The foundation of the military justice system within the United States Army, and across all branches of the U.S. Armed Forces, is the Uniform Code of Military Justice (UCMJ). This comprehensive body of law, enacted by Congress, establishes both the substantive criminal offenses and the procedural rules governing military legal proceedings. Complementing the UCMJ, the President of the United States issues the Manual for Courts-Martial (MCM), which details specific procedural guidelines and sets forth the maximum punishments for violations of the UCMJ.
When allegations of serious misconduct involving Army personnel arise – offenses ranging from serious felonies like rape and assault to drug-related crimes and larceny – investigations are typically undertaken by specialized criminal investigative agencies. Within the Army, the Criminal Investigation Command (CID) often takes the lead in these complex cases. For less severe offenses, or crimes that have a military connection but are not as serious, the responsibility for investigation usually falls to military police or security personnel. In situations involving minor infractions, the immediate commander of the service member under suspicion may initiate a preliminary inquiry to ascertain the facts. Throughout all stages of these processes, judge advocates – who are military lawyers – play a crucial advisory role, guiding commanders on legal matters and ensuring due process.
A key distinction between the military justice system and civilian justice systems lies in the significant discretionary power vested in military commanders. Unlike their civilian counterparts, Army commanders are entrusted with considerable authority to decide whether to formally charge a service member with an offense and to determine the appropriate disciplinary measures. This disposition decision is often one of the most critical and challenging aspects of command. Commanders have several options at their disposal when addressing disciplinary issues, each with its own implications and procedures. These options can be broadly categorized as follows:
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Taking No Action: In some instances, after reviewing the circumstances of an incident, a commander may conclude that no disciplinary action is warranted. A preliminary inquiry might reveal that the accused soldier is not guilty of the alleged offense, that critical evidence is inadmissible in court, or that other compelling reasons exist that argue against prosecution. In such cases, the commander’s discretion allows for a compassionate and pragmatic resolution by choosing not to proceed with any formal measures.
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Initiating Administrative Action: Commanders may determine that administrative action, rather than punitive measures, is the most appropriate response for certain offenses and offenders. Administrative actions are designed to be corrective and rehabilitative, not punitive. These actions can range from informal counseling sessions or written reprimands to more serious measures like involuntary separation from the Army. The goal is to address misconduct and improve the service member’s conduct without resorting to the formal court-martial process.
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Nonjudicial Punishment (Article 15, UCMJ): Article 15 of the UCMJ provides commanders with a mechanism for addressing minor offenses that require swift corrective action. Often referred to as “Article 15s” or “NJP,” nonjudicial punishment hearings are informal and non-adversarial. They are not full-fledged trials. Instead, the commander presides over the hearing, acting as both judge and jury. The service member facing NJP has certain rights, including the right to request an open or closed hearing, to consult with a lawyer (although not provided by the military for NJP), to have someone speak on their behalf, and to present reasonably available witnesses. Formal rules of evidence do not apply in these hearings. To find the service member guilty, the commander must be convinced beyond a reasonable doubt that the offense was committed. The maximum punishment that can be imposed depends on both the rank of the imposing commander and the rank of the service member being punished. Importantly, service members have the right to appeal a commander’s decision to the next higher level of command.
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Court-Martial: When a commander determines that an offense is of a serious nature that warrants a formal trial, they may choose to pursue a court-martial. This represents the most serious level of military justice. There are three types of courts-martial, each differing in terms of procedures, the rights afforded to the accused, and the potential punishments that can be imposed:
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Summary Court-Martial: This is the lowest level of court-martial, intended for minor offenses. Only enlisted soldiers can be tried by summary court-martial. A single commissioned officer acts as the presiding officer. While the accused does not have the right to a military lawyer provided by the government, they can hire a civilian attorney at their own expense to represent them.
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Special Court-Martial: A special court-martial is an intermediate level court. It can be composed of a military judge alone, or by a panel of at least three members and a judge. Enlisted service members have the right to request that at least one-third of the court members be enlisted personnel. In a special court-martial, both a prosecutor (known as the trial counsel) and a defense counsel are involved. The accused is entitled to be represented by military defense counsel at no cost. They also have the option to hire civilian counsel at their own expense or request a specific military attorney, if available.
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General Court-Martial: The general court-martial is the highest trial court in the military justice system. It is reserved for the most serious offenses under the UCMJ. The punishment authority of a general court-martial is limited only by the maximum punishments authorized for each specific offense as outlined in the Manual for Courts-Martial. Before charges can be referred to a general court-martial, an Article 32 investigation must be conducted. This investigation is similar to a civilian grand jury proceeding, serving to determine if there is probable cause to believe an offense has been committed and that the accused committed it. Following the Article 32 hearing, the investigating officer makes a recommendation regarding the disposition of the charges, although this recommendation is not binding on the convening authority (the commander who has the power to convene a court-martial). A general court-martial can be composed of a military judge and no less than five court members, or, in most cases, the accused can elect to be tried by a military judge alone. In cases with court members, a minimum of five members must be present. If the accused is an enlisted service member, they are entitled to have at least one-third of the court members be enlisted personnel, upon request.
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The trial process in a court-martial shares similarities with civilian criminal trials, but there are important procedural differences. Military courts adhere to rules of evidence that are modeled after the Federal Rules of Evidence. In a trial by court members, the members hear the evidence and deliberate to reach a verdict regarding the accused’s guilt or innocence. In both judge-alone and member trials, the standard of proof is beyond a reasonable doubt – the same high standard used in civilian criminal courts. If the accused is found guilty, a separate sentencing hearing is conducted to determine the appropriate punishment.
Service members convicted by court-martial have the right to appellate review of their trial. Initially, the convening authority must review and approve the conviction and sentence. Before doing so, the convening authority must also be convinced beyond a reasonable doubt that the findings of guilt are supported by the evidence presented at trial. The subsequent appellate review process depends on the level of court-martial and the severity of the approved sentence. In some cases, appeals can ultimately reach the United States Supreme Court.
The first stage of the appellate process is the convening authority’s review. The convening authority has the power to approve all or part of the sentence, to reduce the sentence, or to change the type of punishment, as long as the overall severity of the punishment is not increased.
If the convening authority approves a punitive discharge (such as a bad-conduct discharge, dishonorable discharge, or dismissal for officers) or confinement for more than one year, the trial record must be reviewed by the Department’s Court of Criminal Appeals. This court, composed of military judges, carefully examines the evidence and determines whether the findings and sentence are legally sound and appropriate. The Court of Criminal Appeals has the authority to overturn the findings and sentence or to reduce the sentence, but it cannot increase the severity of the punishment.
The next level of appeal is to the Court of Appeals for the Armed Forces, which is composed of five civilian judges appointed by the President for fifteen-year terms. This court’s review is limited to questions of law. Both the accused and the government have the option to petition the Supreme Court of the United States for a writ of certiorari from the Court of Appeals for the Armed Forces, seeking Supreme Court review. However, review by the Supreme Court is discretionary and exceedingly rare in military justice cases.
