2. Military Justice

3. Military Justice Overview --.Basic considerations A.Nonpunitive disciplinary measures B.Elimination proceedings [AR635-200] C.Nonjudicial punishment [Article 15] D.Unlawful command influence E.Court-martial system F.Pretrial restraint

4. Commander Focus –Select correct command response by beginning with the end in mind –Apply command response correctly: Proper standard Proper procedure –Trial counsel reliance Short-term Long-term: –Integrated leadership system for dealing with problem soldiers: Right tool Right level

5. Criminal Law: Civilian vs. Military More similarities than differences: –Sources –Practitioners –Analytic approaches and procedures Differences: –Purposes –Decisionmakers –Jurisdiction –Offenders

6. Purposes of Military Justice Promote justice Assist in maintaining good order and discipline in the armed forces Promote efficiency and effectiveness in the military establishment [and thereby] Strengthen the national security of the United States

7. Decisionmakers: Command Involvement Making commander the decision-maker Maintaining fairness by avoiding unlawful command influence Augmenting commander’s nonpunitive options to deal with poor performance with punitive options to deal with misconduct

8. Disciplinary Options Take no action Nonpunitive options Punitive options –Nonjudicial punishment [Article 15, UCMJ] –Courts-martial

9. Examples of Disciplinary Options Nonpunitive options –Counseling –Corrective training –Reprimand –Bar to reenlistment –Adverse efficiency reports –Administrative separation Punitive options –Nonjudicial punishment Summarized Formal –Court-martial Summary Special BCD-Special General

10. Distinctions Between Nonpunitive and Punitive Options

11. Supervisors use less-severe nonpunitive options to correct poor performance Severe nonpunitive options generally require command involvement or approval Commanders use punitive options to punish

12. Nonpunitive Options: 1. Preliminary Inquiry RCM 303 Company commander responsible for conducting a preliminary inquiry to determine how to dispose of report of misconduct by soldier in unit

13. Nonpunitive Options - Preliminary Inquiry - First Steps Prevent further harm Preserve evidence Notify: –Chain of command –Soldier’s supervisors Locate suspected soldier

14. Nonpunitive Options - Preliminary Inquiry - Second Steps Begin coordination with investigators and trial counsel Flag soldier Begin fact-finding Begin determining applicable law & regulation Begin framing range of options

15. Factfinding Incident Victim impact Impact on morale & discipline Other aggravating and mitigating factors Accused –Past offenses –Past duty performance –Current performance –Military character –Future potential Accused Victim Family of accused Family of victim Unit’s leaders Unit’s soldiers Military public General public

16. Nonpunitive Options: 2. Counseling Can be oral or written, positive or negative Purposes of negative counseling: –Identify poor performance –Determine reasons for poor performance –Develop plan to improve poor performance –Ensure understanding of adverse consequences if performance does not improve –Document basis for more severe options

17. Nonpunitive Options: 2. Counseling with a View toward Separation AR 635-200, para 1-18 Counseling with a view toward separation, aka “rehabilitative counseling” or “1-18 counseling” Required before initiating many separation actions Required contents: –Reason for counseling –Separation action may be started if problem persists –Type of discharge that could result from separation action OSJA has pre-printed forms

18. Nonpunitive Options: 3. Corrective Training - AR 600-20, para 4-6 Extra training during or after duty hours Requirements: –Connection [nexus] between poor performance and corrective training –Must be monitored –Must cease when training goal accomplished Primary tool for the NCO Examples

19. Nonpunitive Options: 4. Loss of Discretionary Benefits - e.g., AR 600-8-10, chap 2 [pass] Abuse of privilege justifies loss of privilege - nexus required Examples: –Loss of post driving privilege for DWI –Loss of pass privilege for FTR –Loss of check privilege for rubber checks –Loss of PX privilege for shoplifting Written counseling used to document

