Military Justice System

MILITARY JUSTICE SYSTEM ACTION 1 Basic History of the UCMJ On 30 June 1775 the Second Continental Congress established 69 Articles of War to govern the Continental Army. These were adopted from both the British Army and the Royal Navy. Between 1775 and 1917 the Articles of War went through little change until 1830 regarding the appointment of court-martial, primarily intended to extend the courts jurisdiction over crimes or persons. In 1917 the congress passed a complete revision to deal with the mass of what was termed as citizen-soldiers in WWI. Due to severe abuses of theses new regulations and complaints from both the public and congress it took from 1917 to 1950 to come up with new regulations to cover all branches of the service and was deemed the Uniform Code of Military Justice.

ACTION 2 Jurisdiction There are 3 types of military jurisdiction: 1, Military Law which provides for governing the armed forces in both peace and war; military government which is exercised in times of foreign war outside the US in times of rebellion and civil war with-in states occupied by rebels, supersedes local law and is exercised by a military commander under the authority of the president. 2, Martial Law which can only be declared by congress or the president for a temporary period, to be used in time of invasion or insurrection within the US where ordinary law no longer adequately public safety and private rights. 3, Court-martial.

1A Military Law (noun): 1. The statutes, codes, and common traditions relating to executed by military courts for the discipline, trial and punishment of military personnel. 2A Martial Law (noun): 1. Temporary rule by military authorities imposed on a civilian population especially in time of war or when civil authority has broken down. 2. The Law imposed on an occupied territory by military forces. 3A Court-Martial (noun): 1. A military or Naval court of officers appointed by a commander to try persons for offences under Military Law. 2. A trial by such a military tribunal.

ACTION 3 Major forms of Non-Punitive Disciplinary measures #1. Adverse Administrative Action: Withholding Privileges I.E. Passes, Driving Privileges, Restricted to Base, or Barracks. Withholding privileges can be an incentive for improved behavior. Like other corrective actions, the effectiveness of withholding privileges depends on your communicating your intent and determination to the soldier in question. It also requires that the restriction relate in importance, seriousness and duration to the transgression and to the desired correction. If you have directed control over a privilege, simply inform an offender that you are withholding the privilege. When a higher authority controls the activity, you typically request, through channels, revocation of privilege. Reference AR 630-5 #2. Admonitions and Reprimands: Any supervisor in the soldiers’ chain of command, any commander in the soldiers’ chain of command, any higher-ranking soldier may issue admonitions or reprimands, orally as administrative corrective measures. Written admonitions or reprimands may be filed in soldiers 201. For enlisted soldiers they are issued and filed by any commander in their chain of command, school commandants, any general officer, officers with general court-martial authority over them. The following individuals may issue admonitions or reprimands to commissioned or warrant officers and place them in their 201’s; any commander in their chain of command (if the commander is senior in grade or date of rank), school commandants, their rater, intermediate rater or senior rater, General officers (senior to recipient), officers with general court-martial authority. You should include the written administrative ones and include a statement that it is an administrative measure and not a punishment under the UCMJ Article 15. Reference AR 600-37.

#3. Rehabilitation: You may elect to correct a soldier with counseling or corrective training. Counseling: Counseling takes the form of discussion or special instructions may be either short term or long term and it may be written but is usually oral. The commander or his representative whom may be a NCO can do it. Sometimes this can lead to professional counseling. The counselor should provide helpful advice and motivate the soldier to do better, not because he is threatened with unfavorable action if he fails to do so, but his self-respect demand a better job. Counseling may inspire a soldier to correct his ways so as not to let down his comrades, family of others who have the soldiers respect. It may also show the soldier that proper conduct offers more advantages than the hassling, harassment or difficulties resulting from misconduct or poor performance. You must adequately counsel soldiers before initiating action to separate them for, A. Inability to fulfill military obligations due to parental obligations. B. Personality disorders. C. Unsatisfactory entry level performance and conduct. D. Unsatisfactory performance. E. Minor disciplinary infractions. F. A pattern of misconduct. Corrective Training: Is for soldiers who have demonstrated that they need and would benefit from additional instruction or practice in a particular area. The commanders and NCO’s must take care to give training that has a reasonable relationship to the soldiers deficiency. Extra training and instruction, if timely and appropriate, may correct deficiencies and eliminate the need for formal disciplinary measures in the future. Do not use extra training and instruction, as punitive punishment or even the appearance of punishment, as long as they need it to correct deficiencies. If they view the training or additional instruction as a punishment the value of such will be reduced, degraded, and in jeopardy. Commanders at all levels must ensure that training and instruction are not used in an oppressive manner to evade imposing Non-judicial punishment under UCMJ Article 15. You should not ordinarily note deficiencies corrected with training and instruction in a soldier’s record, and you should consider such closed. However you could record it in their training file to gage the soldiers progress.

