Military Law

The military justice system is the primary legal enforcement tool of the armed services. It is similar to, but separate from, the civilian criminal justice system. The Uniform Code of Military Justice, first enacted in 1950, is the principal body of laws that apply to members of the military. Military tribunals interpret and enforce it.

There are several rationales for a separate military justice system. The system's procedures are efficient and ensure swift and certain decisions and punishments, which are essential to troop discipline. By comparison, the civilian criminal justice system can be cumbersome and slow and may yield unanticipated or inconsistent results. Speedy trials and predictable decisions aid the military in its effort to maintain order and uniformity. This, in turn, contributes to national security. In addition, the court-martial system fulfills the civilian public's expectation of a disciplined and efficient military.

In addition to enhancing discipline, order, uniformity, efficiency, and obedience, the UCMJ addresses certain offenses that are unique to the military, such as desertion, insubordination, or absence without leave. Finally, the military requires a uniform system that can be administered at the location of the crime to adjudicate offenses committed by service members outside U.S. jurisdiction.

The jurisdiction of the military courts is established when the court is properly convened, the membership of the court satisfies the requirements of the UCMJ, the court has the power to try the accused, and the offense is addressed in the UCMJ. The UCMJ provides that military courts have jurisdiction over all members of the armed services and certain civilians who meet limited, well-defined criteria.

The three tiers of military courts are courts-martial, Courts of Criminal Appeals, and the United States Court of Appeals for the Armed Services.

Courts-Martial The three types of courtsmartial—summary, general, and special—comprise the trial level of the military justice system. Courts-martial were originally authorized by an amendment to the Articles of War (Act of March 3, 1863, ch. 75, sec. 30, 12 Stat. 736). The amendment gave courts-martial jurisdiction over military personnel in times of war, insurrection, or rebellion to prosecute such crimes as murder, ROBBERY, ARSON, BURGLARY, rape, and other common crimes. The UCMJ authorizes military commanders to convene courts-martial on an ad hoc basis to try a single case or several cases of service members who are suspected of having violated the code.

Summary Courts-Martial Summary courts-martial adjudicate minor offenses. Their jurisdiction is limited to enlisted personnel. Summary courts-martial may impose a sentence of confinement for not more than one month, hard labor without confinement for not more than 45 days, restriction to specified limits for not more than two months, or FORFEITURE of not more than two-thirds of one month's pay (UCMJ art. 20, 10 U.S.C.A. § 820). Although the summary court-martial is intended to dispose of petty criminal cases promptly, it must fully and fairly investigate both sides of the case. Nevertheless, the protections guaranteed in special or general courts-martial are diminished in a summary hearing. Therefore, a summary court-martial may be conducted only with the consent of the accused.

The defendant in a summary court-martial may consult with military counsel before trial but is not entitled to military defense counsel at the hearing. A summary court-martial is presided over by a single commissioned officer who conducts the trial with minimal input from adversarial counsel and acts as judge, fact finder, and counsel. Thus, a summary court-martial is more similar to the inquisitorial courts of the civil-law system than to the Anglo-American adversarial model. Summary courts-martial are employed less frequently than are other types of courts-martial. With increased recognition of the constitutional rights of the accused during the last part of the twentieth century, their use has greatly diminished.

Special Courts-Martial A special court-martial generally consists of a military judge and at least three armed-service members. However, under Article 16(2) of the UCMJ (10 U.S.C.A. § 816(2)), the members may sit without a judge, or the accused may choose to be tried by a judge alone.

The military-judge position was authorized by the Military Justice Act of 1968 (UCMJ art. 26, 10 U.S.C.A. § 826). The military judge's role is similar to that of a civilian trial judge. Military judges do not determine penalties and may only instruct the members of the court, who act as a jury, as to the kind and degree of punishment that the court may legally impose, unless the accused elects to have the judge sit as both judge and jury. This dual role is permissible only in non-capital cases. In any case, the judge rules on all legal questions.

The UCMJ requires that service members who are selected for the special court-martial be the best qualified to serve, as measured by their age, education, training, experience, length of service, and judicial temperament.

Special courts-martial have jurisdiction over most offenses under the UCMJ and may impose a range of sentences, including confinement for no longer than six months; three months of hard labor without confinement; a bad-conduct discharge; forfeiture of pay not to exceed twothirds of monthly pay; withholding of pay for no more than six months; or a reduction in rank (UCMJ art. 19, 10 U.S.C.A. § 819).

General Courts-Martial The general court-martial is the most powerful trial court in the military justice system. A general court-martial is presided over by either a military judge and at least five service members, or a judge alone if the accused so requests and the case involves a non-capital offense (UCMJ art. 16(1), 10 U.S.C.A. § 816(1)). General courts-martial may try all offenses under the UCMJ and may impose any lawful sentence, including the death penalty, dishonorable discharge, total forfeiture of all pay and allowances, and confinement. General courts-martial have jurisdiction over all persons who are subject to the UCMJ.

