoom out [Ctrl].
When cursor changes to pressing finger, click to
go to page about the specific location.
• First Floor Interactive 360° views –
Main Entrance The stunning law school lobby
Entrance Way Welcome into the law library
Display Cabinets Our faculty is accomplished
California Materials This state sets the pace
Online Catalog The collection key
• Second Floor Interactive 360° views –
Journals Find cutting-edge scholarship
Current Awareness Room Break away – or –
Dive right in.
Online Catalog The collection key, on 2
New Movies in
Current Awareness Room
Just another way to learn
• Absence of Malice
• Counselor at Law
• Gideon’s Trumpet
• Indictment
• Nuremberg Trials
• Shark
• S21: the Khmer Rouge Killing Machine
• Thin Blue Line
Signed Copy of Justice’s
Book Adorns Law Library
The framed book My Grandfather’s Son, signed by its
author, U.S. Supreme Court Justice Clarence Thomas, is
now displayed on the law library stairwell landing.
Justice Thomas signed the book during his visit to
Chapman on Dec. 17, 2007.
Staff Publication
When Nature Strikes: Weather Disasters and the
Law, by Marsha L. Baum. Reviewed by Isa Lang, Head
of Information Services. 100 Law Library Journal 173
(Winter 2008). The book is in the collection. Call number:
KF 3750 .B38 2007
Law Library Hours
March 10 – April 23
The law library will be closed March 21 & 23 for Good
Friday and Easter, but will be open March 22.
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday 8 a.m. – 11:30 p.m.
8 a.m. – 11:30 p.m.
8 a.m. – 11:30 p.m.
8 a.m. – 11:30 p.m.
8 a.m. – 11 p.m.
8 a.m. – 10 p.m.
10 a.m. – 10 p.m.
April 24 – May 8
The law library will be open to 2 a.m. every day of the
week during Reading Period and Finals.
New Periodicals in Current Awareness Room
In case you thought we were all law, all the time …
• Car and Driver
• Daily Variety
• Esquire
• Filmmaker
• Foreign Affairs
• Good Housekeeping
• Harvard Business Review
• Hollywood Reporter (Weekly)
• Juxtapoz
• Mental Health Law Reporter
• Mother Jones
• National Geographic
• The Oprah Magazine
• Older Americans Report
• Orange Coast Magazine
• Psychology Today
• PC Magazine
• Popular Photography and Imaging
• Rolling Stone
• Smart Computing
• Smithsonian
• Sunset
• Vanity Fair
• Victoria
• Village Voice
• Wilson Quarterly
Military Law Series
Research articles on military law on Law Library Web site. Click Library Newsletter and Archive of Past Newsletters.
“The JAG Corps: the Military’s Law Office” October 2007
“The UCMJ, Part I: Legislation with Balances” February 2008
“The UCMJ, Part II: Crimes, Punishments, and Review” March 2008
The Uniform Code of Military Justice, Part II: Crimes, Punishments, and Review
By Patricia Pelz Hart
“The UCMJ, Part I: Legislation with Balances”
was in the February 2008 newsletter.
The Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 801-946, sets forth the criminal law
system of the U.S. armed services. The code
defines crimes, assigns punishments, establishes
courts, lays out pre-trial, trial, and post trial
procedures, and designates reviewing bodies. The code is in U.S.C. Title 10, Armed Forces,
Subtitle A, General Military Law, Part II, Personnel,
Chapter 47, UCMJ. Individual provisions of the
UCMJ are generally referred to by Article number,
1-146. To ascertain the Title 10 section, add the
number 800 to the Article number. The U.S. Code
section number may appear in citations.
Part I of this article discussed the legislative
history and forces balanced in the UCMJ. This
part covers crimes, military trials, and trial review.
Subchapter X, Punitive Articles
Crimes in the UCMJ may be characterized as
decidedly military, typically civilian, or a mixture
of both. Subchapter X, Punitive Articles, 10
U.S.C. §§ 877-934 defines the crimes. This is
the largest subchapter in the UCMJ, containing
Articles 77-134. Actors & Inchoate Offenses
The first few punitive articles set forth the
MARCH 2008
actors and the stages of action that lead to
criminal liability. The UCMJ here resembles
civilian criminal codes. An example is the
definition of principal in Article 77. A principal is
a person who commits or aids, abets, counsels
or procures the commission of an offense. The
definition is similar to that of California Penal
Code § 31. Article 77, however, also includes as principal
a person who commands a crime’s commission. The UCMJ’s military subjects and setting are
ever present.
The definition of accessory after the fact
in Article 78 as one who knowingly receives,
comforts, or assists an offender, is like that of
California Penal Code § 32. The UCMJ crimes of
attempts, conspiracy, and solicitation, Articles
80-82, are also similar to civilian versions.
