2. Military Justice LOW Officer Candidate School Study Guide

3. Check on Learning Question: What is the definition of an enumerated offense? Question: What is the definition of an enumerated offense? Answer: These are offenses in which Congress has specifically told the military are criminal and which include elements that the government must prove by proof beyond a reasonable doubt in order to obtain a conviction. Answer: These are offenses in which Congress has specifically told the military are criminal and which include elements that the government must prove by proof beyond a reasonable doubt in order to obtain a conviction.

4. Check on Learning Question: What are the three types of court- martials? Question: What are the three types of court- martials? Answer: Answer: summary summary special special general general

5. Check on Learning Question: What are examples of nonpunitive measures? Question: What are examples of nonpunitive measures? Answer: Answer: Extra training Extra training Issuing an oral counseling statement Issuing an oral counseling statement Writing a letter of reprimand Writing a letter of reprimand Imposing a bar to reenlistment Imposing a bar to reenlistment Withdrawing pass privileges Withdrawing pass privileges Processing a rehabilitative transfer Processing a rehabilitative transfer Initiating administrative discharge proceedings. Initiating administrative discharge proceedings.

6. Check on Learning Question: What factors should be considered before disposing of an instance of misconduct? Question: What factors should be considered before disposing of an instance of misconduct? Answer: Answer: Character and military service of the accused Character and military service of the accused The nature and circumstances of the offense and the extent of the harm caused The nature and circumstances of the offense and the extent of the harm caused Effect on morale, health, safety, welfare, and discipline Effect on morale, health, safety, welfare, and discipline Appropriateness of the authorized punishment to the particular accused or offense Appropriateness of the authorized punishment to the particular accused or offense etc etc

7. Question: Can a soldier be discharged under ‘Bad Conduct Discharge’ in a Summary Court Martial? True or False Question: Can a soldier be discharged under ‘Bad Conduct Discharge’ in a Summary Court Martial? True or False Answer: False Answer: False Military Justice

8. Question: What are the maximum penalties that can be adjudges against a soldier in a Summary Court Martial? Question: What are the maximum penalties that can be adjudges against a soldier in a Summary Court Martial? Answer: Punishment may not exceed: Answer: Punishment may not exceed: - Confinement for one month - Restriction for 2 months - Hard labor w/o confinement for 45 days - 2/3 base pay for 1 month - Reduction to E-1 (E4 and below) - Reduction of one Grade (E5 and above) Military Justice

9. Question: What are the maximum penalties that can be adjudges against a soldier in a Special Court Martial? Question: What are the maximum penalties that can be adjudges against a soldier in a Special Court Martial? Answer: Punishment may not exceed: Answer: Punishment may not exceed: - Confinement for more than 6 months - 2/3 base pay for 6 months - Reduction to E-1 Note: Commissioned Officers may not be dismissed or confined at a special court-martial Note: Commissioned Officers may not be dismissed or confined at a special court-martial Military Justice

10. Question: Can a commissioned officer be dismissed or confined at a special court-martial? Yes or No. Question: Can a commissioned officer be dismissed or confined at a special court-martial? Yes or No. Answer: No Answer: No Military Justice

11. Question: What are the maximum penalties that can be adjudges against a soldier in a General Court Martial? Question: What are the maximum penalties that can be adjudges against a soldier in a General Court Martial? Answer: Answer: Any sentence authorized by the President of the United States in the Manual for Courts-Martial, including a dishonorable discharge, dismissal, confinement for life or a lesser period, forfeiture of all pay and allowances and, in some cases, death. Any sentence authorized by the President of the United States in the Manual for Courts-Martial, including a dishonorable discharge, dismissal, confinement for life or a lesser period, forfeiture of all pay and allowances and, in some cases, death. Military Justice

12. Question: Can an enlisted soldier be separated from the military with a Bad Conduct Discharge under a Special Court Martial? Yes or No Question: Can an enlisted soldier be separated from the military with a Bad Conduct Discharge under a Special Court Martial? Yes or No Answer: Yes. If the General Court-Martial Convening Authority convenes the special court-martial and a punitive discharge is specifically authorized, a bad conduct discharge can also be adjudged against an enlisted accused. However, commissioned officers may not be dismissed or confined at a special court-martial Answer: Yes. If the General Court-Martial Convening Authority convenes the special court-martial and a punitive discharge is specifically authorized, a bad conduct discharge can also be adjudged against an enlisted accused. However, commissioned officers may not be dismissed or confined at a special court-martial Military Justice

13. Question: Can a soldier be tried in a civilian court and then a military court? Yes or No. Question: Can a soldier be tried in a civilian court and then a military court? Yes or No. Answer: Yes Answer: Yes Mililtary Justice

14. Check on Learning Question: What is a preliminary inquiry? Question: What is a preliminary inquiry? Answer: The process of an initial investigation conducted by a commander when he receives information that a member of his command is accused of a crime or suspected of committing a crime. Answer: The process of an initial investigation conducted by a commander when he receives information that a member of his command is accused of a crime or suspected of committing a crime.

