The Military Justice System - A Brief Overview Presented by: Ninth District Legal Office

Presenter’s Name June 17,  Constitution: Gave Congress broad powers to regulate the “land and naval forces.”  Uniform Code of Military Justice (UCMJ) was enacted by President Truman in  Manual for Courts-Martial (MCM) in Amended numerous times since.  UCMJ is Federal law:  Promulgated by Congress & Signed by President.  Supplemented by rules issued under various Executive Orders. (April 2002 is latest) Origins of the Military Justice System

Presenter’s Name June 17, Preamble to MJM says UCMJ is to:  Promote justice,  Assist in maintaining good order and discipline,  Promote efficiency and effectiveness in armed forces, and thereby  Strengthen national security Purpose of the UCMJ?

Presenter’s Name June 17, “It is the function of the courts to make sure…that the men and women constituting our Armed Forces are treated as honored members of our society whose rights do not turn on… the generosity of a commander but as written in the Constitution.” - U.S. Supreme Court Justice Douglas Notice…”justice” is first!

Presenter’s Name June 17,  Civil Court Jurisdiction is territorial (e.g., city, county, state, district, etc.  Courts-martial jurisdiction is based on STATUS of individuals UCMJ jurisdiction

Presenter’s Name June 17,  Active duty members  Reservists while in drill/active duty status  Academy cadets  PHS members serving w/ Armed Forces  Prisoners of War  Civilians serving w/ Armed Forces during war  Retired members receiving pay Status: Who’s subject to UCMJ?

Presenter’s Name June 17,  Common law crimes (e.g., rape, murder, robbery, etc.)  Uniquely military offenses  Conduct prohibited under the “General Articles” Crimes under the UCMJ

Presenter’s Name June 17, If you work for Microsoft, you’d call it:  Late for work  Cuss out your boss  Ignore boss’s guidance But, you’re in the Coast Guard, so you call it:  Unauthorized Absence  Disrespect to Superior  Failure to obey orders What are “Uniquely Military Offenses?”

Presenter’s Name June 17,  All disorders and neglects that are to the prejudice of good order and discipline  All conduct of a nature to bring discredit upon the armed forces  Other violations federal law which are non-capital crimes; this can include violations of state law which qualify under Federal Assimilative Crimes Act (18 U.S.C. §13) General articles

Presenter’s Name June 17,  UCMJ Articles are very detailed and include specific “elements”  Example: Article 114 – Dueling (seriously). Any member of the Armed Forces who:  Fights another person with deadly weapons,  For private reasons, and  By private agreement Elements

Presenter’s Name June 17,  Multi-tiered criminal justice system  Designed to be fair, yet practical  Designed to be easily implemented in field  CO plays a key role  Procedural protections afforded the accused expand with more serious offenses that are referred to more formal forums Military justice system process overview

Presenter’s Name June 17,  Non-Judicial Punishment (Article 15)  Summary Court-Martial  Special Court-Martial  General Court-Martial Types of military justice proceedings

Presenter’s Name June 17, NJP SCM SpCM GCM RIGHTSRIGHTS PENALTY

Presenter’s Name June 17,  Nonjudicial Punishment (NJP) can be imposed by any CO/OIC on a member attached to his/her command  Reserved for minor offenses (<1 yr, no DD)  Consider circumstances, age, rank, performance, etc.  Max punishments are limited and depend on rank of CO/OIC and rank of member  Standard of proof is preponderance of evidence Captain’s Mast (NJP)

Presenter’s Name June 17,  Command receives report of Offense (CG-4910)  XO reviews and then assigns a Preliminary Inquiry Officer (PIO) to investigate  PIO conducts investigation and provides recommendation to command to either dismiss, proceed with NJP, refer to Court- Martial, or other Admin Measures  XO reviews report and recommends action to CO NJP process

Presenter’s Name June 17,  Member has the right to refuse mast and demand court-martial unless assigned to a ship.  Member has right to consult with an attorney before accepting or rejecting mast unless assigned to a ship.  Member does not have the right to be represented by an attorney at mast  Member has right to examine documents and evidence CO/OIC may consider at Mast  Member has right to remain silent or can present evidence including evidence of extenuation or mitigating circumstances  Member gets a Mast Representative or can provide his own spokesperson. Member’s rights

Presenter’s Name June 17, Mast Representative  Appointed by command and should be attached to same unit if practicable  Member can request specific rep  Communications Privileged  Rep can question witnesses, speak for the member, present evidence and make plea for leniency Mast Rep vs. Spokesperson Spokesperson  Can be anyone including attorney  Member must pay costs of spokesperson  Spokesperson can speak on members behalf when asked by CO  Cannot examine or cross examine witnesses  No right to both spokesperson and mast rep/ CO’s decision

Presenter’s Name June 17,  Rules of evidence do not apply  Open to public  Burden of proof is preponderance of evidence (“more likely than not”)  Member entitled to present a defense, can remain silent or make statement, introduce evidence etc..  Multiple offenses should be considered at same time MAST proceedings

Presenter’s Name June 17,  Max punishment is determined by rank of CO/OIC conducting mast and status (officer or enlisted) and rank of member  Punishments can include: reprimand, correctional custody, restriction, extra duties, forfeiture of pay and reduction in pay grade  Cannot award confinement or discharge  Finding does not result in conviction  Command can suspend punishment Punishment

