Military Justice

Military Justice Overview --. Basic considerations A. Nonpunitive disciplinary measures B. Elimination proceedings [AR635-200] C. Nonjudicial punishment [Article 15] D. Unlawful command influence E. Court-martial system F. Pretrial restraint

Commander Focus Short-term Long-term: Integrated leadership system for dealing with problem soldiers: Right tool Right level Select correct command response by beginning with the end in mind Apply command response correctly: Proper standard Proper procedure Trial counsel reliance

Criminal Law: Civilian vs. Military More similarities than differences: Sources Practitioners Analytic approaches and procedures Differences: Purposes Decisionmakers Jurisdiction Offenders

Purposes of Military Justice Promote justice Assist in maintaining good order and discipline in the armed forces Promote efficiency and effectiveness in the military establishment [and thereby] Strengthen the national security of the United States

Decisionmakers: Command Involvement Making commander the decision-maker Maintaining fairness by avoiding unlawful command influence Augmenting commander’s nonpunitive options to deal with poor performance with punitive options to deal with misconduct

Disciplinary Options Take no action Nonpunitive options Nonjudicial punishment [Article 15, UCMJ] Courts-martial

Examples of Disciplinary Options Nonpunitive options Counseling Corrective training Reprimand Bar to reenlistment Adverse efficiency reports Administrative separation Punitive options Nonjudicial punishment Summarized Formal Court-martial Summary Special BCD-Special General

Distinctions Between Nonpunitive and Punitive Options

Distinctions Between Nonpunitive and Punitive Options Supervisors use less-severe nonpunitive options to correct poor performance Severe nonpunitive options generally require command involvement or approval Commanders use punitive options to punish

Nonpunitive Options: 1. Preliminary Inquiry RCM 303 Company commander responsible for conducting a preliminary inquiry to determine how to dispose of report of misconduct by soldier in unit

Nonpunitive Options - Preliminary Inquiry - First Steps Prevent further harm Preserve evidence Notify: Chain of command Soldier’s supervisors Locate suspected soldier

Nonpunitive Options - Preliminary Inquiry - Second Steps Begin coordination with investigators and trial counsel Flag soldier Begin fact-finding Begin determining applicable law & regulation Begin framing range of options

Factfinding Accused Incident Victim Victim impact Family of accused Family of victim Unit’s leaders Unit’s soldiers Military public General public Incident Victim impact Impact on morale & discipline Other aggravating and mitigating factors Accused Past offenses Past duty performance Current performance Military character Future potential

Nonpunitive Options: 2. Counseling Can be oral or written, positive or negative Purposes of negative counseling: Identify poor performance Determine reasons for poor performance Develop plan to improve poor performance Ensure understanding of adverse consequences if performance does not improve Document basis for more severe options

Nonpunitive Options: 2. Counseling with a View toward Separation AR 635-200, para 1-18 Counseling with a view toward separation, aka “rehabilitative counseling” or “1-18 counseling” Required before initiating many separation actions Required contents: Reason for counseling Separation action may be started if problem persists Type of discharge that could result from separation action OSJA has pre-printed forms

Nonpunitive Options: 3. Corrective Training - AR 600-20, para 4-6 Extra training during or after duty hours Requirements: Connection [nexus] between poor performance and corrective training Must be monitored Must cease when training goal accomplished Primary tool for the NCO Examples

Nonpunitive Options: 4. Loss of Discretionary Benefits - e. g Nonpunitive Options: 4. Loss of Discretionary Benefits - e.g., AR 600-8-10, chap 2 [pass] Abuse of privilege justifies loss of privilege - nexus required Examples: Loss of post driving privilege for DWI Loss of pass privilege for FTR Loss of check privilege for rubber checks Loss of PX privilege for shoplifting Written counseling used to document

Nonpunitive Options: 5. Admonition and Reprimand - AR 600-37, chap 3 Can be oral or written [“memorandum of reprimand”] If written, can be filed locally or permanently [“OMPF filing”] OMPF filing a career-terminator Mandatory GOMOR for drunk driving - often filed in OMPF- AR 190-5

Nonpunitive Options: 6. MOS Reclassification - AR 600-200, ch 2 Grounds: Misconduct or inefficiency incompatible with “the technical, supervisory or other requirements of the MOS.” If loss of MOS required due to misconduct, must first be processed for administrative separation UP AR 635-200 Examples: Military Police – Legal Specialists Security Analysts Command involvement

Nonpunitive Options: 7. Suspension/Revocation of Security Clearance - AR 380-67, ch 8 Broad Grounds: Soldier’s misconduct or other behavior raises serious questions about continued access to classified materials Examples: Substance abuse Financial difficulties Excessive gambling