A general court-martial may be convened only by a high-ranking official, such as the president, the secretary of a military branch, a general, or a commander of a large unit or major installation. The commander of a smaller unit may only convene a special court-martial. Trial attorneys who are appointed to represent the accused in a general court-martial must be certified military lawyers. Verbatim recordings of general courts-martial are required by the Rules for Court-Martial.

The constitutionality of the court-martial system has been upheld in a number of cases under the theory that the military constitutes a separate society that requires its own criminal justice system. The U.S. Supreme Court has consistently deferred to the authority of the military, as conferred by Congress, to govern its members. In Solorio v. United States, 483 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d 364 (1987), the Court held that "Congress has primary responsibility for the delicate task of BALANCING the rights of servicemen against the needs of the military. … [W]e have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated."

Courts of Criminal Appeals The intermediate appellate courts in the military justice system are the four Courts of Criminal Appeals (CCA), one for each branch of the armed services (i.e., the Army, Navy, Air Force, and Marines). Before 1995, these courts were called the Courts of Military Review (CMR).

The Military Justice Act of 1968 (10 U.S.C.A. § 866) established the CMR to review court-martial convictions. They generally have three-judge panels that review all cases in which the sentence exceeds one year of confinement, involves the dismissal of a commissioned officer, or involves the punitive discharge of an enlisted person (UCMJ art. 66, 10 U.S.C.A. § 866). Courts of Criminal Appeals may review findings of fact and findings of law and may reduce the sentence, dismiss the charges, or order a new trial.

Review by the CCA is mandatory and automatic in cases where the sentence is death, dismissal, dishonorable or bad-conduct discharge, or imprisonment for one year or more, and the right to appellate review has not been waived or an appeal has not been withdrawn. CCA judges may be commissioned officers or civilians, but all must be members of a bar of a federal court or of a state's highest court. The judges are selected by the JUDGE ADVOCATE general of the appropriate service branch. CCA judges do not have tenure or fixed terms. They serve at the pleasure of the judge advocate general. Decisions of the CCA are subject to review by the United States Court of Appeals for the Armed Forces.

U.S. Court of Appeals for the Armed Forces Congress established the U.S. Court of Appeals for the Armed Forces (USCAAF), formerly known as the Court of Military Appeals (CMA), in 1950 (10 U.S.C.A. § 867). It is the highest civilian court that is responsible for reviewing decisions of military tribunals. It is exclusively an appellate criminal court. The court consists of three civilian judges appointed by the president, with the advice and consent of the Senate, to serve 15-year terms.

The USCAAF has jurisdiction over all cases in which the death penalty is imposed, all cases sent by the judge advocate general for review after CCA review, and certain appeals petitioned by the accused that the court agrees to review. The court may only review QUESTIONS OF LAW. Decisions of the USCAAF may be appealed to the U.S. Supreme Court, which may grant or deny review.

Jurisdictional Questions Involving Military Courts On a number of occasions in U.S. history, the jurisdiction of military courts has come into question. Congress resolved many of these disputes through legislation, the most significant of which was the Uniform Code of Military Justice. Although military courts generally have powers that are analogous to those of their counterparts in the civilian system, they are subject to limitations in the federal laws creating them.

The U.S. Supreme Court resolved a major jurisdictional question involving the military courts in Clinton v. Goldsmith, 526 U.S. 529, 119 S. Ct. 1538, 143 L. Ed. 2d 720 (1999). The Court ruled that the USCAAF did not have the authority to issue an INJUNCTION preventing the U.S. Air Force from dropping a convicted officer from its rolls. The decision made clear that the president has the power to fire military personnel for the same offenses that resulted in their courts-martial and convictions.

In 1996, Congress passed legislation that expanded the president's authority over the military. The president was empowered to drop from the rolls of the armed forces any officer who had been sentenced by a court-martial to more than six months' confinement and who had served at least six months. The case in Goldsmith arose when an Air Force major, who was HIV-positive, continued to have unprotected sex after a superior had ordered him to inform his sexual partners of his disease. When the officer had sex with two partners, including a fellow officer and a civilian, he was convicted by a court-martial of willful disobedience of an order from a superior officer and two other related charges.

The officer appealed his conviction to the Court of Criminal Appeals and, later, the USCAAF, seeking an injunction to prevent the president and the Air Force from dropping the officer from the Air Force rolls. Although the CCA refused, indicating that it lacked jurisdiction, the USCAAF issued the injunction. A unanimous U.S. Supreme Court, per Justice DAVID H. SOUTER, ruled that the USCAAF lacked this form of injunctive power. According to the Court, the USCAAF's authority is limited to the review of sentences imposed by courts-martial and appellate decisions by the Court of Criminal Appeals.