Crimes of Discipline
Persons who join the armed services hail
from all geographic, economic, social, and
cultural groups. They must then be welded into
an effective military force. Furthermore, the
individual services, the army, air force, navy,
marines, and coast guard, have separate military
purposes, hierarchies, and traditions. Discipline
is essential. The UCMJ ensures discipline in
ways virtually unique to the military.
Fraudulent enlistment, Article 83, is procuring
one’s own enlistment by fraud. This is a crime
with few if any
civilian counterparts. If a person effects
an enlistment of
someone else known
to be ineligible, the
first person is guilty of
unlawful enlistment
under Article 84.
It is a crime to
willfully disobey a lawful command of a
superior commissioned officer, Article 90, or
willfully disobey the lawful order of a warrant,
noncommissioned, or petty officer, Article 91.
Being absent without leave means an
unauthorized service member fails to go to, or
goes from, his place of duty; or absents himself
or remains absent from his unit or required place
of duty. Article 86. The acronym is AWOL, which
stands for Absent Without Official Leave, or
Absent WithOut Leave.
Crimes of Warfare
Armed forces in any place and at any time
would agree that fighting forces are not to
engage in behavior that undermines their side
or that gives comfort to the enemy. The UCMJ
formalizes such proscriptions.
Misbehavior before the enemy is forbidden
under Article 99. 10 U.S.C. § 899. This is
effectively a refusal to fight, by running away,
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cowardly conduct, or casting down arms or
ammunition, and other actions. Actively aiding
the enemy, by aiding or attempting to aid the
enemy with arms, ammunition, supplies, money,
or other things is a crime under Article 104. 10
U.S.C. § 904.
A subordinate compelling surrender is
one who, without proper authority, compels the
commander to give up military property or a body
of members to an enemy. Article 100. Service members held captive as prisoners
of war (POWs) may have few options for
making war. In a prison, however, maintaining
discipline become even more important. The
UCMJ validates efforts to keep to the code. If
a POW tried to curry favor with his jailors to the
detriment of other prisoners, he would be guilty
of misconduct as prisoner under Article 105. If a person in authority maltreats subordinates
without justifiable cause, his conduct would also
fall under Article 105.
Civilian Type Crimes
Human nature being human nature, crimes
committed in civilian society may occur within
the military as well. The UCMJ therefore contains
provisions for crimes that are otherwise removed
from the art of warfare. There are crimes of
person, for example, murder (Article 118) and
manslaughter (Article 119) and crimes of
property, such as larceny (Article 121) and arson
(Article 126).
Conduct Unbecoming
The punitive articles subchapter ends with
two catchall provisions. Under the first, a
commissioned officer may be punished for
conduct unbecoming an officer and a
gentleman, Article 133. The Article also applies
to cadets and midshipmen. The conduct must
seriously offend law, justice, morality or decorum,
such as by lying, adultery, and fraternization.
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General Article
The second catchall provision is the general
article, Article 134. This proscribes “all disorders
and neglects to the prejudice of good order and
discipline in the armed forces, all conduct of a
nature to bring discredit upon the armed forces,
and crimes and offenses, not capital, of which
persons subject to this chapter may be guilty.” Military Court Jurisdiction
A military court has jurisdiction when the court
is properly convened; the court membership meets
requirements; the court has power to try the
accused; and the offense is addressed in the UCMJ. A trial in the military is called a court-martial. Personal jurisdiction exists across a spectrum;
from members of the armed services to persons
accompanying an armed force in time of war. In
a few cases, jurisdiction extends to any person. Definitions of offenses begin by stating who is
covered for the particular offense. Desertion is a crime for any member of the
armed forces. Article 85. Any person subject to this chapter may
be court-martialed for making a false official
statement. Article 107. Subject to this chapter
is defined in Article 2. In addition to service
members, among those subject are cadets,
aviation cadets, and midshipmen; retired
members entitled to pay; prisoners of war in
custody; and, in wartime, persons serving with or
accompanying an armed force in the field. Any person who aids the enemy may be
court-martialed under Article 104.
Court-Martial Types
Three types of courts-martial exist: general,
special, and summary. Article 16. They differ
by number of members, jurisdiction, procedures,
scale of punishment, rank of offender, and
standard times until completion. Court-martials must be called into existence
by a court-martial convening authority. For
each type of court-martial, the UCMJ designates
the persons who may convene it. Articles 22-24.
General courts-martial are equivalent to a
trial in federal district court. They may try any
offense in the UCMJ, but are primarily used for
serious offenses. Article 18. A general courtmartial consists of a military judge and no less than
five members, if the offense is noncapital. The
accused may request a military judge alone. An
investigation is required before a charge may be
referred to a general court-martial. Article 32. The
Article 32 investigation looks at the truth and
form of the charges and recommends a disposition. Special courts-martial may try any
noncapital and in some cases, capital offense,
but the maximum confinement imposed is one
year. Article 19. The court-martial may consist
of a military judge alone, a military judge and no
less than three members, or not less than three
members without a military judge.
