How the Military Justice System Works
The military criminal justice system in a nutshell.
Once you enlist in the military, you become subject immediately to the Uniform Code of Military Justice (UCMJ). The Code was created by Congress after World War II to address the need for a standardized, fair system of criminal justice for all branches of the military. (Before the UCMJ was enacted, soldiers were subject to the Articles of War, which could be arbitrary and unfair.)
The Uniform Code of Military Justice provides specific definitions of crimes and explains the discipline that can carried out for violations of crimes. Importantly, it provides procedural protections for service members, such as appeals for courts-martial convictions.
The UCMJ Criminal Code contains the same types of crimes as civilian law, such as robbery, assault, and murder. In addition, it contains military-specific offenses such as AWOL and insubordination.
The UCMJ gives the President the authority to create rules for the implementation of the Code. These rules are called the Manual for Courts-Martial (MCM).
Service Members' Rights Under the UCMJ
Service members have procedural rights, including the right:
- to a free military defense attorney
- to a civilian defense attorney (at the service member’s expense)
- not to answer questions without an attorney present
- not to have an unreasonable search and seizure (meaning, without probable cause), and
- the right to have a fair trial.
The most common type of military discipline under the UCMJ is an Article 15 (formally referred to as Non-Judicial Punishment). Article 15s can be imposed by a commander because they don’t require formal criminal proceedings. The imposition of an Article 15 does not create a criminal record and, in some cases, will end up being removed from military records.
Article 15 Procedures
All branches of the military follow similar procedures for imposing Article 15s. The standard of proof required before imposition of an Article 15 varies, however. The Marines and the Navy require “clear and convincing” proof before an Article 15 can issue, whereas the Air Force and Army require a much higher finding of proof “reasonable doubt."
Normally, however, commanders aren’t aware of the meaning of these standards for legal proof when issuing Article 15s.
Accepting or Refusing an Article 15
Accepting an Article 15 is not the same thing as admitting guilt. Service members have the right to consult with a military defense attorney before deciding whether to accept or refuse an Article 15. The service member has the right to present evidence to his or her commander and, if found guilty, to provide character witnesses to help to reduce any punishment.
A service member has the right to refuse an Article 15 proceeding and to seek a trial by court-martial instead. This provides more procedural rights, but is also risky as it can lead to a more severe punishment and potentially a criminal record.
Right to Appeal an Article 15
Service members have the right to appeal an Article 15 to the next highest level of command, where the punishment may be reduced, set aside, or may remain the same. If this appeal is not successful, the next step would be to appeal to the Board of Correction for Military Records (BCMR).
Types of Courts-Martial
Courts-martial are like criminal trials in civilian courts. There are three kinds of courts-martial:
- summary courts-martial (for Article 15s)
- special courts-martial for minor offenses (similar to civilian misdemeanors), and
- general courts-martial for more serious offenses (similar to civilian felonies).
Every service member has the right to a free military defense counsel at a special or general courts-martial, and this right to representation continues straight through all appeals that may be filed.
90% of all courts-martial result in convictions. After conviction comes “extenuation and mitigation.” This is an opportunity for the service member to advocate for themselves and seek a reduced sentence. Unlike in a civilian court, jurors hand out the sentence. Often the prosecutor will be low-key during this phase of the trial because a sentencing agreement may already have been reached. The defense attorney will try to get a lesser sentence than the one the prosecutor has previously agreed to.
A special court-martial conviction can be punished by:
- a bad conduct discharge (no more severe discharge can be given)
- up to one year in a military prison, or
- a full reduction in grade.
A general court-martial conviction can be punished by:
- a dishonorable discharge, and
- up to life in prison, or
- the death penalty (in some circumstances).
The Table of Maximum Punishments in the Manual for Courts-Martial provides the sentences that can be imposed for UCMJ offenses.
All court-martial convictions receive review from the convening authority (CA). The convening authority is the person who appoints the judge and jury for a court-martial.
The CA can uphold the conviction and sentence, dismiss the case, or reduce the sentence, but cannot increase the sentence. Judge Advocates advise the CAs on the appropriate action to take. A Judge Advocate is a lawyer who provides legal advice.
Any sentences involving a negative discharge or imprisonment of at least a year get an automatic appeal to the Court of Criminal Appeals for their branch of the service. For all other sentences, requests for review can be submitted to the Judge Advocate General. A service member can ask the Judge Advocate to send the case to the Court of Criminal Appeals, but these request are not usually granted.
Court of Criminal Appeals decisions can be appealed to the United States Court of Appeal for the Armed Forces, but this court chooses which case to take, so a service member's request for review to the Court of Appeal may be turned down. Convictions can ultimately also be appealed to the United States Supreme Court, which accepts even fewer appeals the than the Armed Forces appellate court.
During the appeals process, or after it is over, a service member also has a right to request clemency from the convening authority, the clemency board, or the Judge Advocate General.
Redress of Grievances
Article 138 of the UCMJ gives a service member the right to file a complaint against their commander for grievances such as harassment or any other type of unfair treatment. This complaint can be filed with the military officer who has general court-martial authority over your commander. However, it’s best to try to resolve the matter with a commander before taking the step to file a complaint. If you can't work it out, seek legal advice before filing your Article 138 complaint, and be very specific and clear in your allegations.