Rules of Engagement III: The Domestic Use of Courts-Martial in Maintaining Good Order and Discipline

This is the third and final installment in the three part series of our military justice system. The focus here is the use of the court-martial system to achieve “Good Order and Discipline” within the ranks.

The use of severe corporal and harsh methods of punishment to our military members were phased out during the mid-nineteenth century. For example, both the U.S. Army and Navy practiced flogging enlisted members as a form of punishment for various infractions. The U.S. Navy ceased flogging as method of keeping order and disciplining in 1850 which was a very controversial decision of that time. Naval commanders plead the use of flogging as an intimidation measure especially to deter mutiny and sedition.

Other forms of punishment included hard labor, food rationing commonly referred to as “bread and water” and confinement to certain areas of a fort or ship.

Once these methods of punishment were no longer practiced and acceptable, the courts-martial system began to be use with much more frequency. The modern day courts-martial is very similar to the civilian counterpart criminal justice system. Like the civilian system, the courts-martial is divided into two levels, the special courts-martial for misdemeanor level offenses and the general courts-martial for more serious felony level crimes.

The Uniform Code of Military Justice (UCMJ) is the statutorily codified criminal procedure and criminal laws which are used to prosecute all U.S. military members worldwide. When an individual enters any of the five branches of the military, including the U.S. Coast Guard, that member comes under the jurisdiction of the UCMJ. This jurisdiction is worldwide no matter where the member is stationed, either on a land base or war ship. As a protection for the individual member, this jurisdiction is used in instances when a military member commits offenses in foreign countries and that government wants to prosecute the member. The UCMJ allows the particular branch to prosecute the member and if found guilty, punished by the branch of service as opposed to a foreign country’s jurisdiction.

When a military member commits an offense in violation of the UCMJ a determination must be made as to the degree by which that member should be prosecuted, either a special or general court-martial. As previously stated, more serious felony level offenses such as murder, rape, robbery are prosecuted in a general court-martial and more minor offenses such as petty theft, minor drug possession and drunk driving are prosecuted in a special court-martial.

Once the initial determination is made as to the type of court-martial to be used, if the decision is a special court-martial is made a local unit commander signs an Information charging document detailing the who the accused is and the offense(s) he or she is being charged. This document is served on the accused and a military attorney is assigned to represent the accused at no cost to the accused.

For a general court-martial, the UCMJ directs that a “one-man grand jury” be formed with an officer appointed at the single grand jury member. That officer will hold an open hearing into the facts and circumstances surrounding the charges. The accused is assigned counsel to represent him/her during the hearing. The rules of evidence loosely apply to the hearing, and the hearing officer makes a written determination to the commanding general if there is enough evidence to proceed to a general court.
Once the commanding general (or admiral in the case of the Navy/Coast Guard) receives the written report from the hearing officer, an independent decision is then made as to whether to convene a general courts-martial to try the accused on the charges.

Military criminal courts are divided amongst the various branches of the military. Each branch has its own military judges; however, any military judge can preside over any trial of any member. Therefore, an Army judge can conduct a court-martial against an Air Force member. Judges are further divided into Special Court-martial and General Court-martial judges with the more experienced judges being general court-martial judges. Military judges receive extensive training and further education in order to fulfill the duties and responsibilities of judge. Being chosen judge is a career path for a military attorney and, in most cases, will take that particular member to retirement.

In order to minimize the appearance of undue influence by the command, judges are reassigned and do not fall under the chain of command of any commander. This assures their responsibility of fairness and independence to the system. Judges are then authorized to accept negotiated pleas, conduct trials, rule on motions and hand down punishments to those members found guilty of offenses.

Military courts-martials are governed by the Federal Rules of Evidence as codified in the UCMJ. Additionally, the accused is provided many more rights than that of a civilian defendant. For example, an accused has the right to a free military attorney then may request a particular military attorney of his/her choice and can hire (and pay for on his/her own) a civilian attorney and keep all three. Another example are the extension Miranda rights a military member is afforded in the courts-martial system.

This is all done to again minimize what the U.S. Supreme Court has coined the inherit issues of command undue influence which such a system can produce. It is this system of justice that is being debated currently with the military prosecutions of the detainee in Guantanamo Bay, Cuba. The issue is always, what is the fairness and independence of a system which accuses a member, tries that member before a jury chosen by the command with a military judge and a military corrections system. Therefore, the system goes above and beyond to insure fairness and independence of the trial.

The final level of insurance in the fairness of the court-martial process is the courts of appeal including the U.S. Supreme Court. Appeals are automatic in most all criminal cases, and those appellate cases can be appealed to the civilian U.S. Court of Appeals for the Armed Forces. This multi-level appellate structure looks at all of the same issues a civilian appellate court would examine; however, generally in more depth so as to guard against any hint of impropriety.

I sincerely hope these series of articles on our military’s attorneys and justice system have served to enlighten those who have had an interest in our nation’s best military in the world. Our military is made up of dedicated men and women who serve our country all over the world often times in harm’s way on the battle field. I am proud and privileged to have served my country and salute all those who have in defense of our proud nation.

Published Articles in: Friendly Passages, January/February 2013
Articles Written By:
EIGHMIE LAW FIRM, P.A.

Hugh J. Eighmie, II
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