Administrative Reductions: Enlisted soldiers may be reduced in rank by 1 or more pay grades for conviction by a civilian court and by 1 pay grade for inefficiency. You should inform the soldier of their right to appeal a reduction. The authority to take final action on an appeal cannot be delegated. The rank of the commander who may approve the reduction depends on the rank of the soldier involved. For example a company, troop battery or separate detachment commander can reduce a soldiers in grade of E-2, E-3, E-4. Only a commander of an organization authorized a colonel or higher as its commander can reduce a Sergeant First Class. Reference AR 310-10, AR 600-200.

ACTION 4 Procedure for Imposition of Article 15, UCMJ If after a preliminary hearing the Officer in Charge determines that an Article 15, UCMJ is appropriate the OIC shall inform the soldier. The notice shall include: 1. That the OIC is considering issuing an Article 15, UCMJ. 2. A statement describing the alleged offense/s including the article of the UCMJ the soldier is accused to have committed. 3. A brief summary of evidence that has lead to the decision and that the OIC may review said evidence against the soldier. 4. What rights the soldier has, in accordance with Article 31. 5. Tell the soldier that he can request a trial by court-martial instead of an Article 15, UCMJ, then inform the soldier of the maximum penalties that can be imposed under Article 15, UCMJ. That if the soldier wants to go court-martial that it could be either a Summary, Special, or General Court-Martial, and that at a Special or General they have a right to counsel. A. Soldier ask for trial by court-martial the Article 15, UCMJ shall stop. It is up to the OIC as to weather or not to proceed to a Court-Martial. The Article 15, UCMJ cannot be imposed unless the soldier withdraws the request for trial by court-martial. B. Article 15, UCMJ is accepted. Before it can be imposed the soldier has the right to appear before the person who initiated the Article 15, UCMJ, except when they are unavailable for any reason. In which case the soldier will appear before the designated authority, who will record the proceedings and forward them toe one who initiated the proceedings. If the soldier request a personal appearance before the one who initiated the proceedings. A. The soldier will be informed of his rights under Article 31. B. Be accompanied by a spokesperson provided by the soldier. Unless the punishment does not exceed 14 days extra duty, 14 days restriction and an oral reprimand. The spokesperson shall not be paid by the military, and the hearing will not be postponed if they are not there. They may not question witnesses except as permitted by the Officer in Charge. C. Be informed orally or in writing of the allegations against the soldier relating to the alleged charges.

D. Be allowed to examine the evidence that pertains to the Article 15, UCMJ, and how much punishment that could be imposed. E. Present matters in defense, extenuating and mitigation orally or in writing or both. F. Have witnesses present both pro and con unless their present duties prevent them from appearing. G. Have it open to the public unless the OIC determines there is a reason that it should be closed, or else the penalty does not exceed 14 days extra duty, 14 days restriction and an oral reprimand. If the personal appearance is waived then the soldier may present his evidence to the designated authority for consideration. Before the decision is given the soldier will be advised of their right to remain silent and that everything submitted could be used in a trial by court-martial. H. Evidence. Military Rules of Evidence do not apply. But the OIC may consider it in determining punishment. I. Punishment. Decision after considering all evidence the OIC; A. Concludes that the soldier did not commit the offence they shall terminate the Article 15, UCMJ. B. Concludes that the soldier is guilty the OIC shall inform the soldier of the punishment and of their right to appeal. Non-judicial punishment may be imposed based upon the records of a court of inquiry or other civil court. The soldier shall be informed in writing that an Article 15, UCMJ is being considered based upon the records in question and given the opportunity if applicable to refuse the Article 15, UCMJ. If the soldier does not request a trial by court-martial they may submit evidence to be considered as to guilt or innocence and if so to determine appropitate punishment or not.