15. Check on Learning Question: What are the accused’s rights at an Article 32 investigation? Question: What are the accused’s rights at an Article 32 investigation? Answer: The accused has the right to attend the hearing, present evidence, cross-examine witnesses, and be represented by counsel. Answer: The accused has the right to attend the hearing, present evidence, cross-examine witnesses, and be represented by counsel.

16. Check on Learning Question: What is probable cause for apprehension? Question: What is probable cause for apprehension? Answer: Probable cause for apprehension is a reasonable belief that the person to be apprehended is committing or has committed a crime. Answer: Probable cause for apprehension is a reasonable belief that the person to be apprehended is committing or has committed a crime.

17. Check on Learning Question: What is probable cause for search? Question: What is probable cause for search? Answer: Probable cause to search is a reasonable belief that items connected to criminal misconduct are located in the place or on the person to be searched. Answer: Probable cause to search is a reasonable belief that items connected to criminal misconduct are located in the place or on the person to be searched.

18. Check on Learning Question: What does it mean to be neutral and detached? Question: What does it mean to be neutral and detached? Answer: When the commander authorizes an apprehension or search, he is acting in a judicial capacity and must therefore be fair and impartial in the decision. Answer: When the commander authorizes an apprehension or search, he is acting in a judicial capacity and must therefore be fair and impartial in the decision.

19. Check on Learning Question: What is a search incident to apprehension? Question: What is a search incident to apprehension? Answer: Any person who has been properly apprehended may be searched to ensure the safety of the apprehending official and others, and to prevent destruction of evidence Answer: Any person who has been properly apprehended may be searched to ensure the safety of the apprehending official and others, and to prevent destruction of evidence

20. Check on Learning Question: What is an inspection? Question: What is an inspection? Answer: Inspections are not considered "searches" in a legal sense. They are, instead, examinations ordered by a commander, the primary purpose of which is to determine and ensure security, military fitness, or good order and discipline of a unit Answer: Inspections are not considered "searches" in a legal sense. They are, instead, examinations ordered by a commander, the primary purpose of which is to determine and ensure security, military fitness, or good order and discipline of a unit

21. Check on Learning Question: What are the Article 31(b) UCMJ rights warnings? Question: What are the Article 31(b) UCMJ rights warnings? Answer: The rights warnings under Article 31(b), UCMJ consist of the right to be informed of the nature of the accusation; the right to remain silent; and that anything you say can be used against you in a trial by court-martial. In addition, the soldier also has the right to have a lawyer present during questioning. Answer: The rights warnings under Article 31(b), UCMJ consist of the right to be informed of the nature of the accusation; the right to remain silent; and that anything you say can be used against you in a trial by court-martial. In addition, the soldier also has the right to have a lawyer present during questioning.

22. Check on Learning Question: May a soldier be required to produce an identification card? Question: May a soldier be required to produce an identification card? Answer: Yes. A soldier can be required to identify himself and produce his identification card, even though no rights warnings are given. Answer: Yes. A soldier can be required to identify himself and produce his identification card, even though no rights warnings are given.

23. Check on Learning Question: When are Article 31 b, UCMJ warnings required? Question: When are Article 31 b, UCMJ warnings required? Answer: The rights warnings are required whenever a person subject to the UCMJ intends to conduct official questioning of a suspect or accused. Answer: The rights warnings are required whenever a person subject to the UCMJ intends to conduct official questioning of a suspect or accused.

24. Check on Learning Question: What three questions should be asked after reading the rights warnings to a suspects? Question: What three questions should be asked after reading the rights warnings to a suspects? Answer: Answer: 1. Do you understand your rights? 2. Do you want a lawyer? 3. Are you willing to make a statement?

25. Check on Learning Question: What must the commander do prior to ordering restriction? Question: What must the commander do prior to ordering restriction? Answer: Answer: Prior to ordering restriction of a soldier, the commander must have probable cause, that is, reasonable belief that an offense triable by court-martial has been committed; that the person to be restrained committed it; and restriction is required by the circumstances. Prior to ordering restriction of a soldier, the commander must have probable cause, that is, reasonable belief that an offense triable by court-martial has been committed; that the person to be restrained committed it; and restriction is required by the circumstances.

26. Check on Learning Question: Can the accused be punished before trial? Question: Can the accused be punished before trial? Answer: No. Answer: No.

27. Check on Learning Question: What is the DoD policy on homosexuality? Question: What is the DoD policy on homosexuality? Answer: The key to understanding DoD policy on homosexual conduct is to remember that it focuses on homosexual conduct Answer: The key to understanding DoD policy on homosexual conduct is to remember that it focuses on homosexual conduct "SAM" stands for Statements-Acts-Marriages. "SAM" stands for Statements-Acts-Marriages.

