Military Law
Service members facing criminal charges are likely overwhelmed at the Court-Martial Process. While it is similar to what civilian defendants face, the military process is subject to sometimes peculiar rules that require an attorney familiar with them and experience prosecuting and defending courts-martial.
David Morgan is a former JAG with years of experience prosecuting and defending military criminal cases. His depth of knowledge and ability to deal with senior officers make him a valuable and effective advocate for the court-martial client.
What follows is an overview of the Military Justice system. Specific questions can be answered by calling today.
Convening Authority
All courts martial are begun by a convening authority. This person is generally a senior ranking officer (typically a General or Admiral) in Command of a Major Command. The convening authority makes the decision on whether to charge a service member with a crime and with what crime he will be charged.
Non-Judicial Punishment (NJP)
Non-judicial punishment (also known as NJP, Article 15, Captain's Mast, or Office Hours) is punishment imposed by a commanding officer after an informal hearing. The commander personally determines the facts by hearing witnesses speak or by reading reports, and the service member is given the opportunity to present evidence and respond to the evidence against him. There is no judge; there is no jury; there are no rules of evidence. If the commander determines that an offense has been committed, the commander may impose punishment. The potential punishments may include loss of pay, restriction on liberty, and in some cases, loss of rank. The available punishments vary depending on the rank of the accused and the rank of the officer imposing the punishment. Non-judicial punishment is normally reserved for relatively minor offenses, but even so, such punishment can have significant consequences on a military career. Non-judicial punishment - even for offenses that have civilian equivalents, like larceny and drug possession - does not constitute a criminal conviction and does not result in a criminal record. In most cases, except when embarked aboard a ship, a service member has the right to refuse NJP and to request that the offense be tried by court-martial instead.
Summary Court-Martial
A summary court-martial (SCM) is the lowest level of the three kinds of courts-martial. A SCM is tried by a single officer who is appointed by the Convening Authority to try the case. The SCM officer is not required to be an attorney (and usually is not), but he or she acts as prosecutor and judge and must even assist the accused in presenting the defense's case. An accused may, but does not have an absolute right to, be represented by counsel at a SCM. Like any other court-martial, the accused's guilt must be proven beyond a reasonable doubt, and the formal Military Rules of Evidence apply at summary court-martial. Only enlisted members may be tried by SCM, and the punishments that may be imposed vary depending on the rank of the accused. Because of the summary nature of the proceeding, a finding of guilt by a summary court-martial does not result in a criminal conviction or a civilian criminal record. Like non-judicial punishment, though, an accused has the right to refuse trial by summary court-martial.
Special Court-Martial
A special court-martial is the mid-level court-martial, and the lowest forum that resembles a civilian criminal trial. A conviction at a special court-martial results in a criminal conviction and a criminal record that translates to the civilian community. If the convening authority refers charges to a special court-martial, the accused has the right to be represented at trial by an appointed military counsel, by a civilian counsel retained at the accused's expense, or by both. The court is presided over by a military judge who is independent of the convening authority and who has final say on all matters in the courtroom, during the trial. An accused can choose to have his case tried by a military judge alone, or by a panel of 3 or more members. The members (similar to a jury) are officers, senior in rank to the accused. If the accused is enlisted, he can choose to have at least one-third of the panel also be enlisted members. In all cases, the convening authority personally selects the members to hear the case.
The maximum punishment is confinement for 12 months, forfeiture of 2/3 pay per month for 12 months, reduction to the lowest enlisted pay grade, and discharge from the service with a Bad Conduct Discharge. If the accused is convicted of any offense, then sentencing is conducted in a session of court separate from the trial on the merits (determination of guilt or innocence.) If the accused chose to be tried by judge alone, the judge determines the sentence. If the accused selected trial by members, then the sentence will also be determined by the members.
Article 32 Investigation
An Article 32 investigation is the beginning steps of a General Court-Martial. Before charges can be referred by the convening authority to a general court-martial, the charges must be investigated at a preliminary hearing, or Article 32 Investigation. The Article 32 serves much the same purpose as the Grand Jury hearings or preliminary hearings in civilian courts, but a number of factors distinguish it.
An investigating officer appointed by a convening authority conducts the formal hearing. The accused has the right to be represented at the hearing by appointed military counsel or by civilian counsel (retained at his own expense) or by both. The formal rules of evidence do not apply, but many procedural rules govern what evidence that the parties may present to the investigating officer. After the hearing, the investigating officer submits his or her findings in a written report to the convening authority. In general, the investigating officer must give an opinion as to whether or not probable cause exists to believe the accused committed an offense and a recommendation as to how the case should be resolved. The convening authority, however, is not bound by the investigating officer's findings. Even if the investigating officer, who heard all the evidence presented, does not believe that the accused committed an offense, the convening authority still can refer the charges to trial.
General Court-Martial
A General Court-Martial is the highest level of court-martial and is normally reserved for the most serious offenses. Procedurally, the trial is identical to that described above for a special court-martial. A military judge presides over the trial, and the accused may elect to be tried by the judge alone or by a panel of members. If the accused elects to be tried by members, no less than five members must be assigned to hear the case. As with a Special Court-Martial, the convening authority selects the members who will decide the case.
The maximum confinement that can be imposed by a General Court-Martial is calculated by adding the maximum allowable confinement for each of the charged offenses. Additionally, a General Court-Martial can adjudge forfeiture of all pay and allowances, reduction to the lowest enlisted pay grade and discharge from the service with a dishonorable discharge.
Clemency and Post-Trial Action
Once a trial concludes, the outcome is not final until the convening authority takes action on the case. The convening authority may take action that changes the outcome of the trial in a way that improves the situation of the accused, but he or she cannot put the accused in a worse position. A convening authority may only approve a finding of not guilty but may either approve or disapprove a finding of guilty. A convening authority may also approve, disapprove, or suspend a sentence - or any portion of a sentence - that the court adjudged.
Before making a final decision on the case, the convening authority must review the written record of the trial, the recommendation of their legal advisor, and anything that the service member asks them to consider. Whether or not clemency will be granted in a case depends on the facts of the particular case, the accused and the convening authority. Statistically, though, the chances of clemency are low. While the opportunity to request clemency is important and should not be overlooked, trial is the best opportunity, by far, that a service member has to fight and win their case.
Appeal
Any court-martial that results in a finding of guilty and a sentence that includes either a punitive discharge or at least one year confinement is automatically appealed. Other cases can be appealed in some circumstances, but the right not automatic. The service member is assigned a military defense attorney to handle his appeal, but he also has the right to hire civilian counsel.
Contact David Morgan today.
INDEX
- Convening Authority
- Non-Judicial Punishment (NJP)
- Summary Court-Martial
- Special Court-Martial
- Article 32 Investigation
- General Court-Martial
- Clemency and Post-Trial Action
- Appeal
- David Morgan is a former JAG with years of experience prosecuting and defending military criminal cases. His depth of knowledge and ability to deal with senior officers make him a valuable and effective advocate for the court-martial client.
What follows is an overview of the Military Justice system. Specific questions can be answered by calling today. - Email or Call David P. Morgan today
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