ACTION 5 How to Conduct a Preliminary Investigation, Conclude If a serious offence has been made, Prepare charge for the appropriate level CourtMartial 1. Report of Offense: Anyone may report an offence by a soldier, to the civilian police, military police, or the unit commander. If the offence was committed of base the civilian police will investigate. If it was committed on base the military police or CID will investigate it. If it is a minor offense a unit NCO or officer will report it to the unit commander. As the unit commander you must conduct a preliminary investigation and decide how to handle the case no matter how the HQ command reviews the information. You must ensure that all reported offences are quickly and thoroughly investigated. You may do it or direct a subordinate to do it. In serious complex criminal cases you should seek help with law enforcement personnel. During the investigation to prove or disprove the charges, you should ask 3 primary questions: A. Was an offense committed? B. Was the suspect involved in the offense? C. What is the character and military record of the suspect? Investigators must remain impartial, a one sided investigation could result in a miscarriage of justice and embarrass the command. Preliminary investigations are usually informal, consisting of interviews with witnesses and reviews of police reports. Investigations must provide a thorough review of facts to determine what happened and what should be done. Do not confuse a preliminary with an Article 32, UCMJ investigation, which requires sworn charges, or an administrative investigation. Once the preliminary investigation is over you must do one of the following: A. Take no action. B. Take Non-punitive action. C. Impose Non-judicial punishment. D. Prefer court-martial charges against the accused, forward it up the chain of command with recommendation for appropriate action.

2. Statements of Suspects and Witnesses Not all cases require formal statements, you may find sufficient facts without written statements. You should interview all witnesses and suspects. Before questioning suspects you must inform them of their Article 31, UCMJ rights and their right to counsel. Like a civilian court a confession or admission by a suspect without their rights being read to them may or may not be admissible in a courtmartial. A court-martial may still convict based upon other evidence of guilt if the statement is not admissible. After receiving the warning of rights, the suspect may waive their rights but must do so freely, knowingly and intelligently. If at any time the suspect wishes to speak to an attorney the questioning must stop until a lawyer is made available. IF THE SUSPECT DOES NOT WANT TO TALK, NO QUESTIONS WILL BE ASKED. Your manner should not lend suspects to believe they are being threatened, nor should you play down the importance of the warning of rights. If you do the court may decide the statements were due to coercion or improper inducement. A. Article 31, UCMJ Rights Warning Statement 1. Warning – Inform the suspect/accused of : a. Your official position b. Nature of the offenses(s) c. The fact that he/she is a suspect/accused 2. Rights – Advise the suspect / accused of his/her rights as follows: “Before I ask you any questions, You must understand your rights” a. You do not have to answer my questions or say anything. b. Anything you say or do can be used as evidence against you in a criminal trial. c. You have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with you during questioning. d. This lawyer can be a civilian you arrange for at no expense to the government or a military lawyer detailed for you at no expense to you or both.

e. If you are now willing to discuss the offense(s) under investigation, with or without a lawyer present, you have the right to stop answering questions at any time, or speak privately with a lawyer before answering further, even if you sign a waiver certificate. f. Do you understand your rights? (If the suspect/accused says “No”, determine what is not understood, and if necessary repeat the rights advisement. If the suspect/accused says “Yes” ask the following question). g. Have you ever requested a lawyer after being read your rights? (If the suspect/accused says “Yes”, find out where and when. If the request was recent (i.e. fewer than 30 days ago) obtain legal advise on whether to continue the interrogation. If the suspect/accused says “No” or if the prior request was not recent ask him/her the following question). h. Do you want a lawyer at this time? (If the suspect/accused says “Yes” stop the interrogation until he/she has a lawyer. If the suspect/accused says “No” ask him/her the following question). i. At this time are you willing to discuss the offense(s) under investigation and make a statement without talking to a lawyer and without having a lawyer present with you? ( If the suspect/accused says “No” stop the questioning and call base legal. If the suspect/accused says ”Yes” continue the questioning). You do not have to give witnesses a rights warning unless you suspect them as being complicit in the possible crime. At that time inform them that you suspect them of as being part of the crime and then read them their rights. Any time you read the rights warning statement you should fill out a DA Form 3881, Rights Warning Statement.

