Military%20Justice

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Military Justice
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Military Justice Overview

• --. Basic considerations
• A. Nonpunitive disciplinary measures
• B. Elimination proceedings AR635-200
• C. Nonjudicial punishment Article 15
• D. Unlawful command influence
• E. Court-martial system
• F. Pretrial restraint

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Commander Focus

• Select correct command response by beginning with
  the end in mind
• Apply command response correctly
• Proper standard
• Proper procedure
• Trial counsel reliance

• Short-term
• Long-term
• Integrated leadership system for dealing with
  problem soldiers
• Right tool
• Right level

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Criminal Law Civilian vs. Military

• More similarities than differences
• Sources
• Practitioners
• Analytic approaches and procedures
• Differences
• Purposes
• Decisionmakers
• Jurisdiction
• Offenders

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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

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Decisionmakers Command Involvement

• Making commander the decision-maker
• Maintaining fairness by avoiding unlawful command
  influence
• Augmenting commanders nonpunitive options to
  deal with poor performance with punitive options
  to deal with misconduct

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Disciplinary Options

• Take no action
• Nonpunitive options
• Punitive options
• Nonjudicial punishment Article 15, UCMJ
• Courts-martial

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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

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Distinctions Between Nonpunitive and Punitive
Options
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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

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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

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Nonpunitive Options - Preliminary
Inquiry - First Steps

• Prevent further harm
• Preserve evidence
• Notify
• Chain of command
• Soldiers supervisors
• Locate suspected soldier

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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

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Factfinding

• Accused
• Victim
• Family of accused
• Family of victim
• Units leaders
• Units 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

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Nonpunitive Options2. 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

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Nonpunitive Options2. 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

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Nonpunitive Options3. 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

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Nonpunitive Options4. Loss of Discretionary
Benefits - e.g., AR 600-8-10, 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

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Nonpunitive Options5. 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

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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 635-200
• Examples
• Military Police Legal Specialists
• Security Analysts
• Command involvement

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Nonpunitive Options7. Suspension/Revocation of
Security Clearance - AR 380-67, ch 8

• Broad Grounds Soldiers misconduct or other
  behavior raises serious questions about continued
  access to classified materials
• Examples
• Substance abuse
• Financial difficulties
• Excessive gambling

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Nonpunitive Options8. Adverse Efficiency
Reports

• OERs AR 623-105 NCOERs AR 623-205
• Misconduct Must be substantiated
• Poor performance Must be well-documented
  written counseling,etc. IAW local guidance

F
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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

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Nonpunitive Options10. 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

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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

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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 635-200
• Voluntary Chap 16 no longer available

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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

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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

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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

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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 respondents discharge is characterized
• Separation authority decides
• Retention/separation - Characterization
• Suspension

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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

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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

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Distinctions Between Nonpunitive and Punitive
Options
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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

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Drunk Driving

• RCM 303 Preliminary inquiry
• What facts?
• Which sources?
• Nonpunitive options
• Mandatory
• Other
• Double jeopardy?

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Punitive Options

• C. Nonjudicial Punishment NJP
• Summarized
• Formal
• D. Unlawful Command Influence
• E F. Courts-Martial
• Summary
• Special
• BCD-Special
• General

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1. Purposes of Nonjudicial Punishment NJP

• Correct, educate and reform offenders who cannot
  benefit from less stringent measures
• Preserve a soldiers 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

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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

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1. Nonjudicial PunishmentMinor 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

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1. Nonjudicial PunishmentDouble 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

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Types of Nonjudicial Punishment Procedures

• Summarized DA Form 2627-1
• Formal DA Form 2627
• Company grade
• Field grade

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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
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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

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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

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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

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Maximum PunishmentsFormal 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

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Rights in Summarized Formal NJP

• Summarized
• 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

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Hypothetical

• Question
• What do you do if you have notified accused of
  intent to use formal proceedings, hes seen TDS
  lawyer, 48 hours have elapsed, and he remains
  silent when you ask him if he demands trial by
  court-martial?

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Hypothetical

• Answer
• Proceed with formal Article 15

• Question
• What do you do if you have notified accused of
  intent to use formal proceedings, hes seen TDS
  lawyer, 48 hours have elapsed, and he remains
  silent when you ask him if he demands trial by
  court-martial?

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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

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NJP Practical Pointers

• Dont 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

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Punitive Options

• C. Nonjudicial Punishment NJP
• Summarized
• Formal
• D. Unlawful Command Influence
• E F. Courts-Martial
• Summary
• Special
• BCD-Special
• General

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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

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Punitive Options

• C. Nonjudicial Punishment NJP
• Summarized
• Formal
• D. Unlawful Command Influence
• E F. Courts-Martial
• Summary
• Special
• BCD-Special
• General

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E. Court-Martial Initiation and Disposition
of Court-Martial Charges

• RCM 303 Preliminary Inquiry - company commanders
  responsibility
• Drafting charges and specifications
• Preferral
• Notification of the accused
• Forwarding to convening authority
• Pretrial investigation Article 32 Inv.
• Referral to court-martial

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Preliminary Inquiry - RCM 303

• Follow the rules in collecting evidence
• Involve trial counsel and military police
  investigators
• Match facts to elements of offense

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Preferral of Charges

• Victims 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

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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

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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

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Levels of Court-MartialSummary 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

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Levels of Court-MartialSpecial Court-Martial

• Detailed military judge is presiding officer
• Detailed trial counsel presents governments 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

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Levels of Court-MartialBCD-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

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Levels of Court-MartialGeneral 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

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Levels of Court-MartialAccuseds 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 soldiers choosing if that
  attorney is reasonably avai8lable
• Civilian attorney at no expense to the Government
• Waivable right?

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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

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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

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7. Court-Martial Trial Procedurea. Pretrial
Article 39a Session

• Qualifications of military judge
• Election of forum
• Arraignment
• Motions
• Pleas
• Providency inquiry

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7. Court-Martial Trial Procedureb.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

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7. Court-Martial Trial ProcedurePresentation
of Evidence

• Opening instructions by military judge
• Opening statements by trial counsel and defense
  counsel
• Presentation of governments case by trial
  counsel
• Presentation of accuseds case by defense counsel
• Final argument by trial counsel and defense
  counsel
• Final instructions by military judge

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7. Court-Martial Trial Procedurec. 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

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7. Court-Martial Trial Procedured. 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 gt10 years requires 3/4
• All others require 2/3

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7. Court-Martial Trial Proceduree. 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

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7. Court-Martial Trial Proceduref. 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

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F. Pretrial Restraint

• No bail in military
• Types of pretrial restraint
• Conditions on liberty
• Restriction in lieu of arrest
• Arrest
• Pretrial confinement

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F. Pretrial ConfinementLegal 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

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F. Pretrial Confinement

• Logistical challenges
• Multiple reviews
• Local regulation may require SJA approval
• Neutral and detached officers 48-hour probable
  cause determination RCM 305i
• Commanders 72-hour review and memorandum RCM
  305h(1)
• Magistrates 72-hour review RCM 305h(2)
• Military judges initial review RCM 305j
• Military judges remedial authority

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Long-Term SummaryReferences

• 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