Nonpunitive Options: 8. Adverse Efficiency Reports OERs [AR 623-105] & NCOERs [AR 623-205] Misconduct: Must be substantiated Poor performance: Must be well-documented [written counseling,etc.] IAW local guidance F

Nonpunitive Options: 9. Bar to Reenlistment - AR 601-280, ch 8 No right to a career Broad grounds Mandatory initiation of separation proceedings if soldier fails to improve Anticipate tightened requirements if recruiting shortfalls continue

Nonpunitive Options: 10. Administrative Reduction - AR 600-8-19, chap 6 Broad Grounds: “Any action or course of conduct affirmatively evidencing that the [soldier]… lacks those abilities and qualities required and expected of a person of that grade and experience.” Approval authority: E-4 and below - company commander E-5 and above - right to board proceeding

B. Administrative Separation - AR 635-200 Generally requires approval by battalion or brigade commander Right to board if soldier has more than 6 years of service or OTH discharge sought Rehabilitative counseling generally required Renewed emphasis on taking other rehabilitative measures because of: Recruiting shortfalls Increased investment in training soldiers

B. Administrative Separation - Developments 114,451 enlisted separations for FY97 Overall enlisted attrition: 15% lost in first six months + 22% more lost before initial ETS 37% overall attrition Chap 11 and 13 will generally be rehabilitatively transferred before initiating separations [see para 1-18c, AR 635-200] Voluntary Chap 16 no longer available

Some Types of Administrative Separation Parenthood Personality disorder Overweight Entry-level separation Fraudulent entry Rehabilitative failure/substance abuse In lieu of court-martial Unsatisfactory performance Pattern of misconduct Commission of a serious offense Homosexuality

B. Administrative Separation - Characterization of Discharge Administrative discharges: Honorable General Other than honorable [OTH] Punitive discharges: Bad conduct discharge [BCD] Dishonorable discharge [DD] Consequences of receiving anything except an honorable discharge: Perception - College Fund - Other benefits

B. Administrative Separation - Characterization of Discharge Admin options for characterizing discharge: Honorable General Other than honorable Availability of options vary by type of separation, e.g., chapter 14 for misconduct can result in: Honorable [ordered by GCMCA] General [ordered by SPCMCA] Other than honorable [ordered by GCMCA after formal board proceedings]

B. Administrative Separation - Board Proceedings Soldier has right to board when: Soldier has more than 6 or more years of AD and RC service on date of initiation of separation OTH discharge sought Homosexuality [Chap 15] Board recommends: Whether respondent be retained or separated How respondent’s discharge is characterized Separation authority decides: Retention/separation - Characterization Suspension

B. Administrative Separation - Officers - AR 600-8-24 Broad grounds: Substandard performance of duty Moral and professional dereliction In the interests of national security Expedited procedures for probationary officers

B. Administrative Separation - Homosexuality Investigative responsibility: Unit: Consensual acts between adults Criminal investigation: Force Children Fraternization [?] DO NOT start either unit or criminal investigation until you have established that: Allegation meets definition of homosexual conduct [Statements, Acts, Marriage] Allegation is credible

Distinctions Between Nonpunitive and Punitive Options

Distinctions Between Nonpunitive and Punitive Options Can Blur Some performance problems are also military crimes, e.g. FTR, AWOL, dereliction of duty Some nonpunitve options involve severe sanctions Rule of thumb: Commanders become involved when distinctions blur

+ Drunk Driving RCM 303 Preliminary inquiry: Nonpunitive options What facts? Which sources? Nonpunitive options Mandatory Other “Double jeopardy?” +

Punitive Options C. Nonjudicial Punishment [NJP] Summarized Formal D. Unlawful Command Influence E & F. Courts-Martial Summary Special BCD-Special General

1. Purposes of Nonjudicial Punishment [NJP] Correct, educate and reform offenders who cannot benefit from less stringent measures Preserve a soldier’s record from the unnecessary stigma of a court-martial conviction Further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial

1. Authority to Impose Nonjudicial Punishment [NJP] Commander [commissioned or warrant officer] exercising primary command authority over a military organization or territorial area Commanders can impose nonjudicial punishment upon members of their command

1. Nonjudicial Punishment: Minor Offenses Use of nonjudicial punishment normally confined to minor offenses Minor offenses are those which have maximum punishments not containing a dishonorable discharge or confinement for longer than one year Maximum punishments are noted in the Punitive Articles [Part IV, MCM] and Appendix 12, MCM

1. Nonjudicial Punishment: Double Jeopardy Misconduct can only be punished once under Article 15 BUT… Non-minor offenses can also be tried by court-martial Off-post misconduct can be punished by both military and civilian authorities Use of nonjudicial punishment does not prevent use of nonpunitive options

Types of Nonjudicial Punishment Procedures Summarized [DA Form 2627-1] Formal [DA Form 2627] Company grade Field grade

