How the Military Justice System Works

Once you enlist in the armed forces, you immediately become subject to the Uniform Code of Military Justice (10 U.S.C. 47), or 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.)

Many offenses that are considered crimes under civilian law are also punished under the UCMJ, but the Code also punishes conduct that affects discipline and good order in the military. Procedurally, the administration of justice under the UCMJ frequently parallels that of civilian courts, but there are also important distinctions that servicemembers should be aware of if they find themselves needing to navigate the military justice system.

Why Does the Military Have Its Own Court System?

Military justice is a type of jurisprudence that exists "separate and apart" from civilian establishments. Burns v. Wilson, 346 U.S. 137 (1954). This is because of the need for "good order and discipline" in the military. Due to the more strictly regimented structure of military society when compared with civilian society, a different system of rules—and a different way in which those rules are enforced—developed to accommodate military considerations that may not play a role in civilian courts.

For example, offenses such as "straggling," "wearing unauthorized insignia," or "disrespect towards superior commissioned officer," don't have an equivalent category of wrongdoing in civilian law, but can undermine military cohesion. As such, they are addressed by the military justice system.

How Does the UCMJ Govern Military Courts?

The UCMJ provides specific definitions of crimes and explains the discipline that can be carried out for violations of crimes. The 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. Under the UCMJ, the president has the authority to create rules in order to implement the Code. These rules are contained with the Manual for Courts-Martial.

Perhaps most importantly, the UCMJ establishes procedural protections for servicemembers, such as the ability to appeal a courts-martial conviction. These protections include the rights to a free military defense attorney, a civilian defense attorney (at the servicemember's expense), and to not answer questions without an attorney present. Additional protections include the prohibition against unreasonable search and seizure as well as the right to a fair trial.

Non-Judicial Punishments in the Military Justice System

The most common type of military discipline under the UCMJ is a "Non-Judicial Punishment," commonly referred to as an "Article 15." Because Article 15s don't require formal criminal proceedings, they can be imposed by a commander, rather than by a court. Article 15s don't create a criminal record and, in some cases, end up being removed from military records.

Commanders can issue an Article 15 if there is a "preponderance of evidence" that a servicemember committed an offense. However, commanders aren't always aware of this legal standard of proof when issuing Article 15s, which can leave room for a successful appeal.

Servicemembers can accept or reject an Article 15, and they have the right to consult with a military defense attorney before making that decision. (Accepting an Article 15 isn't the same thing as admitting guilt.) They can present evidence to the issuing commander and provide character witnesses to help reduce any punishment, if necessary. Article 15 appeals can be made to the next highest level of command, where the punishment may be reduced, set aside, or remain the same.

Members can choose to reject an Article 15 and seek a trial by military court-martial instead. This provides more procedural rights, but is riskier as it can lead to a more severe punishment and potentially a criminal record.

What Are the Different Types of Military Courts?

"Courts-martial" is the term for the specialized courts that deal with military law under the UCMJ. They're most 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 servicemember has the right to a free military defense counsel at a special or general courts-martial. This right to representation continues straight through all appeals that are filed.

Court-Martial Sentencing

90% of all courts-martial result in convictions. After conviction comes "extenuation and mitigation." This is an opportunity for the servicemember 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.

Special court-martial convictions can be punished by a bad conduct discharge, up to one year in a military prison, or a full reduction in grade. General court-martial convictions can be punished by a dishonorable discharge and up to life in prison (or, in some circumstances, the death penalty). The Manual for Courts-Martial lists the maximum punishments that can be sentenced for UCMJ offenses.

Court-Martial Appeals

All court-martial convictions receive review from the convening authority (CA), the person who appoints the judge and jury for a court-martial. The CA can uphold both the conviction and the sentence, dismiss the case, or reduce the sentence, but can't increase the sentence. Judge Advocates advise the CAs on the appropriate action to take.

Any sentences involving a bad conduct discharge, dishonorable discharge, or imprisonment of at least a year automatically head to the relevant military branch's Court of Criminal Appeals. For all other sentences, appeal requests can be submitted to the Judge Advocate General (JAG). While the JAG may send the case to the Court of Criminal Appeals if asked, these requests aren't typically granted.

Decisions from the Court of Criminal Appeals can be taken further up the ladder to the United States Court of Appeal for the Armed Forces, but because this court chooses which cases to review, not all requests are granted. Appeals ultimately arrive at the U.S. Supreme Court, but they review even fewer cases than the Armed Forces court does. Servicemembers have the right to request clemency at any point during or after the appeals process, whether from the CA, the clemency board, or the JAG.

Getting a Military Law Attorney to Help You Navigate the System

As an active duty member of the armed services, one of the most important rights you have under the UCMJ is the right to be represented by counsel. Having a lawyer by your side can let you retain your entitlement to VA benefits by helping to make sure that you don't separate from service with a bad conduct or dishonorable discharge (in addition to avoiding jail time or being stripped of your rank). Consider consulting an experienced attorney if you've received an Article 15—and almost certainly get an attorney if you're facing a court-martial.