Agenda Purpose Legal Sources Key Personnel Jurisdiction Command Influence Rights Warning Search and Seizure Inspections Urinalysis Nonpunitive Nonjudicial Soldier’s Rights Art. 15 Hearing Punishments
PURPOSES OF MILITARY JUSTICE Promote Justice Maintain Good Order and Discipline Promote Efficiency and Effectiveness Strengthen the National Security
LEGAL SOURCES OF MILITARY JUSTICE U.S. Constitution Articles of War Uniform Code of Military Justice Manual for Courts-Martial, U.S. 1984 Local Regulations Court Decisions 1SG Legal Clerk SJA
KEY PERSONNEL IN THE MILITARY JUSTICE SYSTEM Commander Staff Judge Advocate Trial Counsel Defense Counsel Military Judge Legal Specialists
UCMJ JURISDICTION Over the Person: Active Duty Soldiers Reserve Soldiers, certain times U.S. Academy Cadets National Guard in Federal Service Others Over the Offense: Concurrent Civilian Jurisdiction? Worldwide Jurisdiction
UNLAWFUL COMMAND INFLUENCE A Superior Cannot: Order a Subordinate to take specific action Intimidate or Discourage a Witness Reprimand or give unfavorable ratings for conduct as court or board member
IMPORTANCE OF PROPER COMMAND CONTROL Personal Importance Discipline, Efficiency, and Integrity of the system Civilian Impressions and Reputation of the system
RIGHTS WARNING Nature of the suspected offense Right to remain silent Any statement made can be used at trial Right to consult an attorney prior to questioning and have attorney present during questioning Right to representation at all critical stages
SEARCH AND SEIZURE Probable Cause: A reasonable belief that items connected with criminal conduct are located in a particular place or on a certain person. Analyze “totality of circumstances” What is where and when? How do you know? Why should I believe you?
NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ Types of Article 15’s Summarized: No right to lawyer Extra duties and restriction Records not admissible at Court-martial Formal: Provides “formal” record Significant punishment and rehab potential Pay, reduction, extra duties, restriction Right to consult with lawyer
NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ Any officer in command may impose Article 15 Limitations on Article 15 Authority: Superior commander cannot direct subordinate to issue Article 15 or impose punishment Superior commander may withhold all or partial Article 15 authority
ACCUSED’S RIGHTS AND OPTIONS RightsFormalSummarized Art. 31B WarningYesYes Demand TrialYesYes Consult LawyerYesNo Open HearingYesNo SpokespersonYesNo Have WitnessesYesNo AppealYesNo
ARTICLE 15 HEARING Purpose: Determine if soldier committed offense Standard: Proof beyond a reasonable doubt Persons present: Commanders option; usually: Accused 1SG/SGM Supervisory chain Commander’s actions: Consider evidence Decide guilt or innocence Impose punishment Explain right to appeal
ARTICLE 15 PUNISHMENTS Reduction in Rank Correctional Custody Forfeiture of Pay Extra Duty Restriction Reprimand/Admonition
SEARCHES NOT REQUIRING AUTHORIZATION Consent search: Person sets limits Good insurance Search incident to apprehension: Reasonable Grounds must exist Search person and area of immediate control Exigent circumstances: Evidence may be destroyed or removed Common in cases involving cars and drugs Administrative inspections
ADMINISTRATIVE INSPECTIONS Commanders have the right and duty to inspect troops and equipment. Primary Purpose is to ensure security, fitness, property accountability, or good order and discipline—NOT collect evidence of a crime. If contraband is found during inspection it may be seized as evidence. Not a “cover up” for a search; military courts will scrutinize.
NONPUNITIVE ENFORCEMENT Good leadership Counseling: Oral and written Reprimands: Oral and written Enlisted administrative separations Corrective training Bars to Reenlistment Withhold benefits and privileges
NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ Commanders authorization to impose punishment Purposes of an Article 15: Correct, educate, reform soldiers. Avoid the stigma of a court-martial. Promote efficiency in discipline. When is an Article 15 appropriate? Minor crimes under UCMJ Other administrative measures fail or they are not appropriate.
FILING OF ARTICLE 15’s Summarized: Kept at unit for two years or until transfer Formal: E4 and below same as summarized E5 and above are filed in OMPF, restricted or performance side
PRETRIAL RESTRAINT General Rule: An accused pending charges should ordinarily continue normal duties. Authorized upon Probable Cause that: UCMJ offense committed Accused committed it Restraint is required to ensure the accused’s presence or to prevent foreseeable serious misconduct
PRETRIAL RESTRAINT Forms of Pretrial Restraint: Conditions on Liberty Restriction (in Lieu of Arrest) Arrest Confinement Factors to consider: Type of offenses committed Strength of the evidence Accused’s ties and finances Accused’s character and record Contact your JA
COMMANDER’S PRELIMINARY INQUIRY Immediate commander is required to investigate allegations of criminal conduct Commander determines format; usually informal Purpose: Determine facts surrounding allegations bearing on guilt or innocence Preserve evidence/Identify witnesses Reach an informed decision on disposition Approach: Gather all reasonably available evidence
INITIATION OF COURT- MARTIAL CHARGES Is Court-Martial Appropriate? Consider: Bottom up approach – solve at lowest level. Any previous administrative action or NJP? Seriousness of the offense. Impact of the offense on victims, command, Army, or the nation. Appropriateness of punitive discharge or long-term confinement/level of court-martial. Strength of the case; can JA support trial?
SUMMARY COURT-MARTIAL One officer; Captain or above. Detailed by convening authority to administer military justice for minor offenses. All-encompassing responsibility to gather evidence, determine guilt, and assess punishment. DA Pam 27-7: detailed procedural guide. Legal Advisor appointed.
INVESTIGATING OFFICER ARTICLE 32(b), UCMJ Article 32(b): Thorough and impartial investigation is required before every GCM Purpose: MCM purposes Discovery Preservation of testimony One officer; usually field grade. Judicial function DA Pam 21-17: Detailed procedural guide. Report of Investigation
Summary Purpose Legal Sources Key Personnel Jurisdiction Command Influence Rights Warning Search and Seizure Inspections Urinalysis Nonpunitive Nonjudicial Soldier’s Rights Art. 15 Hearing Punishments
Question & Conclusion “Injustice is the all the greater when it is armed injustice” Aristotle