B. Written Statement A sworn statement is the best way to record information from witnesses during an investigation. Article 136, UCMJ authorizes investigating officers to administer oaths in conjunction with sworn statements. No special form is required but the officer may use DA Form 2823. If the officer writes out the statement, you should use the exact words of the witness including vulgar language. Doing so ensures that the statement is the witnesses and not a composition of the officer. If possible allow the witness to write out the statement. On the bottom of the page the person taking the statement should write: “ Do you swear that the statements you have made are the truth, the whole truth and nothing but the truth”. Read this to them and then have them print their name, address, phone number, today’s date and sign their name. Then the officer taking the statement should sign it name, rank, unit. Then go over the statement with the witness and have them initial it at the beginning, the end and any corrections to avoid any questions of tampering. You should request sworn statements of witnesses who have personal knowledge of the facts, and remind them to avoid opinions and conclusions. C. Oral statement When a suspect waives his Article 31, UCMJ rights but refuses to make a written statement, you should write down his remarks, they may be admissible in a trial by court-martial. A suspect may make a statement about his part in an offense to a 3rd person not investigating the case or he may make a declarative statement before he receives his Article 31, UCMJ rights. The information may be admissible in a trial by court-martial.

3. CASE DISPOSITION 1. Preliminary Considerations When you have completed the preliminary investigation and believe that an offense(s) has been committed, you must process the case promptly. You must decide on whether to take non-punitive, impose non-judicial punishment or to prefer charges and recommend trial by court-martial. Do not prefer charges if the preliminary investigation leads to the conclusion that no crime was committed. If charges have been filed but the evidence does not support them. Do not forward them. You may discuss the situation with your commander. A superior commander may order you to forward the investigation. But he cannot order you to make a specific recommendation for disposition. The armed forces have jurisdiction over every offense(s) a soldier commits. Jurisdiction depends solely on the accused status as a member of the armed forces. 2. Preparation of Charges Use DD form 458 (Charge Sheet) to prepare charges for trial by courtmartial. While it is the commanders’ responsibility for preparing the charge sheet, you have no legal requirement to do so personally. You should seek help from the Judge Advocate General. Careful preparation of the charge sheet is critical to prompt disposition of the case; a poor job will cause delay and as administrative overload. Consistent poor work in investigations and preparing charges will reflect bad on you. Once the charges and specifications have been prepared and signed under oath, they are public record and should not be altered except on advice of a judge advocate. Manual of Court-Martials R.C.M 307 provides guidance for preparing the charge sheet, which you must prepare an original and four copies. A. Time Limits The prompt disposition of charges is essential to military justice. An unexplained delay in processing of charges at any stage may cause a dismissal of charges. When a question of delay is brought up, the

government must justify it and show that it was not intentional and was not due to an oppressive design or neglect on the part of the military. The government is accountable for the period beginning till the end of the case when the accused is placed under pretrial confinement or when he receives notice that he is being charged. Local directives usually outline the acceptable time limits for processing cases. The local directives may be stricter than MCM R.C.M. 707. You should discuss any possible delay with the servicing trial counsel or SJA. B. Delays To avoid unreasonable delays in processing court-martial charges you should: a. Hand carry all court-martial materials to higher command. Using the message center may be to slow. b. Investigate an incident immediately after it happens. Do not wait for lab reports or complete CID and MP reports. You can always get preliminary statements form CID agents or MP officials and initiate action based upon those statements. c. Do not allow a case to remain in the unit because of pressure of the duties. Note the reasons for any delay in case the question is raised at trial. Servicing trial counsel or SJA for advice if there are any questions or doubts at any stage of the proceedings. 3. Recommendations for Court-Martial Forwarding the charge sheet and allied papers with your recommendation for disposition to the summary court-martial convening authority. Summary court-martial convening authorities are usually Battalion Commanders who have authority to act upon your recommendations. They may dismiss charges or decide to try the accused by summary court-martial. If they do not have special court-martial authority at Battalion level, they may also decide to forward the case still higher with a recommendation for trial by court-martial. If an offense is serious enough for general court-martial a Battalion Commander may, as a summary court-martial authority, direct an Article 32, UCMJ investigation. Although Battalion Commanders may not impose their will upon you regarding the disposition of a case, they may accept or reject any recommendation they receive.

