2. Military Justice

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

4. 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

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

6. 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

7. 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

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

9. 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

10. Distinctions Between Nonpunitive and Punitive Options

11. 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

12. 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

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

14. 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

15. 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

16. 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

17. 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

18. 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

19. Nonpunitive Options: 4. Loss of Discretionary Benefits - e. g
Nonpunitive Options: 4. Loss of Discretionary Benefits e.g., AR , 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

20. 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

21. 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
Examples:
Military Police – Legal Specialists
Security Analysts
Command involvement

22. 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

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

24. 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

25. 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

26. 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

27. 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 ]
Voluntary Chap 16 no longer available

28. 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

29. 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

30. 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]

31. 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

32. 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

33. 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

34. Distinctions Between Nonpunitive and Punitive Options

35. 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

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

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

38. 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

39. 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

40. 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

41. 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

42. Types of Nonjudicial Punishment Procedures
Summarized [DA Form ]
Formal [DA Form 2627]
Company grade
Field grade

43. 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

44. 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

45. 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

46. 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]

47. 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]

48. 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

49. 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?

50. 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?

51. 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

52. 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

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

54. 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

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

56. 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

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

58. 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

59. 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

60. 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

61. 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

62. 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

63. 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

64. 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

65. 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?

66. 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

67. 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

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

69. 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

70. 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

71. 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

72. 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

73. 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

74. 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

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

76. 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

77. 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

78. 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