Pollack, Estela I

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1 Codified in 10 U.S.C. §§ 801-941.2 Rules of procedure and rules of evidence for courts-martial are established by the President asauthorized by Art. 36, UCMJ (10 U.S.C. § 836).  3 Each military service supplements the MCM to meet its individual needs.  The Army has ArmyRegulation 27-10; the Navy and Marine Corps have the Manual for the Judge Advocate General;and the Air Force has Air Force Instructions.   Congressional Research Service ˜ The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code RS21850May 26, 2004Military Courts-Martial: An OverviewEstela I. Velez PollackLegislative AttorneyAmerican Law DivisionSummaryThe recent reports of abuse of prisoners held by the military in Iraq have raisedquestions about how the armed forces discipline and punish those who commit crimesor violate the rules and regulations of the military.  Congress, under the authoritiesvested in it, enacted a code of military laws, the Uniform Code of Military Justice(UCMJ).  The President, by Executive Order, has, in turn, established standards andprocedures for prosecuting violators of the UCMJ and certain other laws.  Militarycriminal courts are known as courts-martial.  This report provides an overview ofmilitary courts-martial: who can be tried, potential punishments, and the appealsprocess. BackgroundUnder Article I, sec. 8 of the U.S. Constitution, Congress has the power to raise andsupport armies; provide and maintain a navy; and provide for organizing and discipliningthem.  Under this authority, the Congress has enacted the Uniform Code of MilitaryJustice (UCMJ),1 the code of military criminal laws applicable to all military membersworldwide.  The President implemented the UCMJ through the Manual for Courts-Martial(MCM), which was prescribed by Executive Order 12473 (April 13, 1984).  The Manualfor Courts-Martial contains the Rules for Courts-Martial (RCM), the Military Rules ofEvidence (MRE),2 and the UCMJ  The MCM covers almost all aspects of military law.3Military criminal trial courts are known as courts-martial.  Military courts are notconsidered Article III courts but instead are established pursuant to Article I of theCRS-24 Article III of the U.S. Constitution addresses the judicial powers of the United States andcontains certain requirements such as life tenure for judges.  Article I of the U.S. Constitutionaddresses the legislative powers of the United States which are vested in the Congress.  ArticleI courts are not subject to all the structural and procedural requirements that pertain to Article IIIcourts. 5 Nonjudicial punishment allows  military commanders to discipline servicemembers for minoroffenses without having to face a court-martial.  It is frequently referred to as “Article 15's,”because of the relevant UCMJ article.  Art. 15, UCMJ; 10 U.S.C. § 815.6 See Solorio v. United States, 483 U.S. 435, 447 (1987).7 Art. 2, UNIFORM CODE OF MILITARY JUSTICE, MCM (2002 ed.); 10 U.S.C. § 802. 8  The punitive articles run from Arts. 77 through 134 of the UCMJ; 10 U.S.C. §§ 877-934.9 Military specific offenses include mutiny or sedition (Art. 94, UCMJ); insubordinate conduct(Art. 91, UCMJ); failure to obey an order (Art. 92, UCMJ); cruelty and maltreatment (Art. 93,UCMJ); and misconduct as a prisoner (Art. 105, UCMJ).10  Art. 56, UCMJ;10 U.S.C. § 856.11 10 U.S.C. § 934.Constitution.4   This report provides an overview of military courts-martial.  It does notcover administrative disciplinary options such as nonjudicial punishments.5JurisdictionIn order to be tried by a court-martial, the court-martial must have jurisdiction overthe person.  Jurisdiction of a court-martial does not depend on where the offense wascommitted.  