Finally a Battalion Commander may direct that neither trial by courtmartial, nor non-judicial punishment is appropriate. Instead he may elect to dispose of the matter by administrative action. ARTICLE 32, UCMJ INVESTIGATION Any case to be tried by a general court-martial requires a Article 32, UCMJ investigation, unless the accused waives it. Any offense(s) you investigates and forward as charges is the basis for such an investigation. The special court-martial convening authority (SPCMCA) usually appoints an Article 32, UCMJ investigating officer. The officer must inquire into truth of the matters set forth in the charges and recommend a disposition for the case. Based upon information developed in the investigation, the SPCMCA may decide to: a. Forward the case with a recommendation for trial by General Court-Martial. b. Refer the case to a Special Court-Martial. c. Refer the case to a Summary Court-Martial. d. Impose Non-Judicial punishment. e. Take Administrative action. f. Dismiss the charges and return the soldier to duty.

ACTION 6 DESCRIBE THE TYPES OF COURT-MARTIALS 1. Summary Court-Martial A summary court-martial (SCM) is a court composed of one officer who may or may not be a lawyer. The SCM handles minor crimes and has simple procedures. The maximum punishment, which depends upon the rank of the accused, is limited to confinement for one month, forfeiture of two-thirds pay for one month and reduction in grade. An SCM may not try an accused against his will if he objects, you may consider trial by a higher court-martial. The accused does not have the right to military counsel at an SCM. 2. Special Court-Martial A special Court-martial (SPCM) consists of a military judge, at least three court members (unless the accused chooses to be tried by a military judge alone). A trial counsel and a defense counsel. The maximum sentence is confinement for six months and reduction to the lowest enlisted grade. The SPCM convening authority may authorize the SPCM to adjudge a Bad-Conduct Discharge (BCD) as part of the maximum sentence. This proceeding is known as a BCD SPCM. It differs from an ordinary SPCM in that a verbatim court reporter is required. If a BCD is adjudged, a verbatim record of the trial is required and the accused has a right to an automatic appeal to the Army Court of Military Review. 3. General Court-Martial A general court-martial (GCM) tries the most serious offenses. It consist of a military judge, at least five members (unless the accused elects to be tried by a military judge alone), a trial counsel, a defense counsel; the counsels must be lawyers. Unless waived by the accused, a formal Article 32,UCMJ investigation must occur before a GCM may try the case. The GCM may adjudge the most severe sentences authorized by law, including Dishonorable Discharge (DD).

In both GCMs and SPCMs, an enlisted may request that at least one-third of the court be enlisted.

ACTION 7 DISCRIBE THE FORMS OF PRETRIAL RESTRAINT AND IDENTIFY WHEN THEY ARE PROPERLY IMPOSED UPON A SOLDIER

1. Types of Confinement include: A. Conditions on Liberty Under this type of restraint a soldier may be required to avoid certain activities, places or people. A speedy trial is not gauged against the imposition of conditions on liberty. B. Restriction Under this type of restraint the accused is directed to remain within specified limits, but ordinarily performs regular duties. Imposition of restriction starts the 120 – day limit for a speedy trial. C. Arrest This type of restraint is much like restriction, but the soldier ordinarily does not perform his regular duties. Arrest starts the 90 day limit required for speedy trial. D. Confinement Confinement is a full restraint in a confinement facility, it starts the 90 day for speedy trial. While charges are being processed, you may need to confine of restrict the suspect. Pre-trial confinement is limited to persons reasonably suspected of serious offense(s) and which is necessary to ensure their presence at trial or to prevent them from committing other offenses. In determining whether confinement is appropriate, you should remember that it deprives the accused of liberty while he is presumed innocent and makes his defense preparations difficult.

Your convince is not enough to justify curtailing a soldiers freedom, and you may not use it as punishment. Also an accused will receive a day-forday credit for his confinement against the adjudge sentence. Grounds for pre-trial confinement are the accused foreseeable, serious criminal misconduct or risk of his absence before trial. Serious criminal misconduct includes: A. B. C. D.

