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A Rough Form Of Justice – Part 4: Courts-Martial

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In the first three installments of “A Rough Form of Justice,” I describe the purpose of military justice, the sources of law governing military justice, and the adverse administrative actions military commanders may impose on members of their command.  In this last installment I briefly address the most severe punitive disciplinary tool available to commanders:  courts-martial.

The military justice system is distinct from state and federal criminal courts.  I list below some of the unique aspects of the military court martial system as well as the consequences of a conviction.  This blog should be read in conjunction with the information available on our main site – more detailed descriptions of the three types of courts-martial are at the links below.

Levels of Courts-Martial. Article 16, UCMJ, 10 U.S.C. § 816 creates three levels of courts-martial:

Unique Aspects Of The Court-Martial System.

  • Worldwide jurisdiction over military members and some civilians.
  • Sentencing discretion (except in certain sexual assault cases)
  • Article 31, UCMJ, 10 U.S.C. §831, provides more extensive protection against self-incrimination than Miranda. Article 31 requires military law enforcement and the chain of command to issue a rights advisal even when even when the suspected service member is not in custody. Article 31 is intended to combat the inherently coercive nature of the military environment.
  • The military “jury.” Military members have no constitutional right to trial by jury. An accused may select trial by military judge or by panel members selected by the convening authority in accordance with Article 25, UCMJ, 10 U.S.C. §825. The accused may select trial by a panel consisting solely of officer members or, if the accused is enlisted, a panel consisting of officer members and at least one-third enlisted members. The panel members must outrank the accused. Article 25 lists the criteria to be used by the convening authority in selecting members including experience, age, and education.
  • Two-thirds majority required to convict: contrast this with U.S. Federal courts which require a unanimous vote to convict.
  • Articles 133 and 134, UCMJ, 10 U.S.C. §§ 933 and 934 – The General Articles. Intended to provide commanders with flexibility to punish for offenses not enumerated elsewhere but that are contrary to the customs of the service and either service discrediting or prejudicial to good order and discipline. Article 134, is used to assimilate state crimes under the Federal Assimilative Crimes Act, 18 U.S.C. § 13.
  • Military specific offenses. The UCMJ creates several offenses which are crimes only in the military. For example, Article 85, Desertion; Article 86, Absence Without Leave (AWOL); Article 88, Contempt Toward Officials; and Article 92, Failure to obey an order or regulation.
  • Service members are entitled to detailed defense counsel regardless of rank or income. Article 38, UCMJ, 10 U.S.C. § 838. If an accused retains civilian counsel, the detailed military counsel acts as associate counsel.
  • Mandatory Appellate Review. Service Courts of Criminal Appeals are required to review every court-martial conviction resulting in a punitive discharge or a year or more confinement. (Proposals currently before Congress, if enacted, would eliminate mandatory appellate review.)

Collateral Consequences Of A Court-Martial Conviction.

Depending on the specific offense, a court-martial conviction carries the same potential collateral consequences as a conviction in state or federal court including sex offender registration, deportation, loss of voting rights, and loss of the right to possess a firearm. In addition, conviction by a court-martial will significantly impact a service member’s ability to find employment, get into college, and obtain services and benefits from the Veteran’s Administration. A court-martial sentence may include one of three types of punitive discharges with varying consequences:

  • Bad-Conduct Discharge (Enlisted): loss of military retirement, and may lead to loss of disability compensation and VA benefits. However, the veteran may apply to the VA for benefits including medical care for service connected injuries.
  • Dishonorable Discharge (Enlisted): loss of military retirement, disability compensation and VA benefits.
  • Dismissal (Officer): equivalent to a Dishonorable Discharge and causes loss of military retirement, disability compensation and VA benefits.

Consequences For The Spouse And Children Of A Convicted Service Member.

  • Loss of share of military retirement.
  • Loss of health care coverage and other military benefits.
  • Loss of 9/11 GI Bill transfer benefits

Conclusion

A conviction at court-martial has long lasting and profound effects on not only the service member, but also the service member’s family.  This series of articles, “A Rough Form of Justice” is intended to provide an overview of the military justice system – but every service member has unique needs that require analysis and advice from an experienced military lawyer.

If you or a loved one is facing a court-martial, adverse administrative action, or are under investigation, contact us for a free initial consultation.

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