Military Justice – Week 2 Jay Canham Constitutional Rights of Service Members

Military as Specialized Society “The Supreme Court of the United States has long recognized that the military is, by necessity, a specialized society separate from civilian society…the rights of men in the armed forces must be conditioned to meet certain overriding demands of discipline and duty.”

Individual v. “Clear danger” Analysis in this area: Constitutional Rights of the Individual v. “Clear danger” to legitimate military interests: Security of Installation Orderly accomplishment of mission Preservation of morale, discipline and readiness

Due Process Protections Advance notification of adverse government action and opportunity to reply; and Opportunity to inspect government documents and files and interview government witnesses; and Opportunity to have input into government decisions affecting them; and Assistance from a legal professional.

Freedom of Expression: Limitations on Service-members Disrespectful speech toward military superiors; Disclosure of classified information; Discussing official matters outside of the military without proper authorization. Contempt for office holders by Officers under Art. 88 of the UCMJ. Disobedience/Mutiny/Soliciting desertion

Expressing grievances? Service may file grievances to their superiors through formal procedures that require responses from superiors. Service members are also given the right to communicate directly with elected civilian officials

Freedom of the Media The public display or distribution of written material should be prohibited if the service member’s interest in expression is outweighed by command interest in maintaining morale, good order, and discipline.

Working with the Media Appearing on the News Normally not in uniform; Normally not on base; Can’t speak for the military

Right to Peaceful Assembly On Base A commanding officer may prohibit on-base demonstrations such demonstrations may present a clear and present danger to good order, discipline, and morale.

Right to Peaceful Assembly Off-Base The commanding officer may prohibit service members from attending off-base demonstrations under circumstances that would: provide for a material interference with the military mission; or On duty; or In a foreign Country; or Where activities constitute a breach of law and order; or Violence is likely

If Allowed to Demonstrate Off-Base Service members should not be in uniform while attending demonstrations or public group meetings because it will appear to civilians that the military is giving its official support to a particular group.

Political Activities Service members may vote for the political candidate of their choice; Service members are prohibited from: Becoming a candidate for an elected office; Or participating directly in an election campaign for a particular candidate. Marching or riding in partisan political parade Making contributions to partisan candidates or participating in partisan fundraising.

INFORMAL DISCIPLINARY ACTION, NON-JUDICIAL PUNISHMENT & ADMINISTRATIVE SEPARATION

Types of Discharges 1.Honorable Discharge: Retain all Veteran Rights 2.General Discharge under Honorable Conditions: Retain most Veteran Rights. 3.Other than Honorable Discharge: Lose many Veteran benefits.

Resulting from Courts-Martial: Lose almost all of your benefits Bad Conduct Discharge: Special Court-Martial Dishonorable Discharge: General Court-Martial (For enlisted) Dismissal: General Court-Martial (For Officers)

Non-Judicial Punishment or Article 15 A form of discipline which provides commanders an essential and prompt means of maintaining good order and discipline. Only provides minimal due process

Non-judicial Punishment (NJP) 1.Administrative….not judicial. No rules of evidence, no judge. 2.Non-adversarial. No lawyers (different for Officers) 3.Minimal Due Process…but career implications. 4.Only for Minor Offenses…common sense test.

Non-Judicial Due Process Minimal due process protections: Rights of notice, to appear at the hearing and respond to the evidence. At the hearing, accused will have the right to: 1.Have a personal representative 2.Opportunity to review evidence, know the charges 3.Present evidence and witnesses (if available) 4.Standard of Proof: A preponderance of the evidence 5.The right to refuse NJP.

Limitations on NJP NJP may only be imposed once per offense and NJP may not be increased once it has been imposed; NJP may not be imposed for offenses which were committed more than two years before the date of imposition.

Punishment & Suspension Possible punishment: Forfeitures of pay, restriction, extra duties, reduction in rank; on ship “bread & water!” Can not exceed sixty days restriction or forfeiture of one half pay, per month, for two months. Commanders may suspend all/part of any NJP awarded

Administrative Separations A process by which an individual is released from active duty. Depending on the type of separation, the amount of due process will vary. Voluntary: Parenthood, Conscientious Objector, physical disability……most of these will result in a general/honorable discharge.

