The question most often asked about military justice is whether justice for the military service member is ever achieved, since the purpose of the Uniform Code of Military Justice (UCMJ) was to maintain good order and discipline so commanders may achieve their missions.  Unfortunately, the goal of achieving military missions is often inconsistent with the personal needs of military service members to achieve a just outcome to their legal and administrative problems, whether they are innocent or guilty. Military justice, therefore, can be a confusing, alien, hostile and impersonal process that often fails to protect the essential rights of military service members unless they have an experienced lawyer who:

• Understands the military justice process;
• Experienced military service and therefore understands the organization in general; and
• Has the courage to fight for his or her client’s rights

Most military service members will be exposed to the notion of military justice during their basic training, when they receive classes about the UCMJ, including their duties and obligations and a little about their rights. Real exposure to the military justice process usually doesn’t occur until service members face some sort of formal charge or accusation. Formal accusations usually start with charge sheets or investigations and military service members are informed verbally or in writing that they are accused of violating the UCMJ or some order or regulation. They then are either officially questioned or just left to wonder about their future. Sometimes, accused military service members are read their UCMJ rights and interrogated. This essentially begins the investigatory phase of the military justice process.

What happens behind the scenes when military service members are charged?

Whether military service members are informed of the charges or not, the process will continue. Here’s what happens:

• The charge sheet will be delivered to the commander of the accused military service member’s unit, so a determination can be made about the seriousness of the offense and whether to handle the charge at the unit commander level or send it to a higher-level commander.
• If the charge is not considered serious, the commander may counsel the accused military service member or elect to conduct a non-judicial punishment proceeding (NJP), also known as an Article 15 or Captain’s Mast.
• If the commander believes the charge is too serious to be resolved at NJP, he or she will send the charge sheet to the next higher commander in the chain of command, normally a battalion, squadron or group/wing-level commander, also known as the designated Convening Authority (authorized to send military service members in their command to courts-martial.)
• Once the battalion/squadron/group or wing-level commander receives the charge sheet, he or she will decide whether to hold a battalion/squadron/group or wing-level NJP.
• If the commander decides to hold an NJP hearing, the process may end there.
• If he or she decides the charges are too serious for NJP, the charge sheet will be sent to the legal office so a prosecutor may be assigned to the case to investigate and prosecute. At about the same time, a copy of the file will be forwarded to the trial defense service (Army TDS), area defense counsel (Air Force ADC), or senior defense counsel (USMC) office so a military defense lawyer may be assigned.

Once the prosecutor receives the charges, he or she will draft a more formal charge sheet, which will be used in court. Depending on the seriousness of the accusation, the charges may be referred to a summary court-martial (misdemeanor administrative hearing), special court-martial (misdemeanor federal court) or the more serious general court-martial (felony federal court). A finding of guilty at a summary court-martial is not considered to be a conviction, but E-3s and below may be sentenced to 30 days of confinement, nevertheless.  It may not include a discharge.

A special court-martial is distinguished from a general court-martial by the maximum punishment that may be doled out if an accused military service member is convicted. A special court-martial has a maximum punishment of one year in confinement, forfeitures of two-thirds of base pay per month for a period of 12 months, reduction to pay-grade E-1 and a bad conduct discharge. A general court-martial, on the other hand, may carry a sentence of death, or life in prison, total forfeitures of all pay and allowances for the period of confinement, reduction to E-1, and bad conduct or dishonorable discharge (or a dismissal, in the case of officers).

A court-martial is tried just like the trials often seen in TV court dramas. It will have a military judge, a military prosecutor, a military defense attorney.  A military service member defendant can choose a court-martial with military judge alone or with a jury made up of military members. Courts-martial must be conducted in accordance with very strict rules of procedure and evidence.

In a court-martial, the government (military prosecutor) must present evidence and witnesses to prove its case beyond a reasonable doubt. The accused military service member also has a right to present evidence and witnesses and to demonstrate that the government cannot prove its case beyond a reasonable doubt. Once all the evidence and witnesses are presented, military lawyers give closing argument and the jury then deliberates in secret to determine guilt or innocence. In the military justice process, the jury does not have to be unanimous. If two-thirds of the jury members agree on guilt, the accused military service member is found guilty.

If an accused military service member is found not guilty, then the case is over. If a finding of guilty is made, the accused military service member has a right to appeal, a process that is automatic if the accused military service member is sentenced to one year or more in prison or receives a punitive discharge of any type.

If an accused military service member is found guilty, but does not receive bad conduct discharge, the military will almost always begin what is known as administrative separations processing (the equivalent of firing the service member from his or her job). This will force the accused military service member to have to defend himself or herself again in front of an administrative separations board, which may recommend retention, or separation with an honorable, general under honorable conditions, or other than honorable discharge.

Military service members are entitled to consult with a military defense lawyer at any time when they are suspected of committing offenses. They are also entitled to be represented by an military defense attorney if formally charged and facing a subsequent court-martial.  The military services will assign an active duty military service lawyer to represent the accused military service member.  Most often than not, these military lawyers are young and inexperienced, the junior military officers of the military legal profession.

The above explanation of the military justice process is a brief overview of a very complex system that often frustrates and demoralizes those who find themselves accused of an offense.

Our experienced, aggressive and knowledgeable military defense attorneys are talented at skillfully negotiating and navigating the military justice process and achieving successful results for clients. Contact us for a consultation.