Rules Applicable to Both Types of NJP [Summarized and Formal] Must address UCMJ offense Soldier may refuse NJP and “demand” trial by court-martial Guilt must be established beyond reasonable doubt Finding of guilty not a criminal conviction NCIC

Rules Applicable to Both Types of NJP [Summarized and Formal] Company commander may not delegate authority to determine guilt or select punishment to, e.g., 1SG or PLT LDR Soldier may appeal findings & punishments Findings may be posted or announced: Delete SSAN on posted forms Post findings of not guilty Consider carefully before posting findings if accused is a NCO

a. Summarized Proceedings Least-severe punitive action Use to address least-severe misconduct Use when mildest punishment is all that is required, e.g., outstanding soldier Maximum punishments: Oral reprimand Extra Duty for 14 days Restriction for 14 days

a. Summarized Proceedings Advantages: Can be handwritten Fast - soldier only has 24 hours to decide whether to accept No stigma - stays in local records for 2 years or until soldier transferred Limitations: Can only be used for enlisted accused No right to see Trial Defense Service [TDS]

Maximum Punishments: Formal Proceedings Imposed by field grade commander: 60 days restriction 45 days extra duty 30 days correctional custody [E-3 and below] 1/2 month pay for 2 months E-4: 1 or more grade E-5: 1 grade* Imposed by company grade cdr: 14 days restriction/extra duty 7 days correctional custody [E-3 and below] 7 days pay 1 grade reduction [E-4 and below]

Rights in Summarized & Formal NJP Normally 24 hours to decide Right to refuse Right to present evidence Right to remain silent No right to consult a lawyer No right to request spokesman No right to open hearing Formal: Normally 48 hours to decide Right to refuse Right to present evidence Right to remain silent Right to consult lawyer Right to request spokesman*** Right to open hearing

Hypothetical Question: What do you do if you have notified accused of intent to use formal proceedings, he’s seen TDS lawyer, 48 hours have elapsed, and he remains silent when you ask him if he “demands” trial by court-martial?

Hypothetical Question: Answer: Proceed with formal Article 15 Question: What do you do if you have notified accused of intent to use formal proceedings, he’s seen TDS lawyer, 48 hours have elapsed, and he remains silent when you ask him if he “demands” trial by court-martial?

Distinctions Between Summarized & Formal Proceedings Summarized proceedings cannot be permanently filed Summarized proceedings cannot be offered to officers Soldier afforded more rights in formal proceedings because soldier has more at risk

NJP: Practical Pointers Don’t offer when charge cannot be won at court-martial Speed counts Make supervisors use nonpunitive options, and use NJP when nonpunitive options fail Use suspension wisely

Punitive Options C. Nonjudicial Punishment [NJP] Summarized Formal D. Unlawful Command Influence E & F. Courts-Martial Summary Special BCD-Special General

D. Unlawful Command Influence Higher commanders may not order lower commanders to take punitive action in any particular way Higher commanders may not impose punishment guidelines for nonjudicial punishment Higher commanders may withhold authority to take punitive action for classes of offenses or offenders or for individual cases

Punitive Options C. Nonjudicial Punishment [NJP] Summarized Formal D. Unlawful Command Influence E & F. Courts-Martial Summary Special BCD-Special General

E. Court-Martial: Initiation and Disposition of Court-Martial Charges RCM 303 Preliminary Inquiry - company commander’s responsibility Drafting charges and specifications Preferral Notification of the accused Forwarding to convening authority Pretrial investigation [Article 32 Inv.] Referral to court-martial

Preliminary Inquiry - RCM 303 Follow the rules in collecting evidence Involve trial counsel and military police investigators Match facts to elements of offense

Preferral of Charges Victim’s acquiescence or permission not required Anyone subject to UCMJ may prefer charges Charges usually preferred by company commander Person preferring charges swears she has personal knowledge of or has investigated the matters charged and that they are true in fact to the best of her knowledge and belief

Notification of the Accused Responsibility of company commander Accused notified of: Charges Person preferring charges Person ordering charges preferred Usually accomplished by giving accused copy of charge sheet

Forwarding Charges to Convening Authority A convening authority is an officer with the authority to convene courts-martial and refer individual cases to court-martial Level Usual Rank Usual Command Summary LTC Battalion Special COL Brigade BCD-Special GO Division or Installation General GO Division or Installation Company commander forwards charges to SCMCA with recommendation

Levels of Court-Martial: Summary Court-Martial Single commissioned officer functions as judge, trial counsel and defense counsel Accused may object to trial by summary court-martial Maximum punishments roughly equivalent to field grade nonjudicial punishment