Rather, it depends solely on the status of the accused as a member of thearmed forces on active duty, whether in the regular or reserve component.6  In additionto servicemembers, several other categories of individuals may be tried by courts-martialincluding retired members of a regular component of the armed forces entitled to pay;retired members of a reserve component who are hospitalized in a military hospital;persons in custody of the military serving a sentence imposed by a court-martial; membersof the National Oceanic and Atmospheric Administration and Public Health Service andother organizations, when assigned to serve with the military; enemy prisoners of war incustody of the military; and persons with or accompanying the military in the field during“times of war,” limited to declared wars.7 Types of OffensesCourts-martial try “military offenses,” which are listed in the punitive articles of theUCMJ and are codified in 10 U.S.C. 877 et seq.8  Some “military offenses” have a civiliananalog, but a number of “military offenses” are specific to the military.9  The Presidentis authorized to prescribe the punishments which a court-martial may impose within thelimits established by Congress.10  In addition, a servicemember may be tried at a court-martial for offenses not specifically covered by the UCMJ  Article 134–General Article11states that all “crimes and offenses not capital, of which persons subject to this chaptermay be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense.”  This means that any state orfederal offense for which there is no analogous crime in the UCMJ may be assimilatedCRS-312 RCM 303.13 Administrative action can include separation from the military.  See 10 U.SC. §§ 1161 et seq.14 RCM 306(c).15 A specification is a plain and concise statement of the essential facts constituting the offensecharged.  RCM 307(c)(3).16 Any person subject to the UCMJ may prefer charges as the accuser.  RCM 307(a).17 RCM 307(b).18 Referral is the order that states that charges against an accused will be tried by a specific court-martial.  RCM 601.19 See RCM 401(c).20 RCM 504.21 RCM 103(6).and tried at a court-martial.  The potential punishments for violations of Article 134 arethe same as the punishments applicable to the corresponding civilian offense.InvestigationWhen a servicemember has reportedly committed an offense, the accused’simmediate commander will conduct an inquiry into the alleged offense.12  This inquirywill vary according to the offense(s) alleged and the complexity of the case.  It may rangefrom an examination of the charges and an investigative report or summary of expectedevidence to a more extensive investigation.  The investigation may be conducted bymembers of the command or, in more complex cases, military and civilian lawenforcement officials.  Once evidence has been gathered and the inquiry is complete, thecommander can choose to dispose of the charges by (1) taking no action, (2) initiatingadministrative action,13 (3) imposing nonjudicial punishment, (4) preferring charges, or(5) forwarding to a higher authority for preferral of charges.14  Preferral of charges is thefirst formal step in a court-martial.  Preferral of charges consists of drafting a charge sheetcontaining the charges and specifications15 against the accused.  The charge sheet mustbe signed by the accuser16 under oath before  a commissioned officer authorized toadminister oaths.17  Once charges have been preferred they may be referred18 to one ofthree types of courts-martial: summary, special or general.19  The seriousness of theoffenses alleged generally determines the type of court-martial.  The court-martial mustbe convened by the convening authority,20 who will generally be the commissionedofficer, or successor, in command of the unit the accused is attached to.21Types of Courts-MartialSummary Courts-Martial.  The summary court-martial can adjudicate minoroffenses allegedly committed by enlisted servicemembers.  It can adjudge maximumpunishments of thirty days confinement, hard labor without confinement for 45 days,restriction to specified limits for 45 days, forfeiture of two-thirds pay per month for onemonth, and reduction to the lowest pay grade.  In the case of enlisted members above payCRS-422 Paygrade E-4 consists of corporals or specialists (Army), petty officers 3rd class (Navy),corporals (Marine Corps), and senior airman (Air Force).23  RCM 1301; Art. 20, UCMJ; 10 U.S.C. § 820.24 Art. 16, UCMJ; 10 U.S.C. § 816.25 Art. 20, UCMJ; 10 U.S.C. § 820.26 Middendorf v. Henry, 425 U.S. 25 (1970).27  Arts. 16 & 19, UCMJ; 10 U.S.C. §§ 816, 819; RCM 201(f)(2)(A). 28 Members in the military justice system are the equivalent of jurors and are generally composedof officers from the accused’s command.29 The accused has the right to choose the composition of the court-martial or whether he or shechooses to be tried by a military judge alone, a military judge and members or a panel ofmembers.  