Summary courts-martial are for enlisted
personnel only. Article 20. The court-martial
is made up of one commissioned officer alone. The officer is judge, trial counsel and defense
counsel rolled into one. If the accused objects
to a summary court-martial, there may be a trial
by general or special court-martial. Summary
courts-martial are for relatively minor offenses
with a maximum confinement of one month. Court-Martial Members
Court-martial members are from the military,
a closed world. Hierarchy and deference to
authority are stressed from initial training. The members may work in close proximity to
each other. Deference, respect, grudges, and
other feelings, both positive and negative can
unduly influence court deliberations. The UCMJ
recognizes these forces and seeks to limit them.
Those who may serve on courts-martial are
set forth in Article 25. When it can be avoided, no
member may be tried by a court-martial member
who is junior in rank or grade. This is to avoid
payback against higher-ups.
Any commissioned officer on active duty is
eligible to serve on all courts-martial. Warrant
officers may not serve on general and special
courts-martial of commissioned officers. In other
words, warrant officers may judge only other
warrant officers and enlisted personnel. Enlisted personnel get special protection. An
enlisted member of the same unit is ineligible to
serve. If the enlisted member requests enlisted
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members on a general or special court-martial,
then at least one-third of the members must
be enlisted. If that is not possible because of
physical conditions or military exigencies, a
detailed written statement by the convening
authority must be attached to the record.
Article 37, unlawfully influencing action
of court gives additional insulation against
command influence over the court proceedings. Commanding officers and convening authorities
may not censure court members with respect to
findings or to any exercise of function. No one
subject to the chapter may attempt to coerce or
inappropriately influence the action. After the trial, Article 37 guards against
personal and institutional retaliation. Fitness and
similar reports on court-martial members re their
future grade or assignment may not consider
performance as a court-martial member. There is a special protection for defense
counsel. They may not receive a less favorable
rating or evaluation “because of the zeal with
which such member, as counsel, represented any
accused before a court-martial.” Article 37(b) (2).
Non-judicial Punishment
Non-judicial punishment is punishment without
a court-martial. It is for minor offenses and is
imposed by a commanding officer. Article 15. Typical punishments are restricted movement,
suspension from duty, arrest in quarters, or pay
forfeiture of seven days.
Although there is no court-martial, receipt
of non-judicial punishment is placed in the
service record.
The punishment has different names. It is
called Article 15 (army and air force); captain’s
mast (navy); office hours (marines) the generic
company punishment or the abbreviation NJP.
Court-Martial Review
Many levels of review are built into the courtmartial system. Civilians serve as some or all of
the judges of the 2 highest military courts. Initially, court-martial findings and sentences
are reported to the convening authority. Article
60. Next, judge advocates (military lawyers)
Court of Appeals for the Armed Forces
review cases with guilty verdicts, where not
otherwise reviewed. Article 64. The Judge
Advocate General of each service reviews some
cases and refers other cases to the Court of
Criminal Appeals. Article 69.
A Court of Criminal Appeals (CCA) exists in
each service: the Army CCA, Navy-Marine Corps
Maximum Punishments In Article 15
MARCH 2008
CCA, Air Force CCA, and Coast Guard CCA. The
prior names of the CCAs were Courts of Military
Review (CMR). Before that, they were the
Boards of Review per service.
The courts are established by the service
Judge Advocate General. They are composed
of one or more panels. Article 66. Each panel
has at least three appellate military judges. The
judges may be commissioned officers or civilians. The CCA has jurisdiction over courts-martial
in which the sentence is death, dismissal, or
imprisonment of 1 year or longer, Article 66. The
service Judge Advocate General may send other
cases for review under Article 69. The government
itself may appeal certain cases under Article 62. The next reviewing body is the Court of
Appeals for the Armed Forces. The CAAF is
the highest court within the military system. The
prior name of the CAAF was the Court of Military
Appeals (CMA or COMA). The CAAF consists of
five civilian judges appointed by the President
for 15 year terms. Judges may be removed for
cause. Article 142. Jurisdiction is over death
sentence cases and other cases ordered reviewed
by the Judge Advocate General or accepted for
good cause after review by the CCA. Article 67.
The Court of Appeals for the Armed Forces is
established under Article I of the Constitution. Article 141. Article I courts are known as
legislative courts. Conclusion
At the final appeal, decisions of the CAAF are
subject to review by the U.S. Supreme Court by
writ of certiorari. Article 67a, 10 U.S.C. § 867a
and 28 U.S.C. § 1259. This keeps courts-martial
under civilian judges with Article III authority. The founding fathers made sure the armed
forces would be subservient to judges appointed
by elected
officials. The criminal
justice
system of
the UCMJ
contains
many
provisions
not found
United States Supreme Court
in civilian
life. At the same time, it shares much with the
civilian criminal justice world. Both systems are
ultimately responsible to the nation’s electorate.
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