A Rough Form Of Justice – Part 2: Military Justice Sources of Law
During World War II, the U.S. military services operated under a disjointed and, most would agree, unfair system of military justice. In 1950 Congress enacted the Uniform Code of Military Justice (UCMJ). The UCMJ consolidated and revised the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard. Since 1950, the UCMJ and the Manual for Courts have undergone many revisions. The military justice system is currently undergoing some dramatic changes – some may argue these changes are aimed at diminishing the rights of service members and at helping prosecutors secure convictions in certain types of cases.
The military justice system was created by Congress and the President. Article 1, section 8 of the United States Constitution states, “The Congress shall have the power to make rules for the government and regulation of the land and naval forces.” Article 2, section 2 of the Constitution states, “The President shall be the Commander in Chief of the Army and Navy of the United States.” Congress and the President use their authority to criminalize certain conduct and create rules regulating the administration of military justice. Some authority to create rules is also delegated to each of the military services.
UNIFORM CODE OF MILITARY JUSTICE (UCMJ)
The Uniform Code of Military Justice (UCMJ) is in Chapter 47, Title 10, United States Code, 10 U.S.C. section 801-946. It is also included in the Manual for Courts-Martial at Appendix 2. The UCMJ is a comprehensive statute providing for good order and discipline within the Armed Forces. It establishes worldwide jurisdiction over active duty service members, reserve component service members, retired military members, and even certain civilians. The statute is organized chronologically beginning with apprehension and restraint and progressing through pretrial, trial, and post-trial procedures and ending by establishing the Court of Appeals for the Armed Forces. The statute is divided into twelve subchapters:
Subchapter I. General Provisions
Subchapter II. Apprehension and Restraint
Subchapter III. Non-Judicial Punishment
Subchapter IV. Court-Martial Jurisdiction
Subchapter V. Composition of Courts-Martial
Subchapter VI. Pre-Trial Procedure
Subchapter VII. Trial Procedure
Subchapter VIII. Sentences
Subchapter IX. Post-Trial Procedure & Review
Subchapter X. Punitive Articles
Subchapter XI. Miscellaneous Provisions
Subchapter XII. Court of Appeals for the Armed Forces
Certain portions of the UCMJ have undergone significant revision in recent years, including Article 120, 10 U.S.C. section 120, Rape and sexual assault. Congress recently removed an accused service member’s right to discovery during the pretrial investigation phase of a court-martial replacing the pretrial investigation with the “Preliminary Hearing.” Article 32, 10 U.S.C. section 832.
PRESIDENTIAL EXECUTIVE ORDERS
The Rules for Courts-Martial, part II of the Manual for Courts-Martial, are promulgated by the President through Executive Order (EO), and follow the same chronological progression as the UCMJ Article 36, UCMJ, 10 U.S.C. section 836, gives the President authority to prescribe pretrial, trial, and post-trial procedures. Article 36 also directs that to the extent practicable Courts-Martial will apply the same rules of procedure and evidence applicable in federal courts.
- Twenty-two executive orders have been issued since 1984 ending in EO 13696, June 17, 2015
- Executive orders are incorporated into the Manual for Courts-Martial; however, check for EOs not yet incorporated into the most recent version of the MCM (2012).
- Executive orders are available at http://jsc.defense.gov/.
MANUAL FOR COURTS-MARTIAL
The Manual for Courts-Martial (MCM) implements the UCMJ and applies to all services. The military services established the Joint Service Committee (JSC) to assist the President in updating the MCM. “The Joint Service Committee on Military Justice (JSC) is an inter-agency, joint body of judge advocates and advisors, dedicated to ensuring the Manual for Courts-Martial (MCM) and Uniform Code of Military Justice (UCMJ) constitute a comprehensive body of criminal law and procedure.” http://jsc.defense.gov/.
- The Manual for Courts-Martial is composed of five parts –
- Part I: Preamble
- Part II: Rules for Courts-Martial
- Part III: Military Rules of Evidence
- Part IV: Punitive Articles
- Part V: Nonjudicial Punishment
AND twenty-eight appendices.
- The Current version of the MCM was created by EO 12473, April 23, 1984 and updated numerous times by Executive Order and National Defense Authorization Acts.
- The 2012 Manual for Courts-Martial is available at http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf
- CAUTION: Since publication of the 2012 MCM, Congress and the President have promulgated significant changes. For example, Part III, Military Rules of Evidence, has been completely revised.
- Updates to the MCM are available at the Joint Service Committee (JSC) website: http://jsc.defense.gov/MilitaryLaw/ChangesSince2012MCM.aspx
5 U.S.C. section 301, authorizes the head of an executive department to, “prescribe regulations for the government of his department. . . .” Service regulations supplement the UCMJ and the MCM and carry the force of law. Some examples of service regulations implementing military justice policy and procedures include:
- Army Regulation 27-10, Legal Services – Military Justice, (AR 27-10), 3 October 2011, available at http://www.apd.army.mil/pdffiles/r27_10.pdf
- Navy and Marine Corps: Manual of the Judge Advocate General, (JAGMAN), 26 June 2012, available at http://www.jag.navy.mil/library/instructions/JAGMAN2012.pdf
- Coast Guard: Military Justice Manual, (M.J.M.), COMDTINST M5810.1E, available at http://www.uscg.mil/directives/cim/5000-5999/CIM_5810_1e.pdf
- Air Force Policy Directive (AFPD) 51-2, Military Justice, 4 November 2011, and associated instructions available at http://www.e-publishing.af.mil/
CUSTOMS OF THE SERVICE
Article 134, the “General article” of the UCMJ, grants commanders authority to punish service members for, “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” Article 134 also authorizes commanders to punish service members for, “all conduct of a nature to bring discredit upon the armed forces.” Article 133, UCMJ, prohibits “conduct unbecoming an officer and a gentlemen.”
Due process requires that an accused be on notice that particular conduct is subject to criminal prosecution. Article 134 is a hold-over from the time before the UCMJ when military justice was based on customs of the service as opposed to explicit, codified statutes. In the hands of an inexperienced military prosecutor, Article 134 is subject to abuse and government overreaching. Military appellate courts have, on occasion, limited the reach of Article 134 and Article 133. As of January 1, 2019 the military now has several offenses that used to fall under Article 134, but now are codified statutes.
MILITARY APPELLATE COURTS
The UCMJ provides for two levels of military appellate review: the service Courts of Criminal Appeals (CCAs) and the Court of Appeals for the Armed Forces (CAAF). Supreme Court jurisdiction over courts-martial is limited to cases reviewed by CAAF. I am admitted to practice at every level of the military justice system – and I have practiced before the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Air Force Court Criminal Appeals, and the Court of Appeals for the Armed Forces.
The military appellate courts provide a check on the authority of commanders, military prosecutors, and military judges. An experienced military defense counsel knows military appellate law and uses that knowledge to the advantage of his client. However, a good military lawyer also knows that the odds of getting relief on appeal are low. An experienced military defense counsel goes to trial to win. The best place to get relief for a client is at trial.
In Parts 3 and 4 of “A Rough Form of Justice” I describe the levels of disciplinary action available to commanders from the least severe adverse administrative action up to and including General Courts-Martial.