Enlisted servicemembers have the choice to request that the member’s panel includeenlisted members.  RCM 903.30 RCM 921(c).  The same is applicable to general courts-martial with the exception of offenseswhere the death penalty is mandatory, which require a unanimous verdict.  Art. 52, UCMJ; 10U.S.C. § 852.31 Art. 19, UCMJ; 10 U.S.C. § 819; RCM 201(f)(2)(B).  A bad-conduct discharge, confinementfor more than six months, or forfeiture of pay for more than six months, may only be adjudgedif a complete record of the proceedings and testimony has been made, defense counsel wasappointed, and a military judge presided over the court-martial.  If a military judge could not beappointed, a detailed written statement stating the reasons  why must be submitted by thecommander who convened the court-martial.32 Art. 27, UCMJ; 10 U.S.C. § 827.grade E-4,22 the summary court-martial may not adjudge confinement or hard laborwithout confinement and can only reduce them to the next lower pay grade.23 Summarycourts-martial are composed of one commissioned officer who need not be a lawyer.24The accused must consent to the proceedings25 and normally is not entitled to a lawyer.26Special Courts-Martial.  The special court-martial can try any servicemember forany noncapital offense or, under presidential regulation, capital offenses.27  This court-martial can be composed of a military judge alone, three members,28 or a military judgeand three members.29  Contrary to civilian criminal trials, only two-thirds of the membersof a court-martial need to agree as to the guilt of the accused for the accused to be foundguilty.  Otherwise, the accused is acquitted.30  There are no “hung juries” in courts-martial.  Regardless of the offenses tried, the maximum punishment allowed at a specialcourt-martial is confinement for one year, hard labor without confinement for up to threemonths, forfeiture of two-thirds pay per month for up to one year, reduction in pay gradeand a bad-conduct discharge.31  Most often special courts-martial will try offensesconsidered misdemeanors.  The accused is entitled to an appointed military attorney, amilitary counsel of his or her selection, or he or she can hire a  civilian counsel at noexpense to the government.32CRS-533 Art. 16, UCMJ  The accused has the right to choose who he or she will be tried by with theexception of capital cases where members are required.  See note 29, supra. and RCM201(f)(1)(C).34  RCM 1003.  It must be noted that there are restrictions on allowable punishments dependingon a person’s status as an officer or an enlisted servicemember.35 Art. 32, UCMJ; 10 U.S.C. § 832.36 RCM 405(d)(1).37 Art. 32(b)-(c), UCMJ; 10 U.S.C. § 832(b)-(c); RCM 405(f).38 Art. 32(d), UCMJ; 10 U.S.C. § 823(d); RCM 405(e).39 Art. 33-35, UCMJ; 10 U.S.C. §§ 833-835; RCM 407.General Courts-Martial.  A general court-martial is the highest trial level inmilitary law and is usually used for the most serious offenses.  It is composed of a militaryjudge sitting alone, or five members and a military judge.33  It can adjudge, within thelimits prescribed for each offense, a wide range of punishments to include confinement,reprimand, forfeitures of up to all pay and allowances, reduction to the lowest enlistedpaygrade, punitive discharge (bad conduct discharge, dishonorable discharge ordismissal), restriction, fines and, for certain offenses, death.34  The accused is entitled toan appointed military attorney or a military counsel of his or her selection, or the accusedcan hire a  civilian counsel at no expense to the government.Prior to the convening of a general court-martial, a pretrial investigation, morecommonly known as the Article 32 hearing, must be conducted.  The Article 32 hearingis the equivalent of a civilian grand jury, meant to assess the truth of the charges to ensurethat there is a basis for prosecution.35 An investigating officer, who must be acommissioned officer,36 presides, and the accused has the same entitlements to counselas in a special courts-martial.  