20. Nonpunitive Options: 5. Admonition and Reprimand - AR 600-37, chap 3 Can be oral or written [“memorandum of reprimand”] If written, can be filed locally or permanently [“OMPF filing”] OMPF filing a career-terminator Mandatory GOMOR for drunk driving - often filed in OMPF- AR 190-5

21. Nonpunitive Options: 6. MOS Reclassification - AR 600-200, ch 2 Grounds: Misconduct or inefficiency incompatible with “the technical, supervisory or other requirements of the MOS.” If loss of MOS required due to misconduct, must first be processed for administrative separation UP AR 635-200 Examples: –Military Police– Legal Specialists –Security Analysts Command involvement

22. Nonpunitive Options: 7. Suspension/Revocation of Security Clearance - AR 380-67, ch 8 Broad Grounds: Soldier’s misconduct or other behavior raises serious questions about continued access to classified materials Examples: –Substance abuse –Financial difficulties –Excessive gambling

23. Nonpunitive Options: 8. Adverse Efficiency Reports OERs [AR 623-105] & NCOERs [AR 623-205] Misconduct: Must be substantiated Poor performance: Must be well-documented [written counseling,etc.] IAW local guidance F

24. Nonpunitive Options: 9. Bar to Reenlistment - AR 601-280, ch 8 No right to a career Broad grounds Mandatory initiation of separation proceedings if soldier fails to improve Anticipate tightened requirements if recruiting shortfalls continue

25. Nonpunitive Options: 10. Administrative Reduction - AR 600-8-19, chap 6 Broad Grounds: “Any action or course of conduct affirmatively evidencing that the [soldier]… lacks those abilities and qualities required and expected of a person of that grade and experience.” Approval authority: –E-4 and below - company commander –E-5 and above - right to board proceeding

26. B. Administrative Separation - AR 635-200 Generally requires approval by battalion or brigade commander Right to board if soldier has more than 6 years of service or OTH discharge sought Rehabilitative counseling generally required Renewed emphasis on taking other rehabilitative measures because of: –Recruiting shortfalls –Increased investment in training soldiers

27. B. Administrative Separation - Developments 114,451 enlisted separations for FY97 Overall enlisted attrition: 15% lost in first six months + 22% more lost before initial ETS 37% overall attrition Chap 11 and 13 will generally be rehabilitatively transferred before initiating separations [see para 1-18c, AR 635-200] Voluntary Chap 16 no longer available

28. Some Types of Administrative Separation Parenthood Personality disorder Overweight Entry-level separation Fraudulent entry Rehabilitative failure/substance abuse In lieu of court- martial Unsatisfactory performance Pattern of misconduct Commission of a serious offense Homosexuality

29. B. Administrative Separation - Characterization of Discharge Administrative discharges: –Honorable –General –Other than honorable [OTH] Punitive discharges: –Bad conduct discharge [BCD] –Dishonorable discharge [DD] Consequences of receiving anything except an honorable discharge: -Perception- College Fund - Other benefits

30. B. Administrative Separation - Characterization of Discharge Admin options for characterizing discharge: –Honorable –General –Other than honorable Availability of options vary by type of separation, e.g., chapter 14 for misconduct can result in: –Honorable [ordered by GCMCA] –General [ordered by SPCMCA] –Other than honorable [ordered by GCMCA after formal board proceedings]

31. B. Administrative Separation - Board Proceedings Soldier has right to board when: –Soldier has more than 6 or more years of AD and RC service on date of initiation of separation –OTH discharge sought –Homosexuality [Chap 15] Board recommends: –Whether respondent be retained or separated –How respondent’s discharge is characterized Separation authority decides: -Retention/separation- Characterization -Suspension

32. B. Administrative Separation - Officers - AR 600-8-24 Broad grounds: –Substandard performance of duty –Moral and professional dereliction –In the interests of national security Expedited procedures for probationary officers

33. B. Administrative Separation - Homosexuality Investigative responsibility: –Unit: Consensual acts between adults –Criminal investigation: Force Children Fraternization [?] DO NOT start either unit or criminal investigation until you have established that: –Allegation meets definition of homosexual conduct [Statements, Acts, Marriage] –Allegation is credible