Involuntary separations Require a higher degree of due process. Separation based on misconduct and the possibility of an other than honorable discharge (OTH), examples include: Drug use; Pattern of misconduct (x2); Minor disciplinary infractions (x3); Civilian conviction; Commission of a serious offense;

Rights at an Administrative Discharge Board Notification & detailed description of the reason for the proposed separation; and Assistance from a military attorney/civilian attorney; and Right to inspect evidence presented at the hearing; and Time to prepare for a hearing before three officers and present evidence & call witnesses; and The right to appeal the decision to a civilian discharge review board after separation.

STRUCTURE OF THE MILITARY COURT SYSTEM

Court-Martials Convening a Court-Martial: A court-martial is convened by a Commanding Officer who is known as the Convening Authority.

Types of Courts- Martial Summary Courts-Martial: No Civilian equivalent, handles minor misdemeanors. Special Courts-Martial: Similar to R.I. District Court, w/limited criminal jurisdiction to handle misdemeanors. General Courts-Martial: Similar to R.I. Superior Court, unlimited criminal jurisdiction to handle felonys.

Summary Court-Martial Not really a criminal court! No right to a defense counsel; and Presided over by a Summary Court-Martial Officer: A commissioned officer; and Usually a Captain (0-3) or higher; and Performs the role of Judge, Prosecutor, Defense Counsel and jury!

SUMMARY COURT-MARTIAL Jurisdictional Limitations: Jurisdiction only over enlisted service members, and may be conducted only with their consent; and Punishment of up to one-month confinement, or other relatively modest punishment, may be imposed. Can’t be awarded a discharge!

Composition of a General/Special Courts-Martial The Military Judge Military Trial Counsel (Prosecutor) and Defense Counsel Jurors: In the Military called a MEMBER

The Military Judge A commissioned officer, always a Major (0-4) or above; A member of the bar of a state or federal court; and Certified as a military judge.

Military Trial Counsel (Prosecutor) and Defense Counsel Graduate of an accredited law school; Members of a state and federal bar; and Certified competent to perform trial duties.

Jurors: MEMBERS Any active duty service member is eligible to serve on a court- martial panel. Normally, Members are Officers, or in the case of an enlisted service member, Senior Enlisted. Members cannot be junior to the accused in rank; or Involved as a government witness, investigator, or counsel.

Basics of a General/Special Courts-Martial Special Court-Martial: No right to refuse May be tried by Military Judge Alone or with Members Members panel is composed of at least three (3) Members. May impose punishment no greater than: 1 year confinement & a bad conduct discharge Forfeiture of 2/3 rd pay per month for not more than 1 year; and A reduction in rank to E-1.

General Court-Martial Only after the facts have been investigated by the Grand Jury equivalent called an Article 32 Investigation. At least five Members; and Has jurisdiction over all offenses under UCMJ; and May impose any lawful sentence, including death.

Due process protections at a Courts-Martial Charges referred to a court-martial panel by a commanding officer with authority to convene courts-martial; and Formally notified of the charges; and View all evidence prior to the trial and must be given an opportunity to interview witnesses; and Case to trial within 120 days from date of formal charges or 90 days from the date the accused is placed in pretrial confinement; Entitled to free legal representation by an assigned military lawyer, and the accused may hire a civilian lawyer at his or her own expense.

Courts of Criminal Appeals [Insert Name of Particular Service] Courts of Criminal Appeals: One each for the Army; Air Force; Navy-Marine Corps; and Coast Guard. Has between nine and twelve judges who sit in three judge panels. The accused has a military appellate defense counsel appointed for him at no charge. Courts of Criminal Appeals have the power to decide matters of both fact and law… have complete power of review.

Court of Appeals for the Armed Services Five-member court comprised of civilian judges. The judges are appointed for fifteen-year terms and no more than three judges can be from the same political party. This Court decides issues of law, but not fact. The Court can invalidate any regulation, executive order, or statute that conflicts with higher authority.

Military Justice – Week 2 Jay Canham Constitutional Rights of Service Members