Intimidation of witnesses. Obstruction of justice. Serious injury to others. Serious threats to safety of the community.

When a soldier is placed in pre-trial confinement, he must be informed of: A. The nature of the offense(s) of which he is confined. B. His right to remain silent and that anything he says maybe used against him. C. His right to request counsel and to retain civilian counsel at no expense to the government. D. The procedures for review of pre-trial confinement.

ACTION 8 Describe the Right Against Self-incrimination, Right to counsel, and Right to Speedy Disposition of the Charges 1. Right against self-incrimination As guaranteed by the Fifth Amendment of the Constitution of the U.S. no person shall be compelled to in any criminal case to be a witness against himself or herself. 2. Right to speedy trial As guaranteed by the Sixth Amendment of the Constitution of the U.S. is intended to ensure that defendants are not subject to unreasonably lengthy incarceration prior to a fair trial. 3. Right to counsel Also guaranteed by the Sixth Amendment is the right to have the assistance of counsel for their defense. This is an issue that has been debated and to the extent of law suits brought against the U.S. Military before the U.S. Supreme Court. Paraphrasing the various decisions of the U.S. Supreme Court; Although an individual has given up certain freedoms and rights by deciding to join any branch of the U.S. Military Forces, that person has made a personal decision to follow the rules and regulations of which ever branch they joined. They did not however give up their basic Constitutional Civil Rights such as: First Amendment – Freedom of speech and religion. Forth Amendment – Freedom against unreasonable search and seizure. Fifth Amendment – Right against self-incrimination Sixth Amendment – Right to a speedy trial and the right to counsel. Eighth Amendment – Prohibition of cruel and unusual punishment. Although the decisions made protect an individuals Constitutional Civil Rights, they in no way restrict the U.S. Military from establishing guide lines as to how a person in any branch of service may exercise these rights.

ACTION 9 IDENTIFY THE SITUATIONS YOU CAN LAWFULLY SEARCH A SOLDIERS PROPERTY, AND LAWFULLY SEIZE ANY EVIDENCE OR CONTRABAND You may lawfully seize soldier’s property in their units after a legal search, inspection, or inventory. An unlawful search may violate a soldiers rights and result in seized items being inadmissible in a court-martial. 1. Searches You may direct search of any person or property in any place under your control, only if you have probable cause. You may authorize searches in your company areas but only Post Commanders may authorize searches or apprehensions in Government quarters. Probable cause to search requires both of the following: A. You have a reasonable belief that evidence of the crime is on the person or at the place you plan to search. B. The information and it’s sources are reliable. You must have more than a suspicion, but you need not have absolute proof. In other words, probable cause lies between both suspicion and knowledge. You must conclude on the basis of information presented to you that the evidence of a crime or contraband is at that likely to be in the possession of the suspect or on the premises to be searched. Your determination that probable cause exists must be reasonable and based on facts. It may not be based solely on conclusions. A CID agent, first sergeants, or informant’s awareness of sufficient facts to provide probable cause is unimportant unless the commander who orders or authorizes the search receives those facts. That commander must believe the person furnishing the information and that the informants are reliable before probable cause can exist.

2. Seizures Evidence in open view or in a public area such as a dayroom or open field may be lawfully seized without probable cause and without consent. The officer or authorized person must have and can prove the items seized are either evidence of a crime that was committed or is being committed i.e. money on the table while a game of chance is being played on base. Or that the item is contraband – Items listed as any item which relating to its nature is illegal to be possessed on a military installation.

ACTION 10 UNDERSTAND THE CONCEPT OF UNLAWFUL COMMAND INFLUENCE AND DESCRIBE THE SITUATIONS IN WHICH IT MAY OCCUR 1. Convening authorities and Commanders No convening authority may reprimand, censure or admonish a courtmartial or other military tribunal with respect to findings or sentence adjudged. 2. All persons subject to the code No person subject to the code (any one enlisted in the military or connected to the military in any fashion), may attempt to coerce or influence the out come or actions of a court –martial or any other military tribunal in reaching the findings or sentence in any case. 3. Evaluations May use or consider or evaluate the performance of duty of any member of a court-martial or witnesses therein to try to influence the out come of any court-martial or military tribunal.