34. Distinctions Between Nonpunitive and Punitive Options

35. Distinctions Between Nonpunitive and Punitive Options Can Blur Some performance problems are also military crimes, e.g. FTR, AWOL, dereliction of duty Some nonpunitve options involve severe sanctions Rule of thumb: Commanders become involved when distinctions blur

36. Drunk Driving RCM 303 Preliminary inquiry: –What facts? –Which sources? Nonpunitive options –Mandatory –Other “Double jeopardy?” +

37. Punitive Options C. Nonjudicial Punishment [NJP] Summarized Formal D.Unlawful Command Influence E & F. Courts-Martial Summary Special BCD-Special General

38. 1. Purposes of Nonjudicial Punishment [NJP] Correct, educate and reform offenders who cannot benefit from less stringent measures Preserve a soldier’s record from the unnecessary stigma of a court-martial conviction Further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial

39. 1. Authority to Impose Nonjudicial Punishment [NJP] Commander [commissioned or warrant officer] exercising primary command authority over a military organization or territorial area Commanders can impose nonjudicial punishment upon members of their command

40. 1. Nonjudicial Punishment: Minor Offenses Use of nonjudicial punishment normally confined to minor offenses Minor offenses are those which have maximum punishments not containing a dishonorable discharge or confinement for longer than one year Maximum punishments are noted in the Punitive Articles [Part IV, MCM] and Appendix 12, MCM

41. 1. Nonjudicial Punishment: Double Jeopardy Misconduct can only be punished once under Article 15 BUT… –Non-minor offenses can also be tried by court-martial –Off-post misconduct can be punished by both military and civilian authorities –Use of nonjudicial punishment does not prevent use of nonpunitive options

42. Types of Nonjudicial Punishment Procedures Summarized [DA Form 2627-1] Formal [DA Form 2627] –Company grade –Field grade

43. Rules Applicable to Both Types of NJP [Summarized and Formal] –Must address UCMJ offense –Soldier may refuse NJP and “demand” trial by court-martial –Guilt must be established beyond reasonable doubt –Finding of guilty not a criminal conviction NCIC

44. Rules Applicable to Both Types of NJP [Summarized and Formal] –Company commander may not delegate authority to determine guilt or select punishment to, e.g., 1SG or PLT LDR –Soldier may appeal findings & punishments –Findings may be posted or announced: Delete SSAN on posted forms Post findings of not guilty Consider carefully before posting findings if accused is a NCO

45. a. Summarized Proceedings Least-severe punitive action –Use to address least-severe misconduct –Use when mildest punishment is all that is required, e.g., outstanding soldier Maximum punishments: –Oral reprimand –Extra Duty for 14 days –Restriction for 14 days

46. a. Summarized Proceedings Advantages: –Can be handwritten –Fast - soldier only has 24 hours to decide whether to accept –No stigma - stays in local records for 2 years or until soldier transferred Limitations: –Can only be used for enlisted accused –No right to see Trial Defense Service [TDS]

47. Maximum Punishments: Formal Proceedings Imposed by company grade cdr: –14 days restriction/extra duty –7 days correctional custody [E-3 and below] –7 days pay –1 grade reduction [E-4 and below] Imposed by field grade commander: –60 days restriction –45 days extra duty –30 days correctional custody [E-3 and below] –1/2 month pay for 2 months –E-4: 1 or more grade E-5: 1 grade*

48. Rights in Summarized & Formal NJP Summarized: –Normally 24 hours to decide –Right to refuse –Right to present evidence –Right to remain silent –No right to consult a lawyer –No right to request spokesman –No right to open hearing Formal: –Normally 48 hours to decide –Right to refuse –Right to present evidence –Right to remain silent –Right to consult lawyer –Right to request spokesman*** –Right to open hearing

49. Hypothetical Question: –What do you do if you have notified accused of intent to use formal proceedings, he’s seen TDS lawyer, 48 hours have elapsed, and he remains silent when you ask him if he “demands” trial by court-martial?