Levels of Court-Martial: Special Court-Martial Detailed military judge is presiding officer Detailed trial counsel presents government’s case against the accused [prosecutor] Accused represented by defense counsel Panel consists of at least 3 persons Maximum punishments: Confinement for 6 months [1 year in March 2000], hard labor without confinement for 3 months, forfeiture of two-thirds pay for six months and REDLAG

Levels of Court-Martial: BCD-Special Court-Martial Same as SPCM, except . . . General court-martial convening authority Maximum punishments: Bad Conduct Discharge [BCD], confinement for 6 months [1 year in March 2000], hard labor without confinement for 3 months, forfeiture of two-thirds pay for six months and REDLAG

Levels of Court-Martial: General Court-Martial Panel consists of at least 5 members Can adjudge any authorized sentence Can dismiss or confine officers Accused entitled to pretrial investigation [Article 32 hearing] before referral to general court-martial Article 32 provides discovery opportunity to accused and defense counsel

Levels of Court-Martial: Accused’s Right to Attorney Representation Accused has right to attorney representation at SPCM, BCD-SPCM and GCM Right to attorney representation means accused has right to choose: Military defense counsel detailed by TDS Military attorney of soldier’s choosing if that attorney is reasonably avai8lable Civilian attorney at no expense to the Government Waivable right?

5. Article 32 Pretrial Investigation Roughly equivalent to grand jury proceeding Required before referral to GCM Ordered whenever trial by GCM contemplated; can be waived by accused Investigating Officer [IO] responsibilities: Certify charges & specifications are in proper form Inquire into truth of charges and conclude whether reasonable grounds exist to believe accused committed the offenses alleged Recommend disposition of charges

7. Court-Martial Trial Procedure Pretrial 39a session Qualification of court members [Voir Dire] Presentation of evidence Findings Sentence Post-trial actions Appellate review Pretrial agreements

7. Court-Martial Trial Procedure: a. Pretrial Article 39a Session Qualifications of military judge Election of forum Arraignment Motions Pleas Providency inquiry

7. Court-Martial Trial Procedure: b 7. Court-Martial Trial Procedure: b.Qualification of Court-Martial Panel Voir dire of members by military judge, defense counsel and trial counsel Challenges for cause Each side allowed one peremptory challenge

7. Court-Martial Trial Procedure: Presentation of Evidence Opening instructions by military judge Opening statements by trial counsel and defense counsel Presentation of government’s case by trial counsel Presentation of accused’s case by defense counsel Final argument by trial counsel and defense counsel Final instructions by military judge

7. Court-Martial Trial Procedure: c. Findings Authorized findings: Not guilty Guilty Guilty of a lesser included offense Not guilty only by reason of a lack of mental responsibility One vote by secret written ballot - no hung juries At least two-thirds needed to convict: 8 = 2/3 x 11

7. Court-Martial Trial Procedure: d. Sentence Trial counsel presents evidence in aggravation Defense counsel presents evidence in extenuation and mitigation Military judge issues sentencing instructions Panel procedure: Sentences proposed & ranked from least to most severe Sentences voted: Death sentence must be unanimous Confinement for life or >10 years requires 3/4 All others require 2/3

7. Court-Martial Trial Procedure: e. Post-trial Actions Preparation and authentication of record of trial Staff Judge Advocate [SJA] prepares post-trial review Defense counsel submits clemency matters Convening authority consideration: Can reject [disapprove] any finding of guilty Can reduce, suspend or dismiss any sentence

7. Court-Martial Trial Procedure: f. Pretrial Agreements Plea bargain between accused & convening authority Only the convening authority can bind the government in a pretrial agreement Accused agrees to plead guilty to some or all charges in exchange for sentence limitation Government avoids uncertainty, delay and expense of full trial

F. Pretrial Restraint No bail in military Types of pretrial restraint: Conditions on liberty Restriction in lieu of arrest Arrest Pretrial confinement

F. Pretrial Confinement: Legal Basis Offense triable by court-martial has been committed Probable cause to believe prisoner committed it Probable cause to believe that confinement is necessary because foreseeable that: Prisoner is flight risk OR Prisoner will engage in serious criminal misconduct Less severe forms of restraint are inadequate

F. Pretrial Confinement: Logistical challenges Multiple reviews Local regulation may require SJA approval Neutral and detached officer’s 48-hour probable cause determination [RCM 305i] Commander’s 72-hour review and memorandum [RCM 305h(1)] Magistrate’s 72-hour review [RCM 305h(2)] Military judge’s initial review [RCM 305j] Military judge’s remedial authority

Long-Term Summary: References Nonpunitive options Leader Guide Applicable AR Nonjudicial punishment Manual for Courts-Martial, United States (1998 Edition) AR 27-10 Court-martial Manual for Courts-Martial, United States (1998 Edition) Local Reg “27-10” All Trial Counsel