The backbone military justice is the Uniform Code of Military Justice (UCMJ), which applies to all branches of the U.S. Military, Army, Navy, Marines.  While, in many respects, it is fundamentally different from the civilian legal system, the UCMJ has many similarities to the federal rules of court but with military specific provisions due to the uniqueness of military justice.

 

The UCMJ includes provision for bringing allegations of criminal conduct in the military from the initial investigation through the military court system up to and including courts-martial.  This also includes the different types of court-martial, the rules for courts-martial and how a military trial shall be conducted and in what format the trial process should take.

 

In addition, the UCMJ rules govern military jurisdiction, legal investigations, discharges, and aspects of the release and revision of all military personnel records, post-trial review procedures, and all criminal trial decision appeals.

 

The UCMJ applies to all active-duty, reserve and guard, as well as all retired military personnel.  Violation of any of the articles listed under the UCMJ can result in punishments ranging from loss of privileges to confinement and discharge.

 

Of course, one of the common forms of punishment that can be imposed in the military is reduction in rank, loss of pay, confinement and discharge.  A military service member can not be given a sentence to confinement or a punitive discharge unless his case is first brought to a court martial, including a summary court martial.   The UCMJ provides rules and procedures for handling three different types of courts-martal: summary, special, and general. These forms of courts-martial differ in their make-up and the punishments which may be imposed upon the military personnel on trial.  However, the Military Rules of Evidence apply to all classifications of courts-martial and, just as is the case with civilian law, all military personnel on trial for criminal violations must be proven guilty beyond a reasonable doubt.

 

A common question is what are the primary differences between a summary, special and general courts-martial?  Here are brief descriptors explaining them.

Summary Court-Martial

A summary court-martial consists of one commissioned officer, and may try only enlisted personnel – typically for minor offenses.  The punishment which may be imposed under a summary courts martial trial depends on the grade (pay/salary scheudle) of the accused.

For an enlisted in the pay grad of E-5 and above, the service member may be reduced by only one pay-grade, be restricted for a period not to exceed 60 days, and forfeiture a maximum of two-thirds of pay for one month.

For an accused in the rank of E-4 and below, the service member may be sentenced to confinement for up to 30 days, hard labor without confinement for a period of 45 days, restriction for a period of 60 days, reduction to the pay grade of E-1 and forfeiture of two-thirds of basic pay for one month.  An accused may not be discharged at a Summary Court-martial.  An accused has an absolute right to refuse trial by Summary Court–Martial and, typically, only minor offenses are taken to Summary Court–Martial.  At a Summary Court-Martial, an accused does not have the right to representation by an attorney.  The accused does have the right to cross-examine witnesses, to call witnesses and produce evidence, and to testify or remain silent.

Special Court-Martial

A special court-martial consists of not less than three members (jurors) and a military judge, or an accused may be tried by military judge alone upon request of the accused.

A special court-martial is often characterized as a “misdemeanor court” because of the maximum punishment limitations, but the military does not recognize the misdemeanor / felony disctinction and a court martial conviction will typically be listed as a felony conviction by civilian authorities.  All persons subject to the UCMJ, including officers and midshipmen.

A special court-martial may impose any punishment authorized under R.C.M.1003 except death, dishonorable discharge, dismissal, confinement for more than 1 year, hard labor without confinement for more than 3 months, forfeiture of pay exceeding two-thirds pay per month, or any forfeiture of pay for more than 1 year.

General Court-Martial

A General Court-Martial is the most serious criminal proceeding that can be brought against an accused in the military. A General Court-Martial can only be convened after the charges are first investigated at an Article 32 Investigation, unless the Article 32 Investigation is waived by the accused and the command does not wish to proceed despite the waiver.  Similar to a Special Court-Martial, a General Court-Martial is presided over by a military judge and the accused can elect to be tried by officer members or enlisted members, as well as by military judge alone. A minimum of five Court members (jurors) are required for a trial by General Court-Martial.  A conviction by this Court is considered a federal, felony level conviction.

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