50. Hypothetical Question: –What do you do if you have notified accused of intent to use formal proceedings, he’s seen TDS lawyer, 48 hours have elapsed, and he remains silent when you ask him if he “demands” trial by court-martial? Answer: –Proceed with formal Article 15

51. Distinctions Between Summarized & Formal Proceedings Summarized proceedings cannot be permanently filed Summarized proceedings cannot be offered to officers Soldier afforded more rights in formal proceedings because soldier has more at risk

52. NJP: Practical Pointers Don’t offer when charge cannot be won at court-martial Speed counts Make supervisors use nonpunitive options, and use NJP when nonpunitive options fail Use suspension wisely

53. Punitive Options C. Nonjudicial Punishment [NJP] Summarized Formal D.Unlawful Command Influence E & F. Courts-Martial Summary Special BCD-Special General

54. D. Unlawful Command Influence Higher commanders may not order lower commanders to take punitive action in any particular way Higher commanders may not impose punishment guidelines for nonjudicial punishment Higher commanders may withhold authority to take punitive action for classes of offenses or offenders or for individual cases

55. Punitive Options C. Nonjudicial Punishment [NJP] Summarized Formal D.Unlawful Command Influence E & F. Courts-Martial Summary Special BCD-Special General

56. E. Court-Martial: Initiation and Disposition of Court- Martial Charges RCM 303 Preliminary Inquiry - company commander’s responsibility Drafting charges and specifications Preferral Notification of the accused Forwarding to convening authority Pretrial investigation [Article 32 Inv.] Referral to court-martial

57. Preliminary Inquiry - RCM 303 Follow the rules in collecting evidence Involve trial counsel and military police investigators Match facts to elements of offense

58. Preferral of Charges Victim’s acquiescence or permission not required Anyone subject to UCMJ may prefer charges Charges usually preferred by company commander Person preferring charges swears she has personal knowledge of or has investigated the matters charged and that they are true in fact to the best of her knowledge and belief

59. Notification of the Accused Responsibility of company commander Accused notified of: –Charges –Person preferring charges –Person ordering charges preferred Usually accomplished by giving accused copy of charge sheet

60. Forwarding Charges to Convening Authority A convening authority is an officer with the authority to convene courts-martial and refer individual cases to court-martial LevelUsual RankUsual Command SummaryLTCBattalion SpecialCOLBrigade BCD-SpecialGODivision or Installation GeneralGODivision or Installation Company commander forwards charges to SCMCA with recommendation

61. Levels of Court-Martial: Summary Court-Martial Single commissioned officer functions as judge, trial counsel and defense counsel Accused may object to trial by summary court-martial Maximum punishments roughly equivalent to field grade nonjudicial punishment

62. Levels of Court-Martial: Special Court-Martial Detailed military judge is presiding officer Detailed trial counsel presents government’s case against the accused [prosecutor] Accused represented by defense counsel Panel consists of at least 3 persons Maximum punishments: Confinement for 6 months [1 year in March 2000], hard labor without confinement for 3 months, forfeiture of two-thirds pay for six months and REDLAG

63. Levels of Court-Martial: BCD-Special Court-Martial Same as SPCM, except... General court-martial convening authority Maximum punishments: Bad Conduct Discharge [BCD], confinement for 6 months [1 year in March 2000], hard labor without confinement for 3 months, forfeiture of two- thirds pay for six months and REDLAG

64. Levels of Court-Martial: General Court-Martial Panel consists of at least 5 members Can adjudge any authorized sentence Can dismiss or confine officers Accused entitled to pretrial investigation [Article 32 hearing] before referral to general court-martial –Article 32 provides discovery opportunity to accused and defense counsel

65. Levels of Court-Martial: Accused’s Right to Attorney Representation Accused has right to attorney representation at SPCM, BCD-SPCM and GCM Right to attorney representation means accused has right to choose: –Military defense counsel detailed by TDS –Military attorney of soldier’s choosing if that attorney is reasonably avai8lable –Civilian attorney at no expense to the Government Waivable right?