28. Check on Learning Question: What are some of the ways to violate the DoD homosexuality policy? Question: What are some of the ways to violate the DoD homosexuality policy? Answer: Answer: 1. You are not a commander and you initiate an investigation 2. You accuse a soldier without credible evidence 3. You require a soldier to reveal their sexual orientation.

29. Check on Learning Question: What is an extremist organization? Question: What is an extremist organization? Answer: Answer: Extremists organizations and activities advocate racial, gender, or ethnic hatred or intolerance; advocate, create, or engage in illegal discrimination based on race, color, sex, religion, or national origin; or advocate the use of or use force or violence or unlawful means to deprive individuals of their constitutional or legal rights. Extremists organizations and activities advocate racial, gender, or ethnic hatred or intolerance; advocate, create, or engage in illegal discrimination based on race, color, sex, religion, or national origin; or advocate the use of or use force or violence or unlawful means to deprive individuals of their constitutional or legal rights.

30. Who has the right to initiate probable cause? Generally, if there is probable cause to believe a soldier committed an offense, then any commissioned, warrant, petty or noncommissioned officer, or law enforcement official may apprehend the person wherever he may be without need for authorization from a commander, judge or magistrate.

31. Consent Searches When you would like to search for evidence of a crime, you may simply ask for the consent of the person exercising control over the area, property or person to be searched. As a result the commander need not authorize the search. Note also that with a consent search, the government also need not have probable cause. Obtaining consent is often attempted when the government realizes it has no probable cause but is still interested in searching the area. To be lawful, the consent must be voluntary, that is, freely given. This voluntary consent is reviewed under a totality of the circumstances test. Furthermore, the consent may be partial or limited, that is, the search may be restricted to a certain area or thing. Furthermore, the search may not exceed the scope of the consent and consent may be withdrawn at any time, if this happens the search must stop

32. Types of Search and Seizures Consent Consent Attempted when there is no probable cause Attempted when there is no probable cause Must be voluntary (freely given) Must be voluntary (freely given) Consent may be partial or limited (restricted) Consent may be partial or limited (restricted) Incident to Apprehension Incident to Apprehension Any person who has been properly apprehended may be searched to ensure the safety of the apprehending official and others, and to prevent destruction of evidence Any person who has been properly apprehended may be searched to ensure the safety of the apprehending official and others, and to prevent destruction of evidence Exigent Circumstances Exigent Circumstances A search authorization is not required where the delay involved in obtaining the authorization would likely result in the removal, destruction or concealment of the evidence sought. A search authorization is not required where the delay involved in obtaining the authorization would likely result in the removal, destruction or concealment of the evidence sought. Types of Search and Seizures

33. Corrective Action Administrative corrective training or instruction, authorized physical training, and other similar command authorized activities are not prohibited by the hazing policy

34. Pass Revocation Nonpunitive measure Pretrial Restraint

35. Check on Learning QUESTION: What are the 4 legal bases of the Law of Land Warfare? QUESTION: What are the 4 legal bases of the Law of Land Warfare? ANSWER: Hague Regulations, Geneva Conventions, Other International Treaty Law, and International Customary Law of Land Warfare ANSWER: Hague Regulations, Geneva Conventions, Other International Treaty Law, and International Customary Law of Land Warfare

36. Check on Learning QUESTION: What are the basic principles of the Law of Land Warfare? QUESTION: What are the basic principles of the Law of Land Warfare? ANSWER: Military Necessity, Unnecessary Suffering/Collateral Damage, Discrimination or Distinction, Proportionality ANSWER: Military Necessity, Unnecessary Suffering/Collateral Damage, Discrimination or Distinction, Proportionality

37. Check on Learning QUESTION: What are the 10 Law of Land Warfare Standards "The Soldier's Rules"? QUESTION: What are the 10 Law of Land Warfare Standards "The Soldier's Rules"? ANSWER: ANSWER: 1. Fight only combatants. 1. Fight only combatants. 2. Treat humanely all who surrender or are captured. 2. Treat humanely all who surrender or are captured. 3. Do not kill or torture detained personnel. 3. Do not kill or torture detained personnel. 4. Collect and care for the wounded. 4. Collect and care for the wounded. 5. Do not attack protected persons and protected places. 5. Do not attack protected persons and protected places.

38. Check on Learning 6. Destroy no more than the mission requires. 6. Destroy no more than the mission requires. 7. Treat all civilians humanely. 7. Treat all civilians humanely. 8. Respect private property and possessions. 8. Respect private property and possessions. 9. Prevent LOW violations. 9. Prevent LOW violations. 10. Report LOW violations. 10. Report LOW violations.