Presenter’s Name June 17, NJP Imposed by:FlagO4+O3- AdmonitionYesYesYes Arrest in Quarters30NoNo Restriction Forfeitures 1/2 ppm No No 2mos ReprimandYesYesYes NJP limits--Officers

Presenter’s Name June 17, O4 or > COCOOIC ReprimandYesYesNo CC(E3 below)307No Extra Duties* Restriction Forfeitures1/2ppm7 days 3 days 2mos ReductionYesYesNo (E6 below) NJP limits--Enlisted

Presenter’s Name June 17,  Member can appeal if punishment is unjust (illegal) or disproportionate  Appeal must be in writing and made within 5 calendar days of imposition of punishment  Appeal via CO to District Commander  Reviewed by Law Specialist  Review must be done within 5 days of submission or member can request punishment be deferred until appeal decided Appeal of NJP

Presenter’s Name June 17,  Also generally for minor offenses  Quasi-judicial in nature  No right to appointed counsel; may bring own counsel  Guilt/punishment decided by 1 officer  Rules of evidence do apply  Standard of proof: beyond a reasonable doubt  Member can refuse  Member can consult w/ appointed counsel to decide Summary Court-Martial

Presenter’s Name June 17, If accused is E-4 or below  reduction to lowest pay grade, forfeiture of 2/3 pay per month for one month, confinement at hard labor for one month or restriction for two months, reprimand If accused is E-5 or above  reduction to next inferior pay grade, forfeiture of 2/3 pay per month for one month, restriction for two months, reprimand Summary Court-Martial sentence limitations

Presenter’s Name June 17,  Appropriate for all offenses except serious felonies  Judicial in nature: federal conviction if found guilty  Right to appointed counsel, civilian lawyer at own expense  Military judge presides  Guilt/punishment determined by at least 3 officers (2/3 to convict) or MJ if you waive right to members  Enlisted has right to 1/3 enlisted members on panel (from other than accused’s unit) Special Court-Martial

Presenter’s Name June 17,  Rules of evidence apply  Standard of proof: beyond a reasonable doubt  Max punishment: 1 year confinement, BCD, fine/forfeiture of 2/3 pay per month for 1 year  Can be convened by any CO Special Court-Martial (continued)

Presenter’s Name June 17,  Appropriate for most serious felony cases  Judicial in nature: federal conviction if found guilty  Right to appointed counsel/ civilian lawyer at own expense  Military judge presides  Guilt/punishment determined by at least 5 members  2/3 to convict  3/4 for sentence > 10yrs  Unanimous for death sentence General Court-Martial

Presenter’s Name June 17,  Rules of evidence apply  Standard of proof: beyond a reasonable doubt  Max punishment: death, life in prison, total forfeitures (depending on offense)  Can be convened only by Flag rank officer General Court-Martial

Presenter’s Name June 17,  Chooses type of forum case is decided by  Chooses charges that go to trial  Decides whether to plea bargain  Chooses members who serve on court  May disapprove any finding of guilt  May disapprove/reduce any portion of sentence Role is unique to the military justice system. Role of Convening Authority

Presenter’s Name June 17,  Arrest or Confinement for violation of UCMJ requires probable cause  Can’t impose punishment for charges before trial  Can impose pretrial confinement if member is suspected of UCMJ violation, is flight risk or danger to others, and less severe restraint inadequate.  Review Safeguard with 48 hour-72 hour review and IRO hearing within 7 days Pretrial confinement

Presenter’s Name June 17,  Right to appointed counsel even if not poor  Right to be free from compelled self-incrimination & unreasonable search and seizure  Right to speedy trial  Right to confront witnesses  Presumption against pretrial confinement  Presumption of innocence  Requirement that guilt be established beyond a reasonable doubt UCMJ system safeguards

Presenter’s Name June 17,  Right to trial by military members  Charges may only be referred to GCM by Flag rank officer (more experienced, more detached)  Right to present evidence in extenuation & mitigation on sentencing  Right to petition convening authority for clemency after sentencing  Right to refuse NJP (ashore) and SCM  Prompt review of NJP appeals UCMJ system safeguards (continued)

Presenter’s Name June 17, Special Provisions

Presenter’s Name June 17,  Reserve member may be ordered to active duty (pursuant to regulations promulgated by the Secretary), for the purpose of:  Article 32 Investigation  Trial by Court-Martial  Nonjudicial Punishment (Captain’s Mast)  But only for offenses committed while on active duty or in a drill status Reserve rules

Presenter’s Name June 17,  Statutory protection for military members  Passed by Congress because it recognized inherent risk of coercion in a military senior/junior relationship during an interrogation setting.  No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial. Article 31(b)

Presenter’s Name June 17,  Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court- martial jurisdiction over the officer against whom it is made…. Complaint of Wrongs (Art. 138)

Presenter’s Name June 17,  Member who has had personal property damaged or stolen by another member can complain to CO. CO may convene a board and then approve an involuntary disbursement from the offending members pay to cover the loss Redress of injuries to property (Art. 139)

Presenter’s Name June 17, Where to get more information  Manual for Courts-Martial  Military Justice Manual  Personnel Manual  Call the Legal Office Contact information: Ninth District Legal Office 1240 East 9 th Street Cleveland, Ohio (216)