66. 5. Article 32 Pretrial Investigation Roughly equivalent to grand jury proceeding Required before referral to GCM Ordered whenever trial by GCM contemplated; can be waived by accused Investigating Officer [IO] responsibilities: –Certify charges & specifications are in proper form –Inquire into truth of charges and conclude whether reasonable grounds exist to believe accused committed the offenses alleged –Recommend disposition of charges

67. 7. Court-Martial Trial Procedure Pretrial 39a session Qualification of court members [Voir Dire] Presentation of evidence Findings Sentence Post-trial actions Appellate review Pretrial agreements

68. 7. Court-Martial Trial Procedure: a. Pretrial Article 39a Session Qualifications of military judge Election of forum Arraignment Motions Pleas Providency inquiry

69. 7. Court-Martial Trial Procedure: b.Qualification of Court-Martial Panel Voir dire of members by military judge, defense counsel and trial counsel Challenges for cause Each side allowed one peremptory challenge

70. 7. Court-Martial Trial Procedure: Presentation of Evidence Opening instructions by military judge Opening statements by trial counsel and defense counsel Presentation of government’s case by trial counsel Presentation of accused’s case by defense counsel Final argument by trial counsel and defense counsel Final instructions by military judge

71. 7. Court-Martial Trial Procedure: c. Findings Authorized findings: –Not guilty –Guilty –Guilty of a lesser included offense –Not guilty only by reason of a lack of mental responsibility One vote by secret written ballot - no hung juries At least two-thirds needed to convict: 8 = 2/3 x 11

72. 7. Court-Martial Trial Procedure: d. Sentence Trial counsel presents evidence in aggravation Defense counsel presents evidence in extenuation and mitigation Military judge issues sentencing instructions Panel procedure: –Sentences proposed & ranked from least to most severe –Sentences voted: Death sentence must be unanimous Confinement for life or >10 years requires 3 / 4 All others require 2 / 3

73. 7. Court-Martial Trial Procedure: e. Post-trial Actions Preparation and authentication of record of trial Staff Judge Advocate [SJA] prepares post- trial review Defense counsel submits clemency matters Convening authority consideration: –Can reject [disapprove] any finding of guilty –Can reduce, suspend or dismiss any sentence

74. 7. Court-Martial Trial Procedure: f. Pretrial Agreements Plea bargain between accused & convening authority Only the convening authority can bind the government in a pretrial agreement Accused agrees to plead guilty to some or all charges in exchange for sentence limitation Government avoids uncertainty, delay and expense of full trial

75. F. Pretrial Restraint No bail in military Types of pretrial restraint: –Conditions on liberty –Restriction in lieu of arrest –Arrest –Pretrial confinement

76. F. Pretrial Confinement: Legal Basis Offense triable by court-martial has been committed Probable cause to believe prisoner committed it Probable cause to believe that confinement is necessary because foreseeable that: Prisoner is flight risk OR Prisoner will engage in serious criminal misconduct Less severe forms of restraint are inadequate

77. F. Pretrial Confinement: Logistical challenges Multiple reviews –Local regulation may require SJA approval –Neutral and detached officer’s 48-hour probable cause determination [RCM 305i] –Commander’s 72-hour review and memorandum [RCM 305h(1)] –Magistrate’s 72-hour review [RCM 305h(2)] –Military judge’s initial review [RCM 305j] –Military judge’s remedial authority

78. Long-Term Summary: References Nonpunitive options –Leader Guide –Applicable AR Nonjudicial punishment –Manual for Courts- Martial, United States (1998 Edition) –AR 27-10 Court-martial –Manual for Courts- Martial, United States (1998 Edition) –Local Reg “27-10” All –Trial Counsel