Court-Martial: The Process

A court-martial is the military’s version of a criminal trial.

A court-martial is similar to a civilian proceeding in that there is a judge, jury, prosecutor, defense counsel, and witnesses. The process of convening a court-martial, however, is significantly different than in the civilian community.

Article 31 Rights:

Similar to Miranda Rights in the civilian community, Article 31 of the UCMJ allows a service member to refuse to answer questions. Once a person is subject to the UCMJ suspects a service member of committing an offense under the UCMJ, that person must read the suspected service member his or her Article 31 rights before asking questions. A service member’s Article 31 rights include the following: (1) a general understanding of the suspected offense; (2) the right to remain silent; and (3) the right to obtain an attorney. It is critical to know that service members waive their rights if they decide to speak after being read their rights. Therefore, anything the service member says can be used against them in the future.

The Investigation:

Each branch of the military has it’s own version of the police and expertly trained investigative agency. For example, the Air Force has skilled Security Forces Investigators and highly trained Special Agents with the Office of Special Investigations. Once an agency learns of a service member’s potential misconduct, that agency will open a case file and begin to investigate the case. Normally the service member will not know that he or she is under investigation until the investigation is near complete. At that time, Special Agents or investigators will attempt to interview the “subject.” The prudent action to take is to invoke your Article 31 rights and request an attorney.

Preferral of Charges:

This is the formal pressing of charges against an Accused. Any person subject to the UCMJ can formally bring charges against an Accused by swearing to, and signing, the charges. Normally, the Accused’s commander is the person to prefer charges. During this process, the Accused will learn the nature of the charges and receive a copy of the charge sheet. The Accused will then sign the charge sheet, and the charge sheet will be forwarded to the Special Court-Martial Convening Authority (“SPCMA”).

Referral of Charges:

In the military, only the commander with vested authority as a convening authority can convene a court-martial. The next step in the process after preferral of charges is for the SPCMA to review charge sheet and accompanying documents. Depending on the nature of the charges, the SPCMA can dismiss the charges, refer the charges to a Special Court-Martial (trial), or forward the charges to the General Court-Martial Convening Authority (“GCMCA”) for disposition. If the nature of the charges are such that they warrant felony level punishment, and the SPCMCA wants to recommend a General Court-Martial, he or she can appoint and Article 32 Preliminary Hearing Officer (“PHO”) to determine whether there is probable cause that a crime has been committed.

Article 32 Preliminary Hearing:

An Accused service member has the right to have the preferred charges reviewed by an Article 32 Preliminary Hearing Officer prior to the charges being referred to a General Court-Martial.

Summary Court- Martial:

Trial by summary court-martial is a simplified trial reserved for minor misconduct. The summary court-martial consists of one officer who, depending upon Service policies and practice, is a judge advocate (a military attorney). The maximum punishment a summary court-martial may impose is considerably less than a special or general court-martial. The accused must consent to be tried by a summary court-martial. In most instances, a summary court-martial does not appear in the Accused’s criminal record.

Special Court-Martial:

A special court-martial is the intermediate court level. It consists of a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers sitting as a panel of court members or jury. An enlisted accused may request a court composed of at least one-third enlisted personnel. An accused, officer or enlisted, may also request trial by judge alone. Regardless of the offenses involved, a special court-martial sentence is limited to no more than one year confinement, forfeiture of two-third’s basic pay per month for six months, a bad-conduct discharge (for enlisted personnel), and certain lesser punishments.

General Court-Martial:

A general court-martial is the most serious level of military courts. It consists of a military judge, trial counsel, defense counsel, and at least five court members. An enlisted accused may request a court composed of at least one-third enlisted personnel. Unless the case is one in which the death sentence could be adjudged, an officer or enlisted accused may also request trial by judge alone. In a general court-martial, the maximum punishment is established for each offense under the Manual for Courts-Martial, and may include death (for certain offenses), confinement, a dishonorable or bad-conduct discharge for enlisted personnel, a dismissal for officers, or a number of other lesser forms of punishment.

Post-Trial Rights:

If a court-martial convicts and sentences an accused, the commander that convened the court-martial must take action to affirm the sentence. Prior to the commander taking action, the Accused has the ability to submit matters for the commander’s consideration. This is known as clemency. Clemency is a great opportunity for the Accused to present the commander with relevant information that was not admissible at trial.

Appellate Rights:

If an Accused is sentenced to a punitive discharge or confinement of one year or more, he or she has the right to appeal his or her conviction to the specific service court of appeals, and, if necessary, to the United States Court of Appeals for the Armed Forces.

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