However, unlike in a civilian grand jury investigationwhere the accused has no access to the proceedings, the accused is afforded theopportunity to examine the evidence presented against him, cross-examine witnesses andpresent his own arguments.37  If during the course of the investigation evidence surfacesthat the accused committed an offense not charged, the investigating officer canrecommend that more charges be brought against the accused.38  Likewise, if theinvestigating officer believes that there is not enough evidence to support a charge, he canrecommend that it be dismissed.Once the Article 32 investigation is complete, the investigating officer will makerecommendations to the convening authority (CA) via the CA’s legal advisor.  The legaladvisor in turn, provides the CA with a formal written advice, known as the Article 34,UCMJ advice, as to the disposition of charges.  The CA then determines whether toconvene a court-martial or dismiss the charges.39 Post-Trial ReviewOne of the unique aspects of the military justice system is the post-trial review by theCA.  For convictions at a general or special court-martial that include a punitiveCRS-640 There are two kinds of punitive discharges: bad-conduct discharge and dishonorable discharge.41 United States v. Davis, 58 M.J. 100, 102 (2003).42 Art. 60, UCMJ; 10 U.S.C. § 860; RCM 1107.43 There are three service appellate courts: the Navy-Marine Corps Court of Criminal Appeals,the Army Court of Criminal Appeals and the Air Force Court of Criminal Appeals.  A serviceappellate court will have jurisdiction in cases where the sentence includes confinement for oneyear or more, a bad-conduct or dishonorable discharge, death, or a dismissal from service in thecase of a commissioned officer, cadet or midshipman.  Art. 66, UCMJ; 10 U.S.C. § 866.44 Art. 64, UCMJ; 10 U.S.C. § 864; RCM 1111, 1112 and 1306.  45  Art. 64, UCMJ; 10 U.S.C. § 864; .RCM 1112.46 Art. 64(c)(3), UCMJ; 10 U.S.C. § 864(c)(3); RCM 1112.47 Military appellate courts are required to review cases over which they have jurisdiction unlessthe appellant waives his or her right to appeal.  An appellant may not waive his right to appealwhen the sentence includes death.  RCM 1110.  48 Art. 66, UCMJ; 10 U.S.C. § 866.49 See Art. 67, UCMJ;   10 U.S.C. § 867.  The Court of Appeals for the Armed Forces (CAAF)is a civilian court composed of five civilian judges appointed by the President.50 Congress did not grant the U.S. Supreme Court jurisdiction over decisions of the CAAF until1984.  Military Justice Act of 1983, P.L. 98-209, 97 Stat. 1393, 28 U.S.C. § 1259.discharge,40 the process starts with the review, the staff judge advocate (SJA), and arecommendation to the CA as to what action to take on the case.  This is recognized asthe accused’s best hope for relief as the CA has broad powers to act on the case.41  Uponreview of the record of trial and the SJA’s recommendation, the CA may, among otherremedies, suspend all or part of the sentence, disapprove a finding or conviction or lowerthe sentence.42  The CA may not increase the sentence.  Once the CA takes action on thecase, the conviction is ripe for an appeal.  In the case of summary court-martial or a court-martial where the service appellatecourts do not have jurisdiction,43 convictions will be reviewed by a judge advocate44 todetermine if the findings and sentence, as approved by the CA, are correct in law andfact.45  If those criteria are met, the conviction is final.  If not, the judge advocate willforward the case to a general court-martial CA for corrective action.46  If the CA refusesto take corrective action, the case is referred to the Judge Advocate General for review.Appellate ReviewConvictions by a special or general court-martial are subject to an automatic 47 appealto a service Court of Criminal Appeals if the sentence includes confinement for one yearor more, a bad-conduct or dishonorable discharge, death, or a dismissal in the case of acommissioned officer, cadet or midshipman.48  Appeal is mandatory when the sentenceincludes death.  If the conviction is affirmed by the service court, the appellant mayrequest review by the Court of Appeals for the Armed Forces49 and ultimately the U.S.Supreme Court.50  Review by these courts is discretionary.

Military Courts-Martial: An Overview

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Military Courts-Martial: An Overview

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