The bedrock of the military legal system is the Uniform Code of Military Justice (UCMJ), a comprehensive set of laws enacted by the U.S. Congress. This code outlines both the substantive offenses and the procedural rules that govern military justice. Further detail is provided by the President, who, through the Manual for Courts-Martial (MCM), sets forth specific procedural guidelines and permissible punishments for various violations.
When military personnel are suspected of serious crimes—ranging from rape and indecent assault to drug offenses and larceny—investigations are typically handled by specialized criminal investigative agencies, such as the Army’s Criminal Investigation Command (CID). For less severe offenses and crimes with a military connection, the responsibility for investigation often falls to military police or security personnel. In the case of minor infractions, a preliminary inquiry is usually conducted at the direction of the immediate commander of the service member in question. Throughout these investigative stages, judge advocates—military lawyers—play a crucial advisory role to commanders.
A key difference between the military and civilian justice systems lies in the significant discretion afforded to military commanders. Commanders are empowered to decide whether to formally charge a service member with an offense and what disciplinary actions to pursue. This decision-making process is often one of the most critical and challenging aspects of a commander’s duties. Commanders have several options at their disposal when addressing disciplinary issues, which can be broadly categorized as follows:
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No Action: A commander may determine that the circumstances of an incident do not warrant any disciplinary action. A preliminary inquiry might reveal the accused’s innocence, the inadmissibility of key evidence, or other legitimate reasons for not proceeding with prosecution.
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Administrative Action: Instead of punitive measures, a commander might opt for administrative actions, which are designed to be corrective and rehabilitative rather than punitive. These actions can range from informal counseling or a formal reprimand to involuntary separation from military service.
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Nonjudicial Punishment (NJP): Article 15 of the UCMJ provides a mechanism for addressing minor offenses that require swift corrective action. NJP hearings are non-adversarial and are not “mini-trials.” The commander presides over the hearing, and the service member is granted certain rights, including the option to have an open or closed hearing, consult with legal counsel, present witnesses, and have someone speak on their behalf. Formal rules of evidence are not applied in NJP proceedings. To find a service member guilty, the commander must be convinced beyond a reasonable doubt of their guilt. The maximum punishments that can be imposed vary based on the rank of both the imposing commander and the service member being punished. Service members have the right to appeal an NJP decision to the next higher commander in their chain of command.
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Court-Martial: For offenses deemed serious enough to warrant a trial, a commander can initiate court-martial proceedings. There are three levels of court-martial, each differing in terms of procedures, rights afforded to the accused, and potential punishments: summary, special, and general courts-martial. Summary courts-martial are intended for minor offenses and can only try enlisted service members. These are presided over by a single officer. While the accused does not have the right to government-provided counsel, they may hire a civilian attorney at their own expense. Special courts-martial are an intermediate level, consisting of either a military judge alone or a panel of at least three members and a judge. Enlisted service members can request that at least one-third of the court members be enlisted personnel. Both a prosecutor (trial counsel) and a defense counsel are involved. The accused may also be represented by civilian counsel (at no cost to the government) or by a military counsel specifically requested by the accused.
General courts-martial represent the highest trial level in the military justice system, reserved for the most serious offenses. The punishment authority of a general court-martial is capped by the maximum penalties specified for each offense in the Manual for Courts-Martial. Before charges can proceed to a general court-martial, an Article 32 investigation—similar to a civilian grand jury investigation—must be conducted. Following this investigation, the Article 32 officer provides a recommendation regarding the disposition of the charges, though this recommendation is not binding on the convening authority. A general court-martial can be structured in two ways: with a military judge and no less than five members, or solely with a military judge. The accused can choose to be tried by a judge alone in non-capital cases. In trials involving court members, a minimum of five members must be present. Enlisted accused individuals are entitled to have at least one-third enlisted members on the court panel, upon request.
The trial process in a court-martial shares similarities with civilian criminal trials, though procedural differences exist. Military courts adhere to rules of evidence modeled after the Federal Rules of Evidence. The court members or judge evaluate the evidence presented and determine the accused’s guilt. A conviction requires proof beyond a reasonable doubt. If convicted, a separate sentencing hearing is held to determine the appropriate punishment.
Every service member convicted by court-martial has the right to appellate review. Before a court-martial conviction and sentence are finalized, the convening authority must be convinced beyond a reasonable doubt that the findings of guilt are supported by the evidence. The specific appellate process depends on the level of court-martial and the severity of the approved sentence. In some cases, appeals can reach the United States Supreme Court.
The initial stage of appeal involves review by the convening authority, who can approve, reduce, or modify a sentence, as long as the overall severity is not increased.
For cases involving a punitive discharge (bad-conduct discharge, dishonorable discharge, or dismissal) or confinement exceeding one year, the trial record must be reviewed by the Department’s Court of Criminal Appeals. This court, composed of military judges, assesses the legal correctness of the findings and sentence, and determines the appropriateness of the sentence. The Court of Criminal Appeals can overturn findings and sentences or reduce sentences, but cannot increase punishment.
The next appellate level is the Court of Appeals for the Armed Forces, consisting of five civilian judges appointed by the President for fifteen-year terms. This court focuses solely on questions of law. Both the accused and the government have the option to petition the Supreme Court for a writ of certiorari from the Court of Appeals for the Armed Forces, although Supreme Court